State v. Smith

• Citation: 1958 OK CR 6,320 P.2d 719
• Decision Date: 15 January 1958
• Docket Number: No. A-12456,A-12456
• Parties: STATE of Oklahoma, Plaintiff in Error, v. Tom SMITH, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 719

320 P.2d 719

STATE of Oklahoma, Plaintiff in Error, v. Tom SMITH, Defendant in Error.

No. A-12456.

Criminal Court of Appeals of Oklahoma.

Jan. 15, 1958.

Syllabus by the Court.

1. In the case of ordinary motions, courts may, under proper circumstances, permit them to be renewed, but leave of the court must first be obtained before a motion can be renewed upon substantially the same grounds as those upon which the court has already passed. It is entirely in the discretion of a court to hear a renewal of a motion or not.

2. Under the provisions of 38 O.S.1951 § 28, sheriffs, or deputy sheriffs, are not competent jurors to serve on grand and petit juries within their counties.

3. A person who has received a written commission as a deputy sheriff, vesting him with all the authorized powers of a deputy, who has taken the oath as such officer, who carries a gun and has acted as such officer, is in fact such an officer, even though he has not filed a bond, is not salaried, has not been approved by the county commissioners, and has no authority to serve civil process.

4. The provisions of 38 O.S.1951 § 28 are mandatory since they affect public justice.

5. Where a grand juror is selected in direct violation of the law's mandatory provisions, such juror constitutes no part of a legal jury.

6. At common law an indictment is invalid where it is found and returned by a grand jury not legally constituted.

7. A jury composed of eleven qualified grand jurors and one deputy sheriff is an unauthorized body of men.

8. The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma.

9. At the common law, an indictment is invalid and may be quashed where it is found and returned by a grand jury not legally constituted.

10. The indictment or information must be set aside by the court, in which the defendant is arraigned, and upon his motion when it is not found, indorsed, presented or filed, as prescribed by the statutes or when the grand jury is not drawn and impaneled as provided by law.

Appeal from the District Court of Seminole County; A. L. Commons, Judge.

Appeal by the State of Oklahoma on reserved question of law from final order of the District Court of Seminole County sustaining motion to quash the indictment. Question resolved in favor of defendant in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., Joe Looney, County Atty., Seminole County, T. H. Williams, Asst. County Atty., Wewoka, for plaintiff in error.

Walter Billingsley and Rudolph Hargrave, Wewoka, for defendant in error.

BRETT, Presiding Judge.

This is an appeal on a reserved question of law by the State of Oklahoma to a ruling of the Honorable A. L. Commons, specially assigned District Judge, sustaining the defendant's motion to quash the indictment returned by a grand jury of the defendant, Tom Smith. The motion to quash was sustained on the proposition that Mr. E. L. Murrell, who qualified for grand jury service, was in fact a deputy sheriff of Seminole County on Sheriff Bill Nicholson's staff, and therefore not eligible under the law to serve. 38 O.S.1951 § 28. Simply stated, the question presented to us is was Mr. Murrell a deputy sheriff and was the indictment therefore subject to being quashed and did the trial court err in so holding?

This question was resolved in a former opinion and is now here on the defendant's petition for rehearing. The former opinion was written while the defendant was in default of a brief, then granted additional time before the opinion was handed down. Due to some inadvertence, the brief was not called to our attention until after the opinion was handed down. The first opinion filed herein is therefore ordered withdrawn, and this opinion, written with the aid of the briefs of both parties is filed as the opinion of the court on the reserved question.

The first proposition urged by the state in its brief is:

'The trial court erred in permitting the defendant to file his second motion to quash the indictment and hearing evidence and testimony upon same, and that said second motion was 'res adjudicata' and/or that the trial court abused its discretionary power in allowing the renewal of said second motion involving the same legal matters, without permission of the court.'

Contrary to the state's contention, the record clearly shows the defendant obtained the permission of Judge Commons to file his amended motion to quash. The state urges Judge McKeel's order overruling the motion to quash on November 5, 1956, was res judicata. But, in Freeman on Judgments, Vol. 2, § 669, relied on by both the state and the defendant, it is asserted:

'These rules are for the orderly conduct of business, and are not founded on the principle of res judicata. It is not uncommon, in courts of law, to deny a motion one day and on another to grant it on a more enlarged state of facts. But while, in the case of ordinary motions, courts may, under proper circumstances, permit them to be renewed, the rules here referred to seem to require that leave of the court must first be obtained before a motion can be renewed upon substantially the same grounds as those upon which the court has already passed. It is entirely in the discretion of a court to hear a renewal of a motion or not.'

