292 P. 888 | Okla. Crim. App. | 1930
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of robbery with firearms and sentenced to serve a term of 25 years in the state penitentiary.
In July, 1924, a bank at Uncas, Kay county, was robbed by three men who drove into the town in a Ford car. One remained in the car, and two went into the bank and with firearms committed the robbery, securing about $1,400; they then made their escape. In September, 1924, a complaint was filed in the county court of that county charging defendant and one Jack Newman with the robbery. A warrant was issued for defendant and Newman on such complaint. Newman was apprehended, tried, convicted, and sentenced to serve a term of 25 years. See Newman v. State,
The contention is made that when the Governor honored the requisition and permitted defendant to be taken to the state of Colorado upon a charge pending in that state, this state waived jurisdiction and lost its rights to put him on trial, citing Ex parte Middaugh,
It is argued that as it appears the parties present at the scene of the robbery testified they saw defendant there and did not see him until five years later and the case must rest on their identification, their testimony cannot be given any weight and that the corroboration of the accomplice is insufficient. It is a general rule that where the testimony of an accomplice or claimed accomplice makes out in all particulars the crime charged, the corroboration need not be as strong as in other cases.
The main witness for the state was one Carden. He testified, in substance, he was an inmate of the state penitentiary, serving a 25 year sentence for the robbery of the Uncas Bank. That the robbery was committed by himself, one Newman, and the defendant. That he drove the car to the place of the robbery, and Newman remained in it while he and defendant went into the bank and did the actual robbery. He went into details, narrating at length the circumstances of the robbery. A witness, Snyder, testified he was in the bank at the time of the robbery and was forced at the point of a gun to lie down on the floor. He identified defendant as one of the men participating in the robbery. A witness, Enstine, testified he was in the bank at the time of the robbery, was talking to the witness Snyder, and was also forced at the point of a gun to lie down on the floor. He also identified defendant as one engaged in the robbery. The cashier of the bank testified that in his own mind he was satisfied defendant was one of the participants. On cross-examination he admitted the possibility of error. Here the testimony of Enstine, Snyder, and the cashier, Jacques, certainly corroborated the testimony of the accomplice and tends to connect him with the crime charged, and this is all the law requires. Section 2701, Comp. St. 1921. The reasonableness or unreasonableness of the testimony of *166
the corroborating witnesses and the weight and credit to be given it is for the jury. See Brannon v. State,
The most earnest argument is made that the prosecution is barred by the statute of limitations. Upon this point the record discloses that the offense was committed on July 21, 1924; on September 4, next thereafter, a preliminary information was filed in the county court of Kay county and a warrant issued. Sections 2441 and 2442, Comp. St. 1921, are as follows:
"2441. There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.
"2442. In all other cases a prosecution for a public offense must be commenced within three years after its commission."
Section 2443 in substance provides that the statute of limitations does not run while a defendant is not an inhabitant or usually resident within the state. Synnott v. State,
"By the term `the prosecution,' as used in a criminal case, is meant the continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused. It should not be confounded with the written accusation, nor is the term synonymous with criminal action. It consists of all the successive steps, having relation to each other, taken against the accused by the officer or officers charged with the enforcement of the criminal law. It contemplates proceeding judicially and involves *168 all written accusations, including complaints, presentments, indictments, and information successively and continuously lodged against the accused. It may comprehend one or more related actions, provided the offense in each instance is identical and the actions are continuous and are brought and maintained pursuant to lawful authority."
The general rule appears to be to the contrary. In 8 R.C.L. p. 133, § 111, it is said:
"The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. Within this rule, if an indictment or information is the first step taken in the matter, of course that commences the prosecution; but when, as is usually the case, there are preliminary proceedings, the prosecution is commenced at the time a complaint is laid before a magistrate and a warrant is issued; and a defective warrant is sufficient for this purpose, especially where no objection was made to it until the defendant had been convicted."
In 16 C.J. p. 230, § 355, it is said:
"* * * On the other hand, where the statute simply provides that the prosecution must be commenced in a specified period, a complaint and warrant of arrest issued thereon and executed without unnecessary delay, will constitute a commencement of the prosecution. Similarly if the prosecution is by affidavit and information, then, and in such cases, the action may be deemed to be commenced at the time the information is filed with the clerk by the state through its proper officer. * * * An arrest is not a part of the commencement of a suit, and it is therefore not essential that it be made within the statutory period, although, as in civil cases, process therefor must issue upon the indictment and must be served without unnecessary delay."
See State v. White, supra; State v. Disbrow,
If the rule here contended for is sound, then an offender for any crime less than murder, if he can successfully conceal himself and avoid arrest for three years, is free from prosecution. The officers of the state may be ever so diligent in attempting to serve the warrant of arrest, but if the offender outwit them no prosecution will lie. When the action was commenced in September, 1924, by filing a preliminary complaint with the county judge, and the issuing the warrant thereon in good faith, the fact that the sheriff was unable to find defendant to serve the warrant does not make the commencement of the prosecution any less a fact. When defendant came into the custody of the state for prosecution for the offense charged in Kay county, the state might have proceeded with the original preliminary complaint, or it might have filed another preliminary complaint with the county judge so long as the offense charged is identical.
The case is affirmed.
DAVENPORT and CHAPPELL, JJ., concur.