Morse v. State

• Decision Date: 04 February 1938
• Docket Number: A-9301.
• Citation: 77 P.2d 757,63 Okla.Crim. 445
• Parties: MORSE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

77 P.2d 757

63 Okla.Crim. 445

MORSE v. STATE.

No. A-9301.

Court of Criminal Appeals of Oklahoma

February 4, 1938

Syllabus by the Court.

1. Every person charged with crime is entitled to a fair trial according to the due and orderly course of the law. The right of every person charged with crime to have compulsory process for obtaining witnesses in his own behalf is guaranteed by the Constitution (section 20, Bill of Rights); and this involves as a matter of course, the time reasonably necessary to prepare for trial and to find and produce testimony in his defense.

2. There is no statute fixing the time in criminal cases which shall intervene before a case shall stand for trial after arraignment and plea of not guilty. A reasonable time must be allowed. What is a reasonable time will depend on the circumstances in each particular case.

3. Record examined, and found that defendant was bound over to district court in June, but no information was filed in district court until September 28th, two days after the term had commenced, and no case against defendant appeared upon the written assignment, it was error for the court, over objection of defendant, to set his case for trial on September 30th, two days after the information had been filed and he had pleaded thereto.

4. A former conviction, when relied upon by the state, to increase the punishment, should be established by offering in evidence the indictment or information, and the judgment rendered on the verdict, or plea of guilty. Proof should then be offered to show that the case has not been appealed, or if appealed has been finally determined.

5. The introduction of the appearance docket alone is insufficient to establish a former conviction.

6. By the enactment of chapter 153, § 3, of Session Laws of 1933 37 Okl.St.Ann. § 82, the Legislature has superseded all other laws with reference to the possession of in excess of one quart of intoxicating liquors.

7. The above section provides: "The keeping, in excess of one quart of any spirituous, vinous, fermented, or malt liquors * * * or in any manner permitting any other person to have or keep any such liquor in or about his place of business or his residence, or any public resort, or any club room; * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of any liquors for unlawful purposes irrespective of the amount."

8. The above act was approved by the voters of this state at a referendum election held July 11, 1933, and is now the law of this state.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Roy Morse was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals.

Judgment reversed.

Mitchell & Mitchell, of Clinton, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Milton Keen, Co. Atty., of Clinton, for the State.

BAREFOOT Judge.

The defendant was tried in the district court of Custer county for a violation of the liquor laws, was convicted and sentenced to serve a term of nine months in the reformatory at Granite, and has appealed.

The record discloses that a complaint was filed in the county court of Custer county on the 29th day of June, 1936, charging the defendant with the unlawful possession of intoxicating liquor on the 27th day of June, 1936, and of having been convicted of a violation of the liquor laws at a prior date of November 28, 1933. At the preliminary examination held during the month of June, 1936, defendant waived preliminary, and was bound over to the district court of Custer county. The bond provided for his appearance in the district court of said county on the 21st day of July, 1936. An information was not filed by the county attorney in the district court of said county until the 28th day of September, 1936. In the meantime the next regular term of the district court of Custer county was set to begin on the 26th day of September, 1936, and the jury for said term was summoned to be present on the 28th day of September, 1936, the very date that the information was filed against this defendant. The defendant was arraigned on the same day the information was filed. He had not procured counsel to defend him at that time, but immediately procured counsel and the plea of not guilty, which he had entered, was permitted to be withdrawn, and he filed a demurrer to the information, which was overruled by the court. He then made a motion for a continuance which was as follows:

"Comes now the defendant and moves that the trial of this cause be continued for the following reasons, which appear of record:

That the assignment of causes for trial at this session was duly made by the presiding judge of this court more than ten days prior to the 26th day of September, 1936, the said jury session beginning on said 28th day of September, 1936, and after said assignment was made, the same was printed and sent to attorneys and litigants. That this cause was not assigned nor included in the printed assignment.

That no information had been filed in this cause at the time of making and printing said assignment; that said information was not filed until the 28th day of September, 1936, and that no arraignment of the defendant was had until the late afternoon of September 28th, 1936, after which the case was set for trial the 30th day of September, 1936, and for that reason is not triable at this time. (September 30th, 1936).

For these reasons and for the reason that said case was not put at issue until the 28th day of September, 1936, said case is not triable at this term.

For this reason and the additional reason that the defendant had not had sufficient time to prepare for trial nor to confer with witnesses, defendant cannot proceed to the trial of this cause."

A hearing was had upon this motion and evidence offered supporting the same. A stipulation of agreement between the county attorney and counsel for defendant was as follows: "It is stipulated between counsel for the State and for the defendant that the assignment of cases for trial in this session of the court was duly made by the presiding judge of this court more than ten days prior to the 28th day of September, 1936, the jury session beginning on said 28th day of September, 1936; that after said assignment was made the docket was duly printed and sent to the attorneys; that case number 1002, the State of Oklahoma against Roy Morse was not included in the printed assignment; that the case itself was not transferred from the county court to the district court until the 28th day of September, the first day of the jury term and that the information in the case was not filed until that date, the 28th day of September."

The defendant also offered in evidence Rule 9 of the Rules of the District Court of the Twelfth Judicial District, which was as follows: "If any case, which stands for trial at any term, shall not have been assigned for trial at such term such case may be called for assignment by either party giving notice to the adverse party of not less than one day of the intention to move the assignment of said cause."

This motion for continuance was overruled by the court on the 30th day of September, 1936, and exception taken, and defendant was placed on trial on that date. The overruling of the motion for a continuance in this case, based upon the above facts, is the first error complained of by defendant.

It will be seen from the record in this case that the defendant was given a preliminary examination during the month of June, 1936, and was bound over to the district court at its next term, but that the county attorney failed to file an information against the defendant until the 28th day of September, 1936, which was two days after the term of court had begun, and after a written assignment of the cases, both civil and criminal, had been made and printed and distributed to the attorneys and litigants of Custer county. The case of defendant was not upon this assignment, for the reason that the county attorney had not filed an information at the time that the assignment was made, yet when it was filed defendant was arraigned on the same day, September 28th, and was forced to trial two days thereafter, on the 30th day of September, 1936. This court has heretofore had this question before it upon several occasions. As stated in those cases there is no statute in this State with reference to when criminal cases should be set. The statute pertaining to civil cases, Oklahoma Statutes 1931, § 395, Okla.St.Ann., tit. 12, p. 386, § 666, provides that civil cases may stand for trial ten days after the issues are made up. It has been the universal holding of this court that a reasonable time should be given to the defendant to prepare for his trial. A distinction has been made between the cases where a defendant is being tried upon a felony charge and a misdemeanor. Jacobs v. State, 29 Okl.Cr. 140, 232 P. 861.

In the case of Westbrook v. State, 14 Okl.Cr. 423, 172 P. 464, 469, this court says: "It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until ten days after the issues are made up and no felony case should be set over the objection of the defendant within ten days after his plea is entered."

In the case of Noel v. State, 17 Okl.Cr. 308, 188 P. 688 690, this court said: "Every person charged with crime is entitled to a fair trial according to the due and...