Title
TITLE 22 - CRIMINAL PROCEDURE
Body
Oklahoma Statutes
Criminal procedure, generally, see 22 O.S. § 1 et seq.
Code of Federal Regulations
Courts of Indian Offenses and Law and Order Code,
Appellate proceedings, see 25 C.F.R. § 11.800 et seq.
Application and jurisdiction, see 25 C.F.R. § 11.100 et seq.
Child protection and domestic violence procedures, see 25 C.F.R. § 11.1200 et seq.
Courts of Indian offenses, personnel, administration, see 25 C.F.R. § 11.200 et seq.
Criminal procedure, see 25 C.F.R. § 11.300 et seq.
Juvenile offender procedure, see 25 C.F.R. § 11.1000 et seq.
Indian country detention facilities and programs, see 25 C.F.R. § 10.1 et seq.
Indian country law enforcement, see 25 C.F.R. § 12.1 et seq.
CHAPTER 1
GENERAL PROVISIONS
§ 1. Title of code
This title shall be known as the Code of Criminal Procedure of Cherokee Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>600.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 2. Information necessary, except when
Every public offense must be prosecuted by information except where proceedings are had for the removal of civil officers of this Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 3. Code not retroactive
No part of this code is retroactive unless expressly so declared.
History
Source. LA 10-90, eff. November 13, 1990.
§ 4. Construction of words
Unless when otherwise provided, words used in this code in the present tense include the future as well as the present. Words used in the masculine comprehend as well the feminine and neuter. The singular number includes the plural, and the plural the singular. And the word person includes a corporation as well as a natural person.
History
Source. LA 10-90, eff. November 13, 1990.
§ 5. Writing includes printing
The term writing includes printing.
History
Source. LA 10-90, eff. November 13, 1990.
§ 6. Oath includes affirmation
The term oath includes an affirmation.
History
Source. LA 10-90, eff. November 13, 1990.
§ 7. Signature includes what
The term signature includes a mark when the person cannot write, his name being written near it, and the mark being witnessed by a person who writes his own name as a witness, except to an affidavit or deposition, or a paper executed before a judicial officer, in which case the attestation of the officer is sufficient.
History
Source. LA 10-90, eff. November 13, 1990.
§ 8. Application of statutes
This title applies to criminal actions and to all other proceedings in criminal cases which are herein provided for.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>600.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 9. Common law prevails, when
The procedure, practice and pleadings in the Courts of record of this Nation, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Common Law <KEY>14.
Indians <KEY>600.
Westlaw Topic Nos. 85, 209.
C.J.S. Common Law §§ 15, 18.
C.J.S. Indians §§ 151 to 179.
§ 10. Criminal action defined
The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>600.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 11. Prosecution by Nation against person charged
A criminal action is prosecuted in the name of Cherokee Nation as a party, against the person charged with the offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>600.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 12. Party defendant
The party prosecuted in a criminal action is designated in this title as the defendant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>600.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 13. Right to speedy trial, counsel and witnesses
In a criminal action the defendant is entitled:
1. To a speedy and public trial.
2. To be allowed counsel, as in civil actions, or to appear and defend in person and with counsel; and
3. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>609.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 14. Former jeopardy
No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted, except as hereinafter provided for new trials.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>214.
Westlaw Topic No. 209.
C.J.S. Indians § 59.
§ 15. Testimony against one's self-Restraint during trial and prior to conviction
No person can be compelled in a criminal action to be witness against himself; nor can a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge, and in no event shall he be tried before a jury while in chains or shackles.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>214, 608, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 59, 151 to 179.
§ 16. Jury trial-Exceptions
No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon final judgment for or against him upon a demurrer to the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>651.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 17. Custody and distribution of proceeds from sale of rights arising from criminal act
A. Every person who has been charged, convicted, has pled guilty or has pled nolo contendere to any crime hereinafter referred to as defendant who contracts to reenact such crime by the use of any movie, book, newspaper, magazine article, radio or television presentation, live entertainment of any kind, or from the expression of his thoughts, opinions or emotions regarding such crime, shall pay to the district court wherein the charges were filed any money or thing of value contracted to be paid to the defendant. The District Court shall deposit such monies in an escrow account for the benefit of and payable to any victim or his legal representative of crimes committed by the defendant.
B. Payments from the account shall be made to the defendant upon an order of the Judge of the District Court wherein the charges were filed upon showing that the money or thing of value shall be used for the exclusive purpose of retaining legal representation for the defendant at any stage of the proceedings arising out of a criminal charge, and that the defendant would otherwise be unable to afford adequate representation.
C. Payments from the account shall be used to satisfy any judgment rendered in favor of a victim or his legal representative, provided said victim brings a civil action, in a court of competent jurisdiction, to recover money against the defendant or his legal representatives within five (5) years of the filing of the charges against the defendant. If no victim or legal representative of a victim has filed suit within five (5) years from the filing of the charges, any money remaining in the account shall be paid over to the Victims' Compensation Revolving Fund. Upon disposition of charges favorable to the defendant, money in the account shall be paid over to the defendant.
D. The District Court wherein the charges were filed shall, once every six (6) months for five (5) years from the date the money is deposited with the Court, publish a notice in at least one newspaper of general circulation in each county of the Nation in accordance with the provisions on publication of notices found in 25 O.S. § 101 et seq., notifying any eligible victim or legal representative of an eligible victim that monies are available to satisfy judgments pursuant to this section.
History
Source. LA 10-90, eff. November 13, 1990.
§ 18. Expungement of records-Persons authorized
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:
1. The person has been acquitted;
2. The person was arrested and no charges are filed or charges are dismissed within one (1) year of the arrest; or
3. The statute of limitations on the offense had expired and no charges were filed.
For purposes of this act, "expungement" shall mean the sealing of criminal records.
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Daily paper defined, see 25 O.S. § 101 et seq.
CHAPTER 2
PREVENTION OF PUBLIC OFFENSES
GENERAL PROVISIONS
§ 31. Who may resist
Lawful resistance to the commission of a public offense may be made:
1. By the party about to be injured.
2. By other parties.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Criminal Law <KEY>36, 38.
Westlaw Topic No. 110.
C.J.S. Criminal Law §§ 56 to 61.
§ 32. Resistance by party to be injured
Resistance sufficient to prevent the offense may be made by the party about to be injured:
1. To prevent an offense against his person or his family, or some member thereof.
2. To prevent an illegal attempt, by force, to take or injure property in his lawful possession.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Criminal Law <KEY>36, 38.
Westlaw Topic No. 110.
C.J.S. Criminal Law §§ 56 to 61.
§ 33. Resistance by other person
Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Criminal Law <KEY>36, 38, 1225.
Westlaw Topic No. 110.
C.J.S. Criminal Law §§ 56 to 61, 2410.
§ 34. Intervention by officers
Public offenses may be prevented by the intervention of the officers of justice:
1. By requiring security to keep the peace.
2. By forming a police, and by requiring their attendance in exposed places.
3. By suppressing riots.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Criminal Law <KEY>36, 38, 1224.
Westlaw Topic No. 110.
C.J.S. Criminal Law §§ 56 to 61, 435, 2402 to 2405.
§ 35. Persons assisting officers
When the officers of justice are authorized to act in the prevention of public offenses, other persons, who, by their command, act in their aid, are justified in so doing.
History
Source. LA 10-90, eff. November 13, 1990.
§ 36. Civil and criminal immunity for private citizens aiding police officers
Private citizens aiding a police officer, or other officers of the law in the performance of their duties as police officers or officers of the law, shall have the same civil and criminal immunity as such officer, as a result of any act or commission for aiding or attempting to aid a police officer or other officer of the law, when such officer is in imminent danger of loss of life or grave bodily injury or when such officer requests such assistance and when such action was taken under emergency conditions and in good faith.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Criminal Law <KEY>1225.
Westlaw Topic No. 110.
C.J.S. Criminal Law § 2410.
§ 36.1. Police dog handlers-Civil liability
Any dog handler as defined by 21 CNCA § 648 who uses a police dog in the line of duty in accordance with the policies or standards established by the law enforcement agency for which he is employed shall not be civilly liable for any damages arising from the use of said dog.
History
Source. LA 10-90, eff. November 13, 1990.
§ 37.1. Off-duty law enforcement officers-Powers and duties-Liability
An "off-duty" law enforcement officer in official uniform in attendance at a public function, event or assemblage of people shall have the same powers and obligations as when he is "on-duty".
Nothing herein shall impose liability upon the governmental entity, by whom the law enforcement officer is employed, for actions of the said officer in the course of his employment by a nongovernmental entity.
History
Source. LA 10-90, eff. November 13, 1990.
§ 39. Benefits for citizens who aid
Any citizen who shall be aiding in the maintaining of law and order shall likewise be entitled to the benefits of this act.
History
Source. LA 10-90, eff. November 13, 1990.
VICTIM OF RAPE, FORCIBLE SODOMY, OR DOMESTIC ABUSE
§ 40. Definitions
As used in 22 CNCA §§ 40.1 through 40.5:
1. "Domestic abuse" means the occurrence of one or more of the following acts between family or household members:
a. causing or attempting to cause physical harm; or
b. threatening another with physical harm.
2. "Family or household members" means spouses, ex-spouses, parents, children, persons otherwise related by blood or marriage or persons living in the same household or who formerly shared the same residence. This shall include the elderly and handicapped;
3. "Forcible sodomy" means the act of forcing another person to engage in the detestable and abominable crime against nature pursuant to 21 CNCA §§ 886 and 887;
4. "Rape" means an act of sexual intercourse accomplished with a person pursuant to 21 CNCA §§ 1111, 1111.1 and 1114.
History
Source. LA 10-90, eff. November 13, 1990.
§ 40.1. Victim of rape or forcible sodomy-Notice of rights
Upon the preliminary investigation of any rape or forcible sodomy, it shall be the duty of the officer who interviews the victim of the rape or forcible sodomy to inform the victim of the twenty-four-hour statewide telephone communication service established by the State of Oklahoma and to give notice to the victim of certain rights. The notice shall consist of handing such victim the following statement:
"As a victim of the crime of rape or forcible sodomy, you have certain rights. These rights are as follows:
"1. The right to request that charges be pressed against your assailant;
"2. The right to request protection from any harm or threat of harm arising out of your cooperation with law enforcement and prosecution efforts as far as facilities are available and to be provided with information on the level of protection available;
"3. The right to be informed of financial assistance and other social services as a result of being a victim, including information on how to apply for the assistance and services; and
"4. The right to a free medical examination for the procurement of evidence to aid in the prosecution of your assailant."
The written notice shall also include the telephone number of the twenty-four-hour telephone communication service established by the State of Oklahoma.
History
Source. LA 10-90, eff. November 13, 1990.
§ 40.2. Victim of domestic abuse-Notice of rights
Upon the preliminary investigation of any crime involving domestic abuse, it shall be the duty of the first peace officer who interviews the victim of the domestic abuse to inform the victim of the twenty-four-hour statewide telephone communication service established by the State of Oklahoma and to give notice to the victim of certain rights. The notice shall consist of handing such victim the following statement:
"As a victim of domestic abuse, you have certain rights. These rights are as follows:
"1. The right to request that charges be pressed against your assailant;
"2. The right to request protection from any harm or threat of harm arising out of your cooperation with law enforcement and prosecution efforts as far as facilities are available and to be provided with information on the level of protection available; and
"3. The right to be informed of financial assistance and other social services available as a result of being a victim, including information on how to apply for the assistance and services."
History
Source. LA 10-90, eff. November 13, 1990.
§ 40.3. Victims not to be discouraged from pressing charges-Warrantless arrest of certain persons
A. A peace officer shall not discourage a victim of rape, forcible sodomy or domestic abuse from pressing charges against the assailant of the victim.
B. A peace officer may arrest without a warrant a person anywhere, including his place of residence, if the peace officer has probable cause to believe the person within the preceding seventy-two (72) hours has committed an act of domestic abuse as defined in Chapter 46 of Title 21, although the assault did not take place in the presence of the peace officer. A peace officer may not arrest a person pursuant to this section without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 31-06, eff. December 20, 2006.
Library References
Arrest <KEY>62, 63.4.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 9 to 10, 17 to 36.
§ 40.5. Short title
Sections 40.2 through 40.6 of this Title shall be known and may be cited as the Domestic Abuse Reporting Act.
History
Source. LA 10-90, eff. November 13, 1990.
§ 40.6. Record of reported incidents of domestic abuse-Reports
A. It shall be the duty of every law enforcement agency to keep a record of each reported incident of domestic abuse as provided in subsection (B) of this section and to submit a monthly report of such incidents as provided in subsection (C) of this section.
B. The record of each reported incident of domestic abuse shall:
1. Show the type of crime involved in the domestic abuse;
2. Show the day of the week the incident occurred; and
3. Show the time of day the incident occurred.
C. A monthly report of the recorded incidents of domestic abuse shall be submitted to the Cherokee Nation Marshal and the Director of the Oklahoma State Bureau of Investigation on forms provided by the State Bureau of Investigation for such purpose.
History
Source. LA 10-90, eff. November 13, 1990.
PROTECTION FROM DOMESTIC ABUSE ACT
§ 60. Short title
This act shall be known and may be cited as the Protection from Domestic Abuse Act.
History
Source. LA 10-90, eff. November 13, 1990.
§ 60.1. Definitions
As used in this act and in the Domestic Abuse Reporting Act:
1. "Domestic abuse" means the occurrence of one or more of the following acts between family or household members:
a. causing or attempting to cause serious physical harm; or
b. threatening another with imminent serious physical harm; and
c. includes but is not limited to: Assault, as defined by 21 CNCA § 641; battery, as defined by 21 CNCA § 642; rape, as defined by 21 CNCA § 1111; and aggravated assault and battery, pursuant to 21 CNCA § 646.
2. "Family or household members" means spouses, former spouses, parents, children, persons otherwise related by blood or marriage, or persons living in the same household or who formerly lived in the same household. This shall include the elderly and handicapped.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Arrest without warrant by officer, see 22 CNCA § 196.
§ 60.2. Protective order-Petition: form; filing fee; preparation
A. A victim of domestic abuse, or any adult household member on behalf of any other family or household member who is a minor or incompetent, may seek relief under the provisions of this act by filing a petition for protective order with the District Court.
B. The petition forms shall be provided by the Clerk of the Court and shall be in substantially the following form:
IN THE DISTRICT COURT IN AND FOR THE CHEROKEE NATION
_________________________________________ )
Plaintiff )
)
vs. ) Case No. __________
)
_________________________________________ )
Defendant )
PETITION FOR PROTECTIVE ORDER
Plaintiff, being sworn, states: (Check one or more)
___ The defendant caused or attempted to cause serious physical harm to _____.
___ The defendant threatened _____ with imminent serious physical harm.
2. The incident causing the filing of this petition occurred on or about ____.
(date)
(Describe what happened:)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
3. The victim and the defendant are related as follows:
(check one)
___ married
___ divorced
___ parent and child
___ persons related by blood
___ persons related by marriage
___ persons living in the same household
___ persons formerly living in the same household
4. (Answer this question only if the plaintiff is filing on behalf of someone else, minor or incompetent)
The plaintiff and the victim are related as follows:
___ married
___ divorced
___ parent and child
___ persons related by blood
___ persons related by marriage
___ persons living in the same household
___ persons formerly living in the same household
5. (Check A or B)
(A) ____ The victim is in immediate and present danger of abuse from the defendant and an emergency ex parte order is necessary to protect the victim from serious harm. The plaintiff requests the following relief in the emergency ex parte order: (check one or more)
___ order the defendant not to abuse or injure the victim.
___ order the defendant not to visit, assault, molest, harass or otherwise interfere with the victim.
___ order the defendant not to threaten the victim.
___ order the defendant to leave the residence located at ____ on or before ____.
___ (describe other relief that plaintiff requests)
(B) ____ The plaintiff does not request an emergency ex parte order.
6. Plaintiff requests the following order to be made by the court following notice to the defendant and a hearing: (check one or more)
___ order the defendant not to abuse or injure the victim.
___ order the defendant not to visit, assault, molest, harass or otherwise interfere with the victim.
___ order the defendant not to threaten the victim.
___ order the defendant to leave the residence located at ____ on or before ____
___ (describe other relief that plaintiff requests)
___ order the defendant to pay attorney fees of the plaintiff in the sum of ____ on or before ____.
___ order the defendant to pay the court costs of this action in the sum of ____ on or before ____.
7. Victim is a resident of the county wherein this petition is filed.
8. Plaintiff has stated the truth, the whole truth and nothing but the truth in this petition.
The filing or nonfiling of criminal charges and the prosecution of the case shall not be determined by a person who is protected by this order, but shall be determined by the Prosecutor. No person, including a person who is protected by this order, may give permission to anyone to ignore or violate any provision of this order. During the time in which this order is valid, every provision of this order is in full force and effect unless a Court changes the order. This order shall be in effect for three (3) years unless extended, modified, vacated or rescinded by the Court. A violation of this order is punishable by a fine of up to Five Thousand Dollars ($5,000.00) or imprisonment of not more than one (1) year, or both such fine and imprisonment. Possession of a firearm or ammunition by a defendant while this order is in effect may subject the defendant to further prosecution for violation of Cherokee Nation law even if this order does not elsewhere specifically prohibit the defendant from possessing a firearm or ammunition.
________________________________________
Plaintiff
Witness my hand and seal,
affixed on the ___ day of _______, 20 __.
________________________________________
Court Clerk, Deputy Court Clerk, or Notary Public
C. No filing fee shall be charged the plaintiff at the time the petition is filed. The Court may assess court costs and filing fees to either party at the hearing on the petition.
D. The plaintiff shall prepare the petition as set forth above or, at the request of the plaintiff, the Clerk of the Court or the victim-witness coordinator shall prepare or assist the plaintiff in preparing the same.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 33-03, eff. November 13, 1990.
Library References
Protection of Endangered Persons <KEY>56.
Westlaw Topic No. 315P.
C.J.S. Breach of the Peace §§ 18, 24 to 28, 32 to 38.
C.J.S. Domestic Abuse and Violence §§ 2, 4, 11 to 14, 16 to 17, 19 to 34, 36 to 45.
§ 60.3. Emergency ex parte order-Hearing
If a plaintiff requests an emergency ex parte order pursuant to 22 CNCA § 60.2, the Court shall hold an ex parte hearing on the same day the petition is filed. The Court may, for good cause shown at the hearing, issue any emergency ex parte order that it finds necessary to protect the victim from immediate and present danger of domestic abuse. The emergency ex parte order shall be in effect until after the full hearing is conducted. An emergency ex parte order authorized by this section may include the following:
1. An order to the defendant not to abuse or injure the victim;
2. An order to the defendant not to visit, assault, molest, harass or otherwise interfere with the victim;
3. An order to the defendant not to threaten the victim; or
4. An order to the defendant to leave the residence.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Protection of Endangered Persons <KEY>50, 57.
Westlaw Topic No. 315P.
C.J.S. Breach of the Peace §§ 18, 24 to 28, 32 to 38.
C.J.S. Domestic Abuse and Violence §§ 2, 4, 11 to 14, 16 to 17, 19 to 34, 36 to 45.
§ 60.4. Service of process-Ex parte orders-Hearing-Protective orders-Period of relief
A. A copy of the petition, notice of hearing and a copy of any ex parte order issued by the Court shall be served upon the defendant in the same manner as a summons. Ex parte orders shall be given priority for service by the sheriff's office and can be served twenty-four (24) hours a day.
B. Within ten (10) days of the filing of the petition the Court shall schedule a full hearing on the petition, regardless of whether an emergency ex parte order has been previously issued, requested or denied.
C. At the hearing, the Court may grant any protective order to bring about the cessation of domestic abuse against the victim.
D. Protective orders authorized by this section may include the following:
1. An order to the defendant not to abuse or injure the victim;
2. An order to the defendant not to visit, assault, molest, harass or otherwise interfere with the victim;
3. An order to the defendant not to threaten the victim;
4. An order to the defendant to leave the residence;
5. An order awarding attorney fees; and
6. An order awarding court costs.
E. When necessary to protect the victim and when authorized by the Court, protective orders granted pursuant to the provisions of this section may be served upon the defendant by a peace officer, marshal, sheriff, constable, or policeman or other officer whose duty it is to preserve the peace, as defined by 21 CNCA § 99.
F. Any protective order issued pursuant to subsection (C) of this section shall not be for a fixed period but shall be continuous until modified or rescinded upon motion by either party or if the Court approves any consent agreement entered into by the plaintiff and defendant. No order issued under the Protection from Domestic Abuse Act shall in any manner affect title to real property.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Protection of Endangered Persons <KEY>56.
Westlaw Topic No. 315P.
C.J.S. Breach of the Peace §§ 18, 24 to 28, 32 to 38.
C.J.S. Domestic Abuse and Violence §§ 2, 4, 11 to 14, 16 to 17, 19 to 34, 36 to 45.
§ 60.5. Copies of ex parte or final protective orders to be sent to appropriate law enforcement agencies
Within twenty-four (24) hours of the return of service of any ex parte or final protective order, the Clerk of the issuing court shall send certified copies thereof to all appropriate law enforcement agencies designated by the plaintiff.
History
Source. LA 10-90, eff. November 13, 1990.
§ 60.6. Violation of ex parte or final protective order-Penalty
A. Except as otherwise provided by this section any person who has been served with an ex parte or final protective order and is in violation of such protective order, upon conviction, shall be guilty of a crime and shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by a term of imprisonment in the penal institution of not more than one (1) year, or both.
B. Any person who after a previous conviction of a violation of a protective order is convicted of a second or subsequent offense pursuant to the provisions of this section shall be deemed guilty of a crime and shall be punished by a term of imprisonment in the penal institution of not less than ten (10) days and not more than one (1) year. In addition to the term of imprisonment, the person may be punished by a fine of not less than Five Hundred Dollars ($500.00) and not more than One Thousand Dollars ($1,000.00).
C. 1. Any person who has been served with an ex parte or final protective order who violates said protective order and without justifiable excuse causes physical injury or physical impairment to the plaintiff or to any other person named in said protective order shall upon conviction be guilty of a crime and shall be punished by a term of imprisonment in the county jail for not less than ten (10) days nor more than one (1) year. In addition to the term of imprisonment, the person may be punished by a fine not to exceed Five Thousand Dollars ($5,000.00).
2. In determining the term of imprisonment required by this section, the jury or Sentencing Judge shall consider the degree of physical injury or physical impairment to the victim.
3. The provisions of this subsection shall not affect the applicability of 21 CNCA § 644, 21 CNCA § 645, 21 CNCA § 647 and 21 CNCA § 652.
D. The minimum sentence of imprisonment issued pursuant to the provisions of subsections (B) and (C) of this section shall not be subject to statutory provisions for suspended sentences, deferred sentences or probation, provided the Court may subject any remaining penalty under the jurisdiction of the Court to the statutory provisions for suspended sentences, deferred sentences or probation.
E. In addition to any other penalty specified by this section, the Court may require a defendant to undergo the treatment or participate in the counseling services necessary to bring about the cessation of domestic abuse against the victim.
F. Ex parte and final protective orders shall include notice of these penalties.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>620.
Protection of Endangered Persons <KEY>91.
Westlaw Topic Nos. 209, 315P.
C.J.S. Breach of the Peace §§ 18 to 19, 23, 28 to 38.
C.J.S. Indians §§ 151 to 179.
§ 60.7. Statewide validity of orders
All orders issued pursuant to the provisions of the Domestic Abuse Act shall have statewide validity, unless specifically modified or terminated by a Judge of the District Court.
History
Source. LA 10-90, eff. November 13, 1990.
RESISTANCE TO EXECUTION OF PROCESS
§ 93. Refusal to assist officer a misdemeanor
Every person commanded by a public officer to assist him in the execution of a process, who, without lawful cause, refuses or neglects to obey the commands, is guilty of a misdemeanor.
History
Source. LA 10-90, eff. November 13, 1990.
CHAPTER 3
JURISDICTION AND COMMITMENT
JURISDICTION AND VENUE
§ 121. Offenses commenced outside and consummated within the Nation
When the commission of a public offense, commenced without this Nation, is consummated within its boundaries, the defendant is liable to punishment therefor in this Nation, though he were out of the Nation at the time of the commission of the offense charged if he consummated it in this Nation through the intervention of an innocent or guilty agent, or by any other means proceeding directly from himself; and in such case, the jurisdiction is in the Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 126. Kidnapping, enticing away children and similar offenses, jurisdiction
The jurisdiction of an information:
1. For forcibly and without lawful authority seizing and confining another, or inveigling or kidnapping him, with intent, against his will, to cause him to be secretly confined or imprisoned in this Nation, or to be sent out of the Nation; or
2. For decoying or taking or enticing away a child under the age of twelve (12) years, with intent to detain and conceal it from its parents, guardian, or other person having lawful charge of the child; or
3. For the inveigling, enticing, or taking away person under the age of twenty-one (21) years for the purpose of prostitution; or
4. For taking away any person under the age of sixteen (16) years from her father, mother, guardian or other person having the legal charge of her person without their consent either for the purpose of concubinage or prostitution;
is in Cherokee Nation if the offense is committed within Cherokee Nation or the person upon whom the offense was committed, may, in the commission of the offense, have been brought within Cherokee Nation, or if an act done by the defendant in instigating, procuring, promoting, aiding or in being an accessory to the commission of the offense, or in abetting the parties concerned therein was performed within Cherokee Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 129. Accessory, jurisdiction in case of
In the case of an accessory in the commission of a public offense, the jurisdiction is where the offense of the accessory was committed, notwithstanding the principal offense was committed in another jurisdiction.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 130. Conviction or acquittal outside Nation a bar
When an act charged as a public offense is within the jurisdiction of another territory, state or nation, as well as this Nation, a conviction or acquittal thereof in the former is a bar to a prosecution therefore in this Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 133. Stealing property in another jurisdiction-Receiving such stolen property
The jurisdiction of a prosecution for stealing in a state, or other territory, the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this Nation, is in the Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 134. Murder or manslaughter, jurisdiction in certain cases
The jurisdiction of a prosecution for murder or manslaughter, when the injury which caused the death was inflicted in one jurisdiction, and the party injured dies in another jurisdiction, or out of the Nation, is in the jurisdiction where the injury was inflicted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 135. Principal not present, jurisdiction
The jurisdiction of a prosecution against a principal in the commission of a public offense, when such principal is not present at the commission of the public offense, is in the same jurisdiction as it would be under this chapter, if he were so present and aiding and abetting therein.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>601.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
LIMITATIONS
§ 151. No limitation of prosecution for murder
There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>602.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 152. Limitations in general
A. Prosecutions for the crimes of bribery, embezzlement of public money, bonds, securities, assets or property of the Cherokee Nation or other subdivision thereof, or of any misappropriation of public money, bonds, securities, assets or property of the Cherokee Nation or other subdivision thereof, falsification of public records of the Cherokee Nation or other subdivision thereof, and conspiracy to defraud the Cherokee Nation or other subdivision thereof in any manner or for any purpose shall be commenced within seven (7) years after the discovery of the crime; provided, however, prosecutions for the crimes of embezzlement or misappropriation of public money, bonds, securities, assets or property of any school district, including those relating to student activity funds, or the crime of falsification of public records of any independent school district, the crime of lewd or indecent proposals or acts against children, pursuant to 21 CNCA § 1123, the crimes of involving minors in pornography, pursuant to 21 CNCA § 1021.2 and 21 CNCA § 1021.3, the crime of sodomy, the crime of criminal conspiracy, or the crime of embezzlement, pursuant to 21 CNCA §§ 1451 through 1462, shall be commenced within five (5) years after the discovery of the crime.
