Bandy v. State

Court of Criminal Appeals of Oklahoma

Bandy v. State

1917 OK CR 118, 165 P. 616, 13 Okla. Crim. 468, 1917 Okla. Crim. App. LEXIS 122

CourtCourt of Criminal Appeals of Oklahoma

DecidedJune 2, 1917

DocketNo. A-2661.

StatusPublished

Cited by2 cases

This text of 1917 OK CR 118 (Bandy v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bandy v. State, 1917 OK CR 118, 165 P. 616, 13 Okla. Crim. 468, 1917 Okla. Crim. App. LEXIS 122 (Okla. Ct. App. 1917).

Pincite

Opinion

ARMSTRONG, J.

0. E. Bandy was convicted in the district court of Marshall county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the state penitentiary for three years and a fine of $1,000.

Numerous assignments of error are brought. We find it necessary, however, To consider only one.

*469 The preliminary complaint upon which the examin- • ing trial was held was filed June 25, 1915-, and the warrant was issued on that day. The crime was alleged to have been committed on the 25th day of June, 1915. An examining trial was held and the accused held by the magistrate for trial before the district court. The testimony introduced on behalf of the state fixes the date of the sale of the whisky as in July, long after the complaint was filed with, the magistrate. The witness who is alleged to have purchased the whisky says it was the 25th day of July, 1915.

The information charges the sale as having been made on the 25th day of June. This cause was begun June 26th. This is fatal to the conviction. Proof of the commission of the offense at any time within the statute of limitations prior to the filing of the preliminary complaint is ordinarily sufficient to warrant a conviction, but proof that the offense was committed after the filing of the preliminary complaint would not warrant a conviction. Testimony showing the latter would not be admissible. The Constitution and statute provides for a preliminary examining trial where prosecution is to be had by information in the district court. The accused is entitled to an examination and trial on the charge laid prior to the beginning of the proceedings, and not subsequent to the beginning thereof. If this plaintiff in error is to be prosecuted for selling whisky in July, the preliminary should not have been held in June. This proposition is too patent to require discussion.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

DOYLE, P. J., and MATSON, J„ concur.

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ARMSTRONG, J.

0. E. Bandy was convicted in the district court of Marshall county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the state penitentiary for three years and a fine of $1,000.

Numerous assignments of error are brought. We find it necessary, however, To consider only one.

*469 The preliminary complaint upon which the examin- • ing trial was held was filed June 25, 1915-, and the warrant was issued on that day. The crime was alleged to have been committed on the 25th day of June, 1915. An examining trial was held and the accused held by the magistrate for trial before the district court. The testimony introduced on behalf of the state fixes the date of the sale of the whisky as in July, long after the complaint was filed with, the magistrate. The witness who is alleged to have purchased the whisky says it was the 25th day of July, 1915.

The information charges the sale as having been made on the 25th day of June. This cause was begun June 26th. This is fatal to the conviction. Proof of the commission of the offense at any time within the statute of limitations prior to the filing of the preliminary complaint is ordinarily sufficient to warrant a conviction, but proof that the offense was committed after the filing of the preliminary complaint would not warrant a conviction. Testimony showing the latter would not be admissible. The Constitution and statute provides for a preliminary examining trial where prosecution is to be had by information in the district court. The accused is entitled to an examination and trial on the charge laid prior to the beginning of the proceedings, and not subsequent to the beginning thereof. If this plaintiff in error is to be prosecuted for selling whisky in July, the preliminary should not have been held in June. This proposition is too patent to require discussion.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

DOYLE, P. J., and MATSON, J„ concur.

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Bluebook (online)

1917 OK CR 118, 165 P. 616, 13 Okla. Crim. 468, 1917 Okla. Crim. App. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bandy-v-state-oklacrimapp-1917.

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