State v. Frisbie

• Decision Date: 07 December 1912
• Citation: 127 P. 1091,8 Okla.Crim. 406,1912 OK CR 418
• Parties: STATE v. FRISBIE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

127 P. 1091

8 Okla.Crim. 406, 1912 OK CR 418

STATE v. FRISBIE.

Court of Criminal Appeals of Oklahoma

December 7, 1912

Syllabus by the Court.

The state has the right to prosecute an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the state to appeal and have the question so reserved settled.

(a) A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution where it can be relinquished without affecting the rights of others and without detriment to the community at large.

(b) A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution either by express agreement or by conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.

(c) A narrow, technical rule of construction should never be applied to any provision of the Constitution, but it should be construed in its reason and spirit.

(d) Any person prosecuted in Oklahoma for a capital offense has the constitutional right to have furnished to him, at least two days before the trial begins, a list of the witnesses to be produced against him in chief by the state, and it would be error to force him into trial and allow such witnesses to testify against him whose names have not been so furnished if he seasonably asserts his rights. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection, and the constitutional right given him by this provision will be waived.

(a) Where a defendant has been put upon trial in a court of competent jurisdiction upon an indictment or information sufficient to sustain a conviction, and a jury has been impaneled and sworn to try the case, jeopardy attaches, and if the jury is discharged without sufficient cause, and without the defendant's consent, such discharge of the jury, although improper, operates as an acquittal of the defendant.

(b) If a defendant agrees to the discharge of a jury, although such discharge may be improper and unnecessary, or if on motion of the defendant a new trial is granted him, the defendant thereby waives his constitutional right, and he is estopped upon a second trial from claiming that he has already been in jeopardy upon such offense.

Appeal from District Court, Kiowa County; Jas. R. Tolbert, Judge.

Frank Frisbie was indicted for homicide, and, having been acquitted, the state appeals. Rulings reversed.

J. E Terral, Co. Atty., of Hobart, Benjamin F. Williams, of Norman, and Cline & Zink, of Hobart, for the State.

FURMAN P.J.

This is an appeal prosecuted by the state upon questions of law from a judgment rendered in the district court of Kiowa county, discharging a jury in a murder case pending in said court after the jury had been duly impaneled and sworn and jeopardy had attached, and in dismissing said cause from the docket of the court. To all of which the state at the time objected and excepted and reserved the questions of law involved to be made and presented for review on appeal to this court.

First. The first question to be considered is as to whether or not this appeal can be sustained. Section 6947, Comp. Laws 1909, is as follows: "Appeals to the Supreme Court (Criminal Court of Appeals) may be taken by the state in the following cases and no other: (1) Upon judgment for the defendant on quashing or setting aside an indictment or information. (2) Upon an order of the court arresting the judgment. (3) Upon a question reserved by the state." In the case of State v. Brown, 8 Okl. Cr. 40, 126 P. 245, 250, in passing upon this very question, this court said: "The right of the state to take an appeal in a criminal case has been twice sustained by this court. See State v. Clifton, 2 Okl. Cr. 189, 100 P. 1124, and State v. Pollock, 5 Okl. Cr. 26, 113 P. 207. * * * The fact that the defendant may have been acquitted and could not be tried again for the same offense would not interfere with the right of the state to appeal and have the question so reserved settled. Any other construction would render the third paragraph of section 6947 meaningless and nugatory." We therefore hold that the state has the right to prosecute this appeal and that the case is properly before us for decision.

Second. It appears from the record that one Frank Frisbie was prosecuted by information in the district court of Kiowa county, charged with the offense of murder, and that the names of 33 witnesses were indorsed on the back of the information to be used by the state in chief in the trial of said cause. It was further proven that on the 2d day of May, 1911, when the defendant was arraigned upon the information and entered his plea of not guilty, and the case was set for trial, the county attorney instructed the deputy clerk of the district court to prepare a list of the witnesses indorsed on the information, with their post office addresses, and serve them upon the defendant; that this list was prepared by the deputy district clerk as directed by the county attorney and furnished to the district clerk for service upon the defendant, but for some reason, which the district clerk did not or could not explain, the defendant was never served with this list, and the county attorney did not know of this until after the trial had begun, when counsel for defendant objected to the admission of any testimony because there had been no service of such list of witnesses. It further appears from the record that this case was called for trial on the 16th day of May, 1911, and that the county attorney and the defendant and his attorneys appeared, and both sides announced ready for trial; that a jury was called, examined, and sworn to try the case; that the county attorney thereupon read the information to the jury and made his opening statement of the case to the jury, and that counsel for defendant also made his opening statement to the jury; that the rule was invoked, and the witnesses were instructed accordingly; that thereupon R. H. Jones was called to testify in behalf of the state; that, after testifying as to some immaterial matters, the following occurred: "Mr. Conner: Comes now the defendant and objects to any evidence being heard from the witness now on the witness stand or from any other witnesses in this cause, for the reason that no list of witnesses has ever been served upon the defendant in this case as required by law under the Constitution of the state of Oklahoma." The record shows that, as a matter of fact, the list of witnesses to be used by the state in chief, although prepared, had not been served upon the defendant as directed by the county attorney.

In reply to the objection made by counsel for defendant to receiving any testimony in this case, the record discloses that the following occurred: "Mr. Williams: Comes now the state of Oklahoma, by J. E. Terral, the county attorney of Kiowa county, and moves the court for a postponement of the trial of said cause for a period of two full days for the purpose of serving a true and correct list of the witnesses to be used in chief upon the defendant in the above cause, as provided by law and the Constitution of the state of Oklahoma, and hereby tenders defendant an opportunity to avail himself of his constitutional and legal right for a continuance or postponement in said cause, and hereby tenders to the defendant at this time in open court the list of all witnesses to be used in said cause and their post office addresses. Mr. Conner: Defendant at this time objects to any postponement of the trial of this cause and insists that there can be no legal service of said list of witnesses upon the defendant at this time. The Court: Sustained. Mr. Williams: To which the state of Oklahoma excepts. Mr. Williams: The state of Oklahoma now requests the court to reassign this cause for trial. Mr. Conner: To which the defendant objects for the reason that both parties herein have announced ready for trial, and a jury has been impaneled, and the opening statements of counsel have been made, and one witness, as shown by the record, placed upon the witness stand. The Court: Sustained. Mr. Williams: State excepts. The Court: The objection to the introduction of evidence in the opinion of the court is well taken and will be sustained. Mr. Zink: To which ruling the state excepts. The Court: What is the further pleasure of the state? Mr. Williams: The state now moves the court and requests the court to reassign this cause for trial. Mr. Conner: To which the defendant objects for the reasons heretofore stated. The Court: I think, gentlemen, the case will have to proceed under the law. Mr. Williams: To which action and ruling of the court the state excepts. The state now announces to the court that the state cannot proceed to the trial of this case for the reasons heretofore stated, and again moves the court to reassign this case for trial. The Court: I think, gentlemen, that the law is against your motion, and the case will have to proceed. Mr. Williams: But the state announces that under the ruling of the court heretofore made, to wit, that no witnesses have been served in the above cause, the state cannot proceed further with the cause. Mr. Conner: Defendant at this time asks the court to instruct the jury to return a verdict of not guilty against the defendant. Mr. Williams: To which motion the state of Oklahoma objects. The Court: Gentlemen, the motion to instruct a verdict will be overruled. Mr....