Oklahoma courts have construed Okla. Stat.Ann. tit. 22, ยง 701 (West 1969) to require the granting of a new trial should the prosecutor comment on defendant's failure to testify. Clark v. State, 91 Okl.Cr. 210, 218 P.2d 410, 413 (1950); White v. State, 76 Okl.Cr. 147, 134 P.2d 1039, 1041 (1943). A mandatory mistrial logically flows from the conclusion of the Oklahoma court in the instant case that "admonishment to the jury would only compound the error" created by the prosecutor's comments on the refusal to testify.
An Oklahoma statute makes it โmandatory on the trial court to grant a new trial when a prosecutor comments on the fact that defendant did not testify.โ Clark v. State, 91 Okla.Crim. 210, 215, 218 P.2d 410, 413 (1950). โ[B]y reason of the statute no instruction by the court could correct or remedy such error.โ
"The Constitutional provision that no person shall be prosecuted for a felony by information without having had or waived preliminary examination before examining magistrate is in nature of a personal privilege for benefit of accused, which may be waived by him." Also, see Ex parte Musgrove, 88 Okla. Cr. 192, 201 P.2d 272; and, Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410. Though not designated by law, and other than protecting defendant from unjust prosecution, the preliminary hearing under our system of jurisprudence has been recognized as a median serving several purposes.
Numerous other authorities support this conclusion. Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410; Burchfield v. State, 85 Okla. Cr. 415, 188 P.2d 392; Robbins v. State, 12 Okla. Cr. 294, 155 P. 491. And see also Application of Ervin for writ of habeas corpus, Okla. Cr. 359 P.2d 244.
This court has held on many occasions that the entire preliminary proceedings may be waived in the trial court, and are waived by failure to file a motion to quash or set aside the information in apt time. Ex parte Miller, 82 Okla. Cr. 315, 169 P.2d 574; Landon v. State, 82 Okla. Cr. 336, 166 P.2d 781; Sheller v. State, 58 Okla. Cr. 204, 52 P.2d 105; Herren v. State, 72 Okla. Cr. 254, 115 P.2d 258; Ex parte Owen, 82 Okla. Cr. 415, 171 P.2d 868; Ex parte Pruitt, 89 Okla. Cr. 312, 207 P.2d 337; Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410. In view of the authority above cited, it is unnecessary to consider the other issues raised by the petitioner.
See also Lakes v. State, 61 Okla. Cr. 252, 67 P.2d 457; Presnell v. State, 71 Okla. Cr. 162, 109 P.2d 834; Bush v. State, 91 Okla. Cr. 30, 215 P.2d 577; Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410; Taylor v. State, 96 Okla. Cr. 188, 251 P.2d 523.
"Statements of the prosecuting attorney, in argument to the jury, `Why couldn't they contradict the state's testimony, but not one place do they do that,' and `I say again there is no evidence offered to contradict the state's evidence in this case,' held, not a comment upon the failure of the defendant to testify as a witness in his own behalf, within the meaning of section 3068, St. 1931 (22 Okla.St.Ann. ยง 701)." See as illustrative of the principle: McDonald v. State, 59 Okla. Cr. 318, 58 P.2d 345; Presnell v. State, 71 Okla. Cr. 162, 109 P.2d 834; Pierce v. State, Okla. Cr. 253 P.2d 194; Bush v. State, 91 Okla. Cr. 30, 215 P.2d 577; Passmore v. State, 87 Okla. Cr. 391, 198 P.2d 439; Yeargain v. State, 76 Okla. Cr. 50, 134 P.2d 142; Herren v. State, 74 Okla. Cr. 424, 127 P.2d 215; Taylor v. State, Okla. Cr. 251 P.2d 523; Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410; Sellers v. State, 88 Okla. Cr. 114, 200 P.2d 443; Lakes v. State, 61 Okla. Cr. 252, 67 P.2d 457. The verdict and judgment appealed from is affirmed.
This court has heretofore held against the contentions now urged. See Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410. Finding no error, the case is affirmed.
The alleged language used by the county attorney in this case was not so strong as that discussed in the Taylor case, supra, and certainly where defendant fails to offer any evidence the prosecutor should not have been precluded from stating that the evidence of the state was uncontradicted. Clark v. State, 91 Okla. Cr. 210, 218 P.2d 410. We have examined the instructions and they seem to fairly present the issues to the jury and we do not feel there is any reasonable basis for holding that the defendant was denied a fair and impartial trial.