Rose v State

Rose v State
1932 OK CR 7
6 P.2d 1072
53 Okl.Cr. 41
Decided: 01/09/1932
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Dismissal Right to Dismissal for Delay in Prosecution. Under the provisions of section 2913, C. O. S. 1921, providing for the dismissal of a criminal case on application of the accused for unnecessary delay, the accused must affirmatively show that the delay in bringing the case to trial was on the part of the

Page 42

state, through its prosecuting officers; where on bond, that he demanded a trial and resisted the continuance of the case from term to term. When he has done that, if the state fails to show good cause for the delay, the motion should be sustained.

2. Weapons Discharging Firearms on Public Street $100 Fine Held Exessive and Reduced to $25. For reasons for modifying judgment, see body of the opinion.

Appeal from County Court, Ellis County; Alva Pressnell, Judge.

Harry Rose was convicted of discharging a firearm, to wit, a pistol, on a public street, and he appeals. Modified and, as modified, affirmed.

Mauntel & Spellman, for plaintiff in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DAVENPORT, P.J. The plaintiff in error, hereinafter referred to as the defendant, was convicted of discharging a firearm, to wit, a pistol, on the public street of Shattuck, Okla., and was sentenced to pay a fine of $100, and he appeals.

The testimony on behalf of the state shows that the defendant was on the street of Shattuck, Okla., in a car, and discharged a pistol two or three times. No one was injured. The contention is that it struck the house of John Gulley. The defendant offered no testimony.

The defendant has presented and argued two questions. The first proposition the defendant discusses is that the case against him was not called for trial at the next term of court after the case had been filed, but has been continued for more than two consecutive terms at the instance of the state. An examination of the record shows that the case had been on the docket for some time, and that the defendant was on bond; but it fails

Page 43

to show that the defendant was present demanding a trial, and objecting to it being continued.

In Dalton v. State, 45 Okla. Cr. 86, 281 P. 985, this court in the syllabus said: