Pierro v. Turner

• Decision Date: 02 July 1952
• Docket Number: No. A-11779,A-11779
• Citation: 247 P.2d 291,95 Okla.Crim. 425
• Parties: PIERRO v. TURNER, Sheriff.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 291

247 P.2d 291

95 Okla.Crim. 425

PIERRO v. TURNER, Sheriff.

No. A-11779.

Criminal Court of Appeals of Oklahoma.

July 2, 1952.

Rehearing Denied Aug. 6, 1952.

Syllabus by the Court.

1. The Constitution of Oklahoma, Art. II, § 17, authorizes prosecutions for felonies by information after examination and commitment by a magistrate, or by indictment by a 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. Tit. 22 O.S.1951 § 338.

3. Tit. 22 O.S.1951 § 383, which provides that when a charge has been submitted to a grand jury, and no bill has been returned, it cannot be again submitted without direction from the court, has no application to charges presented by information.

4. Where grand jury is in session for thirty-seven days after preliminary complaint is filed with an examining magistrate charging defendant with embezzlement, but further proceedings are stayed awaiting action of the grand jury then in session, and defendant is incarcerated in the county jail by reason of inability or failure to post bond, and the grand jury thereafter adjourns without action as to defendant, and the county attorney dismisses the charge, but subsequently refiles the charge before a second magistrate,

Held, that the failure of the grand jury to act under facts of instant case, did not absolve defendant from prosecution.

Held, further, that the county attorney was not precluded from prosecution of defendant on same charge by information rather than obtaining permission of court and seeking indictment by another grand jury.

Sid White, Oklahoma City, for petitioner.

Grandville Scanland, County Atty., Roy H. Semtner, Asst. County Atty., Oklahoma County, for respondent.

POWELL, Judge.

Petitioner is confined in the county jail of Oklahoma County. To his application to the court for a writ of habeas corpus the County Attorney has filed a response, and oral argument has been heard. From the petition and response, it appears that on May 15, 1952, there was filed in the justice of the peace court of Paul Powers for the Oklahoma City District, a preliminary information charging petitioner herein with the crime of embezzlement. On arraignment, the matter was set for preliminary hearing on May 28, 1952. That hearing has been stayed pending outcome of petition to this court.

It is agreed that prior to the above action, and on April 3, 1952, a preliminary information charging petitioner with the identical offense of embezzlement was filed in the Justice of Peace Court of Ben LaFon for the Oklahoma City District; that on March 3, 1952, a general grand jury was called and convened in and for Oklahoma County and that said grand jury was in session until discharged on May 6, 1952.

Respondent sets out that while the grand jury was in session, petitioner, being unable to post bond, was incarcerated in the county jail of Oklahoma County by Respondent; that on May 15, 1952, and subsequent to the discharge of the grand jury, the original preliminary information filed before Ben LaFon, Justice of the Peace, was dismissed on motion of the county attorney of Oklahoma County, and refiled before Paul Powers, Justice of the Peace, as heretofore set out, and bond set at $2,000. This court, in view of the facts peculiar to the case and pending our consideration of the issues, on day of oral argument reduced the bond to be posted to $500.

From memorandum brief filed with this court and after oral argument, it is the contention of counsel, by reason of the facts recited, that the petitioner, Bill Pierro, is entitled to his discharge from further incarceration and from further prosecution on the charge for which he has been held. In support of his position counsel states: 'The whole code of criminal procedure (so far as germane hereto) was enacted immediately after statehood. It all accounts the constitutional provisions guaranteeing the defendant a speedy and public trial and due process of law.'

Counsel then cites sections 338, 382 and 383 of Tit. 22 O.S.1951, which provisions will be considered hereinafter.

Counsel then further states:

'Remember that the grand jury arose to vitalize Magna Carta and to prevent malicious and mischievous prosecutions, the last sentence of Sec. 383 must surely be read as a bulwark between the citizen and an over zealous law officer. Will it do now to say that the county attorney may escape this wholesome curb by evading the historic grand jury to perhaps work persecution before a magistrate? * * * I know of no precedent for my argument and can do nothing further, than urge the statutes upon you. If this fail, the barriers are down and every citizen holds his liberty by grace of the county attorney.'

To commence with, it is important in considering the matter presented that notice be taken of the fact that different from procedure in Federal Courts and different in many respects from the procedure in many state courts, in Oklahoma there are two distinct methods of prosecution of persons charged with felonies and that have been held to be concurrent remedies. One is by an indictment presented and filed by a grand jury and the other is by the filing of an information in the district court, signed by the county attorney after a preliminary examination has been held. Const. art. II, § 17. In some counties of this State but few grand juries have ever been convened since statehood. Practically all prosecutions for felonies have been by information, rather than indictment. As recently pointed out in the case of Coats v. State, 90 Okl.Cr. 217, 212 P.2d 141, 214 P.2d 455, this court, as well as the Supreme Court of Oklahoma, settled the constitutional issues and considered the philosophy supporting this procedure in the early cases of In re McNaught, 1 Okl.Cr. 528, 99 P. 241; and Ex parte McNaught, 1 Okl.Cr. 260, 100 P. 27.

There is an interesting note in 120 A.L.R. 358, concerning the historical background of the grand jury system in England, where it originated, in the Federal judiciary of the United States, and in courts of various states of the United States, and particularly treating the part played in the system by the Attorney General or Solicitor General for the Crown, or the District attorneys or County attorneys in the United States. And whether the prosecution be by information or indictment, it would appear that the influence of the prosecuting official is about as potent in the one method as the other. In fact, the success of either system depends on the competency of the prosecution official and his staff. But either course is not lacking in safeguards for the citizen charged with crime. See 24 Am.Jur. 832; Hurtado v. People, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; and United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333, and note.

Judge Doyle, at page 555 of 1 Okl.Cr., at page 252 of 99 P. in In re McNaught, supra, said:

'After a careful research, and a full consideration of all the authorities submitted, in connection with the provisions of our Constitution and laws, we are of opinion that since the organization of the state (November 16, 1907) the prosecution of felonies by indictment and information have been, and are now, concurrent remedies. We are fully satisfied that the framers of our Constitution intended to abolish the grand jury system, except that it might be invoked for those special purposes, such as the investigation of public officers, the failure of public prosecutors to do their duty, and those peculiar conditions of public disorder which sometimes arise and make prosecutions by information impracticable.'

It should be kept in mind that the sections of the Constitution and statutes are to be construed so as to give effect to every part thereof. Oklahoma Natural Gas. Co. v. State ex rel. Vassar, County Attorney, 187 Okl. 164, 101 P.2d 793. Also, to ascertain the intention of the Legislature in the enactment of a statute, the court may look to each part of statute, to other statutes on the same or relative subjects, to the evil and mischief to be remedied, and to the natural or absurd consequences of any particular interpretation. Magnolia Pipe Line Co. v. State, Okl.Cr., 243 P.2d 369.

By Art. II, § 20, of the Oklahoma Constitution it is provided: 'In all criminal prosecutions the accused shall have the right to a speedy and public trial * * *.'

By Tit. 22 O.S.1951 § 338, it is provided, as stated by petitioner, that: 'The grand jury must inquire: 1. Into the case of every person imprisoned in the jail of the county or subdivision, on a criminal charge, and not indicted. * * *'

From the facts heretofore recited, we have seen that the petitioner by reason of inability or failure to make bond has remained in jail since April 3, 1952; that a grand jury was in session when he was first incarcerated, and remained in session for thirty-seven days...