Smith v. State, A-13335

• Decision Date: 08 May 1963
• Docket Number: No. A-13335,A-13335
• Citation: 381 P.2d 900
• Parties: Willis SMITH, Petitioner, v. The STATE of Oklahoma, the District Court of Mayes County, Oklahoma, John Q. Adams, District Judge of Mayes County, Oklahoma, and Thomas Landrum, County Attorney of Mayes County, Oklahoma.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 900

381 P.2d 900

Willis SMITH, Petitioner, v. The STATE of Oklahoma, the District Court of Mayes County Oklahoma, John Q. Adams, District Judge of Mayes County, Oklahoma, and Thomas Landrum County Attorney of Mayes County, Oklahoma.

No. A-13335.

Court of Criminal Appeals of Oklahoma.

May 8, 1963.

Syllabus by the Court

1. When it appears to the court having jurisdiction to issue the writ of prohibition that the lower court, under any conditions, is without jurisdiction to try the accused upon the indictment or information filed, with all amendments permitted under the law considered as made, to require one to invoke the remedy of appeal occasioning delay and necessitating an appeal bond, or resulting in his being confined in jail pending the determination of his appeal, when the same conclusion as to the lower court being without jurisdiction will be reached, would cause an unnecessary and unreasonable hardship upon the accused, the writ of prohibition will be granted to relieve this hardship.

2. Prosecutions for the crimes of bribery, embezzlement of public money, bonds, securities, assets or property of the state or any county, school district, municipality or other subdivision thereof or of any misappropriation of public money, bonds, securities, assets or property of the state, or any county, school district, municipality, or other subdivision thereof, falsification of public records of the state, or any county, school district, municipality, or other subdivision thereof, and conspiracy to defraud the State of Oklahoma in any manner or for any purpose, shall be commenced within seven (7) years after the discovery of the crime.

In All other cases a prosecution for a public offense must be commenced within three (3) years after its commission. 22 OSA § 152.

3. A political subdivision may acquire property and maintain control or dispose of it in the manner provided by law. The property of the city of county is not property of the State of Oklahoma.

4. A conspiracy to defraud a city or county of money or property is not a conspiracy to defraud the State of Oklahoma, and action cannot be instituted for conspiracy to defraud a county or political subdivision of the state more than three years after its commission.

Original proceeding in which the petitioner, Willis Smith, seeks an order of this Court prohibiting the Honorable John Q. Adams, District Judge in and for Mayes County from further proceedings in Mayes County District Court Case #9119. Writ granted.

Douglas McKeever, Enid, for petitioner.

Charles Nesbitt, Atty. Gen., Hugh Collum, Asst. Atty. Gen., Thomas Landrum, County Atty., Mayes County, Okl., for respondents.

BUSSEY, Presiding Judge.

The petitioner, Willis Smith, was indicted by the Mayes County Grand Jury on the 5th day of October, 1962. A preliminary hearing was conducted at the request of defendant. Thereafter, a Motion to Quash said indictment was filed in the District Court of Mayes County, and the testimony taken at preliminary hearing was introduced in support of said Motion to Quash. On the 9th day of January, 1963, petitioner filed in this Court an Application for Writ of Prohibition, seeking an order of the Court prohibiting the Honorable John Q. Adams from further proceedings in District Court Case #9119.

Two questions are presented to this Court; the first being whether the Court of Criminal Appeals will assume jurisdiction to issue a Writ of Prohibition, when on the face of the indictment, or information, it appears that there is a substantial question as to whether prosecution is barred by the statutes of limitation.

In Bennett v. District Court of Tulsa County et al., 81 Okl.Cr. 351, 162 P.2d 561, this Court stated:

'When it appears to the court having jurisdiction to issue the writ of prohibition that the lower court, under any conditions, is without jurisdiction to try the accused upon the indictment or information filed, with all amendments permitted under the law considered as made, to require one to invoke the remedy of appeal occasioning delay and necessitating an appeal bond, or resulting in his being confined in jail pending the determination of his appeal, when the same conclusion as to the lower court being without jurisdiction will be reached, would cause an unnecessary and unreasonable hardship upon the accused, the writ of prohibition will be granted to relieve this hardship.'

Under the authority of the Bennett Case, supra, we are of the opinion that the Application for Writ of Prohibition is properly before us, and we must, of necessity, consider whether the prosecution of this charge is barred by the statutes of limitation.

The material part of the indictment returned by the Grand Jury of Mayes County Provides:

[that] '* * * George A. Watkins and one Bill Smith (the petitioner Willis Smith, herein) did, in the County of Mayes, State of Oklahoma, on the first day of ...