B. Prosecutions for criminal violations of any Cherokee Nation tax laws shall be commenced within five (5) years after the commission of such violation.
C. Prosecutions for the crime of rape or forcible sodomy, sodomy, lewd or indecent proposals or acts against children, and the involvement of minors in pornography pursuant to 21 CNCA § 886, 21 CNCA § 888, 21 CNCA § 1111, 21 CNCA § 1111.1, 21 CNCA § 1113, 21 CNCA § 1114 or 21 CNCA § 1123, shall be commenced within seven (7) years after the discovery of the crime.
D. Prosecution for the crime of false or bogus check, 21 CNCA § 1541.1 and 21 CNCA § 1541.2, shall be commenced within five (5) years after the commission of such offense.
E. In all other cases a prosecution for a public offense must be commenced within three (3) years after its commission.
F. As used in subsection (C) of this section, "discovery" means the date that a physical or sexually related crime involving a victim under the age of eighteen (18) years of age is reported to a law enforcement agency, up to and including one (1) year from the eighteenth birthday of the child.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 24-02, eff. August 21, 2002.
Library References
Indians <KEY>602.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 153. Absence from Nation, limitation does not run
If when the offense is committed the defendant be out of the Nation, the prosecution may be commenced within the term herein limited after his coming within the nation, and no time during which the defendant is not an inhabitant of or usually resident within the Nation, is part of the limitation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>602.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
MAGISTRATES
§ 161. Magistrate defined
A Magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.
History
Source. LA 10-90, eff. November 13, 1990.
§ 162. Who are Magistrates
The following persons are Magistrates:
First. Justices of the Supreme Court;
Second. Judges of the District Court, including Associate District Judges, Special Judges and Magistrates.
History
Source. LA 10-90, eff. November 13, 1990.
ARREST AND TAKING BEFORE MAGISTRATE
§ 171. Complaint-Issuance of warrant of arrest
When a complaint, verified by oath or affirmation, is laid before a Magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 172. Form of warrant
A warrant of arrest is an order in writing, in the name of the Nation, signed by a Magistrate, commanding the arrest of the defendant, and may be substantially in the following form:
Cherokee Nation
To any marshal, sheriff, constable, marshal or policeman in this Nation:
Complaint upon oath having been this day made before me that the crime of (designating it) has been committed, and accusing C. D. thereof, you are therefore commanded forthwith to arrest the above named C. D. and bring him before me at (naming the place), or, in case of my absence or inability to act, before the nearest or most accessible Magistrate.
Dated at .. this .. day of .. 20 ..
E. F., Judge (or as the case may be.)
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
WARRANTS AND TAKING BEFORE MAGISTRATE
§ 173. Requisites of warrant
The warrant must specify the name of the defendant, or, if it is unknown to the Magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the Magistrate has authority to issue the warrant, and the time of issuing it, and the county, city, or town where it is issued, and if the offense charged is bailable, shall fix the amount of bail and an endorsement shall be made on the warrant, to the following effect: "The defendant is to be admitted to bail in the sum of $____" and be signed by the Magistrate with his name of office.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 174. Warrant directed to whom
The warrant must be directed to and executed by a peace officer.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 178. Proceedings when bail is taken
On taking bail, the Magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and must, without delay, deliver the warrant and undertaking to the Clerk of the Court at which the defendant is required to appear.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 179. When bail is not given
If, on the admission of the defendant to bail, bail be not forthwith given, the officer must take the defendant before the Magistrate who issued the warrant, or some other Magistrate, as provided in the next section.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 180. Magistrate absent-Taking defendant before another
When, by the preceding sections of this chapter, the defendant is required to be taken before the Magistrate who issued the warrant, he may, if the Magistrate be absent or unable to act, be taken before the nearest or most accessible Magistrate in the Nation. The officer must, at the same time, deliver to the Magistrate the warrant, with the return endorsed and subscribed by him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 181. Delay in taking before Magistrate not permitted
The defendant must, in all cases, be taken before the Magistrate without unnecessary delay.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 186. Arrest defined
Arrest is the taking of a person into custody, that he may be held to answer for a public offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>57.3.
Westlaw Topic No. 35.
§ 187. Arrest made by whom
An arrest may be either:
1. By a peace officer, under warrant;
2. By a peace officer without a warrant; or
3. By a private person.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>62 to 65.
Westlaw Topic No. 35.
C.J.S. Aliens § 318.
C.J.S. Arrest §§ 6 to 39, 42 to 44, 48.
§ 188. Aid to officer
Every person must aid an officer in the execution of a warrant, if the officer require his aid.
History
Source. LA 10-90, eff. November 13, 1990.
§ 189. Arrest, when made
If the offense charged is a crime which under the laws of the State of Oklahoma would be a felony, the arrest may be made on any day, and at any time of the day or night. If it is a crime which under the laws of the State of Oklahoma would be a misdemeanor, the arrest may be made only during the hours of six o'clock a.m. to ten o'clock p.m., inclusive, except as otherwise may be directed by the Magistrate endorsed upon the warrant. Provided, an arrest on a warrant which charges a criminal offense may be made at any time of the day or night if the defendant is in a public place or on a public roadway.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>57.5, 67.
Westlaw Topic No. 35.
C.J.S. Arrest § 54.
§ 190. Arrest, how made
An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>57.3.
Westlaw Topic No. 35.
§ 191. Restraint which is permissible
The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>68.1(4), 68.1(5).
Westlaw Topic No. 35.
C.J.S. Aliens §§ 320 to 321.
§ 192. Officer must show warrant
The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant within a reasonable time under the circumstances, if requested.
History
Source. LA 10-90, eff. November 13, 1990.
§ 193. Resistance, means to overcome
If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.
History
Source. LA 10-90, eff. November 13, 1990.
§ 194. Officer may break open door or window, when
The officer may break open an outer or inner door or window of a dwelling house, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>68.2.
Westlaw Topic No. 35.
C.J.S. Aliens § 324.
§ 195. Officer's breaking door or window to liberate himself or another arrester
An officer may break open an outer or inner door or window of a dwelling house for the purposes of liberating a person who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation.
History
Source. LA 10-90, eff. November 13, 1990.
§ 196. Arrest without warrant by officer
A peace officer may, without a warrant, arrest a person:
1. For a public offense, committed or attempted in his presence;
2. When the person arrested has committed a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony, although not in his presence;
3. When a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony, has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it;
4. On a charge, made upon reasonable cause, of the commission of a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony, by the party arrested;
5. When he has probable cause to believe that the party was driving or in actual physical control of a motor vehicle involved in an accident upon the public highways, streets or turnpikes and was under the influence of alcohol or intoxicating liquor or who was under the influence of any substance included in the Uniform Controlled Dangerous Substances Act, 21 CNCA § 2101 et seq.; or
6. Anywhere, including his place of residence, if the peace officer has probable cause to believe the person within the preceding four (4) hours has committed an act of domestic abuse as defined by 22 CNCA § 60.1, although the assault did not take place in the presence of the peace officer. A peace officer may not arrest a person pursuant to this section without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>63, 68.2(3).
Westlaw Topic No. 35.
C.J.S. Aliens § 324.
C.J.S. Arrest §§ 9, 14 to 39, 42 to 44.
§ 197. Arrest without warrant, breaking door or window
To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a dwelling house, if, after notice of his office and purpose, he be refused admittance.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>68.2.
Westlaw Topic No. 35.
C.J.S. Aliens § 324.
§ 198. Nighttime, arrest of suspected criminal
He may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony, and is justified in making the arrest though it afterward appear that the felony had not been committed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>67.
Westlaw Topic No. 35.
C.J.S. Arrest § 54.
§ 199. Authority must be stated on arrest without warrant, when
When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense, or is pursued immediately after an escape.
History
Source. LA 10-90, eff. November 13, 1990.
§ 200. Arrest by bystander-Officer may take defendant before Magistrate
He may take before a Magistrate, a person, who being engaged in a breach of the peace, is arrested by a bystander and delivered to him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>64.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 11 to 13.
§ 201. Offense committed in presence of Magistrate
When a public offense is committed in the presence of a Magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest.
History
Source. LA 10-90, eff. November 13, 1990.
§ 202. Arrest by private person
A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony although not in his presence.
3. When the person has committed a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>64.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 11 to 13.
§ 203. Private person must inform person of cause of arrest
He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in actual commission of the offense or when he is arrested on pursuit immediately after its commission.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>64.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 11 to 13.
§ 204. Private person may break door or window
If the person to be arrested have committed crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony, and a private person, after notice of his intention to make the arrest, be refused admittance, he may break open an outer or inner door or window of a dwelling house, for the purpose of making the arrest.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>68.2.
Westlaw Topic No. 35.
C.J.S. Aliens § 324.
§ 205. Private person making arrest must take defendant to Magistrate or officer
A private person who has arrested another for the commission of a public offense, must, without unnecessary delay, take him before a Magistrate or deliver him to a peace officer.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>64, 70(2).
Westlaw Topic No. 35.
C.J.S. Arrest §§ 11 to 13, 58 to 61.
§ 206. Disarming person arrested
Any person making an arrest must take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the Magistrate before whom he is taken.
History
Source. LA 10-90, eff. November 13, 1990.
§ 207. Pursuit and arrest of escaped prisoner
If a person arrested escape or be rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him, at any time, and in any place in the Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>72.
Westlaw Topic No. 35.
C.J.S. Arrest § 50.
§ 208. Breaking door or window to arrest person escaping
To take the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a dwelling house.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>72.
Westlaw Topic No. 35.
C.J.S. Arrest § 50.
§ 209. Citation to appear-Issuance-Summons-Failure to appear
A. A law enforcement officer who has arrested a person on a criminal charge, without a warrant, which if committed under the laws of the State of Oklahoma would be a misdemeanor, may issue a citation to such person to appear in Court.
B. In issuing a citation hereunder the officer shall proceed as follows:
1. He shall prepare a written citation to appear in Court, containing the name and address of the cited person and the offense charged, and stating when the person shall appear in Court. Unless the person requests an earlier date, the time specified in the citation to appear shall be at least five (5) days after the issuance of the citation.
2. One (1) copy of the citation to appear shall be delivered to the person cited, and such person shall sign a duplicate written citation which shall be retained by the officer.
3. The officer shall thereupon release the cited person from any custody.
4. As soon as practicable, the officer shall file one (1) copy of the citation with the Court specified therein and shall deliver one (1) copy to the Prosecuting Attorney.
C. In any case in which the judicial officer finds sufficient grounds for issuing a warrant, he may issue a summons commanding the defendant to appear in lieu of a warrant.
D. If a person summoned fails to appear in response to the summons, a warrant for his arrest shall issue, and any person who willfully fails to appear in response to a summons is guilty of a crime.
History
Source. LA 10-90, eff. November 13, 1990.
§ 221. Fresh pursuit
A. Any member of a duly-organized tribal, state, county, or municipal peace unit of a jurisdiction of the United States who enters Indian Country in fresh pursuit, and continues within Indian Country in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such state, or to have committed a misdemeanor in the presence of the arresting officer shall have the same authority to arrest and hold such person in custody, as has any member of any duly-organized state, county, or municipal peace unit of Cherokee Nation, to arrest and hold in custody a person on the ground that he is believed to have committed a felony or has committed a misdemeanor in the presence of the arresting officer in Cherokee Nation.
B. If an arrest is made in Indian Country by an officer of a state in accordance with the provisions of 22 CNCA § 221(A) he shall without unnecessary delay take the person arrested before a Magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the Magistrate determines that the arrest was lawful he shall commit the person arrested to the custody of the arresting officer.
C. Section 221 of this Title shall not be construed so as to make unlawful any arrest in Oklahoma which would otherwise be lawful.
D. The term "fresh pursuit" as used in this act shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. It shall also include misdemeanors which are committed in the presence of the arresting officer. "Fresh pursuit" as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>63.3.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 16 to 18.
§ 222. Exception
Section 221 of this Title shall not apply where the crime or offense charged is a lawful act under Cherokee Nation law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>63.3.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 16 to 18.
§ 231. Crimes-Warrant for arrest-Complaint submitted to Prosecuting Attorney-Cost bond
In all criminal cases, before a warrant shall issue for the arrest of the defendant the complaint must be submitted to the Prosecuting Attorney, or drawn by him and endorsed as follows: "I have examined the facts in this case and recommend that a warrant do issue," and then filed with the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 232. Form of cost bond
The bond may be substantially in the following form:
Cherokee Nation, against (naming the defendant). I, (naming the principal) as principal and .. as surety bind ourselves to pay all costs in this cause if the defendant is acquitted. Signed this .. day of .., 20 .....
The surety must qualify before the bond is approved.
History
Source. LA 10-90, eff. November 13, 1990.
§ 233. Judgment on bond
In all cases where bonds have been given under the provisions of this chapter, and the maker thereof shall be liable thereon, by the conviction or acquittal of the defendant, the Court shall, at the time of rendering judgment for or against the defendant, render such judgment as may be proper on the bond, and issue execution thereon, as in cases of a civil judgment.
History
Source. LA 10-90, eff. November 13, 1990.
EXAMINATION AND COMMITMENT
§ 251. Magistrate must inform defendant of charge and rights
When the defendant is brought before a Magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the Magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 252. Defendant allowed counsel-Messages to counsel-Change of venue
He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>638.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 270. Witnesses to give undertaking
On holding the defendant to answer, the Magistrate may take from each of the material witnesses examined before him on the part of the Nation, a written undertaking, without surety, to the effect that he will appear and testify at the Court to which the complaint and deposition, if any are to be sent or that he will forfeit such sum as the Magistrate may fix and determine.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 271. Sureties may be required for witness
When the Magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify, unless security be required, he may order the witness to enter into a written undertaking, with such sureties and in such sum as he may deem proper, for his appearance, as specified in the last section.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 273. Witness not giving undertaking committed, when
If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the Magistrate must commit him to the penal institution until he comply, or is legally discharged.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 274. Subsequent security may be demanded-Arrest of witness
When, however, any material witness on the part of the people has been discharged on his undertaking, without surety, if afterwards, on the sworn application of the Prosecuting Attorney or other person on behalf of the Nation, made to the Magistrate or to any Judge, it satisfactorily appears that the presence of such witness or any other person on the part of the people is material or necessary on the trial in Court, such Magistrate or Judge may compel such witness, or any other material witness on the part of the Nation, to give an undertaking with sureties, to appear on the said trial and give his testimony therein; and, for that purpose, the said Magistrate or Judge may issue a warrant against such person, under his hand, with or without seal, directed to a sheriff, marshal or other officer, to arrest such person and bring him before such Magistrate or Judge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 275. Arrested witness may be confined
In case the person so arrested shall neglect or refuse to give said undertaking in the manner required by said Magistrate or Judge, he may issue a warrant of commitment against such person, which shall be delivered to said marshal, sheriff or other officer, whose duty it shall be to convey such person to the penal institution mentioned in said warrant, and the said person shall remain in confinement until he shall be removed to the grand jury and to the Court, for the purpose of giving his testimony, or until he shall have given the undertaking required by said Magistrate or Judge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 277. Deaf-mute charged with commission of offense-Right to interpreter
Every deaf-mute person who is charged with the commission of a criminal offense shall be entitled to the assistance and services of a qualified interpreter. Prior to questioning upon arrest and all subsequent proceedings, the Court shall procure a qualified interpreter to assist such person in communications with officers of the Court.
History
Source. LA 10-90, eff. November 13, 1990.
§ 278. Arrest of deaf-mute-Interpreter-Evidence
When a deaf-mute is arrested he shall be entitled to the assistance of an interpreter. Evidence by the Nation relating to any statement made by a deaf-mute to a law enforcement officer shall be limited solely to statements offered, elicited, or made in the presence of a qualified interpreter.
History
Source. LA 10-90, eff. November 13, 1990.
§ 279. Qualified interpreter
For the purposes of this act, a qualified interpreter shall mean one who is readily able to translate simultaneously in either direction the manual system or lip reading and spoken English, and a deaf-mute means a person who has a physical handicap which prevents him from fully hearing or speaking. A qualified interpreter shall be furnished, or recommended, by the principal administrative officer of the Oklahoma School for the Deaf upon direction of any District Court of this Nation.
History
Source. LA 10-90, eff. November 13, 1990.
§ 280. Per diem and mileage
Payment of per diem and mileage of a qualified interpreter, at the rate and basis provided by law for Nation employees, in attending the Court which he is requested by the Judge thereof to attend for the purposes of assisting and serving a deaf-mute is authorized upon approval of the claim therefor against the Court Fund of the county by the District Judge.
History
Source. LA 10-90, eff. November 13, 1990.
CHAPTER 4
PROCEEDINGS AFTER COMMITMENT
GENERAL PROVISIONS
§ 301. Manner of prosecution of offenses
Every crime must be prosecuted by information in the District Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 303. Subscription, endorsement and verification of information-Excusing endorsement
The Prosecuting Attorney shall subscribe his name to informations filed in the District Court and endorse thereon the names and last-known addresses of all the witnesses known to him at the time of filing the same. Thereafter, he shall also endorse thereon the names and last-known addresses of such other witnesses as may afterwards become known to him, if they are intended to be called as witnesses at trial, at such time as the Court may by rule prescribe. All informations shall be verified by the oath of the Prosecuting Attorney, complainant or some other person.
Upon filing of a verified application by the Prosecuting Attorney, notice to defense counsel, and hearing establishing need for witness protection or preservation of the integrity of evidence, the District Court may excuse witness endorsement, or some part thereof. Such proceedings shall be conducted in camera, and the record shall be sealed and filed in the office of the District Court Clerk, and shall not be opened except by order of the District Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 304. Information may be amended
An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the Court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 387. Forms and rules of pleading
All forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined are those prescribed by this code.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 388. Information first pleading
The first pleading on the part of the Nation is the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
REQUISITES AND SUFFICIENCY OF INDICTMENT OR INFORMATION
§ 401. Requisites of information
The information must contain:
1. The title of the action, specifying the name of the Court to which the information is presented, and the names of the parties.
2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 402. Information certain and direct
The information must be direct and certain as it regards:
1. The party charged.
2. The offense charged.
3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 403. Designation of defendant by fictitious name
When a defendant is prosecuted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name mentioned in the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 404. Single offense to be charged-Different counts
The information must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same information and the accused may be convicted of either offense, and the Court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 405. Allegation of time
The precise time at which the offense was committed need not be stated in the information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 406. Misdescription of person injured or intended to be injured
When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 407. Words, how construed
The words used in an information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 408. Statute not strictly pursued
Words used in a statute to define a public offense, need not be strictly pursued in the information; but other words conveying the same meaning may be used.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 409. Information, when sufficient
The information is sufficient if it can be understood therefrom:
1. That it is entitled in a Court having authority to receive it, though the name of the Court be not stated.
2. That it was presented by the Prosecuting Attorney in which the Court was held.
3. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is unknown.
4. That the offense was committed at some place within the jurisdiction of the Court, except where the act, though done without the local jurisdiction, is triable therein.
5. That the offense was committed at some time prior to the time of filing the information.
6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
7. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the Court to pronounce judgment upon a conviction according to the right of the case.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 410. Immaterial informalities to be disregarded
No information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 411. Matters which need not be stated
Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 412. Pleading a judgment
In pleading a judgment or other determination of, or proceeding before a Court or officer of special jurisdiction it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. The facts constituting jurisdiction, however, must be established on the trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 413. Pleading private statute
In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the Court must thereupon take judicial notice thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
INDICTMENTS AND INFORMATIONS FOR PARTICULAR OFFENSES
§ 421. Arson-Omission or error in designating owner or occupant
An omission to designate, or error in designating in information for arson, the owner or occupant of a building, shall not prejudice the proceedings thereupon, if it appears that upon the whole description given of the building, it is sufficiently identified to enable the defendant to prepare his defense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 423. Forgery, misdescription of forged instrument immaterial, when
When an instrument, which is the subject of an information for forgery, has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the information and established on the trial, the misdescription of the instrument is immaterial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 424. Perjury, information for
In an information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what Court or before whom the oath alleged to be false was taken; and that the Court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the information need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the Court or person before whom the perjury was committed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 425. Larceny or embezzlement, information for
In an information for the larceny or embezzlement of money, bank notes, certificates of stock or valuable securities, or for a conspiracy to cheat and defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock or valuable securities, without specifying the coin, number, denomination or kind thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 426. Obscene literature, information for handling
An information for exhibiting, publishing, passing, selling or offering to sell, or having in possession with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper or writing, but it is sufficient to state generally the fact of the lewdness or obscenity thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
PARTIES PROSECUTED
§ 431. Several defendants
Upon an information against several defendants, any one or more may be convicted or acquitted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 432. Accessories and principals in crime
All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any information against such an accessory than are required in an information against his principal.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 433. Accessory tried independently of principal
An accessory to the commission of a crime may be prosecuted, tried and punished, though the principal be neither prosecuted nor tried, and though the principal may have been acquitted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 434. Compounding a crime-Separate prosecution
A person may be prosecuted for having, with the knowledge of the commission of a public offense, taken money or property of another, or a gratuity or reward, or an engagement or promise therefor, upon the agreement or understanding, express or implied, to compound or conceal the offense, or to abstain from a prosecution therefor, or to withhold any evidence thereof, though the person guilty of the original offense has not been indicted or tried.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
JOINDER OF OFFENSES AND OF DEFENDANTS
§ 436. Charging of two or more defendants in same information-Counts
Two or more defendants may be charged in the same information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately, provided that all of the defendants charged together in the same information are alleged to have participated in all of the same acts or transactions charged.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 437. Singular to include the plural
All laws in this chapter wherein the singular of words is used are hereby amended to include the plural of such words to give effect to the purpose of this act.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 438. Trial of two or more informations
The Court may order two or more informations or both to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single information. The procedure shall be the same as if the prosecution was under such single information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 439. Relief from prejudicial joinder
If it appears that a defendant or the Nation is prejudiced by joinder of offenses or of defendants in an information or by such joinder for trial together, the Court shall order an election or separate trial of counts, grant a severance of defendants, or provide whatever other relief justice requires.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 7
PROCEEDINGS BEFORE TRIAL
ARRAIGNMENT AND APPEARANCE
§ 451. Arraignment
When the information is filed, the defendant must be arraigned thereon before the Court in which it is filed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 452. Defendant must appear personally, when
If the information is for a crime the defendant must be personally present.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 453. Officer to bring defendant before Court
When his personal appearance is necessary, if he be in custody, the Court may direct the officer in whose custody he is to bring him before it to be arraigned, and the officer must do so accordingly.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 454. Bench warrant to issue, when
If the defendant has been discharged on bail, or have deposited money instead thereof, and does not appear to be arraigned, when his personal attendance is necessary, the Court in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the Clerk to issue a bench warrant for his arrest.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 455. Bench warrant may issue
The Clerk, on the application of the Prosecuting Attorney, may, accordingly, at any time after the order, whether the Court be sitting or not, issue a bench warrant for any part of Cherokee Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 456. Bench warrant, form of, in case of felony
The bench warrant must, if the offense is a crime, be substantially in the following form:
In Cherokee Nation,
To any sheriff, constable, policeman or marshal in this state:
An information having been filed on the .. day of .., A. D., 20, in the District Court in and for Cherokee Nation .., charging C.D. with the crime of .., (designating it generally) you are therefore commanded forthwith to arrest the above named C. D., and bring him before the Court (or before the court to which the information may have been removed, naming it) to answer said information; or if the Court have adjourned for the term, that you deliver him into the custody of the Marshal or Sheriff of Cherokee Nation.
Given under my hand, with the seal of said Court affixed this .. day of .., A. D., 20 ..
By order of the Court.
(Seal) E. F., Clerk.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 457. Bench warrant in case
If the offense is a bailable crime, the bench warrant must be in a similar form, adding to the body thereof a direction to the following effect:
Or if he requires it that you take him before any Magistrate that he may give bail to answer the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 458. Court to fix amount of bail-Endorsement
If the offense charged is bailable, the Court, upon directing the bench warrant to issue, must fix the amount of bail and an endorsement must be made on the bench warrant and signed by the Clerk, to the following effect:
The defendant is to be admitted to bail in the sum of ..
