Dupree v. State
| Decision Date | 19 March 1918 |
| Docket Number | A-2346. |
| Citation | 171 P. 489,14 Okla.Crim. 369,1918 OK CR 31 |
| Parties | DUPREE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under section 8057, Rev. Laws 1910, it is the duty of the Attorney General, upon request of the Governor, to appear in the trial court and to institute and conduct the prosecution of particular criminal cases, and by such request the Attorney General is clothed with all the powers and duties of the county attorney in regard to the prosecution of criminal cases generally, but such request and appearance does not abrogate the powers and duties of the county attorney in regard to the particular prosecution.
Where the county attorney has instituted a criminal prosecution which is pending in the superior court, and the Attorney General, upon request of the Governor, appears and institutes a prosecution for the same offense in the district court of the county, and the county attorney continues his prosecution in the superior court and secures a trial, resulting in a verdict of "not guilty" before the prosecution by the Attorney General is reached for trial, and when it is called the plea of former jeopardy is urged against the information, held, that the plea is well taken and should have been sustained.
Appeal from District Court, Oklahoma County; Frank Mathews, Judge.
James M. Dupree was convicted under the statute making it an offense to keep a place for the purpose and with the intent of unlawfully selling, bartering, or giving away intoxicating liquors, and he appeals. Reversed and remanded, with directions.
Claude Nowlin and William Zwick, both of Oklahoma City, for plaintiff in error.
Chas W. West, Atty. Gen., and Smith C. Matson and Jos. L. Hull Asst. Attys. Gen., for the State.
The disposition of this appeal requires the consideration of only one of the many assignments of error set out in the petition in error, namely, the fifth assignment, which reads:
"The said district court of Oklahoma county, Okl., erred in requiring the defendant to proceed to trial, and in placing the defendant, J. M. Dupree, on trial for said offense in the district court of Oklahoma county, Okl., for the reason that said defendant, J. M. Dupree, had heretofore been duly tried and acquitted of the identical offense charged against him in said information."
It appears from the record that the Attorney General, having been requested so to do by the Governor, on the 7th day of February, 1914, filed a preliminary information in the county court of Oklahoma county charging the plaintiff in error with numerous other persons named in the information, with the offense of keeping a place, to wit, the second and third stories of a three-story brick building and the appurtenances thereunto belonging, located at No. 6 1/2 North Broadway, Oklahoma City and Oklahoma county, called the "Elite Hotel," with the unlawful intention and for the unlawful purpose of selling, bartering, and giving away spirituous and malt liquors contrary to the statute; that a preliminary examination was waived by the defendants and they were bound over to the district court of Oklahoma county; that thereafter on the 20th day of February, 1914, the Attorney General filed in the district court of Oklahoma county an information against the plaintiff in error and the other parties named with him, wherein it was charged that on the 1st day of April, 1913, and continuing thereafter up to and including the 14th day of February, 1914, the defendants did keep a place at No. 6 1/2 North Broadway, Oklahoma City, known as the "Elite Hotel," with the purpose and intent of unlawfully selling, bartering, and giving away spirituous liquors, etc. The sufficiency of this information was challenged by demurrer and by plea of former jeopardy in bar. These pleas being denied, the plaintiff in error asked and was granted a severance and proceeded to trial upon his plea of not guilty, resulting in a verdict of "guilty," and a judgment entered therein assessing a fine and a prison sentence. To review which this appeal was prosecuted.
It also appears from the record that on the 3d day of December, 1913, the county attorney of Oklahoma county commenced a prosecution against the plaintiff in error and others charging the offense of keeping a place, to wit, the "Elite Hotel," in Oklahoma City, on April 1, 1913, and continuously thereafter up to a day named in December, 1913; that the preliminary hearing was waived and the defendants were bound over to the superior court of Oklahoma county; that on the 9th day of February, 1914, the county attorney of Oklahoma county filed an information in the superior court of said county against the plaintiff in error charging the offense of keeping a place, to wit, the "Elite Hotel," in Oklahoma City on the 1st day of April, 1913, and continuously thereafter up to and including the 14th day of March, 1914; that this cause was set for trial in the superior court on the 20th day of March, 1914, and the trial thereof was further continued until the 23d day of March, when a trial was had before the court and jury and a verdict returned by the jury of "not guilty," and a judgment entered upon said verdict by the court adjudging the plaintiff in error "not guilty" of the offense charged.
It is admitted that the offense charged in the information filed by the Attorney General in the district court and that filed by the county attorney in the superior court charged one and the same offense. It is urged on behalf of the state, in answer to the plea of former jeopardy set up in bar to the information filed by the Attorney General, that when the Attorney General commenced the prosecution, by filing the preliminary information in the county court, the power and authority of the county attorney to proceed with the prosecution on the information filed by him was revoked and superseded, and that any steps he might have taken in the prosecution subsequent to the filing of the information by the Attorney General were ineffectual for any purpose, and that the trial had thereon could not amount to jeopardy, and therefore the plea attempting to set up the former jeopardy was properly denied.
The duties of the county attorney in regard to the prosecution of criminal cases in general are set out in section 1554, Rev. Laws 1910, as follows:
"It shall be the duty of the county attorney to appear in the district, superior and county courts of his county and prosecute and defend, on behalf of the state or county, all actions or proceedings, civil or criminal, in which the state or county is interested or a party; and whenever the venue is changed in any criminal case, or any civil action or proceeding in which his county or the state is interested or a party, it shall be the duty of the county attorney of the county where such indictment is found, or the county interested in such civil action or proceeding, to appear and prosecute such indictment, and to prosecute or defend such civil action or proceeding in the county to which the same may be changed."
Section 8059 of the Rev. Laws of 1910, makes it the duty of the Attorney General to consult with and advise the county attorney when requested by him "in all matters pertaining to the duties of their office."
Section 8057, Rev. Laws 1910, prescribes specific duties of the Attorney General, as follows:
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