POWELL, Judge.
This is an appeal by the State from an order of the district court of Choctaw County having the effect of setting aside the information filed against E. L. Dickson, charged with the crime of fraudulent branding of a certain heifer, alleged to be the property of James Manar.
The information had been filed in the district court of Choctaw County, and the defendant filed a motion to set aside the information and dismiss, based on the ground that the crime was charged as having been committed on May 15, 1956, but that the information had not been filed in the district court until January 23, 1958, and that in the meantime “two terms of criminal jury court were held at which he could have been informed against.” It was asserted that accused had been deprived of his constitutional right to a speedy trial. Okl.Const. Art. II, § 20.
It was- further urged that the prosecution must be dismissed under the provisions of 22 O.S.1951 § 811, providing that “when a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”
On February 6, 1958 the district court overruled the said motion of the defendant, whereupon he entered his plea of not ■guilty to the charge of fraudulent mis-branding.
Following this at page 8 of the record appears the following order:
“On the — day of February, 1958, the court made and entered its order setting aside its order of February 6, 1958, overruling defendant’s motion to dismiss the cause and setting aside the defendant’s plea to the information herein, for the purpose of further hearing counsel for the defendant and counsel for the State on the defendant’s motion to dismiss the cause, whereupon the county attorney’s motion to dismiss the defendant’s motion to set aside the information and dismiss the cause, proceedings were had and testimony adduced as follows:”.
This had the effect of placing the parties in the same position as if the defendant was then being arraigned for the first time and placed the burden on the State to show [1112]*1112good cause for the delay, if there was delay.
From the records introduced at hearing it appears that the preliminary complaint was filed in the justice of the peace court of Bert Bush, Hugo Township, on February 26, 1957 and that a warrant was duly issued and served and the defendant E. L. Dickson on February 28, 1957 made bond to appear on March 16, 1957, and that on that day the case was continued to April 1, 1957 on affidavit of defendant that he could not go to trial by reason of lack of material evidence that he needed time to produce. On April 1, 1957, defendant through hts attorney O. A. Brewer, filed an affidavit for change of venue and the case was thereupon transferred to the justice court of Ed Payne, of Hugo township, and on the same day, April 1, 1957, Ed Payne certified his disqualification and the cause was transferred to the justice court of E. J. Norwood, of Oaks township, Soper, on April 2, 1957, and E. J. Norwood thereupon certified his disqualification and the case was transferred to the justice court of W. R. Pebworth, justice of the peace of Boswell, and on April 4, 1957 W. R. Pebworth certified his disqualification, and the case was thereupon transferred to Eugene D. Ellis, county 'udge of Choctaw County, as examining magistrate, the case being endorsed and filed in said court on April 15, 1957, where preliminary hearing was set for April 17, 1957, but continued from time to time to June 4, 1957. Upon hearing, the county judge sitting as an examining magistrate, held that the defendant should be bound over to the district court, and the case was certified to the district court on June 8, 1957.
The court clerk of Choctaw County docketed the case, “No. 3267, State of Oklahoma vs. E. L. Dickson”, but incorrectly showed the case as an appeal, and this error on the part of the court clerk was not immediately discovered.
The record indicates that no criminal docket of the district court of Choctaw County was actually set between June 8, 1957, the date the case was certified to the district court, and January 23, 1958 when an information was actually filed, following the discovery of the erroneous docketing. It seems that the district Judge had set a criminal docket for February 17, 1948, the first since the case had been certified to that court, and an arraignment docket was set for January 3, 1958. The defendant on January 23, 1958 asked for and was granted twenty-four hours in which to plead, and on January 24, 1958 filed his motion to set aside the information and dismiss, already mentioned, and which was overruled, whereupon defendant entered his plea of not guilty to the information. The subsequent action of the court in setting aside his order overruling the motion to dismiss and actually setting aside the information on the grounds complained of in the motion, already set out, form the basis for the appeal by the State.
Irrespective of the grounds advanced in defendant’s motion, it has been immediately noticed that a preliminary hearing was had before the county judge, acting as an examining magistrate, on June 4, 1957 and that the transcript was filed in the office of the clerk of the district court on June 8, 1957, and by statute (20 O.S.1951 § 95) it is noticed that there are two terms of district court each year; that the July, 1957 term of court commenced on the first Monday in July, 1957 and the term that followed commenced the first Monday in January, 1958. So the July, 1957 term of court intervened and expired prior to the filing of the information, which was on January 23, 1958.