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 459. Defendant held when offense not bailable
The defendant, when arrested under a warrant for an offense not bailable, must be held in custody by the Marshal or Sheriff.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 464. Counsel before trial-Compensation-Expert witnesses
If the defendant appear for trial, without counsel, he must be informed by the Court that it is his right to have counsel before being tried, and must be asked if he desires the aid of counsel. If he desires and is financially unable to employ counsel, the Court must assign counsel to defend him. The attorney so appointed shall represent said person in the examining Magistrate Court until he is discharged or bound over by said Court and shall receive such compensation as is ordered by the Court not to exceed One Hundred Dollars ($100.00) and approved by the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Raising issue of mental illness or insanity at time of offense, see 22 CNCA § 1176.
Library References
Indians <KEY>638.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 465. Arraignment made, how
The arraignment must be made by the Court, or by the Clerk or Prosecuting Attorney, under its direction, and consists in reading the information to the defendant, and asking him whether he pleads guilty or not guilty thereto.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 466. Name of defendant
When the defendant is arraigned he must be informed that if the name by which he is prosecuted be not his true name, he must then declare his true name or be proceeded against by the name in the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 466A. Tribe of defendant
When the defendant is arraigned he must declare whether is he a citizen of or is eligible for citizenship in one or more Indian bands, tribes, or nations recognized by the federal government. He shall declare his blood quantum for each tribe of which he is a citizen or is eligible for citizenship and shall produce any and all citizenship documents to Indian bands, tribes or nations and any Certificate of Degree of Indian Blood that he may possess.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 467. Proceedings when defendant gives no other name
If he gives no other name, the Court may proceed accordingly.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 468. Proceedings where another name given
If he alleges that another name is his true name, the Court must direct an entry thereof in the minutes of the arraignment, and the subsequent proceedings on the information may be had against him by that name, referring also to the name by which he is informed against.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
PLEADINGS AND MOTIONS
§ 491. Time to answer information
If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the Court may deem reasonable, to answer the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 492. Pleading to information
If the defendant does not require time, as provided in the last section, or if he does, then on the next day, or at such further day as the Court may have allowed him, he may, in answer to the arraignment, either move the Court to set aside the information or may demur or plead thereto.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 493. Information set aside, when
The information must be set aside by the Court in which the defendant is arraigned, and upon his motion in any of the following cases:
When it is not found, endorsed, presented or filed, as prescribed by the statutes.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 494. Hearing on motion to set aside information
To enable the defendant to make proof of the matter set up as grounds for setting aside the information, the defendant may file his application before the Court, setting out and alleging that he is being proceeded against in a certain Court, naming it, and setting out a copy of his motion and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof. The Court shall thereupon issue subpoenas to compel any or all witnesses desired to appear before him at the time named, and shall compel the witnesses to testify fully in regard to the matter and reduce the examination to writing, and certify to the same, and it may be used to support the motion. The mover shall pay the costs of the proceeding. He shall notify the Prosecuting Attorney at least two (2) clear days before he proceeds, of the time and place of taking such testimony, and the Prosecuting Attorney may be present and cross-examine the witnesses and if need be the case in the District Court must be adjourned for that purpose.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 495. Witnesses on hearing to set aside information
All witnesses shall be bound to answer fully, and shall not be answerable for the testimony so given in any way, except for the crime of perjury committed in giving such evidence.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 496. Objection to information waived, when
If the motion to set aside the information be not made the defendant is precluded from afterwards taking the objections mentioned in the last section.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 497. Motion to set aside information heard, when
The motion must be heard at the time it is made unless for good cause the Court postpone the hearing to another time.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 498. Defendant to answer information, when
If the motion be denied, the defendant must immediately answer to the information, either by demurring or pleading thereto.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 499. Motion sustained-Defendant discharged, or bail exonerated, when
If the motion be granted the Court must order that the defendant, if in custody, be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him unless it direct that the case be refiled.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603 to 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 500. Resubmission of case-Bail
If the Court direct that the case be refiled, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new information.
History
Source. LA 10-90, eff. November 13, 1990.
§ 501. Setting aside information not a bar
An order to set aside an information as provided in this chapter is no bar to a further prosecution for the same offense.
History
Source. LA 10-90, eff. November 13, 1990.
§ 502. Defendant's pleadings
The only pleading on the part of the defendant is either a demurrer or a plea.
History
Source. LA 10-90, eff. November 13, 1990.
§ 503. Defendant to plead in open court
Both the demurrer and the plea must be put in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 504. Demurrer to information
The defendant may demur to the information when it appears upon the face thereof either:
1. That it does not substantially conform to the requirements of this chapter;
2. That the facts stated do not constitute a public offense;
3. That the information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 505. Demurrer to information, requisites of
The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the information, or it must be disregarded.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 506. Hearing on demurrer
Upon the demurrer being filed, the objections presented thereby must be heard, either immediately or at such time as the Court may appoint.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 507. Ruling on demurrer
Upon considering the demurrer, the Court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 508. Demurrer sustained, effect of
If the demurrer is sustained, the judgment is final upon the information demurred to, and is a bar to another prosecution for the same offense, unless the Court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new information, direct that a new information be filed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 509. Demurrer sustained-Defendant discharged or bail exonerated, when
If the Court does not direct the case to be further prosecuted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded to him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 510. Proceedings if case resubmitted
If the Court direct that the case be further prosecuted, the same proceedings must be had thereon as are prescribed in this chapter.
History
Source. LA 10-90, eff. November 13, 1990.
§ 511. Demurrer overruled, defendant to plead
If the demurrer be overruled, the Court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the Court may allow. If he does not plead, judgment may be pronounced against him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603, 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 512. Certain objections, how taken
When the objections mentioned in 22 CNCA § 504 appear upon the face of the information, they can only be taken by demurrer, except that the objection to the jurisdiction of the Court over the subject of the information, or that the facts stated do not constitute a public offense, may be taken after the arraignment of the defendant, or may be taken at the trial, under the plea of not guilty, and in arrest of judgment.
History
Source. LA 10-90, eff. November 13, 1990.
§ 513. Pleas to indictment or information
There are four kinds of pleas to an information. A plea of:
First, Guilty.
Second, Not guilty.
Third, Nolo contendere, subject to the approval of the Court. The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.
Fourth, A former judgment of conviction or acquittal of the offense charged, which must be specially pleaded, either with or without the plea of not guilty.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603, 605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 514. Pleas to be oral-Entry
Every plea must be oral and must be entered upon the minutes of the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 515. Form of plea
The plea must be entered in substantially the following form:
1. If the defendant plead guilty:
The defendant pleads that he is guilty of the offense charged in this information.
2. If he plead not guilty:
The defendant pleads that he is not guilty of the offense charged in this information.
3. If he plead a former conviction or acquittal:
The defendant pleads that he has already been convicted (or acquitted, as the case may be), of the offense charged in this information, by the judgment of the Court of .. (naming it), rendered at .. (naming the place), on the .. day of ..
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 516. Plea of guilty
A plea of guilty can in no case be put in, except by the defendant himself, in open court, unless upon an information against a corporation, in which case it can be put in by counsel.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 517. Plea of guilty may be withdrawn
The Court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 518. Plea of not guilty, issues on
The plea of not guilty puts in issue every material allegation in the information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 519. Plea of not guilty, evidence under
All matters of fact tending to establish a defense other than specified in third subdivision of 22 CNCA § 513 may be given in evidence under the plea of not guilty.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 520. Acquittal, what does not constitute
If the defendant was formally acquitted on the ground of variance between the information and proof, or the information was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.
History
Source. LA 10-90, eff. November 13, 1990.
§ 521. Acquittal, what constitutes
When, however, he was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance in the information on which he was acquitted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 522. Former acquittal or conviction as bar
When the defendant shall have been convicted or acquitted upon an information, the conviction or acquittal is a bar to another information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603, 616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 523. Refusal to plead
If the defendant refuse to answer the information by demurrer or plea, a plea of not guilty must be entered.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
MISCELLANEOUS PROVISIONS
§ 581. Issue of fact arises, when
An issue of fact arises,
1st, upon a plea of not guilty; or
2nd, upon a plea of a former conviction or acquittal of the same offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>605, 614.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 582. Issue of fact, how tried
Issues of fact must be tried by a jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>614.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 583. Defendant must be present, when
If the information is for a crime, the defendant must be personally present at the trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 584. Postponement for cause
When an information is called for trial, or at any time previous thereto, the Court may, upon sufficient cause shown by either party, as in civil cases, direct the trial to be postponed to another day in the same or next term.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 585. Postponement for investigation of claimed alibi
Whenever testimony to establish an alibi on behalf of the defendant shall be offered in evidence in any criminal case in any Court of record of Cherokee Nation, and notice of the intention of the defendant to claim such alibi, which notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense, shall not have been served upon the Prosecuting Attorney at or before five (5) days prior to the trial of the case, upon motion of the Prosecuting Attorney, the Court may grant a postponement for such time as it may deem necessary to make an investigation of the facts in relation to such evidence.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Defenses-Descriptions, see 21 CNCA § 2510.
Library References
Indians <KEY>608.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 8
JURY-FORMATION
GENERAL PROVISIONS
§ 591. Same jurors in both civil and criminal actions
The jurors duly drawn and summoned for the trial of civil actions, may also be the jurors for the trial of criminal actions. The panel of jurors shall be drawn randomly from the Registry of citizens of Cherokee Nation. If the citizen resides outside of Cherokee Nation he, by his request, shall be released from serving as a juror.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 592. Trial jury-How formed
Trial juries for criminal actions may also be formed in the same manner as trial juries in civil actions.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 593. Clerk to prepare and deposit ballots
At the opening of the Court the Clerk must prepare separate ballots, containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the same cannot be seen, and must deposit them in a sufficient box.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 594. Names of panel called, when-Attachment for absent jurors
When the case is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the Court in its discretion may order that an attachment issue against those who are absent; but the Court may, in its discretion, wait or not for the return of the attachment.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 595. Manner of drawing jury from box
Before the name of any juror is drawn, the box must be closed and shaken, so as to intermingle the ballots therein. The Clerk must then, without looking at the ballots, draw them from the box.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 596. Disposition of ballots
When the jury is completed, the ballots containing the names of the jurors sworn must be laid aside and kept apart from the ballots containing the names of the other jurors, until the jury so sworn is discharged.
History
Source. LA 10-90, eff. November 13, 1990.
§ 597. Disposition of ballots-After jury discharged
After the jury is so discharged, the ballots containing their names must be again folded and returned to the box, and so on, as often as a trial is had.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 598. Disposition of ballot-When juror is absent or excused
If a juror be absent when his name is drawn or be set aside, or excused from serving on the trial, the ballot containing his name must be folded and returned to the box as soon as the jury is sworn.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 599. Jurors summoned to complete jury-Treated as original panel
The names of persons summoned to complete the jury as provided in the Title on "Jurors", 38 CNCA, must be written on distinct pieces of paper, folded each as nearly alike as possible, and so that the name cannot be seen, and must be deposited in the box before mentioned.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 600. Drawing the jury
The Clerk must thereupon, under the direction of the Court, publicly draw out of the box so many of the ballots, one after another, as are sufficient to form the jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 601. Number of jurors-Oaths-Fines not exceeding Two Hundred Dollars
The jury consists of six (6) persons, chosen as prescribed by law, and sworn or affirmed well and truly to try and true deliverance to make between Cherokee Nation and the defendant whom they shall have in charge, and a true verdict to give according to the evidence. Criminal cases wherein the punishment for the offense charged is by a fine only not exceeding Two Hundred Dollars ($200.00) shall be tried to the Court without a jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 601A. Alternate jurors-Challenges-Oath or affirmation-Attendance upon trial
Whenever in the opinion of the Court the trial of a cause is likely to be a protracted one, the Court may, immediately after the jury is impaneled and sworn, direct the calling of as many as two (2) additional jurors to be known as "alternate juror." Such alternate jurors shall be drawn from the same source, and in the same manner, and have the same qualifications as regular jurors, and be subject to examination and challenge as such jurors, except that the Nation shall be allowed one (1) peremptory challenge to each alternate juror, and all parties defendant shall together, or any one party defendant for and on behalf and by the consent of all parties defendant, be allowed one (1) peremptory challenge to each alternate juror.
The alternate jurors shall be sworn (or affirmed) to well and truly try and true deliverance make of all issues finally submitted to them as jurors in said cause, if any such issue shall be so finally submitted to them, and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause, shall attend at all times upon the trial of the cause in company with the regular jurors and shall obey all orders and admonitions of the Court; and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors, and, except as hereinafter provided, shall be discharged upon the final submission of the cause to the jury.
If, before the final submission of the cause to the jury, a regular juror, or two (2) regular jurors, shall be discharged because of illness, or shall die, the Court shall order one (1) or both alternate jurors, as circumstances may require, to take their places in the jury box. After an alternate juror is in the jury box, he shall be subject to the same regulations and requirements as other regular jurors.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650, 652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 601B. Protracted deliberations-Sequestration of alternate jurors
If, upon final submission of the cause, the Court is of the opinion that the deliberations may be protracted, the Court may order the alternate juror or jurors to remain sequestered physically or by admonition not to discuss the case with any person or allow any person to discuss the case with a juror. In such event said alternate or alternates shall remain apart from the jury and not take part in its deliberations, but shall await the call of the Court at some place designated by the Court until such time as said alternate may be needed. In the event one (1) or two (2) of the twelve jurors shall, during the course of deliberations, be discharged because of illness, or die, the Court shall order one (1) or both alternate jurors to take their places in the jury room and deliberations shall then continue.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 602. Affirmation
Any juror who is conscientiously scrupulous of taking the oath above described, shall be allowed to make affirmation, substituting for the words "so help you God," at the end of the oath, the following: "This you do affirm under the pains and penalties of perjury."
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHALLENGES GENERALLY
§ 621. Challenges classed
A challenge is an objection made to the trial jurors, and is of two (2) kinds:
1. To the panel;
2. To an individual juror.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 622. Several defendants-Challenges
When several defendants are tried together they cannot sever their challenges, but must join therein.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHALLENGES TO PANEL
§ 631. Panel defined
The panel is a list of jurors returned by a Marshal or Sheriff, to serve at a particular Court or for the trial of a particular action.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 632. Challenge to panel
A challenge to the panel is an objection made to all the trial jurors returned, and may be taken by either party.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 633. Challenge to panel, causes for
A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the Marshal or Sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 634. When taken-Form and requisites
A challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 635. Issue on the challenge-Trying sufficiency
If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the Court, and thereupon the Court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 636. Challenge and exception may be amended or withdrawn
If, on the exception, the Court deem the challenge sufficient, it may, if justice require it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the Court may in like manner, permit an amendment of the challenge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 637. Denial of challenge-Trial of fact questions
If the challenge is denied the denial may, in like manner, be oral and must be entered upon the minutes of the Court, and the Court must proceed to try the questions of fact.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 638. Trial of challenge
Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of challenge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 639. Bias of officer, challenge for
When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 640. Procedure after decision of challenge
If, upon an exception to the challenge, or a denial of the facts, the challenge be allowed, the Court must discharge the jury, and another jury can be summoned for the same term forthwith from the body; or the Judge may order a jury to be drawn and summoned in the regular manner. If it be disallowed, the Court must direct the jury to be impaneled.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHALLENGES TO INDIVIDUAL JURORS
§ 651. Defendant to be informed of right to challenge
When six (6) persons are called as jurors, the defendant must be informed by the Court or under its direction, of his right to challenge the jurors, and that he must do so before the jury is sworn to try the cause.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 652. Classes of challenge to individual
A challenge to an individual juror is either:
First, Peremptory; or
Second, For cause.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 653. When challenge taken
It must be taken when the jury is full, and as soon as one (1) person is removed by challenge, another must be put in his place, until the challenges are exhausted or waived. The Court for good cause shown may permit a juror to be challenged after he is sworn to try the cause, but not after the testimony has been partially heard.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 654. Peremptory challenge defined
A peremptory challenge may be taken by either party, and may be oral. It is an objection to a juror for which no reason need be given, but upon which the Court must excuse him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 655. Peremptory challenges-Number allowed
In all criminal cases the prosecution and the defendant are each entitled to the following peremptory challenges: Provided, that if two or more defendants are tried jointly they shall join in their challenges; provided, that when two or more defendants have inconsistent defenses they shall be granted separate challenges for each defendant as hereinafter set forth.
In all criminal prosecutions, three (3) jurors each.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 656. Challenge for cause
A challenge for cause may be taken either by the Nation or the defendant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 657. Challenges for cause classified
It is an objection to a particular juror and is either:
1. General, that the juror is disqualified from serving in any case on trial; or
2. Particular, that he is disqualified from serving in the case on trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 658. Causes for challenge, in general
General causes of challenges are:
1. A conviction for felony;
2. A want of any of the qualifications prescribed by law, to render a person a competent juror;
3. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 659. Particular causes-Implied bias-Actual bias
Particular causes of challenge are of two (2) kinds:
1. For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this chapter a simplified bias;
2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the Court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 660. Implied bias, challenge for
A challenge for implied bias may be taken for all or any of the following cases, and for no other:
1. Consanguinity or affinity within the fourth degree, inclusive; to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted, or to the defendant;
2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages;
3. Being a party adverse to the defendant in a civil action, or having complained against, or been accused by him in a criminal prosecution;
4. Having served on a trial jury which has tried another person for the offense charged in the information;
5. Having been one of the jury formerly sworn to try the information and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it;
6. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 661. Right of exemption from service not cause for challenge
An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 662. Cause for challenge must be stated-Form and entry of challenge-Juror not disqualified for having formed opinion, when
In a challenge for implied bias, one or more of the causes stated in 22 CNCA § 660 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of 22 CNCA § 659 must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the Court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 663. Exception to the challenge
The adverse party may except to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon, except that if the exception be allowed the juror must be excluded. The adverse party may also orally deny the facts alleged as the grounds of challenge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 664. Trial of challenges
All challenges, whether to the panel or to individual jurors shall be tried by the Court, without the aid of triers.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 665. Trial of challenge-Examining jurors
Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and is bound to answer every question pertinent to the inquiry therein.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 666. Other witnesses
Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of testimony, on the trial of the challenges.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 667. Ruling on challenge
On the trial of a challenge the Court must either allow or disallow the challenge and direct an entry accordingly upon the minutes.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
ORDER OF TAKING CHALLENGES
§ 691. Challenges to individual jurors
All challenges to individual jurors must be taken, first by the defendant and then by the Nation alternately.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 692. Order of challenges for cause
The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:
1. To the panel;
2. To an individual juror for a general disqualification;
3. To an individual juror for implied bias;
4. To an individual juror for actual bias.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 693. Peremptory challenges
If all challenges on both sides are disallowed, either party, first the Nation and then the defendant, may take a peremptory challenge, unless the peremptory challenges are exhausted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>652.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 9
WITNESSES
§ 701. Defendant a competent witness-Comment on failure to testify-Presumptions
In the trial of all informations, complaints and other proceedings against persons charged with the commission of a crime, before any Court or Committing Magistrate in this Nation, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 702. Civil rules of evidence applicable to criminal cases-Husband or wife as witness
Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases pursuant to the Oklahoma Evidence Code, 12 O.S. § 2101 et seq., are applicable also in criminal cases; Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, or except in a criminal prosecution against either the husband or wife, or both, for a crime committed by either, or both, against the minor children of either the husband or the wife, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other or except on a trial of a crime committed by one, or both, against the minor children of either the husband or the wife.
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Oklahoma Evidence Code, see 12 O.S. § 2101 et seq.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 703. Subpoena defined
The process by which the attendance of a witness before a Court or Magistrate is required, is a subpoena.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 704. Magistrate may issue subpoena
A Magistrate before whom complaint is laid, may issue subpoenas, subscribed by him, for witnesses within the Nation, either on behalf of the Nation or of the defendant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 706. Issuing subpoenas for trial
The Prosecuting Attorney may in like manner issue subpoena for witnesses within the Nation, in support of an information, to appear before the Court at which it is to be tried.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 707. Defendant's subpoenas
The Clerk of the Court at which an information is to be tried, must, at all times, upon the application of the defendant, and without charge, issue as many blank subpoenas, under the seal of the Court and subscribed by him as Clerk, for witnesses within the Nation, as may be required by the defendant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 708. Form of subpoena
A subpoena, authorized by the last four sections, must be substantially in the following form:
IN THE NAME OF CHEROKEE NATION.
To ..
Greeting: You are commanded to appear before C. D., a Judge of .. at .. (or the grand jury of the county of .. or the District Court, or as the case may be), on the .. (stating day and hour), and remain in attendance on and call of said .. from day to day and term to term until lawfully discharged, as a witness in a criminal action prosecuted by Cherokee Nation against E. F. (or to testify as the case may be).
History
Source. LA 10-90, eff. November 13, 1990.
§ 709. Continuances, witnesses must take notice of
Every witness summoned in a criminal action pending in a District Court shall take notice of the postponements and continuances and when once summoned in such action shall, without further notice or summons, be in attendance upon such action, as such witness, until discharged by the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 710. Subpoena duces tecum
If the books, papers or documents be required, a direction to the following effect must be continued in the subpoena:
And you are required also to bring with you the following: (Describe intelligently the books, papers or documents required).
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 711. Service of subpoena by whom-Return
A Marshal or peace officer must serve any subpoena delivered to him for service, either on the part of the Nation or of the defendant, and must make a written return of the service, subscribed by him, stating the time and place of service without delay. A subpoena may, however, be served by any other person.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 712. Service, manner of
Service of subpoenas for witnesses in criminal actions in the District Courts shall be made by the officer, or other person making the service, by either personal service of such subpoena containing the time, place and the name of the Court, and the action in which he is required to testify, or by mailing a copy thereof by certified mail not less than five (5) days before the trial day of the cause upon which said witness is required to attend, and the person making such service shall make a return thereof showing the manner of service, and if the same be by certified mail, he shall file with such return the registry receipt; provided, that the person or Prosecuting Attorney shall state therein the manner in which the witness or witnesses shall be served, and the officer or person serving such subpoena shall serve the same in the manner directed by the requesting party, and make his return in accordance therewith; provided, further, that if the requesting party calls for serving such subpoena by certified letter, then the requesting party shall prepare the subpoena, the return receipt card, and the envelope for mailing.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 715. Witness residing out of county
No person is obliged to attend as a witness, before a Court or Magistrate out of the county where the witness resides or is served with the subpoena, unless the Judge of the Court in which the offense is triable, upon an affidavit of the Prosecuting Attorney, or of the defendant or his counsel, stating that he believes that the evidence of the witness is material and his attendance at the examination or trial necessary, shall endorse on the subpoena an order for the attendance of the witness.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 716. Disobedience to subpoena
Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the Court or Magistrate, as for a criminal contempt, in the manner provided in civil procedure.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 717. Disobeying defendant's subpoena-Forfeiture
A witness disobeying a subpoena issued on the part of the defendant, also forfeits to the defendant the sum of Fifty Dollars ($50.00), which may be recovered in a civil action.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 718. Witnesses-Fees and mileage
A. Except as otherwise specified by law, all witnesses in a criminal action who appear pursuant to a subpoena shall be paid out of the Court Fund the fees and mileage prescribed by law. Upon conviction of the defendant, said fees and mileage shall be taxed as costs and collected as other costs in the case.
B. A witness who appears from another state to testify in this Nation in a criminal case or proceeding pursuant to a subpoena issued in accordance with the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings shall be reimbursed from the Court Fund of the Court where prosecution is pending for travel and expenses at rates not to exceed those prescribed by law for reimbursement of Nation employees traveling interstate. Upon conviction, such fees and mileage shall be taxed as costs and collected as other costs in the case.
C. A witness who appears from a county other than the county in which a criminal case or proceeding is being conducted pursuant to a subpoena shall be reimbursed from the Court Fund of the Court where the prosecution is pending for travel and expenses at a rate not to exceed the rate of reimbursement specified for Nation employees. Upon conviction of the defendant, said fees and mileage shall be taxed as costs and collected as other costs in the case.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610, 662.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 719. Persons held as material witnesses to be informed of constitutional rights-Fees
Whenever any person shall be taken into custody by any law enforcement officer to be held as a material witness in any criminal investigation or proceeding, he shall, if not sooner released, be taken before a Judge of the District Court without unnecessary delay and said Judge of the District Court shall immediately inform him of his constitutional rights including the reason he is being held in custody, his right to the aid of counsel in every stage of the proceedings, and of his right to be released from custody upon entering into a written undertaking in the manner provided by law. A witness who is held in custody pursuant to the provisions hereof shall be kept separately and apart from any person, or persons, being held in custody because of being accused of committing a crime. A witness who desires aid of counsel and is unable to obtain aid of counsel by reason of poverty shall be by the Court provided counsel at the expense of the Court Fund. During the time a witness is in custody he shall receive the witness fee provided by law for witnesses in criminal cases.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610, 662.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 10
EVIDENCE AND DEPOSITIONS
EVIDENCE GENERALLY
§ 741. Overt act in conspiracy
Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the information, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the information may be given in evidence.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603, 610, 612.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 742. Accomplice, testimony of
A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>613.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 743. False pretenses, evidence of
Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. But this section does not apply to prosecution for falsely representing or impersonating another, and in such assumed character, marrying or receiving money or property.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>613.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 744. Seduction, corroboration of prosecutrix
Upon a trial for inveigling, enticing or taking away a person, under the age of twenty-five (25) years, for the purpose of prostitution, or aiding or assisting therein, or for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon testimony of the person injured unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>613.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 745. Murder, burden of proof in mitigation of
Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>611.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 746. Bigamy, proof on trial for
Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases, and when the second marriage took place out of the state, proof of that fact accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>613.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 748. Perjury in Court, evidence as to
In cases of perjury, where the perjury is charged to have been committed in a Court, it shall be sufficient to show that the oath was administered by any officer of the Court authorized so to do, or that the defendant testified and gave his testimony as under oath, or if the question be in doubt as to what particular officer administered the oath, it may be shown that it was administered by any officer authorized so to do.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>613.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 749. Sworn statements taken by Prosecuting Attorney or peace officer of persons having knowledge of criminal offense-Use
A. In the investigation of a criminal offense, the Prosecuting Attorney or any peace officer may take the sworn statement of any person having knowledge of such criminal offense. Any person charged with a crime shall be entitled to a copy of any such sworn statement upon the same being obtained.
