*1 fact, deny he was, not that is his. He did We observe Record of free transaction, any but he did error justify that had made the would modification require He judgment not remember. was reversal. The film, shortly documentary producing accordingly sentence is affirmed. Hawaii, he July he went to where after BRETT, JJ., NIX concur. He notified for one month. remained by he the Tulsa authori- was wanted returned, ties, voluntarily and he charges of
subsequently convicted two
Embezzlement, being presently which are
appealed. He did about not know question charges until were filed.
check by was informed someone office account, not to write on that but he checks Error, LAWSON, Curtis L. not when. He he sure testified if v. merchandise, buy signed he Oklahoma, The STATE Defend- wrong by check mistake. He not have ant in Error. store, intent cheat or to defraud the No. A-16351. he offered to restitution made when Appeals Court of Criminal Oklahoma. outstanding, still knew was which re- Oct. quest by was denied the District Attorney’s Rehearing 10, 1971. Dec. Denied office. Rehearing Second Denied Feb. Jerry The State recalled Cantrell re- buttal, who identified bank records con-
cerning the Educational Information &
Service account. The records reflected during June, the last week and in July,
the month of signed by 51 checks by
defendant on his account were returned unpaid.
the bank
The defendant signed testified that he
number of checks in blank before he left Hawaii, secretary that his new
sent them out mistake.
The defendant propositions asserts two
of error. note defendant does support cite propo authorities either
sition. have consistently held that it
necessary for counsel for the defendant error, only to assert but support also to argument contention both
citation of Where this is not authorities.
done, apparent and it is that the defendant deprived
has been no fundamental
rights, this Court will not search the books support authorities to the mere asser
tion that the trial court has erred. Sande State,
fur
Okl.Cr.,
v.
and but the the and cause of trial, help you so God.” oath, do,” Haynes’ responded Mrs. “I and took the witness stand. Dorrough he a testified that was
Glen Reporter Judge Court and was 12th, employed so on November 10th and reported He 1969. testified he had L. case of State of Oklahoma v. Curtis Lawson, testimony and that the recorded transcripts him was exact- recorded ly transpired the proceedings at con- as by Judge days in ducted Simms on the He question. testified that the defendant personally appear testified he Preliminary Judge and waive before 4, Hearing September on Morgan testified that he was an Jack Attorney District for Tulsa Assistant Coun- appeal An from District Court ty September on 1969. He testified that County; Martin, Judge. R. F. 4th, Tulsa September on the defendant and Tanner, appeared in attorney,
his John Hall, Judge Amos court before T. and up stood made an- Hearing in Preliminary nouncement that cross-ex- two cases would waived. On Lawson, pro L. se. Curtis amination, Morgan that he testified Gen., Atty. Larry Derryberry, Ray Nai- proceed- if a was made of recall record feh, Gen., Atty. Legal Mike Jackson, Asst. waiver, ings Hearing at the Intern, for defendant error. present. but clerk that minute was BUSSEY, Presiding Judge: em- Tanner testified that he was attorney, Lawson, ployed by defendant his Curtis L. hereinafter referred appeared on he with the defendant defendant, tried charged, was September con- and that he had a the District Tulsa convicted with the defendant outside versation County, Perjury; his for the offense of Judge The defendant chambers Hall. punishment year impris- at was fixed one objected questioning, to this line of because onment, judgment and from said and sen- privilege between client and attor- tence, timely perfected appeal has been Mr. ney, wherein the trial court directed to this Court. questions. testi- to answer Tanner trial, Virginia Haynes At the testified conversation, after this he fied that Deputy that she was the District Court appeared Judge Hall before Clerk, assigned to Division Two of the On and waived Court, District employed Tulsa was so cross-examination, Mr. Tanner testified November, days on the 10th and 12th regarding concerning defend- discussions present testified that She she making charge, pleading guilty to the ant’s during hearing before in- restitution, proposed disposition