The first question herewith presented on this issue is did the trial court abuse its discretion in permitting the filing of the amended motion to quash, in substance the same as the former motion presented to Judge McKeel? To determine this question, we must look to the facts as revealed in the record. The regular trial judge, Honorable Bob Howell, disqualified because of a bitter campaign with the defendant for the District Judgeship. Judge John Boyce McKeel, Associate Judge in the same district, was requested to hear the motion to quash and try the case. Judge McKeel heard the motion on November 5, 1956, and overruled the same. At the conclusion of the hearing thereon, Judge McKeel asked if a motion to disqualify him was to be filed. Such motion was filed the same afternoon and was sustained by Judge McKeel on the ground of prejudice against a fair and impartial trial. Judge A. L. Commons of Miami, Ottawa County, was assigned by the Supreme Court to try the case. We are of the opinion that better practice would have been for Judge McKeel, before he certified his disqualification, to vacate the order overruling the motion to quash in favor of a ruling by his successor as the trial judge in the case. Thereafter, an amended verified motion to quash was filed before Judge Commons, setting forth all the matters prior to Judge McKeel's action and also stating that Judge McKeel, in effect, suggested his own disqualification to sit, and further alleging Judge McKeel's prejudice by reason of his close association with Judge Howell. Thereafter, on November 13, 1956, the matter came on for hearing on the defendant's motion to quash before Judge Commons, who granted leave to again present said motion to quash and sustained the same after a full hearing thereon, the grounds being that Mr. Murrell was a deputy sheriff and the jury was therefore not properly formed and was an unauthorized body.

In passing on the motion and the question of whether or not he was bound by Judge McKeel's ruling, Judge Commons had the right to consider the relationship existing between Judge Howell and Judge McKeel and the reasons for Judge Howell's disqualification as possibly affecting Judge McKeel's qualification to pass on the motion to quash. Moreover, he had the right to consider the fact that Judge McKeel admitted his disqualification to determine the issue involved on both the motion to quash and to sit as trial judge in the case. It undoubtedly occurred to Judge Commons that if he was disqualified to try the case, he was equally disqualified to pass upon the motion to quash. Furthermore, he had the right to consider the question involved in the motion to quash might become a vital issue in the case at varying stages in the trial, and particularly on the motion for new trial, in the event of the defendant's conviction. Finally, two judges had already conceded possible bias and prejudice, one of whom had passed on the motion to quash. Judge Commons concluded that the defendant was entitled to have his motion passed on by a judge who had not conceded bias or prejudice. Under these conditions, we can not say there was an abuse of discretion based upon a clearly erroneous conclusion and judgment on the facts presented in support of and against the motion to reconsider the motion to quash. It has been uniformly held by this Court the decisions of the trial court will not be set aside in the absence of a manifest abuse of discretion. Stevens v. State, 94 Okl.Cr. 216, 232 P.2d 949.

The second proposition urged by the state is:

'The trial court committed gross error in holding that the grand juror, Ernie Murrell, was a deputy sheriff in contravention of Title 38. O.S.1951, Sec. 28 * * *.'

38 O.S.1951 § 28 reads, in part, as follows:

'All citizens residing in this State, having the qualifications of electors, of sound mind and discretion, of good moral character, not * * * sheriffs, or deputy sheriffs, * * * are competent jurors to serve on all grand and petit juries within their counties, * * *.'

The state urges that Mr. Murrell held nothing more than a courtesy card from Sheriff Nicholson which did not vest him with the powers of a deputy sheriff. The cases relied on by the state are cases involving courtesy cards sometimes issued by Sheriffs for political purposes which have been vigorously condemned by this Court. Fooshee v. State, 3 Okl.Cr. 666, 108 P. 554; Tripp v. State, 63 Okl.Cr. 41, 72 P.2d 529; Allen v. State, 70 Okl.Cr. 143, 105 P.2d 450; Murphy v. State, 95 Okl.Cr. 333, 245 P.2d 741. The record shows that Sheriff...