State ex rel. Eubanks v. Cole

• Decision Date: 11 May 1910
• Citation: 109 P. 736,4 Okla.Crim. 25,1910 OK CR 138
• Parties: STATE ex rel. EUBANKS v. COLE, District Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

109 P. 736

4 Okla.Crim. 25, 1910 OK CR 138

STATE ex rel. EUBANKS v. COLE, District Judge.

Court of Criminal Appeals of Oklahoma

May 11, 1910

Syllabus by the Court.

The Criminal Court of Appeals has jurisdiction and power to issue the writ of mandamus, directed to an inferior court, in the exercise or in aid of its appellate authority, where the same is a proper proceeding in a criminal case.

A mandamus to an officer is said to be the exercise of original jurisdiction, but a mandamus to an inferior court is in the nature of appellate jurisdiction.

When a criminal trial has been arbitrarily postponed, without cause or by reason of prejudice or personal hostility, the court has refused to take any action, or where the case is beyond the exercise of judicial discretion, or where there is a flagrant violation of a constitutional right, or the trial court is without jurisdiction, our Constitution and laws afford a remedy either by habeas corpus, if the accused is in custody, or by mandamus where the accused has been admitted to bail.

A peremptory writ of mandamus will be denied where the relator has a plain and adequate remedy in the ordinary course of the law, and in no case will the writ issue to control judicial discretion.

Section 20 of the Bill of Rights provides that: "In all criminal prosecutions the accused shall have the right to a speedy and public trial." Section 7047, Snyder's St., provides "If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown." The statute constitutes a legislative construction or definition of the constitutional provision.

The relator was indicted at the October, 1909, term of the district court, which term ended February 4, 1910. On February 8th a special term of said court was convened with a special judge, at the instance and request of relator, for the purpose of hearing his motion to quash said indictment. Another special term of said district court was convened on the 28th day of February, 1910, with a special judge. On March 7, 1910, was convened the next regular term, which term was to continue until May 31, 1910. The Legislature in extra session by act of March 25, 1910, provided that the regular term of said district court should commence on the first Monday in January, May, and October each year. The defendant on April 30th moved that the case be dismissed for the reason that he had not been brought to trial at either of said terms, and that the trial had not been postponed upon his application. Held, that the motion to dismiss was properly overruled; that relator's substantial rights were not disparaged, and his constitutional right to a speedy trial was not violated; that the law enacted, and becoming effective while the March term of said district court was being held, operating to terminate said term April 30th, was good and sufficient cause for not trying the relator during said March term.

A defendant's constitutional right to a speedy trial is not contravened by continuances in the discretion of the presiding judge, as to a day later in the term, or by hearing civil cases in advance of criminal cases, or by delay necessitated by the law itself.

The "next term of the court," within the meaning of section 7047, Snyder's St., refers to and means the next regular term of the court, as distinguished from a special term held for a special purpose.

(Additional Syllabus by Editorial Staff.)

The term "appellate" in the Constitution, providing that the original jurisdiction of the Supreme Court shall extend to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law, is not used in a restricted sense, but in its broadest sense as embracing the power and jurisdiction to review and correct proceedings of inferior courts in criminal cases, brought before it for determination in the manner provided by law.

Mandamus on petition of Ira N. Eubanks against Preslie B. Cole, Judge. Writ denied.

The petitioner, Ira N. Eubanks, on May 3, 1910, filed in this court his verified petition for a mandamus, which, omitting the formal parts, reads as follows: "Comes now Ira N Eubanks, and respectfully shows to the court: That he stands charged by indictment with the offense of forgery in the district court of Pittsburg county, Okl., said cause being No. 686 on the criminal docket of said court. That the Honorable Preslie B. Cole is the duly elected, qualified, and acting judge of the Fourth judicial district of the state of Oklahoma. That the indictment in said cause was returned into court by the grand jury of Pittsburg county on the 29th day of November, 1909, the same being one of the regular judicial days of the October, 1909, term of said court. That said term of court expired on the 4th day of February, 1910. That the next term of said court began on the 8th day of February 1910, and continued for two days thereafter, and that the next term of said court began on the 28th day of February, 1910, and continued for two days thereafter, and that the next term of said court began on the 7th day of March, 1910, and continued until April 30, 1910. That on the 7th day of March, 1910, the petitioner was arraigned, and pleaded not guilty to the indictment. That this cause was set for trial for the 21st day of March, 1910, the same being one of the regular judicial days of the March, 1910, term of the said court, on which last-named date the petitioner was present in said court, said court then being in open session, ready, willing, and waiting for trial. That on the 7th day of March, 1910, after the usual motion hour, after petitioner had been arraigned, and when petitioner was not present, the respondent, while presiding as judge of said court, stated to the petit jurors then present that the court fund of Pittsburg county was exhausted. That the certificates for jurors' services would he discounted by the banks 20 per cent. if they were asked to cash them. That he would leave it to the jurors to decide if they were willing to serve under these conditions, and, if they were not, he would dispense with their services. That the jurors then organized and took a vote as to whether they would serve or not, and a majority voted 'No,' which vote was thereupon reported to the court, whereupon the following order was by the court entered of record: 'Now, on this day, it appearing to the honorable court that there is no money in the county treasury with which to pay jurors and witnesses, and that banks are discounting certificates 20 per cent. and petit jurors having decided not to serve for the reasons above stated, it is therefore ordered by the court that the petit jurors heretofore impaneled on this date be, and they are hereby, discharged from further service at this term, and that all witnesses heretofore subp naed in criminal cases be and they are hereby, discharged until further orders of this court or by notice of the county attorney to said witnesses.' Whereupon the respondent publicly announced that there would be no criminal cases tried during that term of the court. That the county attorney of Pittsburg county was present and agreed to the discharge of the jurors and witnesses and to the announcement as aforesaid. That on or about the 25th day of March, 1910, the respondent made arrangement with the McAlester Trust Company, whereby the company agreed to take up the certificates at 10 per cent. discount, whereupon the respondent directed that a jury be drawn and summoned to appear on April 4, 1910. That said jury duly drawn and summoned appeared on said 4th day of April, 1910, and was impaneled, and the court and jury proceeded to try civil causes until the 14th day of April, 1910, at which time the jury was discharged. That during the March, 1910, term of said court, the respondent was on the bench in the transaction of the business of the court only 30 days--12 days during the month of March, and 18 days during the month of April--leaving 18 days which might have been used as judicial days, during which no business was transacted by said court. That at no time during said term of court did the state make any effort to bring your petitioner to trial on the said cause. That at no time during the said term was the court occupied in the hearing or trial of criminal cases. That the criminal docket, as set by the county attorney for said term of court of March, 1910, was set to cover a period of 12 days. That during said term of 48 judicial days there were no criminal causes tried or called for trial in said court. That your petitioner has at no time applied for or agreed to a postponement of the trial of said cause, but has at all times been ready and willing for and awaiting trial thereon. That on the 29th day of April, 1910, the same being one of the regular judicial days of the March, 1910, term of said court, your petitioner filed his motion in said court to dismiss said cause No. 686, because he had not been granted a speedy trial on said charge, a copy of which motion is hereto attached, marked 'Exhibit A,' and made a part hereof. That at the time of filing said motion your petitioner requested that the court hear same or set a time for the hearing thereof, but that respondent failed and refused to hear said motion and failed and refused to set same down for hearing, but stated that he would not hear same, but would leave it for another judge to pass on and determine, which statement and which refusal the respondent refused to enter of record. That later during the...