Stearns v. State

1930 OK CR 5, 283 P. 1028, 45 Okla. Crim. 438, 1930 Okla. Crim. App. LEXIS 513

Opinion

PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The defendant was informed against on the 7th day of February, 1927 and on the same day was arraigned, entered his plea of not guilty, and was released on bond. On the 10th day of October, 1927, defendant filed motion to dismiss said cause for failure of the state to bring the defendant to trial at the next term of court as required by section 2913, C. O. S. 1921. This motion to dismiss was not passed on until the 15th day of February, 1928, Avhen the same was overruled. It appears from the record that the defendant was present with his witnesses at the April, July, and October terms of court demanding trial, and that the cause was continued each time over his objections. This court has repeatedly held that the state must either bring the defendant to trial at the next term of court unless the cause be continued by arrangement of the state and the defendant, or unless the said cause is continued upon application of the state for good cause shown. Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80; Smith v. State, 27 Okla. Cr. 294, 227 Pac. 901; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 Pac. 485; Harris et al. v. John B. Ogden, 44 Okla. Cr. 418, 281 Pac. 316.

The defendant having made a sufficient showing to entitle him to a dismissal of the cause for failure of the state to bring the case to tidal at the next term of court as required by law, and the state having made no showing to the contrary, it was reversible error for the trial court to overrule the motion to dismiss the case.

For the seasons stated, the case is reversed, with directions to the trial court of Logan county to dismiss the case.