Morrison v. State
| Decision Date | 06 June 1925 |
| Docket Number | A-4751. |
| Parties | MORRISON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is not error for a trial court in a criminal case to have a jury impaneled to try issues of fact, although the defendant may have expressly waived his right to trial by a jury.
Although a warrant of arrest may have been issued improvidently or without a sworn complaint having been filed, yet, if a defendant fails to file his motion to set aside such warrant in apt time, the error is waived.
Where an appeal to this court is by transcript, assignments of error, which require an examination of the evidence, which are not contained in the transcript by any bill of exceptions, cannot be considered.
Appeal from Municipal Criminal Court of City of Tulsa; G. E. Warren Judge.
J. C Morrison was convicted of unlawful possession of intoxicating liquor and punishment fixed at a fine of $500 and imprisonment in the county jail for six months, and he appeals. Affirmed.
Crossland Ward & Chase, of Tulsa, for plaintiff in error.
The plaintiff in error will be referred to as defendant. The defendant was convicted of unlawful possession of intoxicating liquor in the municipal criminal court of the city of Tulsa and appeals by case-made which does not contain the evidence.
Several assignments of error are presented in the very able brief by counsel for defendant, several of which are directed to the constitutionality of the act of the Legislature creating the said court. The contention that the creation of the court is unconstitutional has been decided adversely to the contention of defendant in the case of Buchanan v. State (No A-4749; Okl. Cr. App.) 236 P. 903, and on the authority of that case this contention will not be further considered. It is assigned as error that the court called a jury in the trial of the case, although the defendant had expressly waived a jury trial by filing a written waiver, citing: Section 20, art. 7, state Constitution; In re Opinion of the Judges, 6 Okl. Cr. R. 18, 115 P. 1028; Cowden v. State, 5 Okl. Cr. R. 71, 113 P. 202; Soper v. State (Okl. Cr. App.) 208 P. 1044.
We find no fault with the law announced that a defendant may waive a trial by jury. We have found nothing in the record that indicates that the state also waived a trial by jury, nor is our attention called to any decision holding that a trial court, even though a waiver is made by both parties, may not of his own volition have a jury pass on the facts. The right is not given to a defendant to elect whether he will be tried by the court or by a jury. The state is entitled to a jury, although the defendant may expressly waive a jury. The Constitution (section 20, art. 7), contemplates that in order for a waiver to be effective both parties should waive the right to have the issues of fact determined by a jury. Cowden v. State, supra; In re Wilkins, 7 Okl. Cr. R. 422, 115 P. 1118. There was no error in the calling of a jury by the trial court.
Complaint is also made that the record does not show the filing of any verified complaint, nor the issuing of a warrant. Neither does the record show that any objection was made to any irregularity of the proceeding prior to the arraignment of the defendant, or the information and...
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