Summary
In Jarrett v. State, supra, [ 49 Okla. Cr. 162, 292 P. 890] and other cases, this court has said that in order to toll the running of the statute of limitations the charges must be filed with a magistrate in good faith and a warrant issued within the period allowed.
Summary of this case from Thacker v. MarshallOpinion
No. A-7747.
Opinion Filed August 18, 1930. Rehearing Denied November 15, 1930.
1. Courts — Jurisdiction — Defendant Extradicted Before Trial and Thereafter Coming Into Custody of State. Where an accused person is charged with an offense under the laws of this state and before trial a requisition is honored by the Governor of this state, and accused is taken to another state, this state has not lost jurisdiction to try him if thereafter he come into the custody of this state.
2. Limitation of Prosecutions — Three Year Limitation. A prosecution for a public offense other than murder must be commenced within three years after its commission.
3. Same — When Prosecution "Commenced." A prosecution within the meaning of sections 2441 and 2442, Comp. St. 1921, is "commenced" at the time the preliminary complaint or information is filed with a magistrate in good faith and a warrant issued thereon. It is not essential that the warrant shall be served in order that the prosecution be commenced.
4. Same — Procedure Where Prosecution Commenced but Accused not Taken Into Custody During Three-Year Period. When a prosecution for a public offense has been commenced by filing a preliminary complaint or information in good faith and a warrant is issued thereon, but the accused does not come into the custody of the state until after the expiration of the three-year period, the state may proceed on the original preliminary complaint or may file another charging the identical offense.
Appeal from District Court, Kay County; Asa E. Walden, Judge.
Floyd Jarrett was convicted of robbery with firearms, and he appeals. Affirmed.
G.A. Chappell, Bass Hardy, and James H. Mathers, for plaintiff in error.
J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of robbery with firearms and sentenced to serve a term of 25 years in the state penitentiary.
In July, 1924, a bank at Uncas, Kay county, was robbed by three men who drove into the town in a Ford car. One remained in the car, and two went into the bank and with firearms committed the robbery, securing about $1,400; they then made their escape. In September, 1924, a complaint was filed in the county court of that county charging defendant and one Jack Newman with the robbery. A warrant was issued for defendant and Newman on such complaint. Newman was apprehended, tried, convicted, and sentenced to serve a term of 25 years. See Newman v. State, 44 Okla. Cr. 137, 279 P. 980. In September, 1928, defendant was arrested in Oklahoma charged with robbing a bank at Lamar, Colo. He was extradited to that state despite his resistance to the extradition proceedings, and after a confinement for several months in that state he was released. He was then brought back into this state by a United States marshal on a charge of transporting a stolen automobile and was delivered by the federal authorities to the sheriff of Kay county. A new complaint was filed in the county court of Kay county in August, 1929, charging defendant with the robbery of the Uncas State Bank. He was held for the district court there, tried, convicted, and sentenced as stated.
The contention is made that when the Governor honored the requisition and permitted defendant to be taken to the state of Colorado upon a charge pending in that state, this state waived jurisdiction and lost its rights to put him on trial, citing Ex parte Middaugh, 40 Okla. Cr. 280, 268 P. 321; Ex parte Guy, 41 Okla. Cr. 1, 269 P. 782. Neither of these cases is directly in point. In the Guy Case the petitioner had been convicted and was serving sentence in the penitentiary. By an executive order he was released and delivered to the federal authorities, the order containing a condition that in case of conviction in the federal court, petitioner at the conclusion of his sentence should be returned to the state authorities. This court held the executive order was in effect a pardon of the remainder of the sentence. In the Middaugh Case, the petitioner had been convicted, and pending his appeal the Governor honored a requisition and petitioner was extradited to Missouri. This court in substance held that by honoring the requisition the state waived jurisdiction over the person of petitioner but such waiver did not satisfy the judgment, and if thereafter petitioner was apprehended in this state and jurisdiction of his person again obtained, he might be required to satisfy the judgment. The latter case is analogous to the situation here. The state by honoring the requisition of the Governor of Colorado, and permitting petitioner to be extradited to that state, waived jurisdiction of his person; but when he was returned to this state and jurisdiction was again obtained of his person, he was in the same position as prior to his extradition.
It is argued that as it appears the parties present at the scene of the robbery testified they saw defendant there and did not see him until five years later and the case must rest on their identification, their testimony cannot be given any weight and that the corroboration of the accomplice is insufficient. It is a general rule that where the testimony of an accomplice or claimed accomplice makes out in all particulars the crime charged, the corroboration need not be as strong as in other cases.
The main witness for the state was one Carden. He testified, in substance, he was an inmate of the state penitentiary, serving a 25 year sentence for the robbery of the Uncas Bank. That the robbery was committed by himself, one Newman, and the defendant. That he drove the car to the place of the robbery, and Newman remained in it while he and defendant went into the bank and did the actual robbery. He went into details, narrating at length the circumstances of the robbery. A witness, Snyder, testified he was in the bank at the time of the robbery and was forced at the point of a gun to lie down on the floor. He identified defendant as one of the men participating in the robbery. A witness, Enstine, testified he was in the bank at the time of the robbery, was talking to the witness Snyder, and was also forced at the point of a gun to lie down on the floor. He also identified defendant as one engaged in the robbery. The cashier of the bank testified that in his own mind he was satisfied defendant was one of the participants. On cross-examination he admitted the possibility of error. Here the testimony of Enstine, Snyder, and the cashier, Jacques, certainly corroborated the testimony of the accomplice and tends to connect him with the crime charged, and this is all the law requires. Section 2701, Comp. St. 1921. The reasonableness or unreasonableness of the testimony of the corroborating witnesses and the weight and credit to be given it is for the jury. See Brannon v. State, 39 Okla. Cr. 207, 264 P. 835; Simpson v. State, 40 Okla. Cr. 58, 266 P. 783; Stout v. State, 41 Okla. Cr. 42, 270 P. 90, 91.