The district court had for consideration whether the fact of the court clerk’s mistake in erroneously listing the case as an appeal from the county court excused the county attorney from independently of the court clerk keeping up with his cases, and apparently decided that the excuse offered was not sufficient. We must affirm the action of the trial court.
The error of the court clerk cannot excuse the county attorney whose duty it is to keep a list of all pending cases and or-[1113]*1113din'arily within a few days to a few weeks after a transcript is filed by an examining magistrate in the district court, to file an information. We are governed by 22 O.S. 1951 § 811, already quoted, and by reason of the failure of the county attorney to file the information in question not later than the term following the filing of the transcript, must find that the information was subject to dismissal. The statute is clear and unambiguous. It is noted from the number of examining magistrates disqualifying that this case has required perseverance and a high quality of courage and effort on the part of the county attorney. Nevertheless, we are bound by the statutory provisions quoted.
See, illustrating the principle involved: Ex parte Menner, 35 Okl.Cr. 252, 250 P. 541 (a Choctaw County case); Day v. State, 50 Okl.Cr. 180, 296 P. 987; Parkinson v. State, 64 Okl.Cr. 169, 78 P.2d 321.
We note that the crime charged in the information is alleged to have taken place on May 15, 1956. Jeopardy has never taken place, so that ordinarily the action would not be barred until three years following May 15, 1956. 22 O.S.1951 §§ 151, 152.
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POWELL, Judge.
This is an appeal by the State from an order of the district court of Choctaw County having the effect of setting aside the information filed against E. L. Dickson, charged with the crime of fraudulent branding of a certain heifer, alleged to be the property of James Manar.
The information had been filed in the district court of Choctaw County, and the defendant filed a motion to set aside the information and dismiss, based on the ground that the crime was charged as having been committed on May 15, 1956, but that the information had not been filed in the district court until January 23, 1958, and that in the meantime “two terms of criminal jury court were held at which he could have been informed against.” It was asserted that accused had been deprived of his constitutional right to a speedy trial. Okl.Const. Art. II, § 20.
It was- further urged that the prosecution must be dismissed under the provisions of 22 O.S.1951 § 811, providing that “when a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”
On February 6, 1958 the district court overruled the said motion of the defendant, whereupon he entered his plea of not ■guilty to the charge of fraudulent mis-branding.
Following this at page 8 of the record appears the following order:
“On the — day of February, 1958, the court made and entered its order setting aside its order of February 6, 1958, overruling defendant’s motion to dismiss the cause and setting aside the defendant’s plea to the information herein, for the purpose of further hearing counsel for the defendant and counsel for the State on the defendant’s motion to dismiss the cause, whereupon the county attorney’s motion to dismiss the defendant’s motion to set aside the information and dismiss the cause, proceedings were had and testimony adduced as follows:”.
This had the effect of placing the parties in the same position as if the defendant was then being arraigned for the first time and placed the burden on the State to show [1112]*1112good cause for the delay, if there was delay.
From the records introduced at hearing it appears that the preliminary complaint was filed in the justice of the peace court of Bert Bush, Hugo Township, on February 26, 1957 and that a warrant was duly issued and served and the defendant E. L. Dickson on February 28, 1957 made bond to appear on March 16, 1957, and that on that day the case was continued to April 1, 1957 on affidavit of defendant that he could not go to trial by reason of lack of material evidence that he needed time to produce. On April 1, 1957, defendant through hts attorney O. A. Brewer, filed an affidavit for change of venue and the case was thereupon transferred to the justice court of Ed Payne, of Hugo township, and on the same day, April 1, 1957, Ed Payne certified his disqualification and the cause was transferred to the justice court of E. J. Norwood, of Oaks township, Soper, on April 2, 1957, and E. J. Norwood thereupon certified his disqualification and the case was transferred to the justice court of W. R. Pebworth, justice of the peace of Boswell, and on April 4, 1957 W. R. Pebworth certified his disqualification, and the case was thereupon transferred to Eugene D. Ellis, county 'udge of Choctaw County, as examining magistrate, the case being endorsed and filed in said court on April 15, 1957, where preliminary hearing was set for April 17, 1957, but continued from time to time to June 4, 1957. Upon hearing, the county judge sitting as an examining magistrate, held that the defendant should be bound over to the district court, and the case was certified to the district court on June 8, 1957.