B. If a witness in a criminal proceeding gives testimony upon a material issue of the case contradictory to his previous sworn statement, evidence may be introduced that such witness has previously made a statement under oath contradictory to such testimony.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610, 612.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 750. Rape prosecutions-Evidence of complaining witness' previous sexual conduct inadmissible-Exception
A. In any prosecution for rape or assault with intent to commit rape, opinion evidence of, reputation evidence of and evidence as to specific instances of the complaining witness' sexual conduct is not admissible on behalf of the defendant in order to prove consent by the complaining witness. Provided that this section shall not apply to evidence of the complaining witness' sexual conduct with or in the presence of the defendant.
B. If the Prosecuting Attorney introduces evidence or testimony relating to the complaining witness' sexual conduct, the defendant may cross-examine the witness giving such testimony and offer relevant evidence or testimony limited specifically to the rebuttal of such evidence or testimony introduced by the Prosecuting Attorney.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>612.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 751. Admission of findings-State Bureau of Investigation laboratory-Controlled dangerous substances-Release by court order
At any hearing, a report of the findings of the laboratory of the Bureau, which has been made available to the accused by the Office of the Prosecuting Attorney at least five (5) days prior to the preliminary hearing, with reference to all or any part of the evidence submitted, when certified as correct by the Bureau employee making the report shall, when offered by the Nation or the accused, be received as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence.
When any alleged controlled dangerous substance has been submitted to the laboratory of the Bureau for analysis, and such analysis shows that the submitted material is a controlled dangerous substance, the distribution of which constitutes a felony under the laws of the State of Oklahoma, no portion of such substance shall be released to any other person or laboratory absent an order of a District Court. The defendant shall additionally be required to submit to the Court a procedure for transfer and analysis of the subject material to ensure the integrity of the sample and to prevent the material from being used in any illegal manner.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>612.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 752. Admissibility of recorded statement of child twelve years of age or younger
A. This section shall apply only to a proceeding in the prosecution of an offense alleged to have been committed against a child twelve (12) years of age or younger, and shall apply only to the statement of that child or other child witness.
B. The recording of an oral statement of the child made before the proceedings begin is admissible into evidence if:
1. The Court determines that the time, content and circumstances of the statement provide sufficient indicia of reliability;
2. No attorney for any party is present when the statement is made;
3. The recording is both visual and aural and is recorded on film or videotape or by other electronic means;
4. The recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;
5. The statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or suggestive question;
6. Every voice on the recording is identified;
7. The person conducting the interview of the child in the recording is present at the proceeding and is available to testify or be cross-examined by any party;
8. Each party to the proceeding is afforded an opportunity to view the recording at least ten (10) days before trial, unless such time is shortened by leave of the Court for good cause shown; and
9. The child either:
a. testifies at the proceedings; or
b. is unavailable as defined in this Title as a witness. When the child is unavailable as defined in this Title as a witness, such recording may be admitted only if there is corroborative evidence of the act.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>612.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 753. Taking testimony of child age twelve or under in room other than courtroom-Recording
A. This section shall apply only to a proceeding in the prosecution of an offense alleged to have been committed against a child twelve (12) years of age or younger, and shall apply only to the testimony of that child.
B. The Court may, on the motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the Court and the finder of fact in the proceeding. Only the attorneys for the defendant, the Nation and the child, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony but does not permit the child to see or hear them. The Court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
C. The Court may, on the motion of the attorney for any party, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the Court and the finder of fact in the proceeding. Only those persons permitted to be present at the taking of testimony under subsection (B) of this section may be present during the taking of the child's testimony, and the persons operating the equipment shall be confined from the child's sight and hearing as provided in subsection (B) of this section. Only the attorneys may question the child. The Court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. The Court shall also ensure that:
1. The recording is both visual and aural and is recorded on film or videotape or by other electronic means;
2. The recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;
3. Every voice on the recording is identified; and
4. Each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and a copy of a written transcript transcribed by a Licensed or Certified Court Reporter is provided to the parties.
D. If the Court orders the testimony of a child to be taken under subsections (B) or (C) of this section, the child shall not be required to testify in Court at the proceeding for which the testimony was taken.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
DEPOSITIONS
§ 761. Examination of witnesses conditionally for defendant
When a defendant has been held to answer a charge for a public offense, he may either before or after information, have witnesses examined conditionally on his behalf as prescribed in this chapter, and not otherwise.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 762. Conditional examinations in certain cases
When a material witness in any criminal case is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant or Cherokee Nation may apply for an order that the witness be examined conditionally.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 763. Affidavit on application for conditional examination
The application must be made upon affidavit stating:
First. The nature of the offense charged;
Second. The state of the proceedings in the action;
Third. The name and residence of the witness, and that his testimony is material to the defense of the action;
Fourth. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial.
History
Source. LA 10-90, eff. November 13, 1990.
§ 764. Application made to Court or Judge-Notice
The application may be made to the Court or to a Judge thereof, and must be made upon five (5) days' notice to the Prosecuting Attorney.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 765. Order for examination
If the Court or Judge is satisfied that the examination of the witness is necessary an order must be made that the witness be examined conditionally at a specified time and place, and that a copy of the order be served on the Prosecuting Attorney within a specified time before that fixed for the examination.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 766. Examination before Magistrate
The order must direct that the examination be taken before a Magistrate named therein; and on proof being furnished to such Magistrate, of service upon the prosecuting attorney of a copy of the order, if no counsel appear on the part of the people, examination must proceed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 767. When examination shall not proceed
If the Prosecuting Attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the Magistrate by affidavit or other proof, or on examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on trial, the examination cannot take place; otherwise, it must proceed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 768. Attendance of witness enforced, how
The attendance of the witness may be enforced by subpoena issued by the Magistrate before whom the examination is to be taken, or from the Court where the trial is to be had.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 769. Taking and authentication of testimony
The testimony given by the witness must be reduced to writing. The Magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in shorthand, and for that purpose he may appoint a shorthand reporter. The deposition or testimony of the witness must be authenticated in the following form:
1. It must state the name of the witness, his place of residence and his business or profession.
2. It must contain the questions put to the witness and his answers thereto, each answer being distinctly read to him as it is taken down, and being corrected or added to until it conforms to what he declares is the truth; except in cases where the testimony is taken down in shorthand, the answer or answers of the witness need not be read to him.
3. If the witness declines answering a question, that fact with the ground on which the answer was declined must be stated.
4. The deposition must be signed by the witness, or if he refuse to sign it, his reason for refusing must be stated in writing as he gives it; except in cases where the deposition is taken down in shorthand, it must not be signed by the witness.
5. It must be signed and certified by the Magistrate when reduced to writing by him or under his direction; and when taken down in shorthand, the manuscript of the reporter, appointed as aforesaid, when written out in longhand writing, and certified as being a correct statement of such testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings. The reporter shall within five (5) days after the close of such examination transcribe into longhand writing his said shorthand notes, and certify and deliver the same to the Magistrate, who shall also certify the same and transmit such testimony and proceedings, carefully sealed up, to the Clerk of the Court in which the action is pending or may come for trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 770. Deposition read in evidence, when-Objections to questions therein
The deposition or certified copy thereof may be read in evidence by either party on the trial upon its appearing that the witness is unable to attend by reason of his death, insanity, sickness, or infirmity, or of his continued absence from the Nation. Upon reading the depositions in evidence, the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610, 612.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 771. Prisoner, deposition of-Oath
When a material witness for a defendant under a criminal charge is a prisoner in a state prison or in a county jail of a county other than that in which the defendant is to be tried, his deposition may be taken on behalf of the defendant in the manner provided for in the case of a witness who is sick; and the foregoing provisions of this chapter, so far as they are applicable, govern in the application for, and in the taking and use of such depositions, such deposition may be taken before any Magistrate or notary public of the Nation; or in case the witness is confined in a penal institution, and the defendant is unable to pay for taking the deposition, before the warden or clerk of the board of control of the penal institution, whose duty it shall be to act without compensation. Every officer before whom testimony shall be taken by virtue hereof, shall have authority to administer, and shall administer an oath to the witness, that his testimony shall be the truth, the whole truth and nothing but the truth.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 610.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 11
DISMISSAL OF PROSECUTION
§ 811. Discharge when no indictment found
When a person has been held to answer for a public offense, if an information is not filed against him at the next term of court at which he is held to answer, the Court must order the prosecution to be dismissed, unless good cause to the contrary be shown.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 812. Next term, dismissal when not brought to trial at
If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the information is triable after it is filed, the Court must order the prosecution to be dismissed, unless good cause to the contrary be shown.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 813. Continuance when-Release of defendant
If the defendant is not prosecuted or tried, as provided in the last two sections, and sufficient reason therefor is shown, the Court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody, on his own undertaking or on the undertaking of bail for his appearance to answer the charge at the time to which the action is continued.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606, 608.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 814. Effect of dismissing action
If the Court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 815. Dismissal by Court or on Prosecuting Attorney's application
The Court may either of its own motion or upon the application of the Prosecuting Attorney, and the furtherance of justice, order an action or to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 816. Nolle prosequi abolished
The entry of a nolle prosequi is abolished, and the Prosecuting Attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in the last section.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 817. Dismissal not to bar to another prosecution
An order for the dismissal of the action, as provided in this chapter, is not a bar to any other prosecution for the same offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>606.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 12
TRIAL
§ 831. Order of trial proceedings
The jury having been impaneled and sworn, the trial must proceed in the following order:
1. If the information is for a crime, the Clerk or Prosecuting Attorney must read it, and state the plea of the defendant to the jury.
2. The Prosecuting Attorney, or other Counsel for the Nation, must open the case and offer the evidence in support of the information.
3. The defendant or his counsel may then open his defense, and offer his evidence in support thereof.
4. The parties may then, respectively, offer rebutting testimony only, unless the Court for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case.
5. When the evidence is concluded, the attorneys for the prosecution may submit to the Court written instructions. If the questions of law involved in the instructions are to be argued, the Court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the Judge, if modified, modification shall be shown in the instruction. When the instructions are thus settled, the jury, if sent out, shall be recalled and the Court shall thereupon read the instructions to the jury.
6. Thereupon, unless the case is submitted to the jury without argument, the Counsel for the Nation shall commence, and the defendant or his counsel shall follow, then the Counsel for the Nation shall conclude the argument to the jury. During the argument the attorneys shall be permitted to read and comment upon the instructions as applied to the evidence given, but shall not argue to the jury the correctness or incorrectness of the propositions of law therein contained. The Court may permit one or more counsel to address the jury on the same side, and may arrange the order in which they shall speak, but shall not without the consent of the attorneys limit the time of their arguments. When the arguments are concluded, if the Court be of the opinion that the jury might be misled by the arguments of counsel, he may to prevent the same further instruct the jury. All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 832. Court to decide the law
The Court must decide all questions of law which arise in the course of the trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>614.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 834. Jury limited to questions of fact
On the trial of an information, questions of law are to be decided by the Court, and the questions of fact are to be decided by the jury; and, although the jury has the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>614.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 836. Defendant presumed innocent-Reasonable doubt of guilt requires acquittal
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>611, 613.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 837. Doubt as to degree of guilt
When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degree only.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>613, 616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 839. Discharge of defendant that he may testify for Nation
When two or more persons are included in the same information, the Court may, at any time before the defendants have gone into their defense, on the application of the Prosecuting Attorney, direct any defendant to be discharged from the information, that he may be compelled to be a witness for the Nation.
History
Source. LA 10-90, eff. November 13, 1990.
§ 840. Discharge of defendant that he may testify for codefendant
When two or more persons are included in the same information, and the Court is of the opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid.
History
Source. LA 10-90, eff. November 13, 1990.
§ 841. Higher offense than charged, existence of-Jury discharged
If it appear by the testimony that the facts proved constitute an offense of a higher nature than that charged in the information, the Court may direct the jury to be discharged, and all proceedings on the information to be suspended, and may order the defendant to be committed or continued on, or admitted to bail, to answer any new information which may be filed against him for the higher offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 613, 616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 842. Discharge of jury not a former acquittal
If an information for the higher offense is filed within a year next thereafter, he must be tried thereon, and a plea of former acquittal to such last prosecution is not sustained by the fact of the discharge of the jury on the first information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 843. Trial on original indictment, when
If a new information is not filed for a higher offense within a year, as aforesaid, the Court shall again proceed to try the defendant on the original information.
History
Source. LA 10-90, eff. November 13, 1990.
§ 844. Jury may be discharged, when
The Court may direct the jury to be discharged where it appears that it has not jurisdiction of the offense, or that the facts as charged in the information do not constitute an offense punishable by law.
History
Source. LA 10-90, eff. November 13, 1990.
§ 845. Disposition of prisoner on discharge of jury
If the jury is discharged because the Court has not jurisdiction of the offense charged in the information, and it appears that it was committed out of the jurisdiction of this Nation, the Court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the Prosecuting Attorney to the chief executive officer of the state, territory or district where the offense was committed.
History
Source. LA 10-90, eff. November 13, 1990.
§ 849. Duty of Court where no offense charged
If the jury be discharged because the facts as charged do not constitute an offense punishable by law, the Court must order that the defendant, if in custody, be discharged therefrom, or, if admitted to bail, that the bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new information can be framed, upon which the defendant can be legally convicted, in which case a new information filed.
History
Source. LA 10-90, eff. November 13, 1990.
§ 850. Court may advise jury to acquit
If, at any time after the evidence on either side is closed, the Court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury is not bound by the advice, nor can the Court, for any cause, prevent the jury from giving a verdict.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>615, 616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 851. Jury may view place-Custody of sworn officer
When, in the opinion of the Court, it is proper that the jury should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the Court for that purpose, and the officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 852. Juror must declare knowledge of case
If a juror have any personal knowledge respecting a fact in controversy in a cause he must declare it in open court during the trial. If, during the retirement of a jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 853. Custody and conduct of jury before submission-Separation-Sworn officer
The jurors sworn to try an information, may, at any time before the submission of the cause to the jury, in the discretion of the Court, be permitted to separate, or to be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof. Such officer or officers having once been duly sworn, it is not necessary that they be resworn at each recess or adjournment. An admonition to the officer and the jury shall be sufficient.
History
Source. LA 10-90, eff. November 13, 1990.
§ 854. Court must admonish jury as to conduct
The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the Court that it is their duty not to converse among themselves or with any one else on any subject connected with the trial, or to form or express any opinion thereon, until the case is finally submitted to them.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>615.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 855. Sickness or death of juror-New juror sworn
If, before the conclusion of a trial, a juror becomes sick, so as to be unable to perform his duty, the Court may order him to be discharged. In that case or in the event of the death of a juror a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards impaneled.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 856. Requisites of charge of Court-Presentation of written charge-Request to charge-Endorsement of disposition on charge presented-Partial refusal
In charging the jury, the Court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the Court any written charge and request that it be given. If the Court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the Court must endorse or sign its decision. If part of any written charge be given and part refused the Court must distinguish, showing by the endorsement or answer what part of each charge was given and what part refused.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>615.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 857. Jury after the charge-Decision in court-Retirement for deliberation-Custody of officer-Conduct of jury-Return into court
After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the Court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the Court.
History
Source. LA 10-90, eff. November 13, 1990.
§ 858. Defendant admitted to bail may be committed during trial
When a defendant who has given bail appears for trial, the Court may, in its discretion, at any time after his appearance for trial order him to be committed to the custody of the proper officer of the county to abide the judgment or further order of the Court, and he must be committed and held in custody accordingly.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 859. Substitute for Prosecuting Attorney failing or unable to attend trial or disqualified
If the Prosecuting Attorney fails, or is unable to attend at the trial or is disqualified, the Court must appoint some attorney-at-law to perform the duties of the Prosecuting Attorney on such trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
District and Prosecuting Attorneys <KEY>3.
Indians <KEY>608.
Westlaw Topic Nos. 131, 209.
C.J.S. District and Prosecuting Attorneys §§ 81 to 95, 97.
C.J.S. Indians §§ 151 to 179.
§ 861. Formal exceptions to rulings or orders unnecessary
Formal exceptions to rulings or orders of the Court in criminal proceedings shall not be necessary but for all purposes for which an exception has heretofore been necessary at the trial of a cause it shall be sufficient that a party, at the time the ruling or order of the Court has been made or sought, makes known to the Court the action which he desires the Court to take or his objection to the action of the Court with his general grounds therefor.
History
Source. LA 10-90, eff. November 13, 1990.
CHAPTER 13
JURY-DELIBERATIONS AND CONDUCT
§ 891. Jury room-Expenses of providing
A room must be provided for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 893. Jury may have written instructions, forms of verdict and documents injury room-Copies of public or private documents
On retiring for deliberation the jury may take with them the written instructions given by the Court, the forms of verdict approved by the Court, and all papers which have been received as evidence in the cause, except that they shall take copies of such parts of public records or private documents as ought not, in the opinion of the Court, to be taken from the person having them in possession.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 894. Jury brought into court for information-Presence of, or notice to, parties
After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the Prosecuting Attorney and the defendant or his counsel, or after they have been called.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 895. Illness of juror after retirement-Accident or cause preventing keeping together-Discharge
If, after the retirement of the jury, one of them become so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept together for deliberation, the jury may be discharged.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 896. Discharge after agreement on verdict or showing of inability to agree
Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the Court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 897. Retrial after discharge at same or other term
In all cases where a jury is discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the information during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the Court may direct.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 898. Court during jury's retirement-Sealed verdicts-Final adjournment for term discharges jury
While the jury are absent the Court may adjourn from time to time as to other business, but it is nevertheless deemed open for any purpose connected with the cause submitted to them until verdict is rendered or the jury discharged. If the jury agree on a verdict during a temporary adjournment or recess of the court, they may, upon the direction of the Court, sign the verdict by their foreman, securely seal the same in an envelope, and deliver the same to the foreman, when they may separate until the next convening of the court, at which time they shall reassemble in the jury room and return their verdict in open court, when the same proceedings shall be had as in case of other verdicts. A final adjournment of the court for the term discharges the jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>608, 616, 650.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 14
VERDICT
§ 911. Return of jury into court upon agreement-Discharge on failure of some jurors to appear
When the jury have agreed upon their verdict, they may be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the cause must be again tried, at the same or another term.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 912. Presence of defendant required in criminal cases when verdict received
If the information is for a crime, the defendant must, before the verdict is received, appear in person.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 913. Proceedings when jury appear
When the jury appear, they must be asked, by the Court or the Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 914. Form of verdict
A general verdict upon a plea of not guilty, is either "guilty," or "not guilty," which imports a conviction or acquittal of the offense charged. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the Nation," or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity." When the defendant is acquitted on the ground of variance between the charge and the proof, the verdict must be "not guilty by reason of variance between charge and proof."
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 915. Degree of crime must be found
Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 916. Included offense or attempt may be found
The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 917. Several defendants-Verdict as to part-Retrial as to defendants not agreed on
On an information against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 918. Jury may reconsider verdict of conviction for mistake of law-Return of same verdict
When there is a verdict of conviction in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after there consideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal, the Court cannot require the jury to reconsider it.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616, 617.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 919. Informal verdict to be reconsidered
If the jury render a verdict not in form, the Court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616, 617.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 920. Judgment when jury persist in informal verdict
If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the Court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616, 619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 921. Polling jury
When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 922. Recording and reading verdict-Disagreement of jurors entered upon minutes-Discharge if no disagreement
When the verdict is given, and is such as the Court may receive, the Clerk must immediately record it in full upon the minutes, and the Judge or the Clerk must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 923. Defendant discharged on acquittal-Variance resulting in acquittal may authorize new charges
If a judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as judgment is given, except that when the acquittal is for a variance between the proof and the information which may be obviated by a new information the Court may order his detention to the end that a new information may be preferred in the same manner and with like effect as provided in cases where the jury is discharged.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 924. Commitment upon conviction
If a general verdict is rendered against the defendant he must be remanded if in custody, or if on bail he may be committed to the proper officer of the county to await the judgment of the Court upon the verdict. When committed his bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 925. Claim of insanity-Duty of Court and jury-Commitment to institution
When it is contended on behalf of the defendant in any criminal prosecution that he is at the time of the trial a lunatic, an insane person, or a person of unsound mind, the Court shall submit to the jury a proper form of verdict, and if the jury finds the defendant not guilty on account of such lunacy, insanity or unsoundness of mind, they shall so state in their verdict, and the Court shall thereupon order the defendant committed to the hospital for the insane, or other institution provided for the care and treatment of cases such as the one before the Court, until the sanity and soundness of mind of the defendant be judicially determined, and he be discharged from said institution according to law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616.
Mental Health <KEY>439.1.
Westlaw Topic Nos. 209, 257A.
C.J.S. Indians §§ 151 to 179.
C.J.S. Mental Health §§ 278 to 283.
§ 926. Punishment, jury may assess, when
In all cases of a verdict of conviction for any offense against any of the laws of Cherokee Nation, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the Court shall render a judgment according to such verdict, except as hereinafter provided.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616, 620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 927. Punishment, Court to assess, when
Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the Court shall assess and declare the punishment and render the judgment accordingly.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>616, 620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 928. Excess punishment to be disregarded
If the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convict the defendant, the Court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 929. Remand for vacation of sentence-New sentencing proceeding-Construction of section
A. Upon any appeal of a conviction by the defendant, the appellate Court, if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence rendered and remand the case to the trial Court in the jurisdiction in which the defendant was originally sentenced for resentencing. No error in the sentencing proceeding shall result in the reversal of the conviction in a criminal case unless the error directly affected the determination of guilt.
B. When a criminal case is remanded for vacation of a sentence, the Court may:
1. Set the case for a nonjury sentencing proceeding; or
2. If the defendant or the Prosecuting Attorney so requests in writing, impanel a new sentencing jury.
C. If a written request for a jury trial is filed within twenty (20) days of the date of the appellate court order, the trial Court shall impanel a new jury for the purpose of conducting a new sentencing proceeding.
1. All exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding. Additional relevant evidence may be admitted including testimony of witnesses who testified at the previous trial.
2. The provisions of this section are procedural and shall apply retroactively to any defendant sentenced in this Nation.
D. This section shall not be construed to amend or be in conflict with the provisions of 22 CNCA § 926 and 22 CNCA § 927 relating to assessment of punishment in the original trial proceedings.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>635.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 15
NEW TRIAL-ARREST OF JUDGMENT
§ 951. New trial defined-Proceedings on new trial-Former verdict no bar
A new trial is a reexamination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew except of witnesses who are absent from the nation or dead, in which event the evidence of such witnesses on the former trial may be presented; and the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment or information.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>618.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 952. Grounds for new trial-Affidavits and testimony
A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only:
First. When the trial has been in his absence, if the charge is for a crime;
Second. When the jury have received any evidence out of court, other than that resulting from a view of the premises;
Third. When the jury have separated without leave of the Court, after retiring to deliberate on their verdict, and before delivering or sealing the same, if it be sealed, or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented;
Fourth. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of the jury;
Fifth. When the Court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial;
Sixth. When the verdict is contrary to law or evidence;
Seventh. When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial, and that the facts in relation thereto were unknown to the defendant or his attorney until after the trial jury in the case was sworn and were not of record. When a motion for a new trial is made on the ground of newly discovered evidence, the defendant must produce at the hearing in support thereof affidavits of witnesses, or he may take testimony in support thereof and if time is required by the defendant to procure such affidavits or testimony, the Court may postpone the hearing of the motion for such length of time as under all the circumstances of the case may seem reasonable.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>618.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 953. Time for applying for new trial-Limitations
The application for a new trial must be made before judgment is entered; but the Court or Judge thereof may for good cause shown allow such application to be made at any time within thirty (30) days after the rendition of the judgment. A motion for a new trial on the ground of newly discovered evidence may be made within three (3) months after such evidence is discovered but no such motion may be filed more than one (1) year after judgment is rendered.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>618.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 954. Motion in arrest of judgment-Definition-Grounds-Time for
A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on plea or verdict of guilty, or on a verdict against the defendant on a plea of former conviction or acquittal. It may be founded on any of the defects in the information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur, and must be before or at the time the defendant is called for judgment.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 955. Court may arrest on its own motion-Effect of allowing motion
The Court may also on its own view of any of these defects, arrest the judgment without motion. The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the information was filed, and in no case of arrest of judgment is the verdict a bar to another prosecution.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 956. Proceedings after motion for arrest of judgment sustained
If, from the evidence on the trial, there is reasonable ground to believe the defendant guilty, and a new information can be framed upon which he may be convicted, the Court may order him to be recommitted to the proper officer, or admitted to bail anew to answer the new information. If the evidence shows him guilty of another offense, he must be committed or held thereon; but if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged, or, if admitted to bail, his bail is exonerated, or if money has been deposited instead of bail, it must be refunded to the defendant, and the arrest of judgment operates as an acquittal of the charge upon which the information was founded.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 16
JUDGMENT AND EXECUTION
GENERAL PROVISIONS
§ 961. Court appoints time for pronouncing judgment
After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the Court must appoint a time for pronouncing judgment.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 962. Time for pronouncing verdict specified
The time appointed must be at least two (2) days after the verdict, if the Court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 964. Officer may be directed to produce prisoner
When the defendant is in custody, the Court may direct the officer in whose custody he is to bring him before it for judgment, and the officer must do so accordingly.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 965. Warrant for defendant not appearing-Forfeiture of bond or bail money
If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear for judgment when his personal attendance is necessary, the Court, in addition to the forfeiture of the undertaking of bail or of money deposited, may direct the Clerk to issue a bench warrant for his arrest.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 966. Clerk to issue bench warrant-Several counties
The Clerk, on the application of the prosecuting attorney, may, accordingly, at any time after the order, whether the Court be sitting or not, issue a bench warrant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 967. Form of bench warrant
The bench warrant must be substantially in the following form:
Cherokee Nation
To any Marshal, Sheriff, Constable or policeman in this Nation:
A B having been, on the .. day of .. A. D., 20 .., duly convicted in the .. District Court of the crime of (designating it generally), you are therefore commanded forthwith to arrest the above named A B and bring him before that Court for judgment, or if the Court has adjourned for the term, you are to deliver him into the custody of the Marshal or Sheriff of Cherokee Nation.
