Jones v. State

simultaneously, they only be knowing could therefore, We, find this

punished for one. Error, JONES, William Scott proposition to be without merit. The STATE Defend of proposition The defendant’s final in Error. contends that trial court erred al No. A — 15991. lowing to read the of State Appeals Criminal Oklahoma. transcript the rebuttal witness from the 6, Jan. trial. We note that trial court inquiry prior conducted an intensive to ad Rehearing Denied March mitting following guide the testimony

lines set Page, forth Barber v. 390 U.S. 88 S.Ct. 20 L.Ed.2d 255. Three concerning

officers testified efforts made subpoena locate and serve a wit The trial

ness. court made a find

ing that diligent the State had been at

tempting to locate missing witness and just

stated: “I you don’t know what more

could require (CM 367). of them.” opinion

We are of the that the record

properly supports ruling. the trial court’s

We, therefore, find proposition

without merit. conclusion, we observe that the

jury was instructed “good as to time cred

its” objection over the

the second stage two-stage proceed

ing. giving The of such instruction is er State, Okl.Cr.,

ror. Williams v. P.2d judgment

997. The sentence there

fore modified to an indeterminate term of

not less than ten nor more than thir (10),

ty years (30) imprisonment, and as so

modified judgment and sentence is

Affirmed. Modified and affirmed.

NIX, J., not participating.

BRETT, J., specially concurring.

BRETT, Judge (specially concurring).

I concur in this because the act Robbery completed

of Armed Kidnapping

the act of commenced. O.S.Supp.1970, speaks

Title 21 § singular provision and makes no what-

soever for “course of conduct.”

Raymond Burger, City, for Oklahoma plaintiff in error. Gen., for Blankenship, Atty. de-

T.G. fendant error.

