*1 has a contends Exchange right long to receive the dis- vested McLoud think, tance a. toll charges. constitutes While we broad- order that the Commission’s ly Exchange’s property Exchange speaking, Foreign Service taking of McLoud long process why fail distance service we to see due gives and it to Bell without toll manage only way is the to establish law and the order invades that type paragraph rate for Exchange. of service. In rights ment of the McLoud syllabus Telephone of the in Standard find, Exchange McLoud do not so We State, Telegraph & Co. v. 177 Okl. telephone line possession still in 121, 122, P.2d this court held: responsible operation and man- for its “In making Corporation found rates the It is agement. true the Commission par- any Commission is not limited cannot Foreign Exchange Service method, theory ticular operation should “except joint but furnished proper telephone take into consideration all ex- agreement of two pertinent particular elements misleading. There changes”, this is case.” operation Under the joint involved. is no McLoud will continue Exchange
order Corporation The Order of the Commis- operate line that section of the own and sion is affirmed. from its the Mendonca switchboard to WELCH, CORN, operate J., J., that sec-
Dairy. Bell will own and
C.
V. C.
DAVISON, HALLEY,
Exchange
McLoud
of the line from the
tion
JACKSON
City.
CARLILE, JJ.,
McLoud
concur.
switchboard to Oklahoma
management
Exchange’s right
will
JOHNSON, WILLIAMS and BLACK-
permitted
govern-
right
to limit the
BIRD, JJ., dissent.
respond
pro-
needs and
ment
parte Tindall,
tect the
welfare. Ex
192,
102 Okl. argued Exchange’s in McLoud brief property rights their are taken destroyed; is, the to receive of the toll connection from
the revenues In this connection our atten- Mendonca. Oklahoma, Error, Plaintiff in STATE Telephone invited to Pioneer & tion is State, Okl. Telegraph Co. DICKSON, Error. body In the E. L. Defendant in it was
that case said: No. A-12624. language of Constitution Appeals of Oklahoma. Court of Criminal physical connection requiring 10, 1958. Dec. follows, mandatory, but it nat- lines is urally, that such connection must destroy property as not to
made so so to be reasonable rights, * * * companies. both
just to ' “ * * * connection, A under regulations that amounts to
rules property, or that
the destruction against a discrimination
works exchange, of either would
subscribers property the taking with-
amount process law.” due
out Exchange point any does not
McLoud
authority his Exchange which holds that
mi The information had been filed County, and the district court of Choctaw aside defendant filed a motion to set *3 dismiss, the information and based on the hav ground charged as the crime 15, 1956, ing May been committed on that the information not been filed had 1958, 23, January district until court and that meantime of in the “two terms jury he court were held at which against.” could have been informed It was deprived asserted accused had of trial. constitutional II, Okl.Const. Art. prose
It further urged was- cution provi must be dismissed under 811, sions of 22 providing O.S.1951 § person “when has been to answer held public offense, for a if an indictment against information is not filed him at the next of at term court is held he answer, prose court must order the dismissed, cution to be good unless cause to the contrary be shown.” 6, February On 1958 the court district overruled the said motion defend- ant, whereupon plea of not entered his n guilty to the mis- fraudulent branding. page at the record
Following this order: appears following — 1958, day February, “On the its order made entered February setting its order of aside overruling motion defendant’s setting aside the dismiss the plea to the information defendant’s herein, purpose further Ralph Jenner, K. County Atty., Choctaw counsel for hearing County, Hugo, plaintiff for in error. the State on the defend- counsel Bounds, Hugo, for defendant in James cause, dismiss the ant’s motion error. county attorney’s mo- whereupon the motion the defendant’s to dismiss tion POWELL, Judge. information and dis- to set aside appeal by the State is an This cause, were had proceedings miss the the district court Choctaw order of testimony as follows:”. adduced having setting effect aside County parties placing the effect Dickson, This had against E. L. filed the information if the defendant was position the same with the crime fraudulent charged first time heifer, being arraigned then alleged certain branding on to show placed burden the State property Manar. James delay, cause for the if there was the date was certified case delay. district court, January when filed, following actually information was at introduced From the records discovery docketing. of the erroneous preliminary