Sam v. State
| Decision Date | 29 May 1973 |
| Docket Number | No. A--17521,A--17521 |
| Citation | 510 P.2d 978 |
| Parties | Mario SAM, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Jones, Atkinson, Williams, Bane & Klingenberg, Enid, for appellant.
Larry Derryberry, Atty. Gen., Yvonne Sparger, Asst. Atty. Gen., John C. Williams and Charles F. Alden, III, Legal Interns, for appellee.
Mario Sam, Appellant, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Pittsburg County, Case No. F--71--254, for the crime of Sale of Marihuana, After Former Conviction of a Felony. He was sentenced to serve a term of thirty-five (35) years in the state penitentiary, in accordance with the verdict of the jury, and a timely appeal has been perfected to this Court.
Briefly stated, the facts are that on September 17, 1971, Haskel Dixon and Richard Reeve were working as undercover agents for the Pittsburg County Sheriff's Department. At approximately 8:45 p.m., the two agents were in a parking lot next to a recreation center in McAlester, with approximately five other people. The defendant pulled out of his pocket a clear plastic bag with ten or twelve square, tinfoil packettes inside and commented: 'Yes, it was good hash.'
Later in the evening, Dixon asked the defendant if he could buy some hash, to which the defendant replied by handing one of the tinfoil squares to Dixon and received $7.50 in payment. The square was turned over to the Pittsburg County Sheriff's Department and was later identified as hashish, a form of marihuana.
The defendant put on witnesses who testified that the sale did not take place. Other witnesses testified for the defense in an attempt to affect the two agents' credibility. These witnesses testified that they had observed the agents smoke marihuana and that the agents had served liquor to a minor.
The propositions are taken as they would occur in the course of the trial and are numbered as they were on defendant's brief. Defendant urges in his fourth proposition that error was committed when the Information and Amended Information were not subscribed by the District Attorney as required by 22 O.S.1971, § 303, but were instead signed by the use of a rubber stamp bearing the District Attorney's signature.
The pertinent provisions of 22 O.S.1971, § 303 are as follows:
We have held in the past that it is not proper for Informations and verifications to be signed in blank and left for the Information to be filled in at a later date. Fullingin v. State, 7 Okl.Cr. 333, 123 P. 558 (1912); Ivy v. State, Okl.Cr., 414 P.2d 1007 (1966). There is no indication, however, that the Information in the instant case was signed in blank.
The purpose of requiring the prosecuting attorney's signature on the Information is a guarantee that the prosecution is being conducted in good faith by the State and that it is not the work of private citizens. Brown v. State, 9 Okl.Cr. 382, 132 P. 359 (1913); Roberts v. State, 72 Okl.Cr. 384, 115 P.2d 270 (1941).
The fact that the trial was prosecuted by the same attorney whose signature was affixed to the Information is indicative of the fact that the prosecution was conducted in good faith. For this reason, we find no error in the manner in which the Information was signed.
Defendant's third proposition is that the examining magistrate committed error in binding him over at preliminary hearing. The defendant urges as error the fact that he was bound over on the charge of Sale of Marihuana, rather than on the charge of Sale of Marihuana, After Former Conviction of a Felony. The defendant relies primarily on the case of Carter v. State, Okl.Cr., 292 P.2d 435 (1956). In that case, the defendant was bound over on a charge of Burglary, but tried for Burglary, After Former Conviction of a Felony. In reversing, it was the concern of this Court that the defendant be made fully aware of the charge for which he was being tried, lest he waive any of his rights, such as his right to counsel, with the mistaken concept that he was not being tried as a habitual criminal.
In the instant case, it was evident to the deendant and his counsel that the charge was After Former Conviction of a Felony. At the opening of the preliminary hearing, the District Attorney announced to the court that the defendant was charged with the Sale of Hashish, After Former Conviction of a Felony. Later in the preliminary hearing, when the District Attorney offered into evidence page two of the Information concerning the After Former Conviction of a Felony portion of the charge against the defendant, the following took place:
We believe it was evident to the defendant that he was being tried as a former felon. Therefore, we do not find that merely because the bind-over order does not spell out that the defendant is to be tried for Sale of Marihuana, After Former Conviction of a Felony, that this constituted reversible error. Therefore, defendant's third proposition is without merit.
The defendant's first proposition of error asserts that the trial court committed error in failing to disqualify the honorable James B. Martin from hearing the case. The defendant, through his attorney, filed a Motion to Disqualify Judge Martin on January 10, 1972. This Motion was renewed on January 25, 1972, the day before the trial began.
