Muldrow v. State
| Decision Date | 29 November 1919 |
| Docket Number | A-3300. |
| Citation | 185 P. 332,16 Okla.Crim. 549 |
| Parties | MULDROW v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under the provision of section 17, art. 2, of the state Constitution, which declares, "No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination," the precedent fact that a preliminary examination has been had or waived, constitutes the jurisdictional basis for a prosecution for a felony by information.
Under the constitutional provision, section 17, art. 2, and provisions of article 5 of the Code of Criminal Procedure (Rev. Laws 1910, §§ 5609-5692), it is the fact that there was a preliminary examination, or a waiver thereof and a judicial determination thereon by the examining magistrate that the offense charged in the complaint, or that a felony other than that charged, as shown by the examination has been committed and that there is sufficient cause to believe the defendant guilty thereof that authorizes the county attorney to file an information for the offense charged in the complaint when examination has been waived, or for the offense shown by the evidence on the examination, for which the defendant was held to answer.
Where the defendant waives the right to a preliminary examination he also waives the right to question any irregularities that may have occurred in the proceedings, and where the magistrate holds the defendant to answer on a complaint which names, but does not state any of the essentials of, the offense intended to be charged, and such magistrate files a transcript of the proceeding in the district court, such court has jurisdiction until a motion to set aside or to quash the information is sustained, and, if the defendant upon arraignment pleads to the merits and enters on the trial, he waives the right to a preliminary examination, or if one was held, any irregularities therein.
Where the offense named or charged in the preliminary complaint may be punished by death, and the defendant waives a preliminary examination, and no testimony is taken by the state, the county attorney has no authority to file an information against him for another offense.
A preliminary examination for rape includes all degrees of rape, and would include the lesser offenses which are necessarily as a matter of law included. However, where the defendant waives his right to a preliminary examination on a complaint for rape, and no testimony is taken by the state, the magistrate is only authorized to hold and commit the defendant without bail, and the county attorney has no authority to file an information against him for another offense.
Where the offense named in the complaint was rape, and the magistrate failed to indorse his order on the complaint, and the order entered on his docket does not state or indicate the offense for which the defendant was held to answer, but admits the defendant to bail, such order is void and insufficient to authorize the county attorney to file an information for the offense named in the complaint, and, the state not having introduced any testimony, it was insufficient to authorize the filing of an information for any included offense.
Appeal from District Court, Coal County; J. H. Linebaugh, Judge.
Morris Muldrow was convicted of an assault with intent to rape, and he appeals. Reversed and remanded, with directions to sustain a motion to quash the information.
Wilhelm & Holland, of Coalgate, for plaintiff in error.
S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted of an assault with intent to rape, and his punishment assessed at three years' imprisonment in the penitentiary. He has appealed from the judgment rendered upon such conviction.
The information in substance charges that Morris Muldrow did, in Coal county, on or about the 16th day of August, 1917, commit the crime of assault with intent to rape in the manner and form as follows, to wit, did willfully, unlawfully, and feloniously make an assault upon one Beulah Brown, a female person under the age of 16 years, to wit, of the age of 14 years, with the felonious intent then and there on the part of him to unlawfully have sexual intercourse with her, the said Beulah Brown not being the wife of him, the said Morris Muldrow.
The first assignment of error is that the court erred in overruling the defendant's motion to quash the information. Before pleading to the information, the defendant filed a motion to quash for the reasons in substance as follows: That there had been no complaint or examination before the committing magistrate for such offense; that the complaint charges that he did commit the offense of rape, and does not charge an assault with intent to commit rape; that he did not have a preliminary examination before a magistrate for such offense, nor did he waive the same.
The original complaint as filed with the court clerk is as follows:
Attached to the complaint is a duly certified transcript of the proceedings, showing the following order:
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Thompson v. State
...on trial, he waives right to preliminary examination, or if one was held, any irregularities therein."); Muldrow v. State , 1919 OK CR 313, 16 Okla.Crim. 549, 185 P. 332, 334 ("[I]f the defendant upon arraignment pleads to the merits and enters on the trial, he waives the right to a prelimi......