hearing appears that Judge seems had set district complaint justice of was filed February 17, criminal docket for Township, Bush, peace Hugo court of Bert the first since certified had been February 26, that a warrant court, to that and an docket arraignment the de duly issued and served was set for January defend- 1958. The February fendant E. L. Dickson on *4 ant 23, on January was asked for and 16, appear on March made bond to granted twenty-four to in which hours 1957, day case was and that on plead, 24, January and on 1958 filed his April 1, of continued to 1957 on affidavit motion to set aside the information and by defendant not to trial go that he could dismiss, already mentioned, was and which reason of lack of material evidence overruled, whereupon defendant entered April 1, produce. he needed time to On plea his of not guilty to information. 1957, attorney A. through hts O. subsequent action of the court in set- Brewer, of change filed an affidavit for ting aside his order overruling the motion thereupon venue trans to dismiss actually and setting aside the justice Payne, ferred to the of Ed court complained information grounds on the of Hugo township, day, of and on the same motion, already out, set form the 1, April 1957, Payne Ed certified his dis basis appeal by the State. qualification transferred and the cause was justice Norwood, Irrespective to the court of of E. grounds of the advanced in J. 2, 1957, township, Soper, April Oaks on and motion, defendant’s immediately it has been thereupon E. Norwood his dis certified noticed that a preliminary hearing was had J. qualification and the case was transferred before county judge, acting as an ex- justice Pebworth, court of W. R. amining magistrate, 4, on 1957 and June justice peace Boswell, and on that transcript was filed in the office of 4, April 1957 W. R. Pebworth certified clerk of the 8, district court on June disqualification, 1957, thereupon by and the case was and (20 statute 95) O.S.1951 § Ellis, Eugene county transferred to D. is noticed that there are two terms of dis- 'udge County, examining Choctaw trict court year; each July, magistrate, the case being endorsed term court commenced on the first Mon- April 1957, filed in 15, day said July, court where 1957 and the term that fol- preliminary hearing April 17, was set for lowed commenced Monday the first 1957, but January, continued from time to time 1958. July, So the 1957 term of 4, Upon 1957. hearing, county court expired intervened prior June judge sitting as an examining filing magistrate, information, which was on held that January 23, the defendant should be bound 1958. court, over to the district and the case was The district court had for consid- certified to the 8, district court on eration whether the fact of June the court clerk’s mistake in erroneously listing the The court clerk of Choctaw County dock- appeal case as an from the county court case, eted the “No. State of attorney Okla- excused the from inde- homa Dickson”, vs. E. L. but incorrectly pendently of clerk keeping up showed the case appeal, as cases, with his apparently decided part error on the of the court clerk was the excuse offered was not sufficient. We immediately not discovered. affirm must the action trial court. The record indicates that no criminal The error of the court clerk cannot ex- docket district court of county attorney Choctaw cuse the duty whose it is County was actually set between keep of all pending list cases and or- June weeks din'arily days within few few 3 Okl.Cr. opinion Owen, by examining J., transcript by by after a filed concurred Judges Furman and court, Doyle; and, file an magistrate particularly district parte Ex see: by 22 O.S. governed Warrenburg, information. are We 63 Okl.Cr. 73 P.2d 811, already reason quoted, Judge where Barefoot in an exhaustive county attorney to history the failure of treats the of the section of later file the information involved. The cases following than filing referred the term supporting the reasoning transcript, find the information must rules. The use will citator subject many dismissal. The statute reveal other cases in this and other unambiguous. jurisdictions clear noted following principle stated. magistrates interest, dis- examining the number of Of see Howell, Hembree per- required qualifying that this case has 458; Okl.Cr. 214 P.2d and see note courage high quality pages severance and a at 943-964 of 50 A.L.R.2d. part at- effort on the
torney. Nevertheless, we are bound
BRETT,
J.,P.
concurs.
*5
provisions
the statutory
quoted.
See,
principle involved:
illustrating the
NIX, Judge (concurring
result).
Menner,
252,
parte
Ex
35
250 P.
Okl.Cr.
grave
There is
opinion
doubt in the
Day
County
541
case);
(a Choctaw
your writer as
appeal
to whether an
lies
State,
987; Parkin-
P.