The court clerk of Choctaw County docketed the case, “No. 3267, State of Oklahoma vs. E. L. Dickson”, but incorrectly showed the case as an appeal, and this error on the part of the court clerk was not immediately discovered.
The record indicates that no criminal docket of the district court of Choctaw County was actually set between June 8, 1957, the date the case was certified to the district court, and January 23, 1958 when an information was actually filed, following the discovery of the erroneous docketing. It seems that the district Judge had set a criminal docket for February 17, 1948, the first since the case had been certified to that court, and an arraignment docket was set for January 3, 1958. The defendant on January 23, 1958 asked for and was granted twenty-four hours in which to plead, and on January 24, 1958 filed his motion to set aside the information and dismiss, already mentioned, and which was overruled, whereupon defendant entered his plea of not guilty to the information. The subsequent action of the court in setting aside his order overruling the motion to dismiss and actually setting aside the information on the grounds complained of in the motion, already set out, form the basis for the appeal by the State.
Irrespective of the grounds advanced in defendant’s motion, it has been immediately noticed that a preliminary hearing was had before the county judge, acting as an examining magistrate, on June 4, 1957 and that the transcript was filed in the office of the clerk of the district court on June 8, 1957, and by statute (20 O.S.1951 § 95) it is noticed that there are two terms of district court each year; that the July, 1957 term of court commenced on the first Monday in July, 1957 and the term that followed commenced the first Monday in January, 1958. So the July, 1957 term of court intervened and expired prior to the filing of the information, which was on January 23, 1958.
The district court had for consideration whether the fact of the court clerk’s mistake in erroneously listing the case as an appeal from the county court excused the county attorney from independently of the court clerk keeping up with his cases, and apparently decided that the excuse offered was not sufficient. We must affirm the action of the trial court.
The error of the court clerk cannot excuse the county attorney whose duty it is to keep a list of all pending cases and or-[1113]*1113din'arily within a few days to a few weeks after a transcript is filed by an examining magistrate in the district court, to file an information. We are governed by 22 O.S. 1951 § 811, already quoted, and by reason of the failure of the county attorney to file the information in question not later than the term following the filing of the transcript, must find that the information was subject to dismissal. The statute is clear and unambiguous. It is noted from the number of examining magistrates disqualifying that this case has required perseverance and a high quality of courage and effort on the part of the county attorney. Nevertheless, we are bound by the statutory provisions quoted.
See, illustrating the principle involved: Ex parte Menner, 35 Okl.Cr. 252, 250 P. 541 (a Choctaw County case); Day v. State, 50 Okl.Cr. 180, 296 P. 987; Parkinson v. State, 64 Okl.Cr. 169, 78 P.2d 321.
We note that the crime charged in the information is alleged to have taken place on May 15, 1956. Jeopardy has never taken place, so that ordinarily the action would not be barred until three years following May 15, 1956. 22 O.S.1951 §§ 151, 152.
The attention of the county attorney is called to the hereinafter cited statutory provision and the uniform holding of this court since it came into being. 22 O.S.1951 § 817, reads:
“An order for the dismissal of the action, as provided in this Article, is not a bar to any other prosecution for the same offense.”
This means in this case that while the procedure of the district court in dismissing the action under the circumstances enumerated is approved, that the county attorney may file a new complaint with the county judge, acting as an examining magistrate, or with any other examining magistrate, and start all over, being careful, if defendant is bound over, to promptly file an information in the district court and see that trial is afforded without undue delay. See in this connection: Ex parte Warford, 3 Okl.Cr. 381, 106 P. 559, opinion by Owen, J., and concurred in by Judges Furman and Doyle; and, particularly see: Ex parte Warrenburg, 63 Okl.Cr. 125, 73 P.2d 476, where Judge Barefoot in an exhaustive opinion treats the history of the section of the statute involved. The cases may be referred to for the reasoning supporting the rules. The use of the citator will reveal many other cases in this and other jurisdictions following the principle stated. Of interest, see Hembree v. Howell, 90 Okl.Cr. 371, 214 P.2d 458; and see note at pages 943-964 of 50 A.L.R.2d.
BRETT, P. J., concurs.