Ward v. State
| Decision Date | 16 January 1926 |
| Docket Number | A-5188. |
| Citation | 242 P. 575,33 Okla.Crim. 182 |
| Parties | WARD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where an attorney, or firm of attorneys, formally appear for a defendant charged with a crime, regardless of whether or not they have received a fee or have consulted with the defendant concerning the facts, they are precluded from thereafter appearing for the state, and to appear and participate in the prosecution over the objection of the defendant is reversible error.
Appeal from County Court, Dewey County; R. L. Foster, Judge.
Ed Ward was convicted of unlawful transportation of whisky, and he appeals. Reversed and remanded.
W. P Hickok, of Taloga, for plaintiff in error.
Geo. F Short, Atty. Gen., for the State.
From a conviction in the county court of Dewey county for a misdemeanor, the plaintiff in error, hereinafter called defendant, has appealed.
Several assignments of error are argued in the brief, none of which have any merit except the third. This assignment is that during the pendency of the prosecution against the defendant Hoyt & Butler, attorneys, on two different occasions appeared as counsel for the defendant, and, upon the trial of the case, this firm, by Fred L. Hoyt, a member of the firm, appeared for and assisted in the prosecution and conducted the cross-examination of the defendant, over his objection.
We have examined the record and find that on October 1, 1923, the defendant filed a petition for a continuance signed by Hoyt & Butler, his attorneys. Indorsed thereon is a stipulation for continuance signed by them and the county attorney. Again on January 7, 1924, a further motion for continuance was filed by the defendant signed by Hoyt & Butler, his attorneys, and indorsed thereon is a stipulation between them and the county attorney. Upon the trial, Fred L. Hoyt, of the firm, appeared for the state. Objection was made that his firm had appeared for defendant. Thereupon the county attorney informed the court that the firm had been retained to assist him in the case, and Mr. Hoyt informed the court that he had signed applications for continuance as a matter of accommodation, but had not received a fee and had not discussed the case with defendant, and had, in fact, forgotten signing the same. The court then permitted him to appear for the prosecution, and he conducted the cross-examination of the defendant.
A somewhat similar question, whether one, who has acted as a prosecuting officer, may, subsequent to the expiration of his term, appear for a defendant, has arisen in other courts. It is generally held that he cannot do so. Gaulden v. State, 11 Ga. 47; In re Stephens, 77 Cal. 357, 19 P. 646; Weeks on Attorneys and Counsellors (2d Ed.) § 120, pp. 254, 255; Commonwealth v. Gibbs, 4 Gray (Mass.) 146; Webber v. Barry, 66 Mich. 127, 33 N.W. 289, 11 Am. St. Rep. 466; State v. Howard, 118 Mo. 127, 24 S.W. 41. There are some exceptions to this rule. People v. Johnson, 40 Colo. 460, 90 P. 1038, and see State v. Howard, 118 Mo. 127, 24 S.W. 41. It is fairly well settled in civil cases that an attorney, who acted as such for one side, may not render services professionally for the other side. 6 Corpus Juris, 619, 1053; In re Boone (C. C.) 83 F. 944; Weidekind v. Tuolumne, etc., 74 Cal. 386, 19 P. 173, 5 Am. St. Rep. 445.
This court in the case of Steeley v. State, 17 Okl. Cr 252, 187 P. 821, under a state of facts similar to that disclosed by the record here, reviewed the authorities, and held that, where an attorney had once...
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