State v. Gray

• Decision Date: 12 March 1941
• Docket Number: A-9718.
• Parties: STATE v. GRAY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

111 P.2d 514

71 Okla.Crim. 309

STATE v. GRAY.

No. A-9718.

Court of Criminal Appeals of Oklahoma

March 12, 1941

Syllabus by the Court.

1. The right of the state to appeal from any order or judgment of the trial court rests upon statutory authority, which cannot be enlarged by construction. Sec. 3191, O.S.1931, 22 Okl.St.Ann. § 1053.

2. While the state has no right to bring error or appeal from a judgment in favor of defendant, entered upon a verdict of acquittal, there is no constitutional inhibition in conflict with the statute conferring the right of appeal which is as follows:

"Appeals to the 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." Sec. 3191 O.S.1931, 22 Okl.St.Ann. § 1053.

The state under subdivision 3 has the right to take an appeal to this court upon any question of law reserved by the state during the trial. 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 questions so reserved settled.

3. Only those questions, unless jurisdictional, or of fundamental character, can be considered on appeal which were raised in the trial court on exceptions taken.

4. An order denying a motion for new trial after verdict of acquittal being non-appealable, an attempted appeal therefrom will be dismissed.

5. In case of an appeal from a question reserved on the part of the state, it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal. When the question reserved is defectively stated the criminal court of appeals may direct any other part of the proceedings and record to be certified to them. Sec. 3201, O.S.1931, 22 Okl.St.Ann. § 1063.

6. A "bill of exceptions" is a written statement of objections made and exceptions reserved by counsel to a ruling, order or judgment of the trial court, setting out the proceedings and acts of trial judge alleged to be erroneous and signed and authenticated by the trial judge according to law and duly certified by and filed in the office of the clerk of the court.

7. A bill of exceptions must be signed by the judge who tried the case, and where a case was tried by one judge and the bill of exceptions is signed and allowed by another, and no showing is made as to inability of the trial judge to do so, such bill of exceptions is a nullity.

8. An appeal by the state in a criminal case is taken by the service of a written notice upon the clerk of the trial court, stating that the appellant appeals from the order or decision of the court upon a question reserved by the state. A similar notice must be served upon the defendant, if he can be found in the county; if not there by posting up a notice three weeks in the office of the clerk of the district court. These notices are prerequisite steps to conferring on this court jurisdiction to determine the question presented.

9. The State intending to appeal upon a question reserved by the state, must serve notice of appeal on the defendant personally, or in the alternative, must post such notice in office of court clerk, if defendant cannot be found in the county; service of notice on the defendant's attorney of record being insufficient.

10. The Code of Criminal Procedure provides: "If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial."

Aside from any statute, this power is inherent in a court of general jurisdiction. Sec. 3056, O.S.1931, 22 Okl.St.Ann. § 859.

Where the trial results in a verdict and judgment of acquittal the duties of a special county attorney become functus officio. In such a case he is without authority to take an appeal "upon a question reserved by the state".

11. When a county attorney desires to appeal a case upon a question reserved by the state and upon which it is important to the correct and uniform administration of the criminal law that this court should decide, it is his duty to see that notice of such appeal is served and proof of service made in the manner required by the statute. Sec. 3193, supra, 22 Okl.St.Ann. § 1055.

Appeal from District Court, Tulsa County; Prentiss E. Rowe, Judge.

J. B Gray was acquitted of the offense of feloniously allowing an unlawful claim against the Tulsa County Highway Fund, and the State takes a purported appeal.

Appeal dismissed.

Phil W Davis, Jr., Sp. Co. Atty., of Tulsa, Mac Q. Williamson, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for plaintiff in error.

M. A. Breckinridge, of Tulsa, for defendant in error.

DOYLE Judge.

It is well settled that no writ of error or appeal lies on behalf of the state to review or set aside a verdict or judgment of acquittal in a criminal case, however, while the state cannot bring error or appeal to afford the state an opportunity for a new trial after acquittal, there is no constitutional limitation in this state in conflict with our statute authorizing an appeal on a question of law reserved by the state. State v. Smith, 30 Okl.Cr. 144, 235 P. 273, and cases cited.

The right of the state to appeal from any order or judgment of a trial court rests upon statutory authority which cannot be enlarged by construction.

The Code of Criminal Procedure provides:

"Appeals to the 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." Sec. 3191, Sts. 1931, 22 Okl.St.Ann. § 1053.

"An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the State, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district Court." Sec. 3193, Sts. 1931, 22 Okl.St.Ann. § 1055.

"An appeal taken by the State in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed." Sec. 3194, Sts. 1931, 22 Okl.St.Ann. § 1056.

"Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court." Sec. 3198, Sts. 1931, 22 Okl.St.Ann. § 1060. "The exceptions stated in the case shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken." Sec. 3200, Sts. 1931, 22 Okl.St.Ann. § 1062.

"In case of an appeal from a question reserved on the part of the State it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal. When the question reserved is defectively stated the Criminal Court of Appeals may direct any other part of the proceedings and record to be certified to them." Sec. 3201, Sts. 1931, 22 Okl.St.Ann. § 1063.

Under the statute, when the appeal is from a judgment on quashing or setting aside an indictment or information, or from an order of the court arresting a judgment, an appeal taken by the state will not stay or affect the operation of such judgment or order in favor of the defendant, until the judgment or order is reversed and the case remanded with direction to the trial court to vacate the judgment or order in favor of the defendant, and reinstate the case and proceed as though no such judgment or order had ever been entered. Sec. 3194, Sts. 1931, 22 Okl.St.Ann. § 1056, supra. State v. Barnett, 60 Okl.Cr. 355, 69 P.2d 77.

In such cases it is the right and duty of the county attorney to take an exception and perfect an appeal from such judgment or order to this court.

Where the trial court sustains a demurrer to an indictment or information the judgment is final unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed. Sec. 2952, Sts. 1931, 22 Okl.St.Ann. § 508; State v. Franks, 21 Okl.Cr. 213, 206 P. 258.

If the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged. Sec. 2953, Sts. 1931, 22 Okl.St.Ann. § 509; State v. Boston, Okl.Cr.App., 102 P.2d 889; State v. Sowards, 64 Okl.Cr. 430, 82 P.2d 324; State v. Graham, 38 Okl.Cr. 325, 261 P. 230; State v. Walton, 30 Okl.Cr. 416, 236 P. 629; State v. Robertson, 28 Okl.Cr. 234, 230 P. 932; State v. Vaughn, 15 Okl.Cr. 187, 175 P. 731; State v. Chappell, 12 Okl.Cr. 618, 152 P. 1199.

This court has held that while the State cannot bring error or appeal to reverse an acquittal of one accused of crime, the state has the right, under the Third Subdivision of Sec. 3191, 22 Okl.St.Ann. § 1053, subd. 3, to take an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. State v. Frisbee, 8 Okl.Cr. 406, 127 P. 1091; State v. Rule, 11 Okl.Cr. 237, 144 P. 807.

In such cases the state does not bring any part of...