The defendant asserts that because Judge Martin was the District Attorney who had prosecuted the defendant for an earlier charge of Marihuana Possession, he should have disqualified himself from sitting as judge in the instant case.
Title 20 O.S.1971, § 1401 provides in part:
'(a) No judge of any court shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested, * * *, or in which he has been of counsel for either side, or in which is called in question the validity of any judgment or proceeding in which he was of counsel or interested, * * *, without the consent of the parties to said action entered of record.'
We held in Dodd v. State, 5 Okl.Cr. 513, 115 P. 632 (1911), that a judge was disqualified to try a case when he was the County Attorney at the time the defendant was arrested. We also held that a judge was disqualified when he was the County Attorney at the time of the defendant's arrest and signed the Information charging the defendant. McElroy v. State, 76 Okl.Cr. 10, 133 P.2d 900 (1943).
This is not the case here. Judge Martin had not been involved with this particular case in any way. The fact that he had prosecuted the defendant in a previous case does not, by itself, show prejudice on the part of the judge.
Other jurisdictions have held that the fact that the judge was the District Attorney who had prosecuted the defendant for previous crimes was not sufficient to disqualify him. Trinkle v. State, 59 Tex.Cr.R. 257, 127 S.W. 1060 (1910); Goodspeed v. Beto, 341 F.2d 908 (5th Cir. 1965), cert. denied, 386 U.S. 926, 87 S.Ct. 867, 17 L.Ed.2d 798 (1967), rehearing denied, 386 U.S. 969, 87 S.Ct. 1032, 18 L.Ed.2d 126 (1967).
We find nothing in the record to indicate that the defendant was prejudiced. The transcript of the trial shows that it was conducted in a most impartial and unbiased manner. For these reasons, defendant's first proposition of error is without merit.
Defendant's second contention is that the court erred by refusing to grant defendant's Motion for Change of Venue. McAlester, where the defendant was tried, has two newspapers which both gave the defendant's case extensive publicity. Defendant contends that because of this publicity, he was unable to receive a fair and impartial trial. The defendant moved for a change of venue on December 29, 1971, and renewed his motion numerous times throughout the trial.
We have held many times that the granting of a change of venue is within the sound discretion of the trial court and that the action of the trial court will not be disturbed unless there is an abuse of discretion. Johnson v. State, 55 Okl.Cr. 55, 24 P.2d 1018 (1933); Newton v. State, 56 Okl.Cr. 391, 40 P.2d 686 (1935); Sweet v. State, 70 Okl.Cr. 443, 107 P.2d 817 (1940); Fesmire v. State, Okl.Cr., 456 P.2d 573 (1969).
We do not find an abuse of discretion in this case. It is clear that most of the jurors who sat on the trial had read the articles concerning the defendant's case, but all said that they could lay aside what they had read and deliver a fair verdict on the evidence presented to them.
The United States Supreme Court in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), said in reversing a...
To continue reading
Request your trial
-
Bryan v. State
...campaigns, opponent attorney was trial court advisor).40 Stouffer, 738 P.2d at 1353; Carter, 560 P.2d at 996-97; Sam v. State, 510 P.2d 978, 981 (Okl.Cr.1973), overruled on other grounds, Buis v. State, 792 P.2d 427, 431 (Okl.Cr.1990).41 Shepard v. State, 756 P.2d 597, 600 (Okl.Cr.1988); St......
-
Com. v. Darush
...F.Supp. 277, W.D.Pa., 1968); State v. Maduell, 326 So.2d 820 (La., 1976); Satterlee v. State, 549 P.2d 104 (Okl.Cr., 1976); Sam v. State, 510 P.2d 978 (Okl.Cr., 1973); People v. Tartaglia, 73 Misc.2d 506, 342 N.Y.S.2d 998 (1973); Maloney v. Maxwell, 174 Ohio St. 84, 186 N.E.2d 728 (1962). "......
-
Pennington v. State
...need not be followed literally to accomplish the purpose of that statute. The ballots may be stirred rather than shaken. Sam v. State, 510 P.2d 978, 982 (Okl.Cr.1973), overruled on other grounds Buis v. State, 792 P.2d 427 (Okl.Cr.1990). Furthermore, it is not necessary that the box be shak......
-
Satterlee v. State
...he was of counsel or interested, . . . without the consent of the parties to said action entered of record.' We held in Sam v. State, Okl.Cr., 510 P.2d 978 (1973), that the fact that a judge had prosecuted the defendant in a previous case does not, by itself, show prejudice on the part of t......