Jones v. Busby
| Decision Date | 11 June 1927 |
| Docket Number | A-6630. |
| Parties | JONES v. BUSBY, District Judge. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A criminal action pending in the district court may be dismissed only by said court either of its own motion or upon the application of the county attorney in the furtherance of justice. In case of a dismissal, the reasons must be set forth in the order, which must be entered upon the minutes.
A district court is an arm of the state government, vested with judicial power, consisting of a judge and a clerk and other officers necessary for the transaction of business, assembled to administer justice at a time and place where by law it was authorized to be held.
Original proceeding by W. B. Jones for prohibition to be directed to Orel Busby, District Judge of Pontotoc County. Writ denied.
Geo. W Burris and J. D. Crawford and Wimbish & Wimbish, all of Ada for petitioner.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for respondent.
This is an original proceeding in this court, praying for a writ of prohibition against Orel Busby as district judge of Pontotoc county.
From the petition and response, it is made to appear that in September, 1922, an information was filed in the district court of said county against petitioner charging him with the crime of embezzlement. Thereafter in January, 1925, a trial was had upon said information in said district court, which resulted in a mistrial. Thereafter, in November, 1926, the Honorable J. W. Bolen, district judge of said Pontotoc county, at his chambers in the American Bank Building, in the city of Ada, set said cause for trial for the first Monday in December, 1926, but said cause was not tried at said time, and in the latter part of November, 1926, or the first part of December, 1926, counsel for defendant, at the chambers of said district judge, requested the said judge to dismiss said cause. The said judge stated that he had intended to dismiss said cause and in substance that the evidence was insufficient, and counsel for defendant then said, "Well, why not dismiss the case now?" and thereupon the judge replied, "I will dismiss the case now, and you may consider the order made; the case is now dismissed; I will have the clerk enter the order." When this proceeding took place, the court was not in open session, no clerk nor other official was present, and no minutes were made. Thereafter, the Honorable J. W. Bolen, district judge, was succeeded by the respondent, Orel Busby, and in May, 1927, counsel for defendant moved for an order nunc pro tunc, dismissing said cause, which was denied. The defendant was put upon trial, convicted, and the jury assessed his punishment at confinement in the state penitentiary for a term of three years and by a fine of $20,000. This proceeding is brought to prohibit respondent, as district judge, from pronouncing judgment and sentence upon the verdict, on the claim that the court is without jurisdiction by reason of the alleged order of dismissal.
Section 2916, Comp. Stat. 1921, is as follows:
"The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth...
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