State v. McDonald
| Decision Date | 03 January 1914 |
| Citation | 137 P. 362,10 Okla.Crim. 413,1914 OK CR 1 |
| Parties | STATE v. MCDONALD. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) Where the notices of appeal required by statute were served upon the county attorney and clerk of the court in which the judgment was rendered, an appeal will not be dismissed because a summons in error was not served or waived.
(b) Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the attorney general, or by securing a waiver thereof.
(a) The trial court has the power and lawful right, without the consent of the county attorney, where a defendant is charged with murder, to order the dismissal of said charge, and permit the defendant to plead guilty to manslaughter in either degree, and assess his punishment therefor without the intervention of a jury.
(b) Both the state and defendant have the right to demand a trial by jury as to all controverted questions of fact, but where a defendant pleads guilty it is not necessary for the court to submit the question of punishment to a jury unless the defendant so demands.
Appeal from District Court, Canadian County; John J. Carney, Judge.
A charge against A. L. McDonald for murder was dismissed without consent of the county attorney, and he was permitted to plead guilty to manslaughter in the second degree, and his punishment assessed without the intervention of a jury, and the State appeals. Affirmed.
C. J Davenport, Asst. Atty. Gen., and S. T. Roberson, Co. Atty of El Reno, for the State.
J. G Ralls, of Atoka, for appellee.
First. A motion was made to dismiss this appeal because a summons in error had not been issued or waived. This motion is based upon section 5997, Revised Statutes, which reads as follows This section should be construed in connection with section 5992, Revised Statutes, which reads as follows:
We are of opinion that section 5997 is an enlargement upon, and is not an abridgment of, the right of appeal. That is to say, if a notice of appeal has not been served upon the county attorney and upon the clerk of the court where the judgment was entered, that an appeal should not be dismissed for want of such notice, if a summons in error is issued as provided for in section 5997. In this case proper notices of appeal were served. It was therefore not necessary to issue or waive summons in error. The motion to dismiss the appeal is therefore overruled.
Second. As this was a prosecution in which the defendant was charged with the crime of murder, it is earnestly insisted by the attorney general that the trial court did not have the power to dismiss the charge of murder, except upon the motion of the county attorney, and to permit the defendant to plead guilty to manslaughter in the second degree against the objections of the county attorney. In some jurisdictions this is the law, but we think that the statute of Oklahoma settles this question adversely to the contention of the attorney general. Section 6099 of the Revised Statutes is as follows: "The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes."
The effect of this statute is to abolish the common-law right of the prosecuting attorney to nolle prosequi an indictment...
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