State v. Waldrep , 80 Okla. Crim. 230 ( 1945 )


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  • I concur fully in all the statements set forth in this opinion, concerning *Page 238 the legal questions as to whether the action herein is barred by the statute of limitations. The case of Glenn v. State,72 Okla. Cr. 165, 114 P.2d 192, cited in the opinion, is conclusive of that question.

    I agree that the general rule of law pertaining to appeals by the state on a reserved question of law is correctly stated in Syllabus 1. If this were an appeal from the judgment setting aside the information and not upon a reserved question of law arising upon the trial, then a reversal of the judgment of the trial court setting aside the information would reinstate the case for trial in the lower court. State v. Pollock,5 Okla. Cr. 26, 113 P. 207; State v. Barnett, 60 Okla. Cr. 355,69 P.2d 77.

    The county attorney has never indicated that he expects or desires to try the accused if the question of law presented by the appeal is decided in favor of the state. All proceedings in the lower court indicate the contrary. There was no request by the county attorney nor attempt to have included in the order setting aside the information a further order staying the execution of the judgment or holding the defendant pending the appeal.

    As I view the record, I do not think the question as to whether the defendant may be tried upon the remanding of this case is properly before us, and, for that reason, I do not express an opinion as to whether the appeal herein is based upon a reserved question of law or is an appeal from a judgment setting aside an information.

    In order to avoid any uncertainty concerning the nature of appeals by the state in the future, I suggest a careful study of the procedure followed by the district court of Oklahoma county in the case of State v. Barnett, *Page 239 supra, which procedure is set forth in the reported case. The wording of the order and all acts done in connection with the judgment quashing the indictment in that case could well serve as a pattern for other courts to follow under similar circumstances. There is a vast distinction in the procedure to be followed where a demurrer to an indictment or information is sustained and where a motion to quash an indictment or information is sustained, and the legal effect of the order in each of such instances is different, as will be shown by a reading of the statutes and the cases cited in the opinion of Judge LOONEY.

Document Info

Docket Number: No. A-10258.

Citation Numbers: 158 P.2d 368, 80 Okla. Crim. 230

Judges: LOONEY, Special Judge.

Filed Date: 4/25/1945

Precedential Status: Precedential

Modified Date: 1/13/2023