# Maxwell v. State

> Court of Criminal Appeals of Oklahoma · January 4, 1956 · 292 P.2d 181

URL: https://www.frixlaw.com/law-library/cases/9537723

## Case

- **Full name:** Robert Edward MAXWELL and Lester James Abraham, Plaintiffs in Error, v. the STATE of Oklahoma, Defendant in Error
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** January 4, 1956
- **Citations:** 292 P.2d 181; 1956 OK CR 1; 1956 Okla. Crim. App. LEXIS 137
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Brett, Jones, Powell
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9537723

## Opinion text

JONES, Presiding Judge
(concurring).
Although concurring in the conclusion reached in the above opinion I feel that some additional clarification of what has-been said should be made lest county attorneys and others interested shall misconstrue-the opinion.
The statutes of Oklahoma make it the-duty of county attorneys to guard the interests of the public and specifically confer authority upon them to determine when to-prosecute a criminal action on behalf of the State. Perry v. State, 84 Okl.Cr. 211 , 181 P.2d 280 . County attorneys likewise have the duty when a plea of guilty is entered to make a statement concerning the facts of the case and if they have a recommendation as to the punishment, it should be given. Of course the trial judge as an impartial arbiter is not bound to accept the recommendation of the county attorney but we can see where in the exercise of judicial wisdom it is generally the best to follow such recommendation. The county attorney as the official representative of the people, vested with the duty of fully investigating the facts of the case, knowing its weakness and its strength, deserves no criticism-for making a recommendation or expressing; his views about the case.
In the instant case all perhaps will readily agree that the factual 'situation showed that the defendants deserved more than the minimum punishment. However, even though the county attorney knew from his investigation that the defendants were guilty of committing the crime, yet he-would be stymied in his efforts to prosecute if he was unable to secure the attendance of the complaining witness, Moore. It appeared that Moore had enlisted in the Army, was outside of the jurisdiction of the court, in another state and did not wish to return to testify as a witness. I can readily see where the county attorney under such circumstances, knowing in his heart that the accused were guilty and deserved more punishment, still would rather see the defendants serve the minimum punishment of five years imprisonment in the penitentiary than be forced to abandon the prosecution because of the absence of the only witness who could give the details of the alleged robbery. The crime could not be established except by the testimony of Moore, Probably counsel for the accused had *185 learned of the difficulty confronting the county attorney in procuring the attendance of the complaining witness and rather than see his clients forced to remain in jail until another term of court was held, worked out the agreement with the county attorney as set forth in the opinion. There was nothing wrong in the way any of the parties proceeded and none of them is deserving of criticism.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537723. Public record. Not legal advice.