of and the days ques- the defendant on volving the cases. testified that tion. She the defendant was Flanagan as a was called wit- testify by called to William defendant, truth, truth, testified that for the sworn to tell whole ness “the Ellis, from employed as Minute Clerk for at supra, case bar. petitioner concerning He testified application Amos Hall. filed his ofWrit procedures writing followed in Habeas usually Corpus, alleging being that he was con- illegally Minutes. He testified minute incarcerated Texas County, cases, cerning pending action of the District Court on a *3 Hearing, partially charge waived Perjury. of In an pending action stamped partially typewritten. tes- in Morris, said county, entitled H. “J. any independent Plaintiff, Matthews, tified Defendant,” that he did not have v. R. H. transpired Septem- recollection of what on said defendant Henry and one Mann cor- 4, ber change roborated an for affidavit a of stating judge, county judge that the states, proposition The first “Dis prejudiced. day, county the same On Judge trict Robert D. Simms was without Davis, judge, complaint a R. L. filed be- authority to to have defendant committed Peace, fore a of wherein he Justice jail charge to perjury, answer the of there charged petitioner with the crime of fore, subsequent trial was an excess of Perjury making in corroborated said affi- authority by the briefs Court.” The Petitioner change davit for judge. of parties day reflect that on 10th of No of arrested and taken before Justice vember, 1969, appeared in Peace, a Motion for where filed County District Tulsa before Court of Venue, thereupon Change of the Coun- the Honorable D. Robert Simms on a Mo Immedi- ty Attorney dismissed case. tion for New Trial on cases CRF-69-1115 thereafter, on petitioner was arrested ately support CRF-69-1217. In of his Mo Davis, a issued the same R. warrant L. Trial, tion for New the defendant testified complaint having County Judge, without that he did not Preliminary Hearing waive day, Da- following Judge been The filed. in the Judge cases before Amos Hall. petitioner to be summarily vis ordered Simms, Judge thereafter, conducted an ex of Tex- held for in trial the District tensive hearing, Judge Hall, charge as of Per- County to answer to Morgan testified that the Jack jury. granting Writ of Habeas personally appear defendant did and waive Corpus, we stated: question “The first is: Has court of thereafter, charged ordered with provision this record of this state under Perjury, $7,500.00, set bond at and commit authority summarily to commit a witness ted the jail. defendant to perjury? to be for held to answer action, cited as authority for this 21 O.S. opinion provision that 1961, 500, are of this which states: [the] § if Territory, of the laws of Oklahoma appears probable “Whenever it in any repugnant in to the Constitution and record, court of person that who has 17, art. part conflict that of section with testified in any or action proceeding in 2, provides, Bill ‘No Rights, of which such court perjury, has committed such felony person for a prosecuted shall be court immediately must commit such per- having preliminary exam- without had a son an order pur- or for that examining magistrate, ination before an pose prison to recognizance or take a having preliminary ex- waived such with appearance sureties for his and an- amination,’ only be effective while can swering to an indictment for perjury.” grand county. is in jury session To be in the case at bar would authority, parte effective cites as Ex Ellis, judge make the his own 3 court the of 105 (1909), Okl.Cr. P. 184 maxim, case and appears only would violate to be the case rendered propria ‘Nemo sua judex this debet esse construing have Section. We careful- ly Ellis, judge examined causa’—‘No man can be supra, and are of the opinion is as old as the distinguishable own case.’ The maxim the same prosecutions felo does not contain
law itself. record before this Court ‘While may objections. informa further note nies indictment or such remedies,’ tion, failed how they totally concurrent has to show are ac- McNaught, prejudice Re 1 Okl. resulted from the trial court’s said this court in fully ordering ‘we satis him held answer to are tions Cr. Pac. We, therefore, find charge Perjury. fied the framers our Constitution sys without grand jury proposition intended to be merit. to abolish tem, except might be invoked proposition The final asserts special purposes, such the inves these authority order the “Court was without officers, failure tigation public attorney to tes Error’s former Plaintiff duty, prosecutors to do public their tify against Plaintiff Error. Communi public peculiar conditions disor those cations between *4 make and der which sometimes arise privileged.” were We observe Error impractica prosecutions by information at bar the the crux of the case is whether ” ble.' falsely under oath that defendant testified Hearing. Preliminary he did not his waive peti- The that the Court further observed Trial, At the Motion for New deprived liberty of his “without tioner that he did not defendant testified waive complaint due in that no law” Preliminary Hearing, he further testified filed, properly evi- verified was and no as follows: probable showing dence adduced cause. is Mr. “MR. BAKER: It case, In the con- instant say incompetent your attor- you lengthy hearing ducted a on defendant’s ney, is ? that correct tes- Motion for New Trial. The defendant Preliminary not tified that he did waive in represent my wishes He did not A. Thereafter, attorney, his former the trial. ' Attorney, an Assistant District now you say BAKER: Do Q. BY MR. Judge, by the refuted the statements made that he under oath open court and by testifying that the defendant represent competently adequately and did, fact, Hear- waive his attorney ? your you as ing. Judge thereafter, ordered to going which we are MR. HILL: To be held to to the to answer already object, he has answered charge Perjury, fixed Infor- bond. four five times. question three or charging mation was filed Perjury. af- No, with The defendant was then he hasn’t. What THE COURT: proper answer, forded fair and ? Lawson your Mr. Hearing, stipulated wherein it was between Yes, A. sir.” the State and the defense that Prelimi- States, Laughner F.2d v. United nary Hearing by would had review stated: (1967), Fifth Circuit Court transcript pro- recorded for new trial a fac- “Having obtained ceedings. stage demanded proceedings This into Ricketts, judicial inquiry his claim tual by Judge was conducted to him attorney appointed render trial of defendant was conducted for his defense assistance of counsel proceedings The in the in- Martin. responsibilities his discharge failed to reasonably stant case conducted were to in- properly, proposes now lawfully, appellant and in no manner resembled privilege accorded confidential proceedings unfair and voke partial oc- case, between the fur- communications supra. curred the Ellis to eliminate one source although ther client observe that likely to his alle- contradict object states brief that he to the of evidence gations. are unable to subscribe proceedings court’s with the trial 1H7 proposition. privilege The is not an upon attorney’s lips. inviolable seal GOODWIN, Error, James L. client; may It be waived v. where, here, alleges the client Oklahoma, The STATE of Defend- duty attorney, breach him the ant Error. slightest have scruple we about No. A — 16169. deciding he thereby priv- waives the Appeals Court of Criminal of Oklahoma. ilege as to all relevant communications Sept. to that issue.” Rehearing Denied Jan. further stated Footnote No. 1: privi
“The rule that client waives his by attacking attorney’s
lege perform
ance his duties seems to have been unanimously by
adopted those courts question.
which have dealt with the E. Sanford,
g.,
v.
Farnsworth
1
(5th 1940) (dictum), Cir. cert.
313 U.S. 61 S.Ct. 85 L.Ed. (1941); Wiggins,
1541 United States v. F.Supp.
184 (D.C.D.C. 677-678
1960), and therein; cases cited United Monti, F.Supp.
States v. (D.C. 209
N.Y.1951). enjoys impressive It also scholarly support Wigmore, Evi [see
dence, 2327(6) (McNaughton rev. §
1961)], has been adopted the Uniform ],
Rules Evidence 26(2) (c) [Rule approved by
is the American Bar Asso
ciation’s Canons of Professional Ethics
Canons 37].” opinion
We are of the that the defendant’s professional
attack confidence
attorney, Mr. any waived he might claim have to confidential com-
munications an attorney between client We, therefore,
relevant to that issue. find proposition merit. without conclusion, we observe the record is
free error justify which would require
modification or reversal. The
judgment and sentence accordingly af-
firmed.
BRETT, Judge (specially concurring).
I concur. This is exceptions one of the
provided for an attorney testify as a
witness.