Nickell v. State

1977 OK CR 121, 562 P.2d 151
CourtCourt of Criminal Appeals of Oklahoma
DecidedMarch 22, 1977
DocketF-76-960
StatusPublished
Cited by7 cases

This text of 1977 OK CR 121 (Nickell 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
Nickell v. State, 1977 OK CR 121, 562 P.2d 151 (Okla. Ct. App. 1977).

Opinions

OPINION

BRETT, Judge:

Appellant, Clarence Lee Nickell, hereinafter referred to as defendant, was charged in the District Court, Pontotoc County, Case No. CRF-76-23, with the offense of Knowingly Concealing Stolen Property. He was convicted by a jury, and given a six (6) months’ sentence. From said judgment and sentence a timely appeal has been perfected to this Court.

Defendant was the age of seventeen (17) years and four (4) months at the time of his arrest, and seventeen (17) years and seven (7) months of age at the time of his conviction. Defendant was arrested on February 8, 1976. On February 9, a preliminary inquiry was held, at which time the State gave oral notice that it would seek to certify defendant as an adult. Summons issued to defendant’s mother on February 16. On February 18, a verified petition was filed stating the grounds upon which the defendant was brought within the purview of the Juvenile Code. On February 24, certification hearing was held with the Juvenile Court entering an order certifying defendant as an adult and ordering him to stand trial. Since defendant’s appeal deals only with errors in the certification procedure, we deem it necessary to only briefly recite the facts.

On February 8, 1976, in Francis, Oklahoma, at about 11:30 p. m., Roger Bryd discovered that his CB radio had been stolen from his Pinto automobile, which he had left parked in front of a cafe in which he was eating. Marty Canada testified and stated in essence that he was with Allen Woods and the defendant in front of the cafe at about that time, and that Woods, at defendant’s direction, got a package of cigarettes from the Pinto automobile. Woods asked the defendant if he wanted anything else from the automobile, at which time witness Marty Canada went back into the cafe. A short time later Bryd left the cafe, discovered the loss, and told some other persons of it, one of whom called Deputy Sheriff Cotton Matthews. Matthews testified that he conducted an investigation as well as searching the general area. Eventually he found the radio hidden behind a nearby DX service station. The radio was left there, and Matthews called Deputy Lloyd Bond, who set up surveillance from a point some 150 feet away. Bond observed a black automobile, converted into a pickup truck, approach the scene. A person left this vehicle on a run, grabbed the radio and jumped back into the pickup. Deputy Bond gave chase, contacting Deputy Matthews. Eventually the same vehicle was located at defendant’s house. The deputies knocked on a rear door, and defendant and Allen Woods answered. They were arrested although they disclaimed any knowledge of the stolen CB. Defendant rode with Matthews, and Allen Woods rode with Deputy Bond. Woods confessed to Deputy Bond while in transport, whereupon all returned to the defendant’s residence. The CB radio was recovered by Woods from a field, and thereafter Woods and defendant were transported to jail. The following day, February 9, defendant in the presence of his mother gave a statement admitting his guilt. Allen Woods had pled guilty to the charge of knowingly concealing stolen property, and served time in the County jail. At defendant’s trial he testified on the State’s behalf, giving evidence which tended to show that defendant and he were acting conjointly.

In his first assignment of error defendant asserts several propositions dealing with alleged errors in the notice procedure used by the Juvenile Court, pursuant to 10 O.S.1971, §§ 1103, 1104 and 1105, and that therefore the Juvenile Court lacked jurisdiction and had no power to certify defendant to stand trial as an adult.

Defendant asserts in his first proposition that the verified petition, wherein it was requested that the Juvenile Court certify defendant to stand trial as an adult, was fatally defective in that it was not endorsed with the names of the witnesses intended to [153]*153be called by the State at the certification hearing, as required by 10 O.S.1971, § 1103(b).

We note first that no objection whatsoever was taken at the hearing or beforehand by the defendant. There was no motion to set aside the petition, nor even a motion for continuance. The general rule in criminal cases is that where no attack is made upon the sufficiency of the information at or prior to trial, any errors are thereby waived, unless it be argued that the information fails to state facts constituting a crime, which may be argued for the first time on appeal. Salisbury v. State, 80 Okl.Cr. 13, 156 P.2d 149 (1945). A verified petition serves the same charging and notice giving functions in a juvenile proceed ing as does an information in a criminal proceeding. We therefore hold that failure to object to the lack of endorsement of witnesses constituted a waiver thereof, and it cannot be raised for the first time on appeal. See also, Dew v. State, 11 Okl.Cr. 581, 149 P. 917 (1915), and Dentis v. Page, Okl.Cr., 403 P.2d 911 (1965).

Secondly, defendant contends that it was required by this Court in Crandell v. State, Okl.Cr., 539 P.2d 398 (1975), quoting in part in Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that, “In a juvenile proceeding, however, due process requires that ‘the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, . . . ’ (Emphasis added)”; and that in the present case summons issued to defendant’s mother, but that he received none. There being no notice to defendant it is asserted, the Juvenile Court was without jurisdiction to entertain the hearing.

The summons provision of the Juvenile Code, 10 O.S.1971, § 1104, is directed to those having custody of the child, not at the child, and requiring those with said custody to appear and requiring further that they bring the child with them. Section 1104 thus appears to be an attempt by the legislature to supply the parents, guardian or person with custody of the child, with the kind of notice required by the United States Supreme Court in Re Gault, supra. In an action such as the present one, which was commenced with the arrest of the defendant for violation of a criminal statute, his appearance alone whether voluntary or involuntary is sufficient to give the court jurisdiction over him. Defendant was apprised in open court on the day after his arrest that a certification hearing would be held on a day certain. The summons directed to defendant’s mother stated the same thing, requiring her to be there and requiring that she bring the defendant with her. Defendant in this case stands in the same position as any criminal defendant with regards to the jurisdiction of the court. The verified petition fulfills the same notice functions as an information or indictment. In the present case the defendant appeared with his mother and his lawyer in court on the day of the certification hearing. Defendant waived reading of the petition, the judge made a brief preparatory remark concerning the grounds of the petition, and defendant announced ready. The defendant being thus present and notified of the charge, at this point came under the jurisdiction of the court.

Defendant’s third proposition is that the summons provided the defendant’s mother was defective in that it was served before the verified petition was filed, and that Section 1104 clearly requires that the summons issue after the filing of the petition.

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Related

Miller v. State
1992 OK CR 8 (Court of Criminal Appeals of Oklahoma, 1992)
R.C.R. v. State
1989 OK CR 26 (Court of Criminal Appeals of Oklahoma, 1989)
L. A. B. v. State
1981 OK CR 37 (Court of Criminal Appeals of Oklahoma, 1981)
In re G. L. W.
1978 OK CR 60 (Court of Criminal Appeals of Oklahoma, 1978)
In Matter of Glw
1978 OK CR 60 (Court of Criminal Appeals of Oklahoma, 1978)
Nickell v. State
1977 OK CR 121 (Court of Criminal Appeals of Oklahoma, 1977)

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Bluebook (online)
1977 OK CR 121, 562 P.2d 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nickell-v-state-oklacrimapp-1977.