Given under my hand, with the seal of said Court affixed, this .. day of .. A. D., 20 ..
By order of the Court.
(Seal.) E. F., Clerk.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 968. Service of bench warrant, mode of
The bench warrant may be served in the same manner as a warrant of arrest.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 969. Defendant to be arrested
The officer must arrest the defendant and bring him before the Court, or commit him to the officer mentioned in the warrant, according to the command thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 970. Defendant informed of proceedings
When the defendant appears for judgment, he must be informed by the Court, or by the Clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 971. Defendant may show cause against judgment-Grounds-Proceedings
He may show for cause against the judgment:
1. That he is insane; and if, in the opinion of the Court, there is reasonable ground for believing him to be insane, the question of his insanity must be tried as hereinafter in this chapter, provided for. If upon the trial of that question the jury find that he is sane, judgment must be pronounced, but if they find him insane he may be committed to one of the Nation lunatic asylums, until he becomes sane, or be otherwise committed according to law, and when notice is given of that fact, as hereinafter provided, he must be brought before the Court for judgment;
2. That he has good cause to offer, either in arrest of judgment, or for a new trial, in which case the Court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment, or for a new trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 972. Rendition of judgment where cause against it not shown
If no sufficient cause be alleged or appear to the Court why judgment should not be pronounced it must thereupon be rendered.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 973. Court may hear further evidence, when
After a plea or verdict of guilty in a case where the extent of the punishment is left with the Court, the Court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>622.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 974. Testimony-How presented-Deposition of sick or infirm witness
The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a Magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the Court may direct.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>622.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 975. Other evidence in aggravation or mitigation of punishment prohibited
No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the Court or member thereof in aggravation or mitigation of the punishment, except as provided in the last two sections.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>622.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 976. Sentencing for multiple offenses-Concurrent sentences
If the defendant has been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses. Provided, that the sentencing Judge shall, at all times, have the discretion to enter a sentence concurrent with any other sentence.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>621.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 977. Entry of judgment-Papers filed by the Clerk-Record
When judgment upon a conviction is rendered, the Clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:
1st. The information and a copy of the minutes of the plea or demurrer;
2nd. A copy of the minutes of the trial;
3rd. The charges given or refused, and the endorsements, if any, thereon; and
4th. A copy of the judgment.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 978. Certified copy of judgment furnished to officer-Officer authorized to execute judgment
When a judgment has been pronounced, a certified copy of the entry thereof, upon the minutes, must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 979. Execution of judgment by Marshal or Sheriff in certain cases-Delivery to proper officer in other cases
When the judgment is imprisonment in a penal institution, or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the Marshal or Sheriff of the Nation. In all other cases when the sentence is imprisonment, the Marshal or Sheriff must deliver the defendant to the proper officer, in execution of the judgment.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 979A. Payment of penal institution costs by inmate
The sentencing Court may require a person sentenced to confinement in penal institution, for any offense, to pay the penal institution the costs of food and maintenance for each day of incarceration, both before and after conviction, medical care, dental care, and psychiatric services. The costs for food and maintenance for each day of incarceration shall be an amount equal to the actual cost of the services, said costs to be determined by the administrator of the penal institution. The cost of the services shall be paid to all penal institutions where the inmate may have been held before and after conviction. The costs shall not be assessed if, in the judgment of the Court, such costs would impose a manifest hardship on the inmate, or if in the opinion of the Court the property of the inmate is needed for the maintenance and support of family of the inmate.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>624.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 981. Authority of officer while conveying prisoner-Assistance of citizens-Penalty for refusing assistance
The Marshal or Sheriff or his Deputy while conveying the defendant to the proper prison in execution of a judgment of imprisonment has the same authority to require the assistance of any citizen of this Nation in securing the defendant and in retaking him if he escape, as if the Marshal or Sheriff, and every person who refuses or neglects to assist the Sheriff, when so required, is punishable.
History
Source. LA 10-90, eff. November 13, 1990.
§ 982. Presentence investigation
Whenever a person is convicted of a crime, the Court may, before imposing sentence to commit any criminal to incarceration, order a presentence investigation to be made by the Nation and defendant. The Nation and the defendant shall thereupon inquire into the circumstances of the offense, and the criminal record, social history and present condition of the convicted person; and shall make a report of such investigation to the Court, including a recommendation as to appropriate sentence, and specifically a recommendation for or against probation. Such reports must be presented to the Judge so requesting, within a reasonable time, and upon the failure to so present the same, the Judge may proceed with sentencing. Whenever, in the opinion of the Court, it is desirable, the investigation shall include a physical and mental examination of the convicted person. The reports so received shall not be referred to, or be considered, in any appeal proceedings. Before imposing sentence, the Court may advise the defendant or his counsel and the Prosecuting Attorney of the factual contents and the conclusions of any presentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them. If either the defendant or the Prosecuting Attorney desires, such hearing shall be ordered by the Court providing either party an opportunity to offer evidence proving or disproving any finding contained in such report, which shall be a hearing in mitigation or aggravation of punishment.
If the Prosecuting Attorney and the defendant desire to waive such presentence investigation and report, both shall execute a suitable waiver subject to approval of the Court, whereupon the Judge shall proceed with the sentencing.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>622.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 983. Imprisonment or recommendation of suspension of driving privileges for failure to pay fines or costs-Persons unable to pay-Hearing-Installments
A. Any defendant found guilty of an offense in any court of this Nation may be imprisoned for nonpayment of the fine and/or costs when the trial Court finds that the defendant is financially able but refuses or neglects to pay the fine and/or costs. In no case may a sentence to pay a fine be converted into a penal institution sentence automatically, i.e., without a hearing and a judicial determination, memorialized of record, that the defendant is able to satisfy the fine and costs by payment but refuses or neglects so to do.
B. After a judicial determination that the defendant may be able to pay the fine and costs in installments, the Court may order the fine and costs to be paid in installments and shall set the amount and due date of each installment.
C. The Court also may send notice of any nonpayment of fine and costs for a moving traffic violation to the Department of Public Safety with a recommendation of suspension of driving privileges of the defendant until the total amount of fine and costs has been paid. Upon receipt of payment of the total amount of fine and costs for the moving traffic violation, the Court shall send notice thereof to the Department, if a nonpayment notice was sent as provided for in this subsection. Such notices sent to the Department shall be on forms or by a method approved by the Department.
D. The Supreme Court shall implement procedures and rules for methods of payment of fines and/or costs by indigents, which procedures and rules shall be distributed to all District Courts by the Court Administrator.
History
Source. LA 10-90, eff. November 13, 1990.
SUSPENSION OF JUDGMENT AND SENTENCE
§ 991A. Sentence-Powers of Court-County community service sentencing programs
A. Except as otherwise provided in the Elderly and Incapacitated Victims Protection Program, when a defendant is convicted of a crime, the Court shall:
1. Suspend the execution of sentence in whole or in part, with or without probation. The Court, in addition, may order the convicted defendant at the time of sentencing or at any time during the suspended sentence to do one or more of the following:
a. To provide restitution to the victim according to a schedule of payments established by the sentencing Court, together with interest upon any pecuniary sum at the rate of twelve percent (12%) per annum, if the defendant agrees to pay such restitution or, in the opinion of the Court, if he is able to pay such restitution without imposing manifest hardship on the defendant or his immediate family and if the extent of the damage to the victim is determinable with reasonable certainty; or
b. To reimburse any state or Cherokee Nation agency for amounts paid by the state or Cherokee Nation agency for hospital and medical expenses incurred by the victim or victims, as a result of the criminal act for which such person was convicted, which reimbursement shall be made directly to the Nation agency, with interest accruing thereon at the rate of twelve percent (12%) per annum; or
c. To engage in a term of community service without compensation, according to a schedule consistent with the employment and family responsibilities of the person convicted; or
d. To pay a reasonable sum into any trust fund, established pursuant to the provisions of 60 O.S. § 176 et seq., and which provides restitution payments by convicted defendants to victims of crimes committed within Cherokee Nation wherein such victim has incurred a financial loss; or
e. To confinement in the penal institution for a period not to exceed the maximum length of incarceration pursuant to 25 U.S.C. § 1823(7), or
f. To reimburse the court fund for amounts paid to court-appointed attorneys for representing the defendant in the case in which he is being sentenced.
However, any such order for restitution, community service or confinement in the penal institution, or a combination thereof, shall be made in conjunction with probation and shall be made a condition of the suspended sentence; or
2. May impose a fine prescribed by law for the offense, with or without probation or commitment and with or without restitution or service as provided for in this section; and
3. May commit such person for confinement provided for by law with or without restitution as provided for in this section; and
4. In the case of nonviolent offenses, sentence such person to the community service sentencing program created pursuant to 22 CNCA § 991a-4; and
5. In addition to the other sentencing powers of the Court, in the case of a person convicted of operating or being in control of a motor vehicle while the person was under the influence of alcohol, other intoxicating substance, or a combination of alcohol or another intoxicating substance, or convicted of operating a motor vehicle while the ability of the person to operate such vehicle was impaired due to the consumption of alcohol, require such person:
a. To participate in an alcohol and drug substance abuse course, pursuant to 47 CNCA § 11-902.2 and 47 CNCA § 11-902.3;
b. To attend a victims impact panel program sponsored by Cherokee Nation, if such a program is offered, and to pay a fee, not to exceed Five Dollars ($5.00), to the program to offset the cost of participation by the defendant, if in the opinion of the Court the defendant has the ability to pay such fee;
c. To both participate in the alcohol and drug substance abuse course, pursuant to subparagraph a of this paragraph and attend a victims impact panel program, pursuant to subparagraph b of this paragraph.
B. When sentencing a person convicted of a crime, the Court shall first consider a program of restitution for the victim, as well as imposition of a fine or incarceration of the offender.
C. Probation, for purposes of subsection (A) of this section, is a procedure by which a defendant found guilty of a crime is released by the Court subject to conditions imposed by the Court and subject to the supervision of the Court or Cherokee Nation. Such supervision shall be initiated upon an order of probation from the Court, and shall not exceed two (2) years.
D. Cherokee Nation, or such other agency as the Court may designate, shall be responsible for the monitoring and administration of the restitution and service programs provided for by subparagraphs a, c, and d of paragraph 1 of subsection (A) of this section, and shall ensure that restitution payments are forwarded to the victim and that service assignments are properly performed.
E. 1. Cherokee Nation is hereby authorized, subject to funds available through appropriation by the Council, to contract with counties for the administration of county community service sentencing programs.
2. Any offender eligible to participate in the Program pursuant to this act shall be eligible to participate in a county Program; provided, participation in county-funded Programs shall not be limited to offenders who would otherwise be sentenced to confinement by the Cherokee Nation.
3. Cherokee Nation shall establish criteria and specifications for contracts with counties for such programs.
F. In cases where the person is required by law to register pursuant to the Cherokee Nation Sex Offender Registration and Notification Act, 57 CNCA § 1 et seq., where the individual is sentenced after the effective date of this act in addition to the other sentencing powers of the Court, the Court may require the person to comply with sex offender-specific rules and conditions of probation established by the Marshal Service.
G. In cases where the person is required by law to register pursuant to the Cherokee Nation Sex Offender Registration and Notification Act, where the individual is sentenced after the effective date of this act in addition to the other sentencing powers of the Court the Court may prohibit the person from accessing or using any Internet social networking web site that has the potential or likelihood of allowing the sex offender to have contact with any child who is under the age of eighteen (18) years.
H. A person convicted of an offense or receiving any form of probation for an offense for which registration is required pursuant to the Cherokee Nation Sex Offender Registration and Notification Act, shall submit to deoxyribonucleic acid (DNA) testing for law enforcement identification purposes. Except as required by the Cherokee Nation Sex Offender Registration and Notification Act a deferred judgment does not require submission to deoxyribonucleic acid (DNA) testing.
I. When sentencing a person who has been convicted of a crime that would subject that person to the provisions of the Cherokee Nation Sex Offender Registration and Notification Act neither the Court nor the Prosecuting Attorney shall be allowed to waive or exempt such person from the registration requirements of the Cherokee Nation Sex Offender Registration and Notification Act.
J. In addition to other sentencing powers of the Court in the case of a sex offender sentenced after the effective date of this act and required by law to register pursuant to the Sex Offender Registration and Notification Act, the Court may require the person to participate in a treatment program designed for the treatment of sex offenders during the period of time while the offender is subject to supervision. The treatment program may include polygraph examinations specifically designed for use with sex offenders for purposes of supervision and treatment compliance, and may be administered every six (6) months or more frequently during the period of supervision. The examination shall be administered by a certified licensed polygraph examiner. The treatment program must be approved by the Court. Such treatment shall be at the expense of the defendant based on the defendant's ability to pay.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 21-08, eff. November 12, 2008.
Cross References
Persons under the influence of alcohol or other intoxicating substance or combination thereof, see 47 CNCA § 11-902.
Oklahoma Statutes
Authorized course providers, fees, course requirements, see 43A O.S. § 3-453.
Sentence and punishment, conditional participation in alcohol and drug substance abuse course or program, see 43A O.S. § 3-452.
Trusts for benefit of state, county or municipality, approval and expenditures, see 60 O.S. § 176 et seq.
United States Code
Constitutional rights, see 25 U.S.C. § 1302(a).
Library References
Indians <KEY>620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-2. Nonviolent criminals-Night or weekend incarceration
Any person who has been convicted of a nonviolent crime in the Nation may be sentenced, at the discretion of the Judge, to incarceration in the penal institution for a period of one or more nights or weekends with the remaining portion of each week being spent under probation, in lieu of any other kind of imprisonment prescribed by law for the particular crime. Any person incarcerated in the penal institution may be assigned work duties as may be approved by the Judge. The sentencing Court may require a person incarcerated pursuant to this act to pay the Nation for food and maintenance for each day of incarceration, an amount equal to the maximum amount prescribed by law to be paid by the Nation, to the Administrator for such expenses. For the purposes of this section, weekend incarceration shall commence at 6 p.m. on Friday and continue until 8 a.m. on the following Monday, and incarceration overnight shall commence at 6 p.m. on one day and continue until 8 a.m. of the next day. Provided, that the sentencing Judge may modify said times if the circumstances of the particular case require such action.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Persons under the influence of alcohol or other intoxicating substance or combination thereof, see 47 CNCA § 11-902.
Library References
Indians <KEY>624.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-3. Restitution to buyer of property unlawfully obtained
A. Upon a verdict or plea of guilty or upon a plea of nolo contendere for an offense in which any property is unlawfully obtained and the property is sold, traded, bartered, pledged or pawned, the Court may order the defendant to provide restitution to the buyer, recipient or pledgee of the property for the value of any consideration paid, loaned or given for the property unless the buyer, recipient or pledgee has violated the provisions of 21 CNCA § 1092, 21 CNCA § 1093 or 21 CNCA § 1713. Such restitution shall be in addition to any restitution to the victim and shall be in addition to any other penalties provided by law. Restitution to the buyer, recipient or pledgee shall be ordered pursuant to the provisions of 22 CNCA § 991A(A)(1)(a).
B. The buyer of any property which has been unlawfully obtained and which is lawfully returned to its rightful owner shall have the right to bring a civil action against the person who sold, traded, bartered, pledged or pawned the property for the value of any consideration paid, loaned or given for the property unless the buyer has violated the provisions of 21 CNCA § 1092, 21 CNCA § 1093 or 21 CNCA § 1713.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>626.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-4. Community service sentencing program-Eligible offenders-Presentence investigation-Recommendation and imposition of sentence-Earned credits-Notice of completion-Immunity from tort liability
A. There is hereby created the "Community Service Sentencing Program". The purpose of the program shall be to provide an alternative to incarceration for nonviolent crime offenders who would normally be sentenced to incarceration in a penal institution.
B. Any eligible offender may be sentenced, at the discretion of the Judge, to a community service sentencing program pursuant to the provisions of this section. For purposes of this section, "eligible offender" shall mean any person who:
1. Has not previously been convicted of two or more felonies;
2. Has been convicted of a nonviolent crime offense which shall be defined as any crime offense except assault and battery with a dangerous weapon, aggravated assault and battery on a law officer, poisoning with intent to kill, shooting with intent to kill, assault with intent to kill, assault with intent to commit a crime, murder in the first degree, murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, kidnapping, burglary in the first degree, kidnapping for extortion, maiming, robbery, child beating, wiring any equipment, vehicle, or structure with explosives, forcible sodomy, rape in the first degree or rape by instrumentation, lewd or indecent proposition or lewd or indecent act with a child under sixteen (16) years of age, use of a firearm or offensive weapon to commit or attempt to commit a crime, pointing firearms, rioting or arson in the first degree;
3. Has properly completed and executed all necessary documents; and
4. Is not otherwise ineligible by law or court rule.
C. Cherokee Nation shall administer the program. Cherokee Nation shall recommend an assignment of the offender to any one or combination of the following areas:
1. Community service, with or without compensation;
2. Education, vocational-technical education or literacy programs;
3. Substance abuse treatment programs;
4. Periodic testing for the presence of controlled substances;
5. Psychological counseling or psychiatric treatment;
6. Medical treatment;
7. Restitution;
8. Confinement in a penal institution for a period not to exceed the maximum incarceration found in 25 U.S.C. § 1823(7) 1, night or weekend incarceration pursuant to the provisions of 22 CNCA § 991A-2;
9. Probation or conditional probation.
D. The Judge shall consider the criminal history of the offender, the nature of the offender's criminal conduct, the employment and family history of the offender and any other factors he deems relevant when sentencing persons to the program.
E. Cherokee Nation, all counties and municipalities of the State of Oklahoma and all nonprofit or educational organizations or institutions participating in the Program are hereby immune from liability for torts committed by or against any offender participating in the Program to the extent specified in 57 O.S. §§ 227 and 228.
F. Any offender participating in the program shall be advised of the provisions of this section and shall, in writing, acknowledge that he has been advised of and understands the provisions of the program.
1 See 25 U.S.C. § 1302(a)(7).
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Application, exemption from workers' compensation act, liability for injuries, see 57 O.S. § 227.
Tort immunity, waiver, insurance, see 57 O.S. § 228.
United States Code
Constitutional rights, see 25 U.S.C. § 1302(a).
Library References
Indians <KEY>627.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
ELDERLY AND INCAPACITATED VICTIM'S PROTECTION PROGRAM
§ 991A-5. Short title
This act shall be known and may be cited as the "Elderly and Incapacitated Victim's Protection Program".
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-6. Purpose
The purpose and intent of this act is to provide enhanced sentencing for persons committing certain offenses against elderly or incapacitated persons.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-7. Definitions
As used in this act:
1. "Elderly person" means any person sixty-two (62) years of age or older; and
2. "Incapacitated person" means any person who is disabled by reason of mental or physical illness or disability to such extent he lacks the ability to effectively protect himself or his property.
History
Source. LA 10-90, eff. November 13, 1990.
§ 991A-8. Offenses to which act applies
The provisions of this act shall apply to any person convicted of one or more of the following offenses where the victim is an elderly or incapacitated person:
1. Assault, battery, or assault and battery with a dangerous weapon;
2. Aggravated assault and battery;
3. Burglary in the second degree;
4. Use of a firearm or offensive weapon to commit or attempt to commit a crime, or pointing a firearm;
5. Grand larceny;
6. Extortion, or obtaining a signature by extortion;
7. Fraud, or obtaining or attempting to obtain property by trick or deception; or
8. Embezzlement.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>620.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-9. Enhancement of sentence
Whenever a person is convicted of an offense enumerated in 22 CNCA § 991A-8 in which the victim is elderly or incapacitated, the Court shall upon conviction:
1. Commit the defendant for confinement as provided by law; provided, the first thirty (30) days of the sentence shall not be subject to probation, suspension or deferral; provided further, this mandatory minimum period of confinement shall be served in the penal institution as a condition of a suspended or deferred sentence, pursuant to 22 CNCA § 991A and may be served by night or weekend incarceration pursuant to 22 CNCA § 991A-2; and
2. a. Require restitution be paid to the victim for out-of-pocket expenses, loss or damage to property and medical expenses for injury proximately caused by the conduct of the defendant pursuant to 22 CNCA § 991A-10; or
b. Assign the offender to perform a required term of community service, according to a schedule consistent with the employment and family responsibility of the person convicted; or
c. Require restitution as provided in subparagraph a of this paragraph and community service as provided in subparagraph b of this paragraph; and
3. The Court may further impose a fine or any other penalty otherwise provided by law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>624, 626, 627.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-10. Restitution to victim-Determinations by Court
A. The Court shall at the time of sentencing:
1. Determine whether the property may be restored in kind to the owner or the person entitled to possession thereof;
2. Determine whether defendant is possessed of sufficient skill to repair and restore property damaged;
3. Provide restitution to the victim according to a schedule of payments established by the sentencing Court, together with interest upon any pecuniary sum at the rate of twelve percent (12%) per annum, if the defendant agrees to pay such restitution or, in the opinion of the Court, he is able to pay such restitution without imposing manifest hardship on the defendant or his immediate family; and
4. Determine the extent of the out-of-pocket expenses, loss or damage to property and injury to the victim proximately caused by the conduct of the defendant.
B. The Court shall allow credit for property returned in kind, for property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant and after granting such credit, the court shall assess the actual out-of-pocket expenses, losses, damages and injuries suffered by the victim.
C. In no event shall a victim be entitled to recover restitution in excess of the actual out-of-pocket expenses, losses, damages and injuries, proximately caused by the conduct of the defendant and restitution shall not be ordered to be paid on account of pain or suffering; provided however, that nothing in this section shall abridge or preclude any victim from the civil right to recover damages by separate civil cause of action brought against the defendant.
D. If the defendant fails to pay restitution in the manner or within the time period specified by the Court, the Court may enter an order directing the sheriff to seize any real or personal property of the defendant to the extent necessary to satisfy the order of restitution and dispose of such property by public sale. All property seized for the purposes of satisfying restitution shall be seized under the procedures established in 22 CNCA § 991A-11.
E. A sentence including provisions of restitution may be modified or revoked by the Court if the offender commits another offense, or the offender fails to make restitution as ordered by the Court, but no sentencing provision to make restitution shall be modified if the Court finds that the offender has had the financial ability to make restitution, and he has willfully refused to do so. If the Court shall find that the defendant has failed to make restitution and that the failure is not willful, the Court may impose an additional period of time within which to make restitution. The length of said additional period shall not be more than two (2) years. The court shall retain all of the incidents of the original sentence, including the authority to revoke or further modify the sentence if the conditions of payment are violated during such additional period.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>626.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991A-11. Seizure of property-Forfeiture for sale-Notice of proceedings-Answer and claim to property-Hearing-Proof of claim-Sale under judgment-Distribution of proceeds
A. Any peace officer of this Nation shall seize any property, except property exempt under 31 O.S. § 1, to be held until a forfeiture for sale has been declared or release ordered.
B. Notice of seizure and intended forfeiture proceeding shall be filed in the office of the Clerk of the District Court for the county in which the property is seized and shall be given all owners and parties in interest.
C. Notice shall be given by the party seeking forfeiture and sale according to one of the following methods:
1. Upon each owner or party in interest whose right, title or interest is of record at the Oklahoma Tax Commission, by mailing a copy of the notice by certified mail to the address shown upon the records of the Oklahoma Tax Commission;
2. Upon each owner or party in interest whose name and address is known to the attorney or the party seeking the action to recover unpaid restitution, by mailing a copy of the notice by registered mail to the last-known address; or
3. Upon all other owners or interested parties, whose addresses are unknown, but who are believed to have an interest in the property, by one publication in a newspaper of general circulation in the county where the seizure was made.
D. Within sixty (60) days after the mailing or publication of the notice, the owner of the property and any other party in interest or claimant may file a verified answer and claim to the property described in the notice.
E. If at the end of sixty (60) days after the notice has been mailed or published there is no verified answer on file, the Court shall hear evidence upon the fact of exemption under 31 O.S. § 1, and shall order the property forfeited and sold to pay restitution, if such property is not proved exempt.
F. If a verified answer is filed, the forfeiture for sale proceeding shall be set for hearing.
G. At a hearing on the forfeiture the evidence of ownership and exemption under 31 O.S. § 1 shall be satisfied by a preponderance of the evidence.
H. The claimant of any right, title or interest in the property may prove his lien, mortgage or conditional sales contract to be a bona fide ownership interest.
I. In the event of such proof, the Court shall order the property released to the bona fide owner, lienholder, mortgagee or vendor if the amount due him is equal to, or in excess of, the value of the property as of the date of the seizure, it being the intention of this section to forfeit only the right, title or interest of the offender.
J. If the amount due to such person is less than the value of the property, or if no bona fide claim is established, the property shall be forfeited and sold under judgment of the Court, as on sale upon execution.
K. Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Office of the Prosecuting Attorney, subject only to the orders and decrees of the Court having jurisdiction thereof.
L. The proceeds of the sale of any property shall be distributed as follows, in the order indicated:
1. To the bona fide purchaser, conditional sales vendor or mortgagee of the property, if any, up to the amount of his interest in the property, when the Court declaring the forfeiture orders a distribution to such person;
2. To the payment of the actual expenses of storing the property;
3. To the payment of court costs and costs of the Marshal or Sheriff in conducting the sale;
4. To the payment of restitution to the victim; and
5. The balance of the proceeds of such sale shall be paid to the defendant.
M. If the Court finds that the party seeking the forfeiture failed to satisfy the requirements provided for in subsection (G) of this section, the Court shall order the property released to the owner or owners.
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Property exempt from attachment, execution or other forced sale, bankruptcy proceedings, see 31 O.S. § 1 et seq.
Library References
Forfeitures <KEY>4 to 10.
Indians <KEY>627.
Westlaw Topic Nos. 180, 209.
C.J.S. Forfeitures §§ 5, 15 to 21, 30 to 44, 49 to 78.
C.J.S. Indians §§ 151 to 179.
C.J.S. RICO (Racketeer Influenced and Corrupt Organizations) §§ 48 to 51.
§ 991B. Revocation in whole or in part of suspended sentence-Hearing-Review
Whenever a sentence has been suspended by the Court after conviction of a person for any crime, the suspended sentence of said person may not be revoked, in whole or in part, for any cause unless a petition setting forth the grounds for such revocation is filed by the Prosecuting Attorney with the Clerk of the sentencing Court and competent evidence justifying the revocation of said suspended sentence is presented to the Court at a hearing to be held for that purpose within twenty (20) days after the date of arrest.
Where one of the grounds for revocation is the failure of the defendant to make restitution as ordered, Cherokee Nation or the Court Clerk shall forward to the Prosecuting Attorney all information pertaining to the defendant's failure to make timely restitution as ordered by the Court, and said Prosecuting Attorney shall file a petition setting forth the grounds for revocation.
The defendant ordered to make restitution can petition the Court at any time for remission or a change in the terms of the order of restitution if he undergoes a change of condition which materially affects his ability to comply with the Court's order.
At the hearing, if one of the grounds for the petition for revocation is the defendant's failure to make timely restitution as ordered by the Court, the Court will hear evidence and if it appears to the satisfaction of the Court from such evidence that the terms of the order of restitution create a manifest hardship on the defendant or his immediate family, cancel all or any part of the amount still due, or modify the terms or method of payment.
The Court may revoke a portion of the sentence and leave the remaining part not revoked, but suspended for the remainder of the term of the sentence, and under the provisions applying to it. The person whose suspended sentence is being considered for revocation at said hearing shall have the right to be represented by counsel, to present evidence in his own behalf and to be confronted by the witnesses against him. Any order of the Court revoking such suspended sentence, in whole or in part, shall be subject to review on appeal, as in other appeals of criminal cases. Provided, however, that if the crime for which the suspended sentence is given was a crime, he may be allowed bail pending appeal. If the reason for revocation be that the defendant committed a crime, he shall not be allowed bail pending appeal.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>621, 622, 628.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991C. Deferred judgment procedure
A. Upon a verdict or plea of guilty or upon a plea of nolo contendere, but before a judgment of guilt, the Court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation under the supervision of the Court or Cherokee Nation under such conditions of probation as may be prescribed by the Court. The Court shall first consider restitution, administered in accordance with the provisions pertaining thereto, among the various conditions of probation it may prescribe. The Court may also consider ordering the defendant to engage in a term of community service without compensation, according to a schedule consistent with the employment and family responsibilities of the defendant. Further, the Court may order the defendant confined to the penal institution for a period not to exceed ninety (90) days to be served in conjunction with probation. Further, the Court may order the defendant to pay a sum into the Court Fund not to exceed the amount of fine authorized for the offense alleged against the defendant or authorized under the Cherokee Nation Bond Schedule and/or 18 U.S.C. § 1803(7) and an amount for reasonable attorney fee, to be paid into the Court Fund, if a court-appointed attorney has been provided to defendant. Further, the Court may, in the case of a person before the Court for the offense of operating or being in control of motor vehicle while the person was under the influence of alcohol, other intoxicating substance, or a combination of alcohol and another intoxicating substance, before the Court for the offense of operating a motor vehicle while the ability of the person to operate such vehicle was impaired due to the consumption of alcohol, require such person to participate in one or both of the following:
1. an alcohol and drug substance abuse course, pursuant to 47 CNCA § 11-902.2 and 47 CNCA § 11-902.3;
2. a victims' impact panel program sponsored by the Cherokee Nation of the State of Oklahoma, if such a program is offered, and to pay a fee, not to exceed Five Dollars ($5.00), to the victims' impact panel program to offset the cost of participation by the defendant, if in the opinion of the Court the defendant has the ability to pay such fee.
Upon completion of the probation term, which probation term under this procedure shall not exceed five (5) years, the defendant shall be discharged without a court judgment of guilt, and the verdict or plea of guilty or plea of nolo contendere shall be expunged from the record and said charge shall be dismissed with prejudice to any further action. Upon violation of the conditions of probation, the Court may enter a judgment of guilt and proceed as provided in 22 CNCA § 991A. Further, if the probation is for a crime offense, and the defendant violates the conditions of probation by committing another crime offense, the defendant shall not be allowed bail pending appeal. The deferred judgment procedure described in this section shall only apply to defendants not having been previously convicted of a crime under the laws of Cherokee Nation which if committed under the laws of the State of Oklahoma would be a felony.
B. The deferred judgment procedure described in this section shall not apply to defendants found guilty or who plead guilty or nolo contendere to a sex offense requiring the defendant to register pursuant to the Sex Offenders Registration and Notification Act, 57 CNCA § 1 et seq.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 28-06, eff. December 20, 2006.
Amended. LA 21-08, eff. November 12, 2008.
Cross References
Definitions, see 57 CNCA § 3.
Designation as sex offender, determination of offender's tier level, see 57 CNCA § 6.
Notifying offenders of obligation to register, see 57 CNCA § 12.
Registration, time limits, duration, petition for release from registration requirement, information to be provided to offender, see 57 CNCA § 7.
Oklahoma Statutes
Authorized course providers, fees, course requirements, see 43A O.S. § 3-453.
Sentence and punishment, conditional participation in alcohol and drug substance abuse course or program, see 43A O.S. § 3-452.
Library References
Indians <KEY>619.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991D. Probation fee-Restitution administration fee-Drug and alcohol testing fees
A. A Court granting probation shall fix a fee of Forty Dollars ($40.00) per month to be paid by the probationer to Cherokee Nation during the probationary period, provided, however, that this mandatory fee will not pertain if, in the judgment of the Court, such a fee would impose an unnecessary hardship on the probationer. In such hardship cases, the Court shall expressly waive the fee. The Court shall make payment of the fee a condition of granting or continuing the probation, and such condition shall be imposed whether the probation is incident to the suspending of execution of a sentence or incident to the suspending of imposition of a sentence or the deferring of proceedings after a verdict or plea of guilty, but such condition shall not be imposed unless probationary services are made available to the defendant. If restitution is ordered by the Court, the probation fee will be paid in addition to the restitution so ordered. In addition to the restitution payment and probation fee, a fee of One Dollar ($1.00) per payment is to be paid to Cherokee Nation to cover the expenses of administration of such restitution. If, in the judgment of the Court, such a fee would impose an unnecessary hardship on the offender, the fee shall be waived.
B. The defendant is also responsible for the cost of alcohol and drug testing.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 28-06, eff. December 20, 2006.
Library References
Indians <KEY>625.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 991F. Definitions
For the purposes of this act:
1. "Economic loss" means actual economic detriment suffered by the victim consisting of medical expenses actually incurred, damage to real and personal property and any other out-of-pocket expenses reasonably incurred as the direct result of the criminal act of the defendant. No other elements of damage shall be included.
2. "Monetary restitution" shall mean the sum to be paid by the defendant to the victim of his criminal act to compensate that victim for the economic loss suffered as a direct result of the criminal act of the defender.
3. "Victim" means any person, partnership or corporation that suffers an economic loss as a direct result of the criminal act of another person.
History
Source. LA 10-90, eff. November 13, 1990.
§ 994. Suspension of judgment and sentence after appeal
After appeal, when any criminal conviction is affirmed, either in whole or in part, the Court in which the defendant was originally convicted may suspend the judgment and sentence as otherwise provided by law. Jurisdiction for such suspension shall be vested in said trial Court by a request by the defendant within ten (10) days of the final order of the District Court. Any order granting or denying suspension made under the provisions of this section is a nonappealable order.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 28-06, eff. December 20, 2006.
Library References
Indians <KEY>635.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 995. Administration of probation-Parole services
The Court Administrator shall supervise the probation officer in all Cherokee Nation Courts and for such purposes and his or her staff shall have access to all probation records of said Courts.
Subject to the approval of the Chief Justice of the Cherokee Nation Supreme Court the Court Administrator shall establish reports and forms to be maintained by probation officers, procedures to be followed by the probation officers, standards and rules of probation work, including methods and procedures of investigation, mediation supervision, case work, record keeping, accounting, caseload, and case management.
The Court Administrator shall annually submit a written budget for the probation services to the Cherokee Nation Council for administration, supplies and salaries.
History
Source. LA 28-06, eff. December 20, 2006.
Library References
Indians <KEY>625.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 996. The Powers of the Court
A. Probation is provided at the discretion of the Court.
B. No defendant shall be put on probation without a presentence investigation.
C. The Court may first consider a program of restitution for the victim as well as imposition of a fine and incarceration of the offender.
D. Probation, for the purposes of this section, is a procedure by which a defendant found guilty of a crime, or before a judgment of guilty pursuant to 22 CNCA § 991C, whether upon a verdict of plea of guilty or upon a plea of nolo contendere, is released by the Court subject to conditions imposed by the Court and subject to the supervision of Cherokee Nation District Court. Such supervision shall be initiated upon an order of probation from the Court, and shall not exceed two (2) years. In the case of a person convicted of a sex offense, supervision shall not be limited to two (2) years.
E. If the Court has imposed and entered exception of a fine and placed the defendant on probation, payment of the fine or adherence to the court-established installment schedule shall be a condition of the probation.
F. If the offender is charged with a criminal offense and the Court has reason to believe that drug or alcohol usage by the offender was a factor leading to the offender's criminal behavior or if the crime is committed by a first time offender, the Court upon the recommendation of the Attorney General and the Cherokee Nation Probation Office and after a presentence investigation may offer the defendant a deferred sentence. The deferred sentence shall be on the condition that the defendant spends the court-ordered amount of time on probation. The Court shall order the probation be supervised or unsupervised.
G. The person on probation is responsible for payment of any fees and cost to the probation officer. The rules and conditions of probation shall be in writing and signed before a Judge of a Cherokee Nation Court.
H. The Court may modify, reduce, or enlarge the conditions of a sentence of probation in any time prior to the expiration or termination of the term of probation.
I. The Court shall direct the probation officer provide the defendant with a copy of the rules and conditions of probation that sets forth all the conditions to which the sentence is subject, and that is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.
J. Once the Judge has ordered probation the defendant has forty-eight (48) hours to report to the probation officer.
K. If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the Court shall have are vocation hearing pursuant to 22 CNCA §§ 991A to 991C and upon recommendation of the probation officer. And after such hearing the Court may continue the defendant on probation, with or without extending the term or modifying or enlarging the conditions, or revoke the sentence of probation and re-sentence the defendant.
L. Mandatory revocation for possession of controlled substance or firearm or refusal to comply with drug testing. If the defendant possesses a controlled substance, possesses a firearm and/or refuses to comply with drug testing, thereby violating the conditions of his probation a mandatory revocation hearing pursuant to 22 CNCA § 991C and upon recommendation of the probation officer shall be conducted. The Court may modify or enlarge the conditions of probation or revoke the sentence of probation and resentence the defendant.
History
Source. LA 28-06, eff. December 20, 2006.
Library References
Indians <KEY>625.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 997. Community service unit
A. Community service is a condition of probation that requires probationers to perform services without compensation for the benefit of the community. The sanction not only provides service to the community but also enhances accountability and helps instill responsibility. Community service can be ordered by a Judge or by the supervising probation officer through the Adult Probation Department. Community service shall be ordered pursuant to the rules and conditions set forth in 22 CNCA § 991A-4.
B. The Adult Probation Department may place a probationer at a variety of work sites throughout Cherokee Nation jurisdictional boundaries. The sites shall be for the benefit of not-for-profit organizations, government agencies, and/or community service groups.
C. Officers assigned to the Adult Probation Department are responsible for placing, monitoring and evaluating all community service mandates. The needs and safety of the community as well as the skills of the probationer shall be considered when making placements. The Cherokee Nation Marshal Service may be called upon to assist with security for community service mandates.
D. Once a site has been deemed appropriate, it letter of agreement between the Adult Probation Department and the agency is signed. If a probationer fails to comply with a community service mandate a revocation hearing shall be held.
History
Source. LA 28-06, eff. December 20, 2006.
Library References
Indians <KEY>627.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 18
APPEALS
§ 1051. Right of appeal-Review-Corrective jurisdiction-Procedure-Scope of review on certiorari
A. An appeal to the Supreme Court may be taken by the defendant as a matter of right from any judgment against him, which shall be taken as herein provided; and, upon the appeal, any decision of the Court or intermediate order made in the progress of the case may be reviewed; provided, all appeals taken from any conviction on a plea of guilty shall be taken by petition for writ of certiorari to the Supreme Court, as provided in subsection (B) of this section; provided further, such petition must be filed within ninety (90) days from the date of said conviction. The Supreme Court may take jurisdiction of any case for the purpose of correcting the appeal records when the same do not disclose judgment and sentence; such jurisdiction shall be for the sole purpose of correcting such defect or defects.
B. The procedure for the filing of an appeal in the Supreme Court shall be as provided in the Rules of Appellate Procedure; and the Supreme Court shall provide by court rules, which will have the force of statute, and be in furtherance of this method of appeal: (1) The procedure to be followed by the trial courts in the preparation and authentication of transcripts and records in cases appealed under this act; (2) the procedure to be followed for the completion and submission of the appeal taken hereunder; and (3) the procedure to be followed for filing a petition for and the issuance of a writ of certiorari.
C. The scope of review to be afforded on certiorari shall be prescribed by the Supreme Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>630, 634.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1052. How governed
An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this chapter.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>629.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1053. Cherokee Nation may appeal in what cases
Appeals to the Supreme Court may be taken by Cherokee Nation in the following cases and no other:
1. Upon judgment for the defendant on quashing or setting aside an indictment or information;
2. Upon an order of the court arresting the judgment;
3. Upon a question reserved by Cherokee Nation; and
4. Upon judgment for the defendant on a motion to quash for insufficient evidence in a criminal matter.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>630.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1053.1. Automatic appeal of judgments holding statutes unconstitutional in criminal actions
Any final judgment entered by a District Court in a criminal action rendering an act of the Council to be unconstitutional shall be automatically appealed to the Supreme Court, unless said act has been previously declared unconstitutional by said Supreme Court. Such appeals shall be by the Prosecuting Attorney upon a reserved question of law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>630.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1054. Time for taking appeal-Transcript-Notification of nonfiling of case made or transcript
In criminal cases the appeal must be taken within one hundred twenty (120) days after the judgment is rendered. A transcript in criminal cases must be filed as hereinafter directed.
It shall be the duty of the Clerk of the Court from which notice of appeal has been given, and in which case made or transcript has been filed and withdrawn, to notify the Clerk of the Supreme Court if a certificate from such Clerk acknowledging receipt of such case made or transcript is delayed three (3) days beyond the one hundred twenty (120) days maximum time from date of judgment provided for appeal in a criminal case, and on notification by the Clerk of nonfiling of case made or transcript in the Supreme Court, the judgment of the trial court will be immediately carried out as provided by law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>632.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1054.1. Perfecting appeal without filing motion for new trial
The right of a party to perfect an appeal from a judgment, order or decree of the trial court to the Supreme Court shall not be conditioned upon his having filed in the trial court a motion for a new trial, but in the event a motion for a new trial is filed in the trial court by a party adversely affected by the judgment, order or decree, no appeal to the Supreme Court may be taken until subsequent to the ruling by the trial court on the motion for a new trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>618, 629, 631.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1056. Appeal by Nation not to suspend judgment
An appeal taken by the Nation in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1058. Conditions of bond-Surrender by sureties-Stay of execution-Confinement of defendant when crime not bailable
If an appeal is taken and the appeal bond given as provided in the preceding section, said bond shall be conditioned that the defendant will appear, submit to and perform any judgment rendered by the Supreme Court or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the Court. After the determination of the appeal in the Supreme Court, or if the appeal is not perfected as provided by law, the defendant may be surrendered by the sureties to the proper authorities for the execution of the sentence. If the defendant be adjudged to be incarcerated in any penal institution and/or to pay a fine, said sureties shall be relieved of liability for such fine and costs upon surrender of the defendant to the proper authorities for incarceration pursuant to the judgment and prior to forfeiture of the bond. If no bond be given the appeal shall not stay execution of the judgment, except where otherwise specifically provided by law. If pending the appeal the bond be given, a further execution of the judgment shall be stayed and the defendant released pending the determination of the appeal. In all cases where the sentence is for a crime not bailable the defendant shall be confined in the penal institution pending the appeal.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1062. Exceptions
The exceptions stated in the case shall have the same effect as if they had been reduced to writing, allowed and signed by the Judge at the time they were taken.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1065. Defendants may appeal jointly or severally
When several defendants are tried jointly, any one or more of them may take an appeal, but those who do not join in the appeal shall not be affected thereby.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>632.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1066. Power of appellate court-Return by Clerk of lower court when new trial granted
The appellate court may reverse, affirm or modify the judgment or sentence appealed from, and may, if necessary or proper, order a new trial or resentencing. In either case, the cause must be remanded to the Court below, with proper instructions, and the opinion of the Court, within the time, and in the manner, to be prescribed by rule of the Court.
If the case is reversed for a new trial, the Clerk of the court from which such cause was appealed is required to make return showing that said case was specifically called to the attention of the trial court at the time of the setting of the docket following receipt of mandate, and showing the court's action in placing said cause on the docket for trial, said return to be made immediately after the trial and entry of judgment, or earlier disposal. Should the case not be retried and should it be dismissed by the Court, return shall be made, giving the reasons stated by the Court in his minutes justifying such dismissal.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>635.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1067. Order when no offense committed-When indictment defective
When a judgment against the defendant is reversed, and it appears that no offense whatever has been committed, the Supreme Court must direct that the defendant be discharged; but if it appears that the defendant is guilty of an offense although defectively charged in the indictment, the Supreme Court must direct the prisoner to be returned and delivered over to the jailer of the proper county, there to abide the order of the Court in which he was convicted.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>635.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1069. Appeal not dismissed for informality
An appeal shall not be dismissed for any informality or defect in the taking thereof. If the same be corrected in a reasonable time after an appeal has been dismissed, another appeal may be taken.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1070. Judgment to be executed on affirmance
On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>635.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1071. Opinions to be recorded
All opinions of the Supreme Court must be given in writing and recorded in the journal.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1072. Record and enforcement of mandate or order in lower court-Return by Clerk of lower court to Clerk of Supreme Court
It is hereby made the duty of the Court Clerk in all counties, upon receipt from the Clerk of the Supreme Court of any mandate or order of the Supreme Court, to immediately and without any order from the Court, or Judge thereof, to spread said mandate or order of record in the proper court, and to issue and place in the hands of the proper officer appropriate process for carrying out such mandate or order.
That it shall be the duty of any such Court Clerk immediately upon return being made by the officer to whom process is delivered, to thereafter make return to the Clerk of the Supreme Court, showing the date that mandate was received, date filed and recorded, the date process was issued to the officer, and the date the process was served and whether the convicted person was incarcerated. If incarceration of the prisoner is delayed by reason of flight, or for any other cause for a period of more than fifteen (15) days after receipt of mandate, the return, under any such circumstance causing delay, must be immediately made to the Clerk of the Supreme Court; and upon later apprehension of prisoner and incarceration, a further return must be made to the Clerk of the Supreme Court, reporting the facts, within ten (10) days after such incarceration.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>635.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1076. Notice to defendant of his right to appeal-Stay of execution of judgment
The Court shall at the time of entering judgment and sentence notify the defendant of his right to appeal. An appeal from a judgment of conviction stays the execution of the judgment in all cases where sentence of death is imposed, but does not stay the execution of the judgment in any other case unless the trial or appellate Court shall so order.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>619, 629.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1077. Bail allowable
Bail on appeal shall be allowed on appeal from a judgment of conviction of a crime, or in crime cases where the punishment is a fine only, and when made and approved shall stay the execution of such judgment. Bail on appeal after the effective date of this act shall not be allowed after conviction of any of the following offenses:
1. Murder in any degree;
2. Kidnapping for purpose of extortion;
3. Robbery with a dangerous weapon;
4. Rape in any degree;
5. Arson in the first degree;
6. Shooting with intent to kill;
7. Manslaughter in the first degree;
8. Forcible sodomy;
9. Any crime conviction for which the evidence shows that the defendant used or was in possession of a firearm or other dangerous or deadly weapon during the commission of the offense;
10. Trafficking in illegal drugs; or
11. Any other crime after former conviction of a crime.
The granting or refusal of bail after judgment of conviction in all other crime cases shall rest in the discretion of the Court, however, if bail is allowed, the trial Court shall state the reason therefor.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 629, 632.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1078. Amount of bond-Time to make appeal bond-Stay pending appeal-Additional bond
When bail is allowed, the Court shall fix the amount of the appeal bond and the time in which the bond shall be given in order to stay the execution of the judgment pending the filing of the appeal in the appellate Court, and until such bond is made shall hold the defendant in custody. If the bond be given in the time fixed by the Court, the execution of the judgment shall be stayed during the time fixed by law for the filing of the appeal in the appellate Court. If the appeal is filed within the time provided by law, then the bond shall stay the execution of the sentence during the pendency of the appeal, subject to the power of the Court to require a new or additional bond when the same is by the Court deemed necessary. If the bond is not given within the time fixed, or if given and the appeal not be filed in the appellate Court within the time provided by law, the judgment of the Court shall immediately be carried into execution.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604, 629, 632.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1079. Denial of bail-Review by habeas corpus
If bail on appeal be denied, or the amount fixed be excessive, the defendant shall be entitled to a review of the action of the trial Court and its reasons for refusing bail, by habeas corpus proceedings before the appellate Court, or if the Court be not in session, then by some Judge of said Court.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>538, 604, 629, 632, 636.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 19
BAIL
§ 1101. Offenses bailable-Who may take bail
Bail, by sufficient sureties, shall be admitted upon all arrests in criminal cases and in such cases it may be taken by any of the persons or Courts authorized by law to arrest or imprison offenders, or by the Clerk of the District Court or his Deputy, or by the Judge of such Courts.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Bail <KEY>43.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 21, 26 to 32.
§ 1104. Qualifications of bail-Justification
The qualifications of bail are the same as those in civil cases, and the sureties must in all cases justify by affidavits taken before the Magistrate, Court or Judge, or before the Clerk of the District or Superior Court or his Deputy, that they each possess those qualifications.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1105. Defendant discharged on giving bail
Upon the allowance of bail and the execution of the requisite recognizance, bond or undertaking, to the Nation, the Magistrate, Judge or Court, must, if the defendant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer the defendant must be discharged.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1106. Deposit for bail
A deposit of the sum of money mentioned in the order admitting to bail is equivalent to bail and upon such deposit the defendant must be discharged from custody.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Bail <KEY>54.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 2 to 5, 150 to 164.
§ 1107. Arrest of defendant by bail-Commitment of defendant and exoneration of bail
Any party charged with a criminal offense and admitted to bail may be arrested by his bail at any time before they are finally discharged, and at any place within the Nation; or by a written authority endorsed on a certified copy of the recognizance, bond or undertaking, may empower any officer or person of suitable age and discretion, to do so, and he may be surrendered and delivered to the proper Marshal, Sheriff or other officer, before any Court, Judge or Magistrate having the proper jurisdiction in the case; and at the request of such bail the Court, Judge or Magistrate shall recommit the party so arrested to the custody of the Marshal, Sheriff or other officer, and endorse on the cognizance, bond or undertaking, or certified copy thereof, after notice to the Prosecuting Attorney, and if no cause to the contrary appear, the discharge and exoneration of such bail; and the party so committed shall therefrom be held in custody until discharged by due course of law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Bail <KEY>75.3.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 253 to 257.
§ 1108. Forfeiture of bail
If the defendant neglects to appear according to the terms or conditions of the recognizance, bond or undertaking, either for hearing, arraignment, trial or judgment, or upon any other occasion when his presence in court or before the Magistrate may be lawfully required, or to surrender himself in execution of the judgment, the Court must direct the fact to be entered upon its minutes, and the recognizance, bond or undertaking of bail, or the money deposited instead of bail, as the case may be, is and shall be thereupon declared forfeited and forfeiture proceedings shall then proceed as prescribed in 59 O.S. § 1332. If money deposited instead of bail be so forfeited, the Clerk of the Court or other officer with whom it is deposited, must, immediately after the final adjournment of the court, pay over the money deposited to Cherokee Nation.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Procedure prescribed herein not exclusive, see 47 CNCA § 16-113.
Oklahoma Statutes
Forfeiture procedure, see 59 O.S. § 1332.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1109. Additional security may be required
When proof is made to any Court, Judge or other Magistrate having authority to commit on criminal charges, that a person previously admitted to bail on any such charge is about to abscond, or that his bail is insufficient, or has removed from the Nation, the Judge or Magistrate shall require such person to give better security, or for default thereof cause him to be committed to prison; and an order for his arrest may be endorsed on the former commitment, or a new warrant therefore may be issued by such Judge or Magistrate, setting forth the cause thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Bail <KEY>53.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 112 to 123.
§ 1110. Jumping bail-Penalties
Whoever, having been admitted to bail or released on recognizance, bond, or undertaking for appearance before any Magistrate or Court of the State of Oklahoma, incurs a forfeiture of the bail or violates such undertaking or recognizance and willfully fails to surrender himself within five (5) days following the date of such forfeiture shall, if the bail was given or undertaking or recognizance extended in connection with a charge of a crime or pending appeal or certiorari after conviction of any such offense, be guilty of a crime. Nothing in this section shall be construed to interfere with or prevent the exercise by any Court of its power to punish for contempt.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Other criminal violations-Procedure, see 47 CNCA § 16-108.
Library References
Bail <KEY>97(1).
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 124 to 131, 133 to 135.
BAIL BOND PROCEDURE ACT
§ 1115. Short title-Application
Sections 1115 through 1115.5 of this title shall be known and may be cited as the Bail Bond Procedure Act. The provisions of the Bail Bond Procedure Act shall not apply to parking or standing traffic violations.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1115.1. Release on personal recognizance-Arraignment-Plea-Failure to plead or appear
A. In addition to other provisions of law for posting bail, any person, whether a citizen of this Nation or a noncitizen, who is arrested by a law enforcement officer solely for a crime or offense, which if committed under the laws of the State of Oklahoma would constitute a misdemeanor violation, may be released by the arresting officer upon personal recognizance if:
1. The arrested person has been issued a valid license to operate a motor vehicle by Oklahoma, another state jurisdiction within the United States, which is a participant in the Nonresident Violator Compact or any party jurisdiction of the Nonresident Violator Compact;
2. The arresting officer is satisfied as to the identity of the arrested person;
3. The arrested person signs a written promise to appear as provided for on the citation; and
4. The violation does not constitute:
a. a crime which if committed under the laws of the State of Oklahoma would constitute a felony; or
b. negligent homicide; or
c. driving or being in actual physical control of a motor vehicle while impaired or under the influence of alcohol or other intoxicating substances; or
d. eluding or attempting to elude a law enforcement officer; or
e. operating a motor vehicle without having been issued a valid driver's license, or while the license is under suspension, revocation, denial or cancellation; or
f. an arrest based upon an outstanding warrant; or
g. a traffic violation coupled with any offense stated in subparagraphs a through f of this paragraph; or
h. a violation relating to the transportation of hazardous materials.
B. If the arrested person is eligible for release on personal recognizance as provided for in subsection (A) of this section, then the arresting officer shall:
1. designate the charge, crime or offense;
2. record information from the arrested person's driver's license on the citation form, including the name, address, date of birth, personal description, type of driver's license, driver's license number, issuing state, and expiration date;
3. record the motor vehicle make, model and tag information;
4. record the arraignment date and time on the citation; and
5. permit the arrested person to sign a written promise to appear as provided for in the citation.
The arresting officer shall then release the person upon personal recognizance based upon the signed promise to appear. The citation shall contain a written notice to the arrested person that release upon personal recognizance based upon a signed written promise to appear for arraignment is conditional and that failure to timely appear for arraignment shall result in the suspension of the arrested person's driver's license in Oklahoma, or in the nonresident's home state pursuant to the Nonresident Violator Compact.
C. The Court, or the Court Clerk as directed by the Court, may continue or reschedule the date and time of arraignment upon request of the arrested person or his attorney. If the arraignment is continued or rescheduled, the arrested person shall remain on personal recognizance and written promise to appear until such arraignment, in the same manner and with the same consequences as if the continued or rescheduled arraignment was entered on the citation by the arresting officer and signed by the defendant. An arraignment may be continued or rescheduled more than one time; provided however, the Court shall require an arraignment to be had within a reasonable time. It shall remain the duty of the defendant to appear for arraignment unless the citation is satisfied as provided for in subsection (D) of this section.
D. A defendant released upon personal recognizance may elect to enter a plea of guilty or nolo contendere to the violation charged at any time before he is required to appear for arraignment by indicating such plea on the copy of the citation furnished to him or on a legible copy thereof, together with the date of the plea and his signature. The defendant shall be responsible for assuring full payment of the fine and costs to the appropriate Court Clerk. Payment of the fine and costs may be made by personal, cashier's, traveler's, certified or guaranteed bank check, postal or commercial money order, or other form of payment approved by the Court in an amount prescribed as bail for the offense. Provided, however, the defendant shall not use currency for payment by mail. If the defendant has entered a plea of guilty or nolo contendere as provided for in this subsection, such plea shall be accepted by the Court and the amount of the fine and costs shall be prescribed by the Court.
E. 1. If, pursuant to the provisions of subsection (D) of this section, the defendant does not timely elect to enter a plea of guilty or nolo contendere and fails to timely appear for arraignment, the Court may issue a warrant for the arrest of the defendant.
2. The Court Clerk shall not process the notification and request provided for in paragraph 1 of this subsection if, with respect to such charges:
a. the defendant was arraigned, posted bail, paid a fine, was jailed, or otherwise settled the case; or
b. the defendant was not released upon personal recognizance upon a signed written promise to appear as provided for in this section or if released, was not permitted to remain on such personal recognizance for arraignment.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Bail <KEY>43.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 21, 26 to 32.
§ 1115.2. Posting bail after release on personal recognizance for traffic violation-Failure to appear-Person ineligible for release on personal recognizance-Juveniles
A. If a person arrested for a crime or offense is released upon personal recognizance as provided for in 22 CNCA § 1115.1, but subsequently posts bail and thereafter fails to timely appear as provided for by law, the Court may issue a warrant for the person's arrest and the case shall be processed as provided for in 22 CNCA § 1108.
B. If the defendant is not eligible for release upon personal recognizance as provided for in 22 CNCA § 1115.1, or if eligible but refuses to sign a written promise to appear, the officer shall deliver the person to an appropriate Magistrate for arraignment and the Magistrate shall proceed as otherwise provided for by law. If no Magistrate is available, the defendant shall be placed in the custody of the appropriate municipal or county jailor or custodian, to be held until a Magistrate is available or bail is posted as provided for in 22 CNCA § 1115.3 act or as otherwise provided for by law or ordinance.
C. 1. In the event the defendant is additionally arrested for any violation for which personal recognizance is authorized pursuant to 22 CNCA § 1115.1, the arresting officer, for such additional violation, may either release the defendant upon such recognizance or require bail as provided for in this subsection;
2. If the defendant is unable to post bail with the arresting officer, then the officer shall proceed as otherwise provided for in this section.
D. 1. Notwithstanding any other provision of law, a juvenile may be held in custody pursuant to the provisions of this section, but shall be incarcerated separately from any adult offender. Provided however, the arresting officer shall not be required to:
a. place a juvenile into custody as provided for in this section; or
b. place any other offender into custody:
i. who is injured, disabled, or otherwise incapacitated; or
ii. if custodial arrest may require impoundment of a vehicle containing livestock, perishable cargo, or items requiring special maintenance or care; or
iii. if extraordinary circumstances exist, which, in the judgment of the arresting officer, custodial arrest should not be made.
In such cases, the arresting officer may designate the date and time for arraignment on the citation and release the person. If the person fails to appear without good cause shown, the Court may issue a warrant for the person's arrest.
2. The provisions of this subsection shall not be construed to:
a. create any duty on the part of the officer to release a person from custody; or
b. create any duty on the part of the officer to make any inquiry or investigation relating to any condition which may justify release under this subsection; or
c. create any liability upon any officer, or the Nation or any political subdivision thereof, arising from the decision to release or not to release such person from custody pursuant to the provisions of this subsection.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Bail <KEY>75.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 220 to 257.
§ 1115.3. Pre-set bail
A. The Court may prescribe prior to initial appearance the amount of bail for the following Nation offenses except for the major crimes found in 18 U.S.C. § 1152, and for the crimes listed in 22 CNCA § 1115.5.
B. The amount of bail for other offenses shall be the amount of fine and costs including any penalty assessments provided for in the Cherokee Nation Code Annotated.
C. The amount of bail for a Nation wildlife-related or water safety-related offense shall be the amount of fine and costs including any penalty assessment provided for in the Cherokee Nation Code Annotated.
D. The District Court Clerk, unless otherwise directed by the Court, shall accept bail or the payment of a fine and costs in the form of currency or personal, cashier's, traveler's, certified or guaranteed bank check, or postal or commercial money order for the amount prescribed in this section for bail.
E. The District Court Clerk shall accept as bail a guaranteed arrest bond certificate issued by a surety company, an automobile club or trucking association, if:
1. the issuer is authorized to do business in the State of Oklahoma by the State Insurance Commissioner;
2. the certificate is issued to and signed by the arrested person;
3. the certificate contains a printed statement that appearance of such person is guaranteed and the issuer, in the event of failure of such person to appear in Court at the time of trial, will pay any fine or forfeiture imposed; and
4. the limit provided on the certificate equals or exceeds the amount of bail provided for in this section.
History
Source. LA 10-90, eff. November 13, 1990.
Amended. LA 19-06, eff. August 13, 2006.
United States Code
Laws governing, see 18 U.S.C. § 1152.
Library References
Bail <KEY>43.
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 21, 26 to 32.
§ 1115.4. Dishonored check-Bench warrant and arrest of issuer
A personal check or other instrument tendered to a District Court Clerk for bail or for the payment of fine and costs, if dishonored and returned to said Clerk for any reason other than the lack of proper endorsement, shall constitute nonpayment of bail or fine, as the case may be, and the Court, in addition to any civil or criminal remedy otherwise provided for by law, may issue a bench warrant for the arrest of the person named on the citation to require his appearance on the charge specified.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1115.5. Appearance before Magistrate before bail set in certain cases
Any person accused of or detained for any of the following offenses or conditions shall not be eligible for bail until the offender has been brought before a magistrate of the Cherokee Nation Court. The magistrate may prescribe conditions for release of the offender at such time:
1. A person arrested for an offense involving domestic violence such as strikes, shoves, kicks, or strangulation, or who otherwise touches a person or subjects him or her to physical contact, or is charged with a violation of a protection order, may not be admitted to bail until after an appearance before a Magistrate within thirty-six (36) hours of the arrest. Prior to the release of the person, the Magistrate shall review the facts of the arrest to determine whether the person is a threat to the alleged victim, is a threat to public safety, and is reasonably likely to appear in court.
2. Aggravated driving under the influence of an intoxicating substance, 47 CNCA § 11-902;
3. Any offense prohibited by the Oklahoma, federal and tribal Trafficking in Illegal Drug Acts, 21 CNCA § 2414 et seq.;
4. Any person having a violent felony conviction within the last ten (10) years;
5. Appeal bond;
6. Arson in the first degree, including attempts to commit arson in the first degree, 21 CNCA § 1401;
7. Assault and battery on a police officer, 21 CNCA § 649;
8. Bail jumping in any jurisdiction of the United States;
9. Bribery of a public official, 21 CNCA § 380;
10. Burglary in the first or second degree, 21 CNCA § 1431;
11. Distribution of a controlled dangerous substance, including the sale of possession of a controlled dangerous substance with intent to distribute or conspiracy to distribute, 21 CNCA § 2101;
12. Driving under the influence of intoxicating substance where property damage or personal injury occurs, 47 CNCA § 11-904;
13. Any person who engages in reckless conduct while possessing any firearm, 21 CNCA § 1289.11;
14. Sex offenses, 21 CNCA § 881 through 21 CNCA § 1111;
15. Kidnapping, 21 CNCA § 741;
16. Manufacture of a controlled dangerous substance, 21 CNCA § 2401;
17. Persons currently on pretrial release or probation or parole by any agency with proper jurisdiction who are arrested on a new offense;
18. Any person who unlawfully possesses, manufactures, sells, uses or delivers any explosive device, foul, poisonous, offensive, or injurious substance according to 21 CNCA § 1767.1;
19. Possession of a controlled dangerous substance on Schedule I or II of the Controlled Dangerous Substances Act, 21 CNCA § 2401;
20. Possession of a firearm or other offensive weapon during the commission of a crime, 21 CNCA § 1287;
21. Possession of a stolen vehicle;
22. Rape in the first degree, including attempts to commit rape in the first degree, 21 CNCA § 1111;
25. Rape in the second degree, including attempts to commit rape in the second degree, 21 CNCA § 1111;
26. Robbery by force or fear, 21 CNCA § 792;
27. Robbery with a firearm or dangerous weapon, including attempts to commit robbery with a firearm or dangerous weapon, 21 CNCA § 801;
28. Sexual assault or violent offenses against children, 21 CNCA § 852.1;
29. Shooting with intent to kill, 21 CNCA § 652;
30. Stalking or violation of a protective order from any court with proper jurisdiction;
31. Any person having two or more prior felony convictions.
History
Source. LA 19-06, eff. August 13, 2006.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1115.6. Consideration of certain victims' safety prior to release of defendant on bond-Emergency protective, restraining orders and condition of release
A. The Court shall make findings on the record while considering the safety of any and all alleged victims of domestic violence and considers, acts including but not limited to, stalking, harassment, sexual assault, or forcible sodomy where the defendant is alleged to have violated a protective order, committed domestic assault and battery, stalked, sexually assaulted, or forcibly sodomized the alleged victim or victims prior to the release of the alleged defendant from custody on bond. The Court after consideration and to ensure the safety of the alleged victim or victims, may issue an emergency protective order. The Court may also issue to the alleged victim or victims, an order restraining the alleged defendant from any activity or action from which they may be restrained. The protective order shall remain in effect until either a plea has been accepted, sentencing has occurred in the case, the case has been dismissed, or until further order of the Court dismissing the protective order.
B. The conditions of release may include, but need not be limited to, enjoining the person from threatening to commit or committing acts of domestic violence against the alleged victim, prohibiting the person from telephoning, contacting, or otherwise communicating with the alleged victim with the intent to harass, either directly or indirectly; ordering the person to stay away from the home of the alleged victim, when the person and alleged victim are not residents of the same home, and ordering the person to stay away from any other location where the alleged victim is likely to be; prohibiting the person from possessing a firearm or other weapon specified by the court, except when such weapon is necessary for employment as a peace officer or military personnel; and issuing any other or modification of orders above required to protect the safety of the alleged victim or to ensure the appearance of the person in court.
C. If conditions of release are imposed, the Magistrate shall issue a written order for conditional release, immediately distribute a copy of the order to the law enforcement agency having custody and the arrested or charged person, place information pertaining to the order the in the domestic violence protection order registry, and provided the law enforcement agency with any available information concerning the location of the alleged victim in a manner that protects the safety of the victim.
History
Source. LA 19-06, eff. August 13, 2006.
Library References
Bail <KEY>43, 44(2).
Westlaw Topic No. 49.
C.J.S. Bail; Release and Detention Pending Proceedings §§ 7 to 8, 21, 26 to 32, 48 to 49, 52 to 53, 56.
CHAPTER 20
FUGITIVES FROM JUSTICE
§ 1141. Extradition
Cherokee Nation hereby affirmatively surrenders any person charged with a crime or offense in another jurisdiction, regardless of their status as Indian, who may be found in Indian Country subject to the jurisdiction of Cherokee Nation. Cherokee Nation consents to duly appointed law enforcement officers of the State of Oklahoma or its political subdivisions to enter in Indian Country to execute criminal warrants of the State of Oklahoma or its political subdivisions or Governor Warrants from other states or jurisdictions who have adopted the Uniform Criminal Extradition Act, 22 O.S. § 1141.1 et seq.
History
Source. LA 10-90, eff. November 13, 1990.
CHAPTER 21
HABEAS CORPUS
§ 1151. Habeas corpus for person to testify or be surrendered on bail
The Supreme Court and District Courts within this Nation, or the Judges thereof in vacation, shall have power to issue writs of habeas corpus, for the purpose of bringing the body of any person confined in any penal institution before them, to testify or be surrendered in discharge of bail. When a writ of habeas corpus shall be issued for the purpose of bringing into court any person to testify, or the principal, to be surrendered in discharge of bail, and such principal or witness, shall be confined in any prison in this Nation, in which such principal or witness is required to be surrendered, in this Nation, and there be executed and returned by any officer to whom it shall be directed, and the principal, after being surrendered, or his bail discharged, or a person testifying as aforesaid, shall by the officer executing such writ, be returned by virtue of an order of the Court, for the purpose aforesaid, an attested copy of which, lodged with the custodian, shall exonerate such prison keeper from being liable for an escape. The party praying out such writ of habeas corpus shall pay to the officer executing the same, such reasonable sum for his services as shall be adjudged by the Courts respectively.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>538.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
CHAPTER 22
INSANITY OF ACCUSED
§ 1161. Acts of insane person not punishable-Acquittal on ground of insanity-Discharge procedure
An act committed by a person in a state of insanity cannot be punished as a public offense, nor can said person be tried, sentenced to punishment, or punished for a public offense while he is insane. When in any criminal action by indictment or information the defense of insanity is interposed either singly or in conjunction with some other defense, the jury shall state in the verdict, if it is one of acquittal, whether or not the defendant is acquitted on the ground of insanity. When the defendant is acquitted on the ground that he was insane at the time of the commission of the crime charged, said person shall not be discharged from custody until the Court has made a determination that said person is not presently mentally ill and dangerous to the public peace or safety.
To assist the Court in its determination, the Court shall immediately issue an examination order and specify the hospital for the mentally ill in which the said person is to be hospitalized. Upon the issuance of the order, the Marshal or Sheriff shall deliver the said person to the designated hospital for the mentally ill where the said person shall remain hospitalized for a period of not less than thirty (30) days. Within forty-five (45) days of said hospitalization, a hearing shall be conducted by the Court to ascertain whether the said person is presently mentally ill and dangerous to the public peace or safety. During the required period of hospitalization the Oklahoma Department of Mental Health or the hospital shall have the said person examined by two qualified psychiatrists or one such psychiatrist and one qualified clinical psychologist. Each examiner shall individually prepare and submit to the Court, the Prosecuting Attorney and Trial Counsel a report of his findings and an evaluation concerning whether the said person is presently mentally ill and dangerous to the public peace and safety. If the Court is unsatisfied with the psychiatric reports or if a disagreement on the issue of present mental illness and dangerousness exists between the two examiners, the Court may designate one or more additional psychiatrists and have them submit their findings and evaluations as specified above.
Within ten (10) days after the psychiatric reports are filed, the Court must conduct a hearing to determine the said person's present condition as to the issue of whether he is presently mentally ill and dangerous to the public peace or safety. The Prosecuting Attorney must establish by a preponderance of the evidence that the defendant is presently mentally ill and dangerous to the public peace or safety. At this hearing the said person shall have the assistance of counsel and may present independent evidence as to the issue of whether he is presently mentally ill and dangerous to the public peace or safety. If the Court finds that the said person is not presently mentally ill and dangerous to the public peace or safety, it shall immediately discharge the said person from hospitalization. If the Court finds that the said person is presently mentally ill and dangerous to the public peace or safety, it shall commit the said person to the custody of Cherokee Nation or the Oklahoma Department of Mental Health. The said person shall then be subject to discharge pursuant to the procedure set forth in the Oklahoma Mental Health Law, 43A O.S. § 1-101 et seq.
During the period of hospitalization Cherokee Nation or the Oklahoma Department of Mental Health may administer or cause to be administered to the said person such psychiatric, medical or other therapeutic treatment as in its judgment should be administered.
During the period of hospitalization the Superintendent shall submit an annual report on the status of the said person to the Court, the Prosecuting Attorney and the patient's advocate of the hospital in which the said person is hospitalized. Not less than twenty (20) days prior to the scheduled release of the said person the Superintendent of the hospital for the mentally ill must deliver a written notice of the proposed discharge to the Court, the Prosecuting Attorney and the patient's advocate of the said hospital. Upon motion by the Prosecuting Attorney a second hearing shall be conducted by the Court to ascertain if the said person is mentally ill and dangerous to the public peace or safety. This hearing shall be conducted under the same procedure as the first hearing and must occur not less than ten (10) days before the scheduled release. If the Court determines that the said person continues to be mentally ill and dangerous to the public peace or safety, it shall return the said person to the hospital for additional treatment. Additional hearings may be conducted upon motion by the Prosecuting Attorney under the same provisions as described in this section.
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Mental Health Law of 1986, see 43A O.S. § 1-101 et seq.
Library References
Criminal Law <KEY>47.
Mental Health <KEY>434, 436.
Westlaw Topic Nos. 110, 257A.
C.J.S. Criminal Law §§ 132 to 141, 780 to 795.
C.J.S. Mental Health §§ 269, 272 to 277, 283.
§ 1162. Jury to try sanity
When an information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the Court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the Court, to inquire into the fact.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>651.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1163. Sanity hearing-Criminal trial to be suspended
The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1164. Order of trial of sanity
The trial of the question of insanity must proceed in the following order:
1. The Counsel for the defendant must open the case and offer evidence in support of the allegation of insanity;
2. The Counsel for the Nation may then open their case and offer evidence in support thereof;
3. The parties may then respectively offer rebutting testimony only, unless the Court, for good reason, in furtherance of justice permit them to offer evidence upon their original case;
4. When the evidence is concluded, unless the case be submitted to the jury on either side or on both sides, without argument, the Counsel for the Nation must commence, and the defendant or his Counsel may conclude the argument to the jury;
5. The Court must then charge the jury before argument as in other cases.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1165. Rules governing sanity trial
The provisions of the chapter on trials, in respect to the duty of the Court upon questions of law, and of the jury upon questions of fact, and the provisions in respect to the charge of the Court to the jury, upon the trial of an information, apply to the questions of insanity.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1166. Sanity hearing-Trial or judgment to proceed if defendant sane
If the jury find the defendant sane, the trial of the information must proceed, or judgment may be pronounced as the case may be.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1167. Finding of insanity-Suspension of trial or judgment-Commitment to Nation hospital
If the jury finds the defendant presently insane, the trial or judgment must be suspended until he becomes sane, and if the jury deem his discharge dangerous to the public peace or safety, the Court shall order that the defendant be committed to one of the hospitals for the mentally ill, and to be held therein and kept as a patient and inmate until he be discharged and released as presently sane by the authority of the Superintendent of said hospital. A release by the Superintendent of said hospital shall be to the custody of the Marshal or Sheriff of the jurisdiction which the criminal case theretofore suspended is or was pending and from which he was committed. The Court having jurisdiction thereof shall set the cause for trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1168. Commitment in sanity hearing exonerates bail
The commitment of the defendant as mentioned in the last section, exonerates his bail, or entitles the person authorized to receive the property of the defendant to the return of money he may have deposited instead of bail.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1169. Restoration to sanity
When the defendant becomes sane the Marshal or Sheriff must thereupon, without delay, place him in the proper custody until he be brought to trial or judgment, as the case may be, or be legally discharged.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Mental Health <KEY>438.
Westlaw Topic No. 257A.
C.J.S. Mental Health §§ 272 to 273, 276 to 277.
DETERMINATION OF COMPETENCY-PROCEDURE
§ 1175.1. Definitions
As used in this act:
1. "Competent" or "competency" means the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him, and is able to effectively and rationally assist in his defense. A person may be incompetent due to physical disability;
2. "Criminal proceeding" means every stage of a criminal prosecution after arrest and before judgment, including, but not limited to, interrogation, line up, preliminary hearing, motion dockets, discovery, pretrial hearings and trial;
3. "Doctor" means any physician, psychiatrist, psychologist or equivalent expert;
4. "Incompetent" or "incompetency" means any person who is not presently competent;
5. "Physical disability" means deafness, muteness, blindness or some combination thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Mental Health <KEY>432.
Westlaw Topic No. 257A.
C.J.S. Criminal Law §§ 777 to 791.
§ 1175.2. Application for determination of competency-Service-Notice-Suspension of criminal proceedings
A. No person shall be subject to any criminal procedures after he is determined to be incompetent except as provided in 22 CNCA §§ 1175.1 through 1175.8. The question of the incompetency of a person may be raised by the person, the Defense Attorney, or the Prosecuting Attorney, by an application for determination of competency. The application for determination of competency shall allege that the person is incompetent to undergo further proceedings, and shall state facts sufficient to raise a doubt as to the competency of the person. The Court, at any time, may initiate a competency determination on its own motion, without an application, if the Court has a doubt as to the competency of the person.
If the Court so initiates such an application, it may appoint the Prosecuting Attorney for the purpose of proceeding with the application. If the Prosecuting Attorney opposes the application of the Court, and by reason of a conflict of interest could not represent the Court as applicant, then the Court shall appoint private Counsel. Said private Counsel shall be reasonably compensated by the Court Fund.
B. A copy of the application for determination of competency and a notice, as hereinafter described, shall be served personally at least one (1) day before the first hearing on the application for a competency determination. The notice shall contain the following information:
1. The definition provided by 22 CNCA § 1175.1 of competency and incompetency;
2. That, upon request, the hearing on the application may be conducted as a jury trial as provided in 22 CNCA § 1175.4;
3. That the petitioner and any witnesses identified in the application may offer testimony under oath at the hearings on the petition and that the defendant may not be called to testify against his will, unless the application is initiated by the defendant;
4. That if the person whose competency is in question does not have an attorney, the Court will appoint an attorney for the person who shall represent him until final disposition of the case;
5. That if the person whose competency is in question is indigent or poor, the Court will pay the attorney fees; and
6. That the person whose competency is in question shall be afforded such other rights as are guaranteed by Nation and federal law and that such rights include a trial by jury, if demanded. The notice shall be served upon the person whose competency is in question, upon his father, mother, husband, or wife or, in their absence, someone of the next of kin, of full age, if any said persons are known to be residing within the county, and upon any of said relatives residing outside of the county, and within the state, as may be ordered by the Court, and also upon the person with whom the person whose competency is in question may reside, or at whose house he may be. The person making such service shall make affidavit of the same and file such notice, with proof of service, with the District Court. This notice may be served in any part of this Nation.
