Jordan v. Phillips , 344 P.2d 600 ( 1959 )

POWELL, Presiding Judge.

Leon Jordan has filed herein a petition seeking a writ of mandamus from this Court to compel the District Judge and the County Attorney of Pushmataha County, Oklahoma, to dismiss cause No. 1900 now pending in the district court of that county, wherein defendant is charged with the murder of his wife.

The case in question was a companion case of No. 1901, wherein petitioner was charged with murder of Bill Donica, and convicted, after one mistrial, of manslaughter in the first degree. The facts of the two deaths are interwoven and arise out of the same incident, the details being set out in Jordan v. State, Okl.Cr., 327 P.2d 708 (April 9, 1958), wherein defendant Jordan appealed his conviction in case No. 1901 to this Court. Suffice to say, there was evidence of intoxication of the parties. The cited case may be referred to for details.

The two cases, numbered 1900 and 1901, were filed in the district court of Push-mataha County on January 7, 1955. No jury term was set in Pushmataha County in 1955. There was evidence that Lee Welch, Esq., then representing the defendant, was a member of the legislature and that following this he suffered a heart attack and was incapacitated for a time; that there were only four law firms in the county and that in deference to Mr. Welch, although he filed no formal request, it was agreed that no court be held. There was also evidence of the further fact that there was not sufficient funds available in 1955 to provide for holding a jury term of court. Defendant Jordan was at liberty on bond, and case No. 1901 was set for trial beginning on January 16, 1956 and resulted in a mistrial. Up to this time no formal demand for a trial had been made, so we pass over the question of whether at the time he would have been entitled to a dismissal. The two cases were reset on a trial docket commencing on April 20, 1957. Defendant, as stated, was convicted in case No. 1901 of manslaughter and punishment fixed at eight years confinement in the State Penitentiary.

Prior to trial on April 29, 1957 in case No. 1901, defendant on April 17, 1957 filed a written demand that he be first tried on the charge in case No. 1900, involving the death of his wife, or that the case be dismissed. He further objected to being thereafter at that term of court re-tried in case No. 1901, because, as it was said in the motion:

“The trial of both of such cases on the same docket to the same jury panel is and would be contrary to the accepted practice and rules of this court and contrary to the requirement that defendant be given a fair and impartial trial, and the setting of both such cases on the same docket and the publicizing of the fact to prospective jurors and the general public of the multiple homicide charges against defendant both theoretically and practically is unjust and unfair to defendant, and denied and denies him the right to a fair and impartial trial free of prejudice and bias.”

Defendant also alleged that he had been denied a speedy trial in case No. 1901. The prayer of the motion in question reads:

“Wherefore, on account of the above and foregoing, defendant moves and asks the Court to dismiss said cause No. 1900 against him wherein he is charged with the murder of Lillian Jordan, or if such motion and request should not be properly granted, then this defendant prays in lieu of such dismissal that he be tried as the first cause on such April 22, 1957, docket on the charge against him in said cause No. 1900 instead of on the charge against him in cause No. 1901 wherein he is charged with the murder of William V. Donica.”

On May 6, 1957 prior to the adjournment of the term of court in progress, and after the conviction in case No. 1901, defendant in spite of his allegations and reasons advanced against the trying of the two cases in question at the same term of court, had a change of mind, and in writing demanded that case No. 1900 also be tried or in lieu thereof that the case be dismissed. The court overruled the motion.

Following this the July, 1957, the January and July, 1958, and the January, 1959 terms of court expired without trial of case No. 1901, and the July, 1959 term is well on the way of expiration. Nothing has been done. The matter of a speedy trial in 1959 is further complicated by reason of the fact that Hon. Lee Welch, defense counsel, is now county attorney, although the Hon. Joe Stamper remains as special prosecutor. The whole history of this case in a county so limited with attorneys and where funds for holding the two terms of court each year as provided by statute (20 O.S.1951 § 95) are apparently insufficient, presents a case for legislative study. Judge Barefoot many years ago called attention to such a situation, as did Judge Brett later (In re Gregory, Okl.Cr., 309 P.2d 1083), but apparently the constituted legislative authorities did not hear.

This Court specifically held in the Gregory case, supra, that if a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed unless good cause to the contrary be shown. And we further said that the failure to provide for a jury to try causes is one of the things the constitutional guaranty of a speedy trial was designated to meet. See: McLeod v. Graham, 6 Okl.Cr. 197, 118 P. 160; Glover v. State, 76 Okl.Cr. 53, 134 P.2d 144.

And while the argument of the State that there is a distinction between incarceration in jail on a charge where accused was unable to make an appearance bond and where the fact of incarceration makes demand for him, and in a situation as here where the accused, out on bond in one case is incarcerated in the State Penitentiary by reason of conviction in a separate case, need not be noticed because the accused has demanded and now demands a speedy trial in the pending case No. 1900.

The Bill of Rights of the Oklahoma Constitution, Art. II, § 6, provides:

“Right and justice shall be administered without sale, denial, delay or prejudice.”

And, further, Art. II, § 20:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Title 22 O.S.1951 § 812, provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

We must hold that under the facts recited petitioner herein is entitled to have case No. 1900, wherein he is charged with the murder of his wife, dismissed because of the passage of the several terms of court since his conviction in case No. 1901. See In re Gregory, supra, State v. Dickson, Okl.Cr., 332 P.2d 1109 for general and further treatment of the constitutional and statutory provisions.

We would be derelict in our duty if we failed to call attention to the provisions of 22 O.S.19S1 § 817, which reads:

“An order for the dismissal of the action, as provided in this Article, is not a bar to any other prosecution for the same offense.”

The above section of the statute has been construed in connection with 22 O. S.1951 §§ 812, 815 and 816, in Ex parte Warrenburg, 1937, 63 Okl.Cr. 125, 73 P.2d 476.' .Other cases that should be read are Ex parte Warford, 3 Okl.Cr. 381, 106 P. 559; Hembree v. Howell, 90 Okl.Cr. 371, 214 P.2d 458; and note at pages 943-964 of 50 A.L.R.2d.

. In the Warrenburg case, supra, Judge Barefoot quotes liberally from a case from the California Supreme Court: In re Begerow, 136 Cal. 293, 68 P. 773, 774, 56 L.R.A. 528, where the question of “speedy” trial is treated in some detail.

In State v. Dickson, supra (December, 1958) this Court incidentally referred to the rule 'set out in the Warrenburg and other cases' from this Court but attention is called to the fact that Judge Nix concurred specially, and he does not agree with the Warrenburg and Hembree v. Hciwell cases. His opinion should be‘read in connection with Warrenburg.

Of course an impartial special assistant county attorney might decide, if the facts justified, not to refile the case in view of the claim of accidental killing of the wife. We do not know. See Galbraith v. Lackey, Okl.Cr., 340 P.2d 497, at page 502, quoting from Wilson v. State, 89 Okl. Cr. 421, 422, 209 P.2d 512, 212 P.2d 144, and Thacker v. Marshall, Okl.Cr., 331 P.2d 488, 490.

Writ of mandamus granted requiring the district judge of Pushmataha County to dismiss case No. 1900, State of Oklahoma v. Leon Jordan, now pending .in that court.

BRETT, J., concurs. NIX, J., concurs in conclusion as to dismissal. Dissents to paragraph 4 of the syllabus.