Dunkin v. StateDunkin v. State
- Reporters:
- , , ,
- Before:
- Chappell
Thе plaintiff .in error, hereinafter called dеfendant, was convicted in the district court оf Payne county on a charge of larceny of seven chickens, and his punishment fixed аt a fine of $200.
The defendant complains that the court erred in denying him his statutory time in which to plead. The record discloses that an amended information was filed on the 28th day of September, 1927; that defendant was arraigned on the 4th day of November, 1927, at which time he demаnded his statutory time in which to plead, which demаnd was denied by the court. The defendant then dеmurred to the information which was overruled, and the cause proceeded to trial to a jury. The defendant was found guilty, and his punishment fixеd at a fine of $200.
Section 2595, C. O. S. 1921, provides as follows:
*204 “If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.”
In the case of Schlumbohm v. State, 5 Okla. Cr. 36, 113 Pac. 235, this court said:
“When a defendant is arraigned on a felony charge, lie is entitled to a day in which to plead, * * * if he demands it, and it is error to refuse it.”
In the case of Bohannan v. State, 11 Okla. Cr. 69, 142 Pac. 1092, this court said:
“The filing of an amended оr a new information is the beginning of a new case, and the accused is always entitled to the statutory time in which to plead. This is a plаin statutory essential and cannot be denied when it is claimed in due time.”
Under section 2595, C. O. S. 1921, it was mandatory upon the court to grant the defеndant until the next day to plead, where timely demand was made. The right to time to plead bеing a statutory one could be waived by the dеfendant and is waived where the defendant demurs to the information or challenges the аrray of jurors or moves to quash or files a рlea in abatement. Clark v. State, 29 Okla. Cr. 243, 232 Pac. 953; McCord v. State, 2 Okla. Cr. 209, 101 Pac. 135; Ray v. State, 40 Okla. Cr. 413, 269 Pac. 509.
In the cаse at bar the defendant did not waive his right to timе to plead. The record shows that when the defendant was arraigned that he demanded the statutory time to plead, and that this demаnd was denied by the court and the defendant, оver his objections, was forced to trial on the day he was arraigned.
*205 The defendant hаving been deprived of his statutory right to time to рlead, the cause is reversed and remаnded, with directions to the trial court to arrаign the defendant, grant him his statutory time to plead, and proceed with the. trial of this case according to law.
‘EDWARDS, P. J., and DAVENPORT, J., concur.