State v. Wofford

1976 OK CR 106, 549 P.2d 823, 1976 Okla. Crim. App. LEXIS 456

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 7, 1976
• Docket: O-76-121
• Status: Published

Opinions

OPINION

BUSSEY, Judge:

Gary Wayne Wofford, hereinafter referred to as defendant, was charged in the Creek County District Court, Case No. CRF-7S-72, for the offense of Robbery With Firearms. On the 22nd day of October, 1975, a preliminary hearing was held and the defendant was thereafter bound over for trial. On the 14th day of January, 1976, defendant filed a motion to quash before the District Court and thereafter on January 29, 1976, the District Court sustained said motion and entered an order of dismissal for lack of corroborative evidence at the preliminary examination. From said order of dismissal, the State has appealed under the provisions of 22 O.S.1971, § 1053 ¶[ 1. Also see, State v. Durham, Okl.Cr., 545 P.2d 805 (1976).

This appeal presents the following two questions for this Court’s determination:

1. When the State relies upon an accomplice’s testimony at a preliminary hearing, must the accomplice’s testimony be corroborated by independent evidence ?

2. Was the accomplice’s testimony in the instant case corroborated by such other evidence which tends to connect the defendant with the commission of the crime charged ?

In answering the first question we observe that by statute this jurisdiction bars a conviction based solely on the uncorroborated testimony of an accomplice. See, 22 O.S.1971, § 742. However, there appears to be only one case, by dicta, that extends the application of § 742, supra, to the preliminary examination. See, Crum v. State, Okl.Cr., 383 P.2d 45 (1963). Cases from other jurisdictions have considered the same question under similar statutes and we believe the better reasoned opinions have arrived at the proper conclusion that the uncorroborated testimony of an accomplice will not support the finding of probable cause at a preliminary examination. In the case of State v. Smith, 138 Ala. 111, 35 So. 42 (1903), the Alabama court stated:

“The above conclusion leaves but one question in the case; that is, whether the uncorroborated testimony of an accomplice may be sufficient to show probable cause to believe that a felony has been committed, and that the party under inquiry is guilty thereof. . . . It is to be noted that this statute in terms operates only to prevent convictions of felony on the testimony of an accomplice. It does not, in terms, apply to preliminary examinations, nor to trials on ha-beas corpus, nor to the exclusion of a finding of probable cause for believing that an offense has been committed, and that the accused is guilty thereof, on such examination or trial. Yet, in our opinion, its effect is to stamp a policy upon the administration of the law in this connection which cannot be carried out unless it be given operation upon cases where the inquiry is probable cause vel non, as well as where the inquiry is as to absolute guilt. The statute infects the testimony of accomplices with such absolute infirmity as that not only may the citizen be not convicted upon it, but as also that he should not be deprived of his liberty in anticipation of a final trial upon it. A consideration of practicabilities in the administration of the criminal law, so to speak, would seem to enforce the same conclusion. Why should the citizen be held to the grand jury, or indicted by the grand jury, on testimony upon which no petit jury could possibly convict him? What good end could be served by such a proceeding? Can there be said to be even probable cause shown in any case by testimony which the law expressly and positively declares to be insufficient to support a conviction? We think not. . . .To hold him would be a vain and useless thing, involving his incarceration not as a punishment for crime, and not really to the end that he should be tried for a crime charged of his probable guilt of which there is evidence to prove, but at the best upon a mere speculation that evidence may be found to corroborate that of the accomplice. The evidence before the probate judge in this case tending to show the guilt of the petitioner was that of the accomplice alone and uncorroborated. The judge correctly discharged the petitioner, and his order to that effect is affirmed.”

Also see, Ex parte Oxley, 38 Nev. 379, 149 P. 992 (1915); Application of Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); Application of Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960); Lamb v. Bennett, 87 Nev. 89, 482 P.2d 298 (1971), and Wellman v. Sheriff, Clark County, 90 Nev. 174, 521 P.2d 365 (1974).

Therefore, based on the above authorities and reasoning, we hold that 22 O.S. 1971, § 742, is extended to preliminary examinations in this jurisdiction.

The final question to be answered by this Court is whether or not the accomplice’s testimony was sufficiently corroborated? In light of the conclusion which we reach, the evidence forming the basis for this determination will not be recited in this opinion for the reason that it may be construed as an expression by this Court of the guilt or innocence of the defendant, which is clearly a matter for the determination of the jury. After a careful review of all the evidence presented at the preliminary examination, it is our opinion that the accomplice’s testimony was sufficiently corroborated.

It is, therefore, our opinion that the District Court’s order quashing the preliminary information should be, and the same hereby is, REVERSED AND REMANDED, with instructions to vacate the judgment setting aside the information and to reinstitute this cause upon the docket, and to proceed as if the order setting aside the information had never been entered.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BRETT, P. J., dissents, but concurs in results. BLISS, J., concurs.