Opinion
No. A-18048.
May 21, 1973.
Preston A. Trimble, Dist. Atty., for appellant.
Mac Oyler, Oyler Smith, Oklahoma City, for appellee.
OPINION
Appellee, William Eugene Eaton, hereinafter referred to as defendant, was tried with co-defendant Harold Arthur Anderson by a jury in the District Court of Cleveland County, Case No. CRF-72-389, on November 16, 1972, for the offense of Robbery with Firearms. The State presented testimony of two witnesses prior to the court recessing for lunch until 1:00 p.m. Thereafter, at 1:00 p.m. the State was given leave to call its next witness. The assistant district attorney announced that the witnesses were not in attendance. Thereupon, the court on its own motion ordered the case dismissed for want of diligent prosecution and discharged the jury and from said Order of Dismissal, the State has perfected an appeal upon a Reserve Question of Law.
We do not deem it necessary to recite the statement of facts as the same were set forth in detail in Anderson v. State, Okla. Cr. 510 P.2d 700 (1973). The State asserts that the trial court abused its discretion by dismissing the case and discharging the jury. For the reasons set forth in Anderson, supra, we are of the opinion that this proposition is well taken.
The State appealed this case on Reserve Question of Law. The trial court rendered its judgment of dismissal. Such judgment is final and the defendant may not now be subjected to further prosecution in this case. See State v. Waldrep, 80 Okla. Cr. 230, 158 P.2d 368 (1945); Belveal v. Rambo, Okla. Cr. 487 P.2d 714 (1971), and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970).