Jordan v. Turner, A-11718

• Decision Date: 11 June 1952
• Docket Number: No. A-11718,A-11718
• Parties: JORDAN v. TURNER, Sheriff.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 748

245 P.2d 748

95 Okla.Crim. 307

JORDAN v. TURNER, Sheriff.

No. A-11718.

Criminal Court of Appeals of Oklahoma.

June 11, 1952.

Syllabus by the Court.

1. The Constitution of Oklahoma (Art. 2, Sec. 17) authorizes prosecutions for felonies by information after examination and commitment by a magistrate, or by indictment by grand jury. These are concurrent remedies and the prosecution may be by either mode.

2. It is the duty of the grand jury to inquire into the case of every person imprisoned in jail on a criminal charge and not indicted. 22 O.S.1951 Sec. 338.

3. Where prisoner, charged by a preliminary complaint before a committing magistrate for the commission of a felony, was released on bond, and subsequent to filing of complaint, a grand jury was convened, and upon final discharge of grand jury the case against petitioner had not been considered and no indictment had been returned, held, the failure of the grand jury to indict the prisoner did not operate to dismiss the charge against prisoner, and writ of habeas corpus is denied.

Sid White, Oklahoma City, for petitioner.

Granville Scanland, County Atty. Oklahoma County, Roy H. Semtner, Ass't County Atty. Oklahoma County, for respondent.

JONES, Judge.

This is an original action in habeas corpus instituted by the petitioner, Donald Ray Jordan, for the purpose of securing his release from confinement in the county jail of Oklahoma County.

This court assumed original jurisdiction to decide the question presented by counsel for the defendant as to whether a person is entitled to be discharged and a case pending against him dismissed where the facts show that the accused stood charged with a commission of a felony before an examining magistrate, and that before a preliminary examination is held a grand jury convenes and said cause is not submitted to the grand jury for their determination and no indictment is presented against the accused before the final discharge of the grand jury.

The facts disclose that on April 2, 1951 a preliminary complaint was filed against the petitioner in the Justice of the Peace Court of Ben LaFon in Oklahoma City, charging the defendant with the crime of 'possession of narcotic drugs'. On arraignment of the petitioner he was released on his own recognizance. Petitioner was at that time sixteen years of age and without counsel. The case was continued for preliminary examination by agreement between the county attorney and defendant and was to be reset on the motion of the county attorney.

Thereafter on January 14, 1952 a preliminary complaint was filed in the Justice of the Peace Court of Paul Powers in Oklahoma City, charging the petitioner with the crime of 'burglary in the second degree'. On January 16, 1952 petitioner appeared in person and with counsel, waived a preliminary examination, was ordered held to await trial in the District Court but was released on his own recognizance. Thereafter on January 25, 1952 the petitioner appeared for arraignment with his attorney before the District Court of Oklahoma County and entered his plea of guilty to the crime of burglary in the second degree, and on recommendation of the county attorney, acting by Roy H. Semtner, assistant county attorney, the petitioner was sentenced to serve two years in the state penitentiary, but the sentence was suspended during the good behavior of the petitioner in accordance with the provisions of law. At the time said sentence was rendered it was unknown to the assistant county attorney that there was a charge pending in the Justice of the Peace Court of Ben LaFon charging the accused with the crime of possession of narcotics. On January 31, 1952 a deputy sheriff of Oklahoma County called the county attorney's attention to the charge pending before Justice of the Peace LaFon, and on motion of the county attorney said complaint was set for preliminary examination on February 7, 1952. Thereafter, over objection of the petitioner and his counsel, the petitioner was ordered held to await trial in the District Court on said charge.

It was agreed that a grand jury convened in Oklahoma City subsequent to the filing of the preliminary complaint charging the crime of possession of narcotics and was dismissed before said complaint was set for hearing, and that said grand jury did not consider the said case against the accused. It is argued that by reason of its failure to present an indictment against said accused it should operate as a dismissal of his case and entitle him to be discharged.

Both parties rely upon the provisions of Tit. 22, O.S.1951 Sec. 258, Subdivision 4, which provides:

'If a preliminary information be filed or is pending within three days before the grand jury convenes, or while it is in session, no examination shall be had, but the accused shall be held under bond or confined until the matter can be submitted to that grand jury or until that body adjourns.'

This statute would indicate that the facts pertaining to all preliminary informations pending within three days before the grand jury convenes or while it is in session should be submitted to the grand jury, but reading the last four words in connection with the remainder of the paragraph it is apparent that it was the intention of the legislature in the adoption of this law that no preliminary examination should be held while the grand jury is in session but that the accused should be held under bond until the matter could be submitted to the grand jury, or until that body adjourns. (Emphasis ours). Which means that if the grand jury adjourned without consideration of the charge alleged in the preliminary information the...