Okl.Cr.
from an order of a trial judge
dismissing
in
State,
son v.
answer for ted, money deposited instead of bail not filed information is dictment or must be refunded.” of court him at the next term against answer, the held to at which readily We can necessity observe prosecution to be must order the statutes, plain. these the answer is If we dismissed, good cause to the unless language are left to the of the Constitution 22 O.S.1951 contrary shown.” Tit. guidance without further legisla- ture, questions then the §811. as to what does or constitute, does meaning within the your this statute In writer *7 provision, the speedy pub- Constitutional a this, nothing, imperative it means trial, every lic must in instance in rest the dismissal, if be entitled particular discretion of judge the whom it, delay, to must be absolute and question may the be addressed. Under the again ar- if he were liable to be because regime, common law very even at ancient against for same rested and informed the law, prisoner’s right speedy common a to a pure offense, discharge would be mock- the him body trial was secured to a known ery aggravating the evil and the means of Delivery, as the Commission of where- Jail sought statute to cure. To so which the jails prisoners by the were cleared and the identify would forever the foundation hold confined, pun- therein either convicted or upon the statute was built as sand. which ished, custody or delivered twice Your writer chooses to believe this every year. Hawk.P.C. ch. 6. It was plainly exhibits the section of our abolition of the Commission the of Jail desire and solicitude that the legislative Delivery necessary which has made our provisions guaranteeing of our constitution defining the limit of later statutes the de- speedy trial should fail in en- not state in lay bringing allowed the malfactors legislative for the want of aid. forced are excep- trial. There well established The Constitution of the United States in right. this fundamental tions to is well It provides Amendment the VI the ac- in order to benefit from established our enjoy right speedy cused shall the trial, speedy securing a the statutes accused public Art. 20 of trial. the Constitu- trial; if he does not must demand make provides: Oklahoma tion of right. he waives his demand How- such jail prosecutions ever, in “In all if is confined 'the law criminal ac- he makes the him, obliterating poli- thus right speedy cused shall have the for to a demand prisoner.’ sibility precisely what cove- ‘forgotten state has in that liberty bail then it will accused is at on nanted with each inhabitant that speedy provision In this one of the event, demand for not do. must make a speaks In con- constitution the state as did waived. rights are trial must formity rule, great in charter English sovereign with this un- 1215. It is an assurance from speedy afforded requires ibimus, super be shown. nee sovereign, less Nec eum diligent perform- mittimus, super per legale our officersto be eum nisi expediency judicium and with- ing parium suorum, per legem their duties with vel delay. adequate this, lan- unnecessary says, More referring out Hallam terrae. .history, era, therefore, King to relate can found ‘From the guage theory charter, necessity it been a principles behind this must have John’s Temple Su of the by Judge principle than clear of our constitution that was used prison case, no man can be detained in with- Re preme Court of California Hist.Mid.Ages out trial.’ Hallam. Begerow, [2 65 P. 56 L.R.A. Cal. state, then, The in a 342.] upon the 513, 516, wherein he dissertates only party litigant, not case is rights to a of accused’s pre- use diligence such bound to trial. He said: trial, pare pain having case “It is remember that this well to dismissed, but holds the de- it rights, and is of involves fundamental custody express fendant Around universal interest. [those guaranty for a and that waged have their rights] English un- will continue to hold him save liberty. great Without battle legal guil- verdict him declaring der a they to which narration of conflicts ** ty rise, history given have people be a dull af- English would principles your These government right The fair. ignored by any jurist writer cannot be persons accused with reference accepted by ato trial is all been, yet, and is matter crime has the land. conflicts con- courts of great It led to the consideration. resulted fusion has from the power wrung from agitation various reliance statutes which petition charter, great right, respective differ in the states. The ma- corpus act. All the and the habeas approves jority opinion refiling *8 in favor of individ- great achievements by virtue of its charge liberty, English people the ual of which Tit. 22 O.S.1951 which states that: § may proud, be justly said to are so “An order dismissal of the through contest the come over have action, provided Article, in this Í9 imprisoned persons sup- for rights of any prosecution other a bar to for justly it And is deemed posed crime. offense.” same the importance. utmost matter of section should be That this construed in property cannot take government agree. Sec. I do not connection with inhabitant the meanest without from immediately noted that It is Sec. 817 to be compensation paid or tendered in just providing only follows the section other advance, liberty, his it takes which prosecu- dismissal a criminal method of to said is some been extent justly has it speedy other than lack of causes tion for life, upon mere take provides: Sec. trial. necessary, is crime. This that so- may protected. necessity But either of its ciety be own excuse, imprison upon only application and to or be- motion is absolutely attorney, and necessary what is is furtherance yond oppressive. order an action or tyrannous justice, indict- And this is
