Jones v. State

• Decision Date: 06 January 1971
• Docket Number: No. A--15991,A--15991
• Citation: 1971 OK CR 27,481 P.2d 169
• Parties: Scott William JONES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 169

481 P.2d 169

Scott William JONES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15991.

Court of Criminal Appeals of Oklahoma.

Jan. 6, 1971.

Rehearing Denied March 8, 1971.

Syllabus by the Court

1. Dismissal at preliminary examination for lack of sufficient evidence to hold defendant for trial is a final and binding ruling and no subsequent refiling against the same defendant for the same offense shall be entertained unless the State makes an offer of additional evidence or proves other good cause to justify another preliminary examination. Additional evidence means that which was not known to the State at the time of the first preliminary.

2. To refile a prosecution dismissed at preliminary, the State must return to the same magistrate, or in his absence, another magistrate, setting forth the prior dismissal and the additional evidence or other good cause to be offered.

3. A magistrate's dismissal at preliminary examination for lack of sufficient evidence to hold defendant for trial shall not be disturbed unless competent evidence additional to that offered at a prior preliminary provides a basis to hold the defendant for trial.

4. A defendant who has acted without interest or benefit in an alleged sale cannot be convicted as a seller even though his conduct may have facilitated the sale where the evidence shows no conspiracy or prearranged plan between defendant and the seller.

Appeal from the District Court of Oklahoma County; C. R. Bard, Judge.

Scott William Jones was convicted of the crime of Sale of Marihuana, and appeals. Reversed and remanded with instructions to dismiss.

Raymond Burger, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., for defendant in error.

NIX, Judge.

Plaintiff in error, Scott William Jones, hereinafter referred to as defendant, was convicted in the District Court of Oklahoma County, Case No. CRF--69--2602, of sale of marihuana. Judgment and sentence was imposed on March 6, 1970, with punishment fixed at 18 month imprisonment and this appeal perfected therefrom. The issue requiring determination is the sufficiency of the evidence at both the preliminary and the trial.

Defendant was initially charged in Case No. CRF--69--2351 with acting conjointly and together with Meredith Wade Morris in the sale of marihuana on August 14, 1969, to John Henry Kane. Preliminary examination was held for defendant and Morris on October 20, 1969, before Judge Jack C. Thorne. The court heard testimony from Kane, an undercover police officer; George A. Burns, a police narcotics officer; and Brian L. Tipton, chemist for the Oklahoma Bureau of Investigation. The Court withheld its ruling until October 22, when it held Morris for trial on the charge and dismissed the defendant.

The State refiled the same charge against defendant as Case No. CRF--69--2602, which came on preliminary examination before Judge Robert L. Berry on November 25, 1969. Defendant's motions to dismiss by virtue of the dismissal at the previous preliminary were overruled. The State offered the same three witnesses, who gave the same testimony and no additional or new evidence was offered. At the close of the preliminary defendant was held for trial on the charge. It is contended that this procedure is improper, and we agree.

In Nicodemus v. District Court, Okl.Cr., 473 P.2d 312 (1970), this Court held that although 'dismissal of a prosecution at a preliminary examination is not a bar to further prosecution for the same offense,' the examining magistrate's ruling on the sufficiency of the evidence is 'binding and final at the preliminary examination.' We further critically viewed a practice of 'shopping' among magistrates by refiling a charge until a favorable ruling is obtained and said:

'Without the production of additional evidence, or the existence of other good cause to justify a subsequent preliminary examination, such a practice can become a form of harassment which may violate the principle of fundamental due process and equal protection of the law * * *'

When this Court handed down the Nicodemus opinion, it was presumed the magistrates, under judicial reorganization, would exercise the judicial courage to make proper application of the law without fear of reprisal from some 'Phantom Force'. However, it appears this Court is compelled to reiterate the law in more intricate detail.

When an examining magistrate rules that the evidence offered by the State is insufficient to hold the accused over for trial on the charge, such a ruling is binding and final on him and any other examining magistrate unless the State produces additional evidence or proves the existence of other good cause to justify a subsequent preliminary examination. If the State has sufficient evidence to bring an accused to trial, it should be prepared to offer such at one preliminary examination and not rely on bolstering its case at a subsequent preliminary examination, if necessary. It is dilatory to present evidence on an installment basis at different preliminaries. Let the State present its case at the preliminary and be done with it. If it is unsufficient, then the prosecution is at an end unless new evidence becomes available or other good cause is shown. Not only is refiling without cause unnecessarily burdensome to our overcrowded courts, but it may constitute harassment of an accused.

Therefore, when a magistrate at a preliminary examination rules the evidence insufficient to hold the defendant for trial, neither that magistrate nor any other magistrate should entertain another filing against the same defendant for the same offense unless the State makes an offer of additional evidence or proves other good cause to justify another preliminary examination. Additional or new evidence does not mean that which was known to the State at the time of the first preliminary or which could have been easily acquired.

Upon refiling a prosecution, the State must bring it before the same magistrate who dismissed the charge, or in his absence, another magistrate setting forth the dismissed case number, date, magistrate and the additional evidence or other good cause to be offered.

Furthermore, upon refiling a prosecution under these circumstances, the magistrate at the subsequent preliminary examination must be convinced that additional competent evidence has been offered which requires re-examination of the prior dismissal before that ruling can be set aside. The magistrate at a subsequent preliminary examination for the same defendant on the same charge should not consider the matter anew as on first impression as a prior dismissal is binding and final until overcome by additional evidence.

In the instant case, we find that the examining magistrate properly dismissed the prosecution at the initial preliminary examination; there being insufficient evidence to hold defendant for trial on the charge. The evidence at the second preliminary examination was substantially the same and there was no additional evidence or other good cause to justify another preliminary examination. Nor was there sufficient evidence to hold defendant over for trial. The magistrate at the second preliminary was therefore bound by the prior ruling of dismissal.

We next address our attention to the sufficiency of the evidence at the trial. It appears that on August 14, 1969, undercover Officer Kane and a police informer, D. E. Stoltz, were seated in Kane's car in a parking area fronting several businesses, which included a tavern and record shop frequented by young people. According to the State's version of the facts, defendant emerged from a crowd of young people and inquired if Kane and Stoltz wanted to buy some marihuana. They testified defendant got into the car and discussed a possible purchase. Defendant did not have any marihuana, but left the car, went to the group of young people, and returned with Morris. Morris said he had some marihuana and then discussed price with Kane and Stoltz. During this conversation, according to the officers, defendant left and was not seen again. Morris agreed on a price and took $20 from Kane. Morris told the officers to drive into the alley behind the businesses to pick up the marihuana. Subsequently Kane and Stoltz drove into the alley where Morris came up to Stolitz's side of the car. Stoltz and Morris went behind the car where they smoked a joint (marihuana cigarette) and transferred the baggie of marihuana. After awhile Stoltz and Morris came around to Kane's side of the car, whereupon Kane emerged and Morris introduced himself.

Under the State's version defendant was not present when the money was exchanged, or in the alley when the marihuana was transferred. Nor was there any evidence defendant received any benefit from the sale, nor that defendant and Morris had a prearranged plan.

Defendant, an eighteen year old university scholarship student, testified that he did not offer to sell any marihuana and that he did not contact Morris concerning such a sale. Three witnesses present at the time of the events and the defendant testified that as defendant emerged from the record shop Stoltz called the defendant over to the car. Stoltz asked defendant if he knew where he could buy some marihuana. Defendant said no, and returned to his three friends with whom he talked awhile and left with one of the witnesses. According to their testimony the defendant did not get into Kane's car. None of these witnesses saw defendant talking with Morris or even saw Morris on the night in question.

Another witness, Cindy Lynes, testified she had been dating Kane and upon seeing him and Stoltz in the parking lot, entered the back seat of the car. While there Stoltz returned to the car and asked if Kane wanted to buy some marihuana. Kane then drove the car including Stoltz and the witness into the alley. Kane then gave Stoltz money for the marihuana. Morris came up to Stoltz's side...