NEELY v. COUNTY ATTORNEY OF CREEK COUNTY

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NEELY v. COUNTY ATTORNEY OF CREEK COUNTY
1959 OK CR 55
339 P.2d 791
Case Number: A-12748
Decided: 05/13/1959
Oklahoma Court of Criminal Appeals

Original proceeding in which James Neely seeks writ of mandamus requiring county attorney to grant petitioner an immediate trial in case pending against him, or in lieu thereof that the case be dismissed. Petition dismissed.

James Neely, petitioner, pro se.

Clyde Patrick, County Atty., Creek County, Sapulpa, for respondent.

POWELL, Presiding Judge.

¶1 Petitioner, James Neely, is confined in the State Penitentiary at McAlester, where he is serving a life sentence imposed by judgment of the district court of Tulsa County, where petitioner was convicted on a charge of slaying a Tulsa policeman.

¶2 Herein on March 26, 1959, James Neely filed his petition, seeking a writ of mandamus to compel the county attorney of Creek County to either afford him a speedy trial in a case filed in the court of an examining magistrate of Creek County, charging petitioner with the theft of an automobile, or in lieu thereof that said case be ordered dismissed. See Thacker v. Marshall, Okl.Cr., 331 P.2d 488.

¶3 The County Attorney of Creek County was ordered to respond, and subsequently the case was set for hearing on April 29, 1959. On March 28, 1959 Clyde Patrick, Esq., County Attorney of Creek County filed a response to said petition, setting up that at no time since January 1, 1951 until the present time had the defendant or anyone representing him made any demand for trial, but rather all demands have been for dismissal of the preliminary information filed before an examining magistrate. But respondent says that immediately upon receipt from this Court of order to respond to the rule to show cause, request was made of the examining magistrate where charge pending to set a day for preliminary hearing, which was made for April 2, 1959, at 10:00 A.M., and subpoena for witnesses issued, and that the district court of Creek County issued order directed to the Warden of the State Penitentiary at McAlester, Oklahoma, to permit the sheriff of Creek County to bring James Neely, No. 47836 to Sapulpa for said hearing, and respondent moved that inasmuch as relief prayed for has been afforded, that the petition be dismissed.

¶4 On April 3, 1959 the County Attorney filed herein a statement setting out that when petitioner was confronted with witnesses he waived preliminary hearing, and thereafter entered a plea of guilty in the district court to the charge of larceny of an automobile, and was by the court sentenced to three years in the State Penitentiary at McAlester.

¶5 The petition for writ of mandamus is, in view of such facts, dismissed.

NIX and BRETT, JJ., concur.