Warner v. State

1913 OK CR 9, 129 P. 76, 8 Okla. Crim. 497, 1913 Okla. Crim. App. LEXIS 27

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 13, 1913
• Docket: No. A-1509.
• Status: Published

Opinion

ARMSTRONG, J.

The plaintiff in error, Charles- Warner, was tried and convicted at the October, 1911, term of the county court of Okmulgee county "on a charge of selling intoxicating liquors, and his punishment fixed by the court at a fine of $500 and imprisonment in the county jail for a period of 90 days.

The only assignment of error that is urged for reversal of this judgment is based upon the contention that the county court >vas without jurisdiction to try the accused by reason of alleged irregularities in transferring the indictment from 'the district court to the county court. Counsel in his brief has argued the question at length. A motion to dismiss was filed in the county court on this ground; the allegation of the motion being in the following language:

“Comes now the defendant in the above-entitled cause * * * and * * * moves the court that it dismiss the action herein pending against this defendant, and for cause of said dismissal shows to this honorable ■ court that it is without jurisdiction to hear and determine this action now pending against this defendant for the reason that there is no order of court of record in this court transferring said cause from the district court of Ok-mulgee county, Oklahoma, ,to the county court of said county and state, as is provided by law. The defendant in-support of his motion shows unto this honorable court that this cause is now pending in this court by virtue of an indictment returned into the district court of Okmulgee county, Oklahoma, and that no order was made of record whereby said cause, which was a misdemeanor, was transferred to the county court of Okmulgee county, Oklahoma, at the time the clerk of the district court aforesaid pretended to transfer said cause to said county court aforesaid, but that the clerk of said district court made a transcript of a pretended order of transfer of said cause to the county court aforesaid which pretended order is not of record in this court. * * * ”

The motion then sets out an unsigned order of the judge of the district court of Okmulgee county ordering the transfer of this cause to the county court. Upon the filing of this motion, the county attorney appeared before the district court and asked that a nunc pro tunc order be entered of record transferring the cause, which was done. Such order, among other things, contains the following recital:

“And it appearing to the court that certain indictments were returned by said grand jury to said district court, and that each and all of said indictments, hereafter referred to by number, were misdemeanors and properly triable in the county court of Okmulgee county, Oklahoma. And it further appearing to the court that by inadvertence, oversight, and mistake the criminal journal of the district court of Okmulgee county, Oklahoma, does not show that said causes were transferred to the county court of Okmulgee county, Oklahoma, as required by law. It is therefore here ordered and adjudged by the court that an entry nunc pro tunc be entered in the criminal journal of said court as of date, December 13, 1910,” etc.

This nunc pro tunc order includes the case at bar.

Counsel for appellant at no time contended by his motion, nor does he contend here in his brief, that the district court failed to make an order transferring the indictment in this cause to the county, court as provided by statute. His contention is based solely upon the ground that there was no certified copy of such order included in the papers on file at the time they were transferred. It is true that this order should have been included in the papers, but, if the order was in fact made, it is not fatal to the jurisdiction of the county court that a certified copy thereof did not come down from the district court to the county court at the same time and attached to the indictment. This omission, while it should not have occurred, was an omission of a duty imposed upon the clerk and not the court. The court having made the order, the clerk should have entered it in the record. Having failed to enter it in the record, when the court’s attention was called to it, the order should have been made and certified down. This was done. This court has never held the contrary, and, in fact, has specifically said that it was the duty of the county attorney to see that these orders were properly made and included in the record, and that, when this was not done, the county court should return them to the district court for completion. See Hendrix v. State, 5 Okla. Cr. 125, 113 Pac. 544. The bringing down of a nunc pro tunc order showing the transfer answers all the purposes of an original order. The county court had jurisdiction in fact, but the record did not show it until this nunc pro tunc order was filed. The county court properly refused to overrule the motion to dismiss the indictment.

In this case it appears that the accused was arrested on a warrant from the county court after the indictment was trans ferred from the district cou^t; that he gave bond for his appearance, waived arraignment, and entered a plea of not guilty. This action upon his part had the effect of waiving any defect in the transfer, and, even though the county attorney had not procured the nunc pro tunc order, this judgment would not be reversed. See Eakins v. State, 7 Okla. Cr. 351, 123 Pac. 1035.

There being no other error urged for reversal, and none appearing from our examination of the record, the judgment of the trial court is affirmed.

FURMAN, P. J.,' and DOYEE, J., concur.