State ex rel. Fallis v. Vestrem

OPINION BLISS, Presiding Judge; In the District Court, Tulsa County, Case No. CRF-73-1538, appellee waived jury trial with a non-jury trial commenced April 10, 1974. After the presentation of testimony a misunderstanding developed regarding a stipulation concerning the chain of custody of the evidence. The State requested a continuance in order to endorse additional witnesses to testify regarding the same. The defense objected to said continuance and moved for dismissal of the charge with the trial court granting the State a continuance over defendant’s objection. Subsequently, May 3, 1974, defendant filed a motion before the trial court requesting reconsideration of the continuance. On May 7, 1974, the trial court ordered the instant case dismissed and stayed execution of the dismissal pending appellate relief. Thereafter, the State petitioned this Court for Writ of Prohibition in Case No. P-74-305, wherein this Court declined to assume original jurisdiction. Appellant is presently before this Court under authority of an appeal upon a Reserved Question of Law. Appellee asserts one sole proposition of error, that being the trial court erred in dismissing the above case on the basis of former jeopardy. The trial court in so holding relied on this Court’s decision in Belveal v. Rambo, Okl.Cr., 487 P.2d 714 (1971), wherein this Court had considered the question of former jeopardy under the following facts: “The evidence established that Petitioner had been arraigned, entered a plea of not guilty, and that a non-jury trial had been set for July 2, 1971, before Judge Rambo. At that time, both the State and defendant appeared for trial. Both the defendant and the State had witnesses present and prepared to testify. The State proceeded and offered in evidence the transcript of preliminary hearings on the two cases since Bowman F. Up-church, who testified at the Preliminaries, was not in attendance to testify at the trial. The State called Bud Argo, a Norman Police Officer, who testified that Upchurch was an undercover agent who had made the unlawful purchases [197] from Petitioner in these cases, and that two phone contacts were made in an effort to secure Upchurch’s presence for the trial. The trial court ruled there had been a lack of diligence to secure the witness and denied admission of the Preliminary transcripts. The State then asked for a two-week continuance in the trial, announcing it could not sustain its case without Upchurch’s testimony. The defendant moved for dismissal. The trial court denied defendant’s motion and granted the State’s continuance, announcing that the ‘trial will be scheduled further at 2:00 p. m., 19 July, 1971.’ ” This Court held that on the basis of the above facts the trial court had begun to hear evidence and the matter was in trial. The State in requesting a continuance during the course of the trial did not comply with the rule recited in Sanders v. State, 46 Okl.Cr. 293, 287 P. 846 (1930), which sets forth the requirements necessary for proper application for a continuance. Consequently, this Court held that since the State did not comply with the requirements set forth in Sanders, supra, jeopardy attached at the time evidence was heard on the first hearing date. Consequently, the State twice placed defendant in jeopardy at the time the trial was resumed and additional testimony was taken. In support of this decision the case of Sussman v. District Court of Oklahoma County, Okl.Cr., 455 P.2d 724 (1969) was cited. We find the above decision to be an erroneous application of the concept of double jeopardy. Sussman, supra, generally holds that once the trial of an accused is initiated, the jury impaneled and witnesses sworn, the court may not declare a mistrial over the objection of the defense and then subsequently re-try defendant for the same offense. Sussman, supra, likewise would be applicable to similar circumstances arising in a non-jury trial once evidence is received by the trial court. However, Sussman is distinguishable from the case of Belveal, supra. In Belveal as in the instant case, the trial court after hearing testimony continued the case to a day certain, so additional evidence could be heard prior to the court making its decision on the guilt or innocence of defendant. It is this Court’s opinion a continuance of this matter is not analogous to a mistrial and does not raise an issue of double jeopardy. In support of this position we note the language in Havill v. United States, 5 Okl.Cr. 334, 115 P. 119 at page 123 (1911), wherein this Court at page 342 of its official opinion stated as follows: “ ‘We have elected to reserve only two propositions for the consideration of this court. They may be thus stated: The defendant having been placed upon his trial in a court of competent jurisdiction, before a jury regularly drawn, impaneled, and sworn, and the trial of his case begun, he was entitled to have the trial proceed, and that upon the failure of the state to prove a case against him he then and, there became entitled to his discharge, and, this right having been once acquired, he was entitled to the benefits of the provisions of the Constitution of the United States and the Constitution of the state of Oklahoma against being twice put in jeopardy for the same offense; . . . .’ “In support of the first contention counsel cite the following authorities: State v. Nelson, 19 R.I. 467, 34 A. 990, 33 L.R.A. 559, 61 Am.St.Rep. 780; State v. Richardson, 47 S.C. 166, 25 S.E. 220, 35 L.R.A. 238; McCauley v. State, 26 Ala. 135. Tn these cases the jury was discharged during the trial over the objection of the defendant and a new trial ordered. Therefore the doctrine of these cases has no application to the case at bar. It is within the sound discretion of the trial court to postpone the further taking of testimony on account of the absence of witnesses who are expected to arrive that day on a certain train, and this discretion will not be controlled by [198] this court unless abused. In the case of Johnson v. State, 32 Ark. 309; it was said: ‘After the state had examined several witnesses, the court against the objection of the defendant suspended the trial, and allowed the jury to separate from Tuesday until Friday, that the state might procure the attendance of a witness. The suspension of the proceedings in a trial is within the sound discretion of a court, and we are not prepared to say there was any abuse of its discretion in this case.’ See, also, Griffin v. State, 90 Ala. 596, 8 So. 670. “The contention that defendant was twice put in jeopardy for the same offense is without merit. As we view the record, there was not the semblance of error in the rulings of the trial court.” Although it would be an abuse of the trial court’s discretion to indefinitely continue a case, and it would be error for the trial court, in light of the defendant’s right to a speedy trial, to unreasonably continue a prosecution which had been initiated and not completed, it is this Court’s opinion the concept of double jeopardy was improvidently considered in the determination of the issues in Belveal, supra. We therefore in this opinion expressly overrule the holding in Belveal, supra, regarding the application of double jeopardy. As indicated above, this case is before us on a Reserved Question of Law. Therefore, the trial court’s order dismissing the State’s prosecution cannot be disturbed, nor the defendant again tried, but we expressly overrule Belveal, supra, which the trial court was obliged to follow, in reference to double jeopardy. BRETT, J., dissents. BUSSEY, J., concurs.