Harper v. District Court of Oklahoma County, A--16476

• Decision Date: 21 April 1971
• Docket Number: No. A--16476,A--16476
• Citation: 1971 OK CR 182,484 P.2d 891
• Parties: George Edward HARPER, Mary Joe Sill Harper, and John Paul Potter, Petitioners, v. The DISTRICT COURT OF OKLAHOMA COUNTY, State of Oklahoma and the Honorable Clarence Mills, Presiding Judge, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 891

484 P.2d 891

George Edward HARPER, Mary Joe Sill Harper, and John Paul Potter, Petitioners, v. The DISTRICT COURT OF OKLAHOMA COUNTY, State of Oklahoma and the Honorable Clarence Mills, Presiding Judge, Respondents.

No. A--16476.

Court of Criminal Appeals of Oklahoma.

April 21, 1971.

Syllabus by the Court

1. No person shall be prosecuted for a felony by information without having a preliminary examination before an examining magistrate, or having waived such preliminary examination. Art. II, § 17, Okl.Const.

2. The following persons are magistrates: Justices of the Supreme Court; Judges of the Court of Criminal Appeals; Judges of the Court of Appeals; Judges of the District Court including the Associate District Judges and Special Judges.

3. Due process of law means an orderly proceeding adapted to nature of case, before a tribunal having jurisdiction, which proceeds upon notice, with an opportunity to be heard, with full power to grant relief.

4. The preliminary examination is a stage of the criminal procedure apart from, and prerequisite to, the proceedings in the trial court after arraignment.

5. The jurisdiction of the district court rests upon the findings of a magistrate in a preliminary examination, unless the accused shall waive that preliminary examination.

6. A judge to whom a case has been assigned has a continuing authority over it including the determination of post-trial motions, until its final disposition. 20 O.S.Supp.1968, § 95.7.

7. Total and absolute independence of judges is imperative in deciding cases, or in any phase of the decisional function.

8. While the examining magistrate is governed by appropriate and lawful rules of the district court, as well as general rules of law, he must not be restricted in the decision making process by local directives from the judges of the district court.

9. Once the examining magistrate commences to exercise his authority in the conduct of a preliminary examination, he shall have continuing authority over it until its final disposition.

10. After the examining magistrate commences to exercise his proper authority in the conduct of a preliminary examination, the Presiding Judge may not dismiss the information for refiling and reassignment to another magistrate.

11. Any motion pertaining to a matter being considered at preliminary examination must be filed with the examining magistrate conducting the preliminary examination.

12. When evidence is ruled to be insufficient to hold the defendant for trial, neither the examining magistrate nor any other magistrate should entertain another filing for the same offense against the defendant, unless the state makes an offer of additional newly discovered evidence or proves other good cause to justify another preliminary examination.

13. The preliminary examination must be completed at one session unless the magistrate for good cause adjourns it. 22 O.S.1961, § 254.

14. The granting of a continuance to the state at a preliminary examination is within the discretion of the examining magistrate.

15. The prosecutor may not take a case dismissed at preliminary examination, with the same evidence, refile it, and submit it to a more favorable magistrate.

16. Upon refiling a case dismissed at preliminary examination, the prosecution must present it to the magistrate who dismissed the case, or in his absence, another magistrate and must set forth: The dismissed case number; the date of dismissal; the magistrate who dismissed; and, the additional evidence or other good cause to be offered to sustain the refiling.

17. The examining magistrate shall reexamine a prior dismissed case, in relation to the new evidence offered; and if defendant is bound over to stand trial, the magistrate shall set forth his conclusions for probable cause; and the full record of preliminary examination shall become a part of the record on appeal.

18. There is no other review of the preliminary examination, except for that in 22 O.S.1961, § 1053, providing for appeals by the state to the Court of Criminal Appeals.

An original proceeding in which petitioners seek an alternative writ to prohibit the District Court of Oklahoma County from dismissing case No. CRF--70--2898, and reassigning the same to another magistrate for preliminary examination, after a full hearing has been had. Writ granted.

Robert A. Jackson and Murray Cohen, Oklahoma City, for petitioners.

Curtis P. Harris, Dist. Atty., W. Howard O'Bryan, Dick Blakely, Asst. Dist. Atty., for respondent.

BRETT, Judge.