NIX, Judge. error, Jones, Scott William defendant, to as hereinafter referred in the District Court Okla- convicted CRF-69-2602, of County, Case homa No. and sentence Judgment sale of marihuana. punish- imposed on March with imprisonment and month ment fixed at 18 The issue appeal perfected therefrom. is the requiring determination When this handed down the Nico- at both the presumed magis- opinion, demus it was the trial. trates, reorganization, would charged in Case initially Defendant was judicial courage proper exercise to make conjointly acting with No. CRF-69-2351 application of the law without fear of re- Morris together with Meredith Wade prisal from some “Phantom Force”. How- 14, 1969, August on of marihuana sale ever, appears it this Court is to compelled Preliminary ex- Henry to Kane. John the reiterate law more intricate detail. and Mor- was held for defendant amination Judge before ris on October magistrate When examining an Jack testimony heard Thorne. The court C. by rules that the evidence offered the State officer; Kane, police an undercover is insufficient to hold the accused over for Burns, officer; George a narcotics A. trial on charge, ruling binding the such a is Tipton, for the and Brian L. chemist Okla- examining and final on him and other Investigation. The Court homa Bureau of magistrate produces unless the State addi ruling its until when withheld October proves tional evidence or the existence charge it Morris for trial on the held good justify other to a subsequent cause defendant. dismissed the preliminary examination. If the has State sufficient bring evidence to an accused charge against refiled the same The State trial, prepared it should be to offer such CRF-69-2602, No. defendant Case preliminary rely one examination preliminary examination before on came bolstering subsequent pre its case at a Berry on November Judge Robert L. examination, liminary necessary. is It Defendant’s motions to dismiss dilatory present on an evidence install pre- previous dismissal at the virtue ment basis at preliminaries. different Let of- liminary were overruled. The State present preliminary State its case at the witnesses, gave fered the same three insufficient, and be done with it. If it is same and no additional or then prosecution is at an end unless new close new evidence was offered. At the evidence good becomes available or other for preliminary held is refiling cause shown. Not is with charge. trial on the It is contended that unnecessarily out cause to our burdensome agree. procedure improper, this is and we courts, may overcrowded but it constitute Okl.Cr., Court, In Nicodemus v. Disrtict harassment anof accused. (1970), 473 P.2d 312 held that Therefore, magistrate a pre- at a although prosecution “dismissal of a at a liminary examination rules the evidence preliminary examination is not a bar to trial, to hold sufficient offense,” prosecution for further the same magistrate mag- neither nor other examining magistrate’s ruling on the filing istrate should entertain another “binding of the evidence against the same defendant for the same preliminary final at the examination.” We offense unless the makes an offer State critically practice further viewed a proves good of additional evidence other “shopping” among magistrates by refiling cause to justify another ex- Additional or amination. new evidence charge ruling until a favorable is ob- does not mean that which was known tained and said: the State at the time of the first preliminary production “Without additional easily acquired. or which could have been evidence, or the existence of other justify subsequent preliminary cause to prosecution, Upon refiling a examination, practice bring such a can become magis State it the same must before may form of harassment which violate charge, trate who dismissed the or in his principle process absence, of fundamental magistrate setting due another forth ” * * * equal protection number, date, magis- law the dismissed case trate, price and the additional other and took from Kane. Morris told $20 good cause to alley be offered. the officers to drive into the behind pick up businesses to the marihuana. Furthermore, upon refiling Subsequently Kane and drove into Stoltz circumstances, magistrate these alley up where Morris came to Stoltz’s subsequent preliminary at the examination side of the car. and Morris went Stoltz must be competent that additional convinced they joint behind the car where smoked a requires evidence has been offered which (marihuana cigarette) and transferred the re-examination of the dismissal be- baggie of marihuana. After awhile Stoltz ruling fore that mag- can be set aside. The and Morris came side of around Kane’s subsequent istrate at ex- car, whereupon emerged Kane amination for the same defendant on the Morris introduced himself. charge same should not consider the matter impression anew on as first as a dis- defendant was Under the State’s version binding missal is and final until money overcome present exchang- not when the was by additional ed, evidence. alley or in the when the marihuana was any transferred. Nor was there evidence In the instant we find that any defendant benefit from the received examining the magistrate properly dis sale, nor and Morris had a that defendant missed the at the initial pre prearranged plan. liminary examination; being there insuffi Defendant, eighteen year cient an old uni- evidence to hold defendant for trial student, versity scholarship on the testified that charge. The evidence at the second any preliminary he did offer sell marihuana and examination was not to substantially concerning the same and that he did not contact Morris there was no additional evi present dence or at other to such sale. Three witnesses justify cause an other the and the defendant time of the events examination. Nor was there emerged sufficient testified that as defendant from evidence to hold defendant over for magistrate shop trial. The the record Stoltz called the second the over to car. asked defendant by therefore bound Stoltz prior ruling buy if he he could some mari- dismissal. knew where no, huana. Defendant said and returned to We next address our attention to the he talked his three friends with whom sufficiency of the evidence at the trial. It of the witnesses. awhile and left with one appears that on August undercover According their the defend- informer, Officer and Kane D. E. into car. None of get ant did not Kane’s Stoltz, were park- seated Kane’s car in a talking with these witnesses saw defendant ing area fronting businesses, several night on the Morris even saw Morris or included a tavern shop and record fre- question. quented by young people. According to witness, Cindy Lynes, State’s facts, version of Another testified defendant emerged seeing a crowd of and young people dating she had been Kane and inquired lot, parking Kane and entered buy Stoltz wanted to him and Stoltz some They marihuana. there testified the back seat of the car. While defend- got into the car and and if Kane possible discussed a to the car asked Stoltz returned purchase. Defendant then any buy did not some marihuana. Kane have wanted to marihuana, car, including but left the and the wit- went to drove the car Stoltz group of young gave people, alley. Kane then Stoltz returned with ness into Morris. came money Morris said he Morris had some mari- for the marihuana. huana and price then and the two went behind up discussed side with Kane Stoltz’s During conversation, Lynes Stoltz. did not what see ac- car. Witness officers, car, cording to the after awhile happened defendant left behind the but again. was not seen around to Kane’s agreed Morris on a came Morris and Stoltz Morris convict for emerged and sale of the car. Kane marihuana. side of The court reversed withstanding themselves. not and Kane introduced the Massachu- setts statute defining “sale” including as reveals the evidence was This record “barter, exchange gift, or or offer there- conviction wholly support insufficient for, and any each such by transaction made as of marihuana of the defendant for sale person, whether principal, proprietor, necessary proven. elements were servant, agent, employee.” The court pos- had was no There held: the marihuana session control over separate- Not was defendant “Defendant by volved. facilitated an illegal sale trans- place time and from the actual introducing willing buyer ed in and seller action, between defend- aiding physical but the connection transfer of proven. Accept- drug money. ant and the seller was nothing There facts, render- ing the State’s version show that the defendant had finan- transaction, preponderance ed in view of a cial interest in doubtful or was evidence, proof employed by no of ar- there was promote seller to sales.” rangement or defendant’s interest 253 N.E.2d at 348.

sale. The defendant in the above case far more involved the transaction than Although by statute in the case at bar where there one “aids principal and abets” is a is no evidence defendant had financial crime, a conviction cannot be obtained transaction, in interest employed proof conspiracy there is “no of a or sales, promote nor that he aided in the prearranged plan” alleged between the physical drug money. transfer of or abettor actually and the one who commits State, Anderson crime. v. 66 Okl.Cr. Under similar in facts several decisions 291, 91 P.2d (1939). proof 794 Absent of jurisdictions different have reversed con- conspiracy, a conviction cannot be sustain drugs. victions for People sale of v. ed applicable as shown in several decisions. Branch, 13 A.D.2d 213 N.Y.S.2d the court said: Harvard, In Commonwealth v. 253 N.E. 2d 346 (Mass.1969), the defendant was nothing in the evidence to “There was contacted agent an undercover about had entered into show that the defendant obtaining some marihuana. After several the nar- conspiracy with the vendor of contacts, such introduced selling cotics to in the of narco- engage agent the undercover to one Zacharo. The in tics or that the defendant had acted agent’s car parked and Zacharo’s car were way agent any the transaction in as the parallel to each other and three or four feet her or that he of the vendor or on behalf apart with the standing defendant between way in the enter- any was associated with persuaded cars. “Defendant Zacharo any that he had prise of the vendor or to sell marihuana to Martin undercov [the personal bringing or financial interest er agent], thereupon Zacharo handed * * * who acts sole- trade to her. One plastic bag of marihuana to the defendant buyer ly agent of the cannot as the passed it to Martin in Martin’s car. nar- selling crime of convicted of the Martin then gave to the defendant who $15 cotics.” passed it to Zacharo. There was no evi Buster, People v. effect are: To the same any dence that the defendant received of 437; 1141, 145 N.Y.S.2d App.Div. 286 proceeds of the sale.” at 253 N.E.2d Fortes, 428, 260 N.Y.S. People v. A.D.2d 24 2d 716. Upon Supreme these facts of F.2d Sawyer, 210 v.

Massachusetts held the trial court erred in States In United a similar Cir.), reached granting for the court (3rd motion a directed ver- 169 for a conviction reversing dict as the evidence was insufficient conclusion 174 There the which show collaboration and associa- selling of heroin.

unlawful analysis tion is characteristic of said: court aid- where convictions of those cases to act undertook defendant “[If] sustained, ing abetting and have been rather behalf prospective purchaser’s [citations] own, doing purchased in so his than the absence of are satisfied person with whom “We from a third drug any showing or associa- of collaboration selling, associated he was not Cooper pre- appellant tion buyer, the between it to the delivered thereafter being her from convicted under 210 vents be a seller.” defendant would partici- 2 guilty Section of Title as a 18 F.2d Cooper’s of narcotics.” 220 pant sale selling narcotics was A conviction F.2d at 169. acquit in Adams directions to reversed with Hender- cases of like tenor are: States, Cir. Other (5th F.2d 297 220 United States, (5th son v. United 261 F.2d obtained 1955), where Texas States, 263 1958); Cir. Cofield v. United informer: narcotics for a (9th 1959). Cir. F.2d quite consistent “All evidence was pur- acting only as a with [defendant’s] Again, in the instant there messenger of agent or instead chasing scheme,” community “any of proof no * * * any there nor was as a seller association, collaboration, between profited evidence that Morris, [defendant] nor that seller asso- or was way from transactions or financial personal defendant had selling her ‘connection’ ciated with being There interest in the transaction. * * guil- *. The verdict narcotics necessary ele prove total failure to selling heroin must ty of the offense the defend ments to constitute a sale speculation, upon have been based ant, prear conspiracy proof and no a ver- directed should have judgment guilty hold verdict of ranged plan, we acquittal.” dict specula could have been based failing erred in tion and the trial court Moses, (3rd F.2d 166 220 United States v. verdict of ac grant a motion for directed case, instant involved 1955), Cir. as the quittal. was not the defendant fact situation where Court, as stat- It is a familiar rule of this On present at the time of the transaction. State, P. 42 276 ed Cude v. Okl.Cr. merely intro day question 240, that: seller prospective buyers to the duced the the result that them “with and vouched for conviction, appear it should “To sustain sale some accomplished a principals committed, only that offense was held: hours later.” The Court inculpating the defend- but the evidence certainty, degree ant should do so to States, Cir., 1942, 127 “Morei 6 v. United strong probability or transcending mere a narcotics also F.2d suspicion.” as de- There the court treated structive. community lack of re- cisive the sentence is Accordingly, judgment and and the scheme between instructions versed and remanded with has been principal Again, it wrongdoers. dismiss. acts, prohibition general rule state, who has act-

national and that one BRETT, J., P. concurs. selling cannot ed without interest BUSSEY, Judge (dissenting). though his be as a seller even convicted opin- an il- may respectfully have facilitated dissent from conduct fact I must Notes, Nix, for the legal my colleague, Judge sale. See cases collected ion of State, L.R.A.,N.S., L.R.A.,N.S., and 28 feel the evidence 268 reason that I Moreover, light, is suf- emphasis strongest on those facts 334. viewed in the ficient to establish that defendant and Mor- my should have I reiterate been reached. ris acting were in concert in the dissent to opinion sale of the originally written marihuana. am in repudiate While I accord with the majority opinion in its en- prosecution view tirety. that should be

permitted to harass re-

peated filing complaints

after an examining magistrate has held the insufficient, I am of the further Error, MILLER, Fred John opinion treating that the magistrate’s dismissal as a final order binding on all Oklahoma, Defend The STATE other magistrates unless the in Error. produces evidence, additional the order of No. A-14911. dismissal should be an order reviewable on appeal to the District Court in much the Appeals Court of of Oklahoma. Criminal same manner as a defendant right has a April 9, 1969. test the of evidence offered Rehearing Denied Nov. at preliminary by filing examination a Mo- Sept. Rehearing tion Quash. my opinion, On Second the trial court, in reviewing order, such an would authority vested with the to vacate the

order of dismissal in the event that the Dis-

trict Judge is of the that the evi-

dence adduced at hearing

was sufficient to establish that a crime

was committed and prima that there is

facie probable cause to believe that the de- guilty.

fendant is

BUSSEY, Presiding Dissenting to Judge, Denying Rehearing.

Order Petition for Denying

I must dissent the Order styled Rehearing

Petition above cause, express my shock numbered realizing I was my colleagues, that two today, returning would vacation Rehearing

summarily on a Petition for act had set argument oral been me. consulting

March without authority majority

I of the recognize fol- to determine the law to be the Court right to reserving the

lowed majority action of

dissent from the cannot, in con- I

those cases which

science, presented issues Since concur. great magnitude are of instant case substantially the administra-

that effect Oklahoma, and justice

tion of criminal opinion was delivered original

since the briefs, oral I am

without great

argument been of benefit would have determining whether

to the Court written,

original opinion stand as should it,

whether, opposite I result view

Case Details

Case Name: Jones v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jan 6, 1971

Citation: 481 P.2d 169

Docket Number: A-15991

Court Abbreviation: Okla. Crim. App.