Davis v. County Attorney, Tulsa County

• Decision Date: 15 July 1964
• Docket Number: No. A-13535,A-13535
• Citation: 394 P.2d 243
• Parties: Orville Lee DAVIS, Petitioner, v. COUNTY ATTORNEY, TULSA COUNTY, Oklahoma, and Ray H. Page, Warden, Oklahoma State Penitentiary, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 243

394 P.2d 243

Orville Lee DAVIS, Petitioner, v. COUNTY ATTORNEY, TULSA COUNTY, Oklahoma, and Ray H. Page Warden, Oklahoma State Penitentiary, Respondents.

No. A-13535.

Court of Criminal Appeals of Oklahoma.

July 15, 1964.

Syllabus by the Court

1. Either accused or State may proceed in district court of county where charges were filed, by way of habeas corpus ad prosequendum, making magistrate and person having custody of accused parties defendant, and should such efforts fail, original proceedings may be filed in the Court of Criminal Appeals.

2. It is fundametal that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.

3. An accused is entitled to every opportunity at the earliest possible moment the clear himself, if innocent, which the law assumes, and places the burden of proof upon the prosecution.

Original proceeding in which petitioner seeks a speedy trial, or dismissal of hold order. Writ granted.

Orville Lee Davis, petitioner, pro se.

Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., David Hall, County Atty. and Ted Flanagan, Asst. County Atty., Tulsa County, for respondents.

JOHNSON, Presiding Judge:

It appears from the records that the petitioner, Orville Lee Davis, was on November 28, 1962 sentenced to the State Penitentiary from Muskogee County for the crime of robbery with firearms, to serve a term of five years, and that subsequent to this, a detainer or hold order was filed with the Warden of the State Penitentiary. This detainer, or hold order, was from Tulsa County, and arose out of a preliminary information, which was filed March 21, 1962. Said preliminary information was filed in the Court of Common Pleas of Tulsa County, and charged the petitioner and one Carl D. Drew with the crime of 'robbery with firearms', and is listed as case No. 132544.

The County Attorney of Tulsa County has filed a response herein, and states that at no time since the filing of the preliminary information has the petitioner been within the jurisdiction of the Court of Common Pleas of Tulsa County, and, therefore, said court has been unable to hold a preliminary examination for the petitioner, or to see if he chooses to waive such examination.

The petitioner states that several requests have been made by him to the county attorney of Tulsa County to expedite the preliminary hearing, and these requests have been ignored.

The petitioner also states that on January 14, 1964, he filed a petition for writ of habeas corpus ad prosequendum in the district court of Tulsa County; and, further, that on April 14, 1964 he filed a second petition for writ of habeas corpus ad prosequendum, and that neither of these petitions has been ruled on by the district court of Tulsa County. Therefore, he brings this original action for a writ of habeas corpus ad prosequendum in this court.

From a thorough investigation of all of the facts surrounding this case, it would seem than this is the only method by which this petitioner can obtain a preliminary hearing and an early trial. He has attempted to have a hearing in the district court of Tulsa County, and these attempts have been ignored. Therefore, we must consider this an original proceeding before this Court, and this Court has often held that either the accused or the State may proceed in the district court of the county where charges were filed by way of habeas corpus ad prosequendum, making the magistrate and the person having custody of the accused parties defendant, and should such efforts fail, original proceedings may be filed in the Court of Criminal Appeals. Jackson v. City of Muskogee,...