This is an original proceeding wherein petitioners are seeking an alternative writ to prohibit the interruption of their preliminary examination; and the reassignment of that examination to another magistrate. This raises the question: 'Can a District Judge interfere in a preliminary examination, already commenced; and by an ex parte order, on the motion of the prosecutor dismiss the information for refiling?' We conclude that the District Judge has no authority to do so.

On February 22, 1971, this Court assumed jurisdiction and set the petition down for hearing on March 21, 1971. The respondent were represented by the District Attorney's office, and petitioners were represented by their counsel. The District Attorney's Response moved for a dismissal for the reason that Curtis P. Harris, District Attorney for Oklahoma County, was improperly shown as 'Respondent'; but petitioners were permitted to amend their petition to name the proper parties as respondents.

This matter arose when District Court Information No. CRF--70--2898, charging defendants with Possession of Marihuana, was assigned to Special Judge Stewart Hunter for preliminary examination, which was set to be had on November 4, 1970. By agreement the examination was reset for November 30, 1970, when it was commenced. The defendants presented their Motion to Suppress Certain Evidence, premised upon an allegedly illegal search warrant. The state was permitted to offer, out of order, the testimony of the chemist; and at five o'clock P.M. the hearing was adjourned until February 5, 1971. On that date defendants offered additional testimony to support their motion, and the state offered certain testimony in resistance to defendants' motion. The examining magistrate took the Motion to Suppress under advisement, and heard the remainder of the evidence relating to the preliminary examination, after which both sides rested. At the conclusion of the examination, the magistrate announced he would enter his decision on the morning of February 19, 1971.

At approximately 8:55 A.M. on the morning of February 19th the District Attorney presented the Examining Magistrate an ex parte order signed on the same day by the Honorable Clarence Mills, Presiding Judge for the District Court, which purportedly dismissed case No. CRF--70--2898. The pertinent part of the Motion to Dismiss states the following:

'Comes now Curtis P. Harris the duly elected, qualified and acting District Attorney, District No. 7, Oklahoma County, State of Oklahoma, and moves the court to dismiss the above entitled cause for the following reasons, to-wit:

Conflict of law and to best meet the ends of justice. To be refiled today.'

(Italicized portion was typewritten addition to the printed form.)

On the same day, February 19, 1971, petitioners filed this petition seeking to prohibit the District Court action. Both sides were permitted to file briefs concerning the authority of the District Judge to interfere with a preliminary examination already commenced.

I.

Article II, § 17, of the Oklahoma Constitution provides, in part:

'* * * No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. * * *'

Title 22 O.S.Supp.1970, § 162, provides who may sit as magistrates, as follows:

'The following persons are magistrates: First. Justices of the Supreme Court. Second. Judges of the Court of Criminal Appeals. Third. Judges of the Court of Appeals. Fourth. Judges of the District Court, including associate district judges and special judges.'

The present legislative qualifications for magistrate places a judicial quality to that position, in contrast to its former 'quasi-judicial' nature, existent when the former Justice of the Peace played the predominant role as magistrate for preliminary examinations. When the Oklahoma Judiciary was reorganized by Constitutional Amendment, the office of the Justice of the Peace was eliminated; and our system of jurisprudence was advanced to a higher plane. Consequently, trained and qualified lawyers have become the criteria for judicial position including that of magistrate. With this improvement, the position--formerly exercised under the 'Common Law Magistrate' concept--has taken on a new quality.

This fact was considered when the decision was rendered, after deliberate consideration in: Jones v. State, Okl.Cr., 481 P.2d 169 (1971). In that case it seemed apparent that the prosecutor was purposely following the old procedures--which existed under the 'J.P. System'--because of the adverse decision, and only because the statute authorized a refiling of the information. There was no question concerning the magistrate's full consideration of the evidence offered to show probable cause, for the offense charged; instead, it seemed apparent that it was refiled only because the state was insistent that the case be put to trial, notwithstanding the evidence presented. Hence, a second identical information was filed, supported by the same identical evidence. In short, the state was 'shopping around' for a favorable decision.

It seems obvious, if this procedure is to continue it will defeat the purpose of the Judicial Reorganization; and continue to lessen the quality of constitutional justice rendered. It also tends to make a mockery of the meaning of 'due process of law'; and...