ixi7 dismissed; ment be but in that have guaranteed every citizen of must be the reasons of the dismissal this state States; and the United because order, must be set forth in which the same would abridge his privileges and upon the minutes.” entered immunities as guaranteed under the Con- stitution. applicable'in Sec. no such sit- doubt is The majority opinion relies Sec. instance, For if at- uations. 817 to distinguish such cases this state torney of insuffi- should dismiss because from the holdings jurisdictions of other cient evidence to and before convict who have no such statutes. If the statute had running of the of limitations statutes stating it is not prosecution a bar to further acquired information, wit- new additional applicable is not or is in conflict with the located, or old ones ness discovered Constitution guaranteeing' speedy provision could then under the § then and event, in that there is no distinc- same, refile the because of could dismiss tion. information, error in the error correct previous running refile the same Under the 313) p. Ohio (66 statutes laws provides limitations. Whatever which prisoner if the is not reason dismissal under said rea- brought to trial § before the end of sec minutes, son must be entered ond term of the court held after the indict it section was never intended be ment is found “he shall be entitled to be used to dismiss because of the failure discharged so far as relates the offense grant defendant a trial. committed, which he § unless 811 it delay be construed in connection with happen shall application would be direct contravention to the prisoner.” It parte was said Ex Mc diminished Constitution toyed this Constitutional trial and with as beyond respectful guaranteeing defendant putty provides guarantee remembrance. significance means could a Gehon, prisoner provided for is ed, not as “ [*] imprisonment, * Ohio * a mere that the discharge of the St. 442: temporary but as a discharge to be regard- release for the crime or of- permit a refiling To under sec. after fense.” dismissal for lack of trial would State, Erwin says: Ohio St. contrary 14th Amendment of the effect, Constitution of the United States. The “It is in acquittal, pertinent part thereof states: granting order judgment final cause, puts pro- end to all any “No shall make or enforce state ceedings thereon.” abridge privileges shall law which State, or immunities of citizens of the Unit- 207, says: 42 Ohio St. Johnson States; any deprive nor shall ed State discharge equivalent “Such a to a life, liberty, any person property, acquittal judgment verdict of with law; process deny due nor thereon.” *9 jurisdiction any person within its to Supreme The Court Indiana in the case protection equal laws.” Wallace, of McGuire v. Ind. discussing N.E. while a dismissal for your prosecute writer It to is obvious speedy lack trial had this say: on said after he has discharged therefrom and after he bring has fails to been the state the de- speedy deprive trial is to denied to trial at time of fendant liberty, conviction, pointed by statute, case of him out he is process law, discharge, due to-wit: to his and such entitled trial, speedy deny discharge acquittal and would amounts to an protection equal of the laws him offense. protract- against a cused, guard and to Radoicich, 66 Minn. v. State see Also by a Brewst, imprisonment or harassment McBride, 2 ed 25; Com. N.W. lit- object but thorough prosecution, lengthy very A Pa. 545. interesting to tle, any less if cases this line supporting sanctions, means, him, Mo. and the Wear, than in State found also stimulating employed for penalties it approval 1099, quoting with 162, 46 S.W. law Ohio, prosecutors Missouri, and officers reported from from cases by de- prosecution was diligence in the Virginia. Indiana, Georgia consequence aof claring the variance is contended terms try three indict failure to statutes of various states wording of discharge operate a should interpretation as to causes different acquittal.” crime or ap However, it finality the dismissal. of each that the intent your writer
pears to plac- of the numerous decisions Regardless primary had as interpreta- statutes the state’s emphasis ing the various support guar the Constitution purpose to defining a given the statutes tions to be clearly speedy de trial and anteeing simply means your writer it process as to the constitutes due fine what process if the is denied due prosecution. The lan time allowed by given to be failure case, Com. v. Ad Adcock’s guage Constitution, used de- under the guaranteed Grat., cock, Va., concerning the statute, fined Virginia statute said: defendant forever dis- dismissed * * "* exception object pur- charged. The “unless sole delay or the pose of all the laws first to last be shown” was occa- defendant. to insure trial to the ac- sioned