The most earnest argument is made that the prosecution is barred by the statute of limitations. Upon this point the record discloses that the offense was committed on July 21, 1924; on September 4, next thereafter, a preliminary information was filed in the county court of Kay county and a warrant issued. Sections 2441 and 2442, Comp. St. 1921, are as follows:
"2441. There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.
"2442. In all other cases a prosecution for a public offense must be commenced within three years after its commission."
Section 2443 in substance provides that the statute of limitations does not run while a defendant is not an inhabitant or usually resident within the state. Synnott v. State, 38 Okla. Cr. 281, 260 P. 517. From the date of the robbery charged in the information until defendant was arrested charged with an offense in Colorado, he was a resident of Carter county, Okla., some 150 or more miles from Kay county. The sheriff of Kay county testified that he made search for defendant in Kay and counties adjoining. The complaint was filed and the warrant issued in good faith. Prior to the arrest of defendant for the Colorado authorities, the sheriff of Kay county did not know defendant's whereabouts. After defendant was returned from Colorado in August, 1929, a new preliminary complaint was filed in the county court of Kay county, which is the basis for the information in the district court upon which defendant was tried and convicted. The question then is: Is this prosecution "commenced" within three years after the commission of the offense as required by section 2442, supra? If so, the court had jurisdiction. If not, the prosecution was barred. The commencement of an action and the filing of an indictment or information are not the same thing. State v. Disbrow, 130 Iowa 19, 106 N.W. 263, 8 Ann. Cas. 190; Ex parte Lacey, 6 Okla. 4, 37 P. 1095. Our statute nowhere states what constitutes the commencement of a criminal action. Under a somewhat similar state of facts, the Supreme Court of Kansas, in Ex parte Broadhead, 74 Kan. 401, 86 P. 458, held that the mere filing of a complaint and the issuing of a warrant is not sufficient to toll the statute of limitations. In that case, however, the sheriff there knew where the defendant was but, on direction of the county attorney, returned the warrant "not found." The Kansas court holds this is an abandonment of the prosecution. The Broadhead Case is modified by the later case of State v. White, 76 Kan. 654, 92 P. 829, 14 L.R.A. (N.S.) 556. This court in Davenport v. State, 20 Okla. Cr. 253, 202 P. 18, by the language used in syllabus 3, appears to sustain the contention of defendant, but in that case it is said:
"By the term `the prosecution,' as used in a criminal case, is meant the continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused. It should not be confounded with the written accusation, nor is the term synonymous with criminal action. It consists of all the successive steps, having relation to each other, taken against the accused by the officer or officers charged with the enforcement of the criminal law. It contemplates proceeding judicially and involves all written accusations, including complaints, presentments, indictments, and information successively and continuously lodged against the accused. It may comprehend one or more related actions, provided the offense in each instance is identical and the actions are continuous and are brought and maintained pursuant to lawful authority."
The general rule appears to be to the contrary. In 8 R.C.L. p. 133, § 111, it is said:
"The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. Within this rule, if an indictment or information is the first step taken in the matter, of course that commences the prosecution; but when, as is usually the case, there are preliminary proceedings, the prosecution is commenced at the time a complaint is laid before a magistrate and a warrant is issued; and a defective warrant is sufficient for this purpose, especially where no objection was made to it until the defendant had been convicted."
In 16 C.J. p. 230, § 355, it is said:
"* * * On the other hand, where the statute simply provides that the prosecution must be commenced in a specified period, a complaint and warrant of arrest issued thereon and executed without unnecessary delay, will constitute a commencement of the prosecution. Similarly if the prosecution is by affidavit and information, then, and in such cases, the action may be deemed to be commenced at the time the information is filed with the clerk by the state through its proper officer. * * * An arrest is not a part of the commencement of a suit, and it is therefore not essential that it be made within the statutory period, although, as in civil cases, process therefor must issue upon the indictment and must be served without unnecessary delay."
See State v. White, supra; State v. Disbrow, 130 Iowa 19, 106 N.W. 263, 8 Ann. Cas. 190.
If the rule here contended for is sound, then an offender for any crime less than murder, if he can successfully conceal himself and avoid arrest for three years, is free from prosecution. The officers of the state may be ever so diligent in attempting to serve the warrant of arrest, but if the offender outwit them no prosecution will lie. When the action was commenced in September, 1924, by filing a preliminary complaint with the county judge, and the issuing the warrant thereon in good faith, the fact that the sheriff was unable to find defendant to serve the warrant does not make the commencement of the prosecution any less a fact. When defendant came into the custody of the state for prosecution for the offense charged in Kay county, the state might have proceeded with the original preliminary complaint, or it might have filed another preliminary complaint with the county judge so long as the offense charged is identical.
The case is affirmed.
DAVENPORT and CHAPPELL, JJ., concur.