C. Any criminal proceedings against a person whose competency is in question shall be suspended pending the determination of the competency of the person.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1175.3. Hearing-Date-Evidence-Orders-Examination of accused-Instructions to physician
A. Upon filing of an application for determination of competency, the Court shall set a hearing date, which shall be as soon as practicable, but at least one (1) day after service of notice as provided by 22 CNCA § 1175.2.
B. The Court shall hold a hearing on the date provided. At the hearing, the Court shall examine the application for determination of competency to determine if it alleges facts sufficient to raise a doubt as to the competency of the person. Any additional evidence tending to create a doubt as to the competency of the person may be presented at this hearing.
C. If the Court finds there is no doubt as to the competency of the person, it shall order the criminal proceedings to resume.
D. If the Court finds there is a doubt as to the competency of the person, it shall order the person to be examined by doctors or appropriate technicians. The doctors or technicians shall be practitioners in the appropriate branch of medicine relevant to the alleged incompetency of the person. The person may be examined on an outpatient or inpatient basis, as ordered by the Court. The Court may commit the person to the custody of Cherokee Nation or the Oklahoma Department of Mental Health and Substance Abuse Services or any other state agency or private facility for the examination provided by this act. The person shall be required to undergo examination for a period of time sufficient for the doctor or doctors or technicians to reach a conclusion as to competency, and the Court shall impose a reasonable time limitation for such period of examination. If the Court determines that the person whose competency is in question may be a threat to the safety of himself or others, it shall order the person retained in a secure facility until the completion of the competency hearing provided in 22 CNCA § 1175.4.
E. The doctor or doctors shall receive instructions that they shall examine the patient to determine:
1. Is this person able to appreciate the nature of the charges against him?
2. Is this person able to consult with his lawyer and rationally assist in the preparation of his defense?
3. If the answer to question 1 or 2 is no, can the person attain competency within a reasonable time if provided with a course of treatment, therapy or training?
4. Is the person a mentally ill person or a person requiring treatment as defined by 43A O.S. § 1-103?
5. If the person were released without treatment, therapy or training, would he probably pose a significant threat to the life or safety of himself or others?
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Mental Health Law of 1986, definitions, see 43A O.S. § 1-103.
Library References
Indians <KEY>607.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1175.4. Post-examination competency hearing-Evidence-Presumptions-Jury trial-Presence of accused-Witnesses-Instructions
A. After the doctor, doctors or technicians have made the determination required in 22 CNCA § 1175.3, a hearing on the competency of the person shall be held.
B. The Court, at the hearing on the application, shall determine, by clear and convincing evidence, if the person is incompetent. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence. If the Court deems it necessary, or if the person alleged to be a person requiring treatment, or any relative, friend, or any person with whom he may reside, or at whose house he may be, shall so demand, the court shall schedule the hearing on the application as a jury trial to be held within seventy-two (72) hours of the request, excluding weekends and legal holidays, or within as much additional time as is requested by the attorney of the person whose competency is in question, upon good cause shown. The jury shall be composed of six (6) persons having the qualifications required of jurors in courts of record, summoned to determine the questions of the person's competency and need for treatment. Whenever a jury is required, the Court shall proceed to the selection of such jury in the manner as provided by law and such jury shall determine the questions of the competency and need for treatment of the person whose competency is in question. The jurors shall receive fees for attendance and mileage as are allowed by law.
C. The person whose competency is in question shall have the right to be present at the hearing on the petition unless it is made to appear to the Court that the presence of the person makes it impossible to conduct the hearing in a reasonable manner. The Court may not decide in advance of the hearing, solely on the basis of the certificate of the examining doctor or doctors, that the person whose competency is in question should not be allowed to appear. It shall be made to appear to the Court based on clear and convincing evidence that alternatives to exclusion were attempted before the Court renders his removal for that purpose or his appearance at such hearing improper and unsafe.
D. All witnesses shall be subject to cross-examination in the same manner as is provided by law. No statement, admission or confession made by the person whose competency is in question obtained during his examination for competency may be used for any purpose except for proceedings under this act. No such statement, admission or confession may be used against such person in any criminal action whether pending at the time the hearing is held or filed against such person at any later time, directly, indirectly or in any manner or form, except that if such person is found to be competent at the time of his examination hearing, any such statement made by him may be used for purposes of impeachment.
E. If the question of competency is submitted to a jury, the Court shall instruct the jury as to the law regarding competency, and the findings they are to make. If the trial of the question is to the Court, the Court shall make the required findings.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607, 651.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1175.5. Questions to be answered in determining competency
The jury or the Court, as the case may be, shall answer the following questions in determining the disposition of the person whose competency is in question:
1. Is the person incompetent to undergo further criminal proceedings at this time? If the answer is no, criminal proceedings shall be resumed. If the answer is yes, the following question shall be answered.
2. Can the incompetency of the person be corrected within a reasonable period of time, as defined by the Court, by treatment, therapy or training? If the answer is yes, the Court shall make the appropriate order. If the answer is no, the following questions shall be answered.
3. Is the person mentally ill, mentally retarded or a person requiring treatment as defined by 43A O.S. § 1-103?
4. Is the person a threat to the safety of himself or others if released?
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Mental Health Law of 1986, definitions, see 43A O.S. § 1-103.
Library References
Mental Health <KEY>432.
Westlaw Topic No. 257A.
C.J.S. Criminal Law §§ 777 to 791.
§ 1175.6. Disposition orders
A. Upon the finding by the jury or the Court as provided by 22 CNCA § 1175.5, the court shall issue the appropriate order regarding the person:
1. If the person is found to be competent, the criminal proceedings shall be resumed;
2. If the person is found to be incompetent, but capable of achieving competence with treatment, therapy, or training, the Court shall remand the person to Cherokee Nation, the Oklahoma Department of Mental Health and Substance Abuse Services, the Oklahoma Department of Human Services, other appropriate state agencies or a private care provider for appropriate treatment, therapy, or training;
3. If the person is found to be incompetent and not capable of achieving competency within a reasonable period of time, and a person requiring treatment as defined by 43A O.S., then the Court shall order treatment as if there had been a finding pursuant to 43A O.S. that the defendant was a mentally ill person requiring treatment, without any further proceedings, and shall suspend the criminal proceeding. Cherokee Nation, the Department of Mental Health and Substance Abuse Services or other agency providing treatment to the person or the institution wherein the person is confined or treated shall make periodic reports to the Court as to the competency of the defendant. If the agency or institution reports that the person appears to have achieved competency, the Court shall hold another competency hearing to determine if the person has achieved competency. If competency has been achieved, the criminal proceeding shall be resumed; and
4. If the person is found to be incompetent, and not capable of achieving competency within a reasonable period of time, but is not a person requiring treatment as defined by 43A O.S. and is not a threat to himself or society, the Court shall remand the person to Cherokee Nation or the Oklahoma Department of Human Services for assistance, subject to assistance from any other appropriate state agencies and shall suspend the criminal proceedings. Cherokee Nation or the Oklahoma Department of Human Services shall make periodic reports to the Court as to the status and activities of the person. If Cherokee Nation or the Oklahoma Department of Human Services reports that the person appears to have achieved competency, the Court shall hold another competency hearing to determine if the person has achieved competency. If competency has been achieved, the criminal proceeding shall be resumed.
B. Any person arrested and charged with a violent criminal offense, who is found to be incompetent by the Court and ordered into the custody of Cherokee Nation or the Oklahoma Department of Mental Health and Substance Abuse Services pursuant to paragraphs 2 or 3 of subsection (A) of this section, shall be placed in a maximum security ward of the mental health facility designated by Cherokee Nation or the Oklahoma Department of Mental Health and Substance Abuse Services until such time as said person is adjudicated to be competent or is adjudicated no longer determined to be a threat to any other person.
History
Source. LA 10-90, eff. November 13, 1990.
Oklahoma Statutes
Mental Health Law of 1986, see 43A O.S. § 1-101 et seq.
Library References
Indians <KEY>607.
Mental Health <KEY>436.1.
Westlaw Topic Nos. 209, 257A.
C.J.S. Indians §§ 151 to 179.
C.J.S. Mental Health §§ 272 to 273.
§ 1175.7. Persons incompetent but capable of achieving competency within reasonable time-Treatment order-Medical supervisor-Commitment-Private treatment
A. If the person is found incompetent, but capable of achieving competency within a reasonable period of time, as defined by the Court, the Court shall order such person to undergo such treatment, therapy or training which is calculated to allow the person to achieve competence.
B. The Court shall appoint a medical supervisor for a course of treatment. The medical supervisor of treatment may be any person or agency that agrees to supervise the course of treatment. The proposed treatment may be either inpatient or outpatient care depending on the facilities and resources available to the Court and the type of disability sought to be corrected by the Court's order. The Court may require the supervisor to provide periodic progress reports to the Court and may pay for the services of the medical supervisor from Court funds.
C. The Court may commit the incompetent person to the custody of the Department of Mental Health or other appropriate nation agency, if the Court, after the hearing provided in 22 CNCA § 1175.4, determines that such commitment is necessary for the effective administration of the treatment ordered, or if the Court determines that the defendant is dangerous to himself or society.
D. The Court may allow the person to receive treatment from private facilities if such facilities are willing, and neither the Nation nor the Court Fund is required to directly pay for such care.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Mental Health <KEY>436.1.
Westlaw Topic No. 257A.
C.J.S. Mental Health §§ 272 to 273.
§ 1175.8. Resumption of competency
If the medical supervisor reports that the person appears to have achieved competency after a finding of incompetency, the Court shall hold another competency hearing to determine if the person has achieved competency. If competency has been achieved, the criminal proceedings shall be resumed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>607.
Mental Health <KEY>434.
Westlaw Topic Nos. 209, 257A.
C.J.S. Criminal Law §§ 780 to 795.
C.J.S. Indians §§ 151 to 179.
C.J.S. Mental Health § 269.
§ 1176. Raising issue of mental illness or insanity at time of offense
A. If the defendant intends to raise the question of mental illness or insanity at the time of the offense, the defendant shall file an application with the Court at least twenty (20) days before trial. The procedure to be followed for review of such an application will be the same as provided in 22 CNCA § 1175.3.
B. If the Court finds that the defendant's sanity at the time of the offense is to be a significant factor in his defense at trial and that the defendant is financially unable to obtain the services of a psychiatrist, the Court shall provide the defendant with access to a psychiatrist by authorizing Counsel to obtain the services of a psychiatrist to conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. Compensation for such services shall be paid from the Nation Judicial Fund as provided in 22 CNCA § 464(B).
History
Source. LA 10-90, eff. November 13, 1990.
CHAPTER 24
SEARCHES AND SEIZURES
GENERAL PROVISIONS
§ 1221. Search warrant defined
A search warrant is an order in writing, in the name of the Nation, signed by a Magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the Magistrate.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>101.
Westlaw Topic No. 349.
C.J.S. Aliens § 318.
C.J.S. Searches and Seizures §§ 172 to 176, 199.
§ 1222. Grounds for issuance of search warrant-Seizure of property
A search warrant may be issued and property seized upon any of the following grounds:
First: When the property was stolen or embezzled, in which case it may be taken on the warrant, from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be.
Second: When it was used as the means of committing a crime, in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or of any other person in whose possession it may be.
Third: When it is in the possession of any person, with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered, in which case it may be taken on the warrant from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it.
Fourth: When the property constitutes evidence that an offense was committed or that a particular person participated in the commission of an offense.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>114.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 209 to 210.
§ 1223. Probable cause must be shown
A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>113.1.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 198 to 205, 209 to 210.
§ 1223.1. Electronically recorded oral statement-Transcription
A Magistrate may take an oral statement under oath which shall at that time be recorded electronically and thereafter transcribed by an official Court Reporter. The original recording and transcription thereof shall become a part of and kept with the official records of the case. The transcribed statement shall be deemed to be an affidavit for the purposes of this section and 22 CNCA § 1223.
In such cases, the Magistrate and the official Court Reporter shall sign the transcription of the recording of the sworn statement. Thereafter, the transcript shall be filed with the Clerk of the District Court along with the original recording.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>104, 105.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 182 to 186, 188 to 193, 199 to 200, 203 to205.
§ 1224.1. Oral testimony supplemental to affidavit
Before issuing a search warrant the Judge may take oral testimony, sworn to under oath, supplemental to any affidavits. Provided, however, that such oral testimony shall be recorded, such record transcribed forthwith, and filed with the affidavits to support the search warrant.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1224.2. Filing and indexing of documents
In the event the search warrant is executed, then the search warrant, affidavit for search warrant, and transcript of oral testimony, if any, shall be filed with the Clerk of the District Court, and shall be indexed by the Clerk in alphabetical order. Upon a criminal prosecution being filed, said document shall be filed in said case.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1225. Requisites of search warrant-Issuing Magistrate
A. If a Magistrate be thereupon satisfied of the existence of grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, with his name of office, to a peace officer of this Nation or cross-deputized state law enforcement officer, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the Magistrate, and also to arrest the person in whose possession the same may be found, to be dealt with according to law.
B. The Magistrate may orally authorize a peace officer to sign the name of the Magistrate on a copy made to conform with the original warrant if the peace officer applying for the warrant is not in the actual physical presence of the Magistrate. Such copy shall be deemed to be a search warrant for the purposes of this act and it shall be returned to the Magistrate as provided for in 22 CNCA § 1233. In such cases, the Magistrate shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant and the copy made to conform with the original warrant with the Clerk of the District Court as provided for in 22 CNCA § 1224.2.
C. A search warrant authorized by this section may be issued by any Magistrate for a search of a person or property within the judicial district in which the Magistrate presides or outside the judicial district if there was probable cause to believe the property was within the judicial district when the warrant was sought, but moved outside the judicial district before the warrant was executed.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>109, 113, 123.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 173 to 174, 187, 198 to 205, 209 to 210, 225 to 243.
§ 1226. Form of search warrant
The warrant must be in substantially the following form:
In the District Court of Cherokee Nation
In the name of Cherokee Nation. To any peace officer of this Nation or duly cross-deputized state law enforcement officer.
Probable cause having been shown on this date before me, by (name every officer and person who has made affidavit or given oral testimony supplementing an affidavit) for believing the following property (describe the property) is located at (specify the location where the property is shown to be).
You are therefore commanded, in the daytime (or "at any time of the day or night,") as the case may be, according to 22 CNCA § 1230, as amended, to make immediate search on the person of C.D. (or "in the house situated," describing it, or any other place to be searched, with reasonable particularity, as the case may be), for the following property (describing it with reasonable particularity), and if you find the same, or any part thereof to bring it forthwith before me, at (stating the place) or before a Magistrate who presides in the judicial district in which the property was found and seized.
Dated at ____ the ____ day of ____, 20 ____.
____________________
(Signature of Judge)
____________________
(Judge's Official Designation)
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>123.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 173 to 174, 204 to 205, 225 to 243.
§ 1227. Service of search warrant
A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>142.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 248 to 249.
§ 1228. Execution of search warrant
A peace officer may break open an outer or inner door or window of a house, or any part of the house, or anything therein, to execute the warrant when:
1. The officer has been refused admittance after having first given notice of his authority and purpose; or
2. Pursuant to an instruction inserted in the search warrant by the Magistrate that no warning or other notice of entry is necessary because there is probable cause to believe that such warning or other notice would pose a significant danger to human life.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>143.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 77 to 78, 256 to 262.
§ 1229. Execution of search warrant-Liberating person detained
He may break open any outer or inner door or window of a house for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1230. Search warrant may be served, when
Search warrants shall be served during the hours of six o'clock a.m. to ten o'clock p.m., inclusive, unless the affidavits be positive that the property is on the person, or in the place to be searched and the Judge finds that there is likelihood that the property named in the search warrant will be destroyed, moved or concealed. In which case the Judge may insert a direction that it be served at any time of the day or night.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>145.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 252, 255, 263 to 266.
§ 1231. Search warrant void after ten days
A search warrant must be executed and returned to the Magistrate by whom it is issued within ten (10) days. After the expiration of these times respectively, the warrant, unless executed, is void.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>145.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 252, 255, 263 to 266.
§ 1232. Disposition of property recovered
When the property is delivered to the Magistrate, he must, if it was stolen or embezzled, deliver it to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the Magistrate. If it were taken on a warrant issued on the grounds stated in the second and third subdivisions of 22 CNCA § 1222, he must retain it in his possession, subject to the order of the Court to which he is required to return the proceedings before him, or of any other court in which the offense, in respect to which the property was taken, is triable.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>150.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 274 to 275.
§ 1233. Return of search warrant
Any peace officer who executes a search warrant must forthwith return the warrant to the Magistrate who authorized the warrant or to a Magistrate who presides in the judicial district in which the property was found and seized together with a written inventory of the property taken, which shall be made publicly, or in the presence of the person from whose possession it was taken and of the applicant for the warrant, if they be present, verified by the affidavit of the officer, and taken before the Magistrate, to the following effect:
I, A.B., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>150.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 274 to 275.
§ 1234. Inventory to be furnished, when
The Magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>150.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 274 to 275.
§ 1235. Hearing on issuance of warrant
If the grounds on which the warrant was issued be controverted, the Magistrate must proceed to take testimony in relation thereto.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>109.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 187, 199.
§ 1236. Testimony on hearing for warrant
The testimony given by each witness must be reduced to writing and authenticated.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>109, 115.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 187, 199, 208, 211 to 221.
§ 1237. Restoration of property to person searched
If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the Magistrate must cause it to be restored to the person from whom it was taken.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>150.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 274 to 275.
§ 1238. Papers returned to District Court
The Magistrate must annex together the depositions, the search warrant and return, and the inventory, and then return them to the District Court.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1239. Procuring search warrant without cause
A person who maliciously and without probable cause procures a search warrant to be issued and executed is guilty of a crime.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1240. Officer exceeding his authority
A peace officer in executing a search warrant, who willfully exceeds his authority, or exercises it with unnecessary severity, is guilty of a crime.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>147.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 253, 267 to 273.
§ 1241. Search of defendant for weapons or evidence
When a person charged with a crime is supposed by the Magistrate before whom he is brought to have upon his person a dangerous weapon or anything which may be used as evidence of the commission of the offense, the Magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order or the order of the Court in which the defendant may be tried.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>147.1.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 253, 267, 272.
LIQUORS AND GAMBLING PARAPHERNALIA
§ 1261. Seized property-Report and disposition
In all cases where contraband mentioned in laws of this Nation or any personal property used for the purpose of violating any of the prohibitory liquor laws or gambling laws of this Nation, shall be seized by any officer or person with or without a search warrant, such officer or person is hereby required within five (5) days to make a written report under oath and file the same with the Court Clerk, which report shall in detail state the name of the officer or person making the seizure, the place where seized and an inventory of the property, articles or intoxicating liquors so taken into possession, and within said five (5) days said person is hereby required to deliver the same to the Sheriff of the county and take the Sheriff's receipt therefore, in duplicate and such sheriff shall retain the same and all thereof, until the same shall be destroyed pursuant to the orders of the Court. In computing the time, five (5) days, Sundays and holidays shall be excluded and not counted. A duplicate copy of said receipt shall immediately be filed with said Court Clerk, who shall keep a record of same, provided the Marshal or Sheriff and his Deputies shall be required to make the affidavit and issue the receipt and otherwise comply with the provisions of this act. Provided, that all liquors so seized shall be preserved for use as evidence in the trial of any action growing out of such seizure and all officers seizing any such liquors are hereby required to mark the bottles or containers for identification by writing thereon the date of the seizure and the name of the person from whom seized. The Marshal or Sheriff shall be liable on his bond for the safekeeping of all such property so turned over to him under the provisions of this act.
History
Source. LA 10-90, eff. November 13, 1990.
Cross References
Betting or letting premises for betting on races, see 21 CNCA § 991.
CHAPTER 25
MISCELLANEOUS PROVISIONS
IN GENERAL
§ 1271. Compensation of Counsel assigned defendant
In all criminal cases triable in Cherokee Nation, where it is satisfactorily shown to the Court that the defendant has no means and is unable to employ Counsel, the Court shall, in all such cases, where Counsel is appointed and assigned for defense, allow and direct to be paid by the Nation in which such trial is had, out of the Court Fund of said Nation, a reasonable and just compensation to the attorney or attorneys so assigned for such services as they may render, such compensation being allowable in any court of record. The attorney shall not be paid a sum to exceed Five Hundred Dollars ($500.00) in any one case, the specific amount to be left to the discretion of the Presiding Judge. In any Court in which a Public Defender is regularly employed, the Court shall appoint such Public Defender to act as counsel for the defendant. If two or more indigent defendants are charged conjointly, and the Public Defender cannot justly defend both, the Court may appoint and compensate Counsel as provided above.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>662.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1272. Affidavits or depositions need not be entitled
It is not necessary to entitle an affidavit, or deposition in the action, whether taken before or after indictment; but if made without a title, or with an erroneous title, it is as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refer to the proceedings, in which it is made.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1273. Informalities or errors not fatal if not prejudicial
Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>634.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1275. Clerk to keep record of indictments, informations and bonds
The Clerk of the District Court shall keep a record in which all informations and bonds shall be entered and certified as true and correct copies of all original informations and bonds filed in his office, and whenever any such original indictment, information or bond filed with the clerk becomes either lost, destroyed or stolen, or for any other reason cannot be produced at the trial, a certified copy of the aforesaid record of such original information or bond shall be competent evidence and shall have the same validity and effect as the original thereof.
History
Source. LA 10-90, eff. November 13, 1990.
§ 1276. Record of informations and bonds not public
The record provided for in the preceding section shall be kept by the Clerk as a private record and to be made public only in case the original information or bond becomes lost, stolen or cannot be found.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Records <KEY>32.
Westlaw Topic No. 326.
C.J.S. Bankruptcy §§ 830 to 834.
C.J.S. Records §§ 80, 82 to 90.
§ 1278. Interpreters for deaf mutes-Appointment-Oath-Compensation
A. In all criminal prosecutions, where the accused is a deaf mute, he shall have all of the proceedings of the trial interpreted to him in a language that he can understand by a qualified interpreter appointed by the Court from a list of names submitted by the Oklahoma Association of the Deaf.
B. In all cases where the mental condition of a person is being considered and where such person may be committed to a mental institution, and where such person is a deaf mute, all of the court proceedings, pertaining to him, shall be interpreted to him in a language that he understands by a qualified interpreter appointed by the Court.
C. Interpreters who shall be appointed under the terms of this act shall be required to take an oath that they will make a true interpretation to the person accused or being examined, which person is a deaf mute, of all the proceedings of his case in a language that he understands; and that he will repeat said deaf mute's answers to questions to Council, Court, or jury, in the English language, in his best skill and judgment.
D. Interpreters appointed under the terms of this act shall be paid for their services a sum to be determined by the Court.
History
Source. LA 10-90, eff. November 13, 1990.
CRIMINAL PROCEEDINGS AGAINST CORPORATIONS
§ 1301. Information against corporation-Summons
Upon an information against a corporation, the Magistrate may issue a summons signed by him, with his name of office, requiring the corporation to appear before him at a specified time and place to answer the charge; the time to be not less than ten (10) days after the issuing of the summons.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>603.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1302. Form of summons
The summons must be in substantially the following form:
IN THE DISTRICT COURT OF CHEROKEE NATION
To the (naming the corporation):
You are hereby summoned to appear before me at (naming the place), on (specifying the day and hour), to answer to the charge made against you, upon the information of A. B., for (designating the offense generally.)
Dated at the city, or town, of .., the .. day of .. 20 ..
G .. H ..
Judge of District Court (as the case may be.)
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1303. Service of summons
The summons must be served at least five (5) days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president, or other head of the corporation, or to the secretary, cashier or managing agent thereof.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1307. Appearance and plea by corporation
If an information be filed, the corporation may appear by counsel to answer the same. If they do not thus appear, a plea of not guilty must be entered, and the same proceedings had thereon as in other cases.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>604.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
§ 1308. Conviction of corporation-Fine collected, how
When a fine is imposed upon a corporation, on conviction it may be collected, by virtue of the order imposing it, by the Marshal, out of their real and personal property, in the same manner as upon an execution.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>623.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.
STOLEN PROPERTY AND PROPERTY TAKEN FROM DEFENDANT
§ 1321. Custody and return of stolen or embezzled property
A. It is the intent of the Council that any stolen or embezzled money or property held in custody of the Nation, state or subdivision in any criminal action or proceeding be returned to its lawful owner without unnecessary delay.
B. If the property coming into the custody of a Nation, state, municipal, county or state peace officer is not alleged to have been stolen or embezzled, the peace officer may return such property to the owner upon satisfactory proof of ownership. The notice and hearing provisions of this section shall not be required for return of the property specified in this section if there is no dispute concerning the ownership of such property, except that within fifteen (15) days of the time the owner of such property is known, the peace officer shall notify the owner of such property that the property is in the custody of the peace officer. The property shall be returned to the owner upon request.
C. When property alleged to have been stolen or embezzled, comes into the custody of a peace officer, he shall hold it subject to the order of the Magistrate authorized by 22 CNCA § 1322 to direct the disposal thereof. Within fifteen (15) days of the time the owner of such property is known, the peace officer shall notify the owner of such property that the property is in the custody of the peace officer. Such officer may provide a copy of a nonownership affidavit to the defendant to sign if such defendant is not claiming ownership of the money or property taken from the defendant and if such defendant has relinquished his right to remain silent. Such affidavit is not admissible in any proceeding to ascertain the guilt or innocence of the defendant. A copy of this affidavit shall be provided to the defendant and a copy shall be filed by the officer with the Court Clerk. Upon request, a copy of this affidavit shall be provided to any person claiming ownership of such money or property. The owner of the property or designated representative of the owner may make application to the Magistrate for the return of the property. The application shall be on a form provided by the Administrative Director of the Courts and made available through the Court Clerk. The Court may charge the applicant a reasonable fee to defray the cost of filing and docketing the application. Once application has been made and notice provided, the magistrate shall docket said application for a hearing as provided in this section. Where notice by publication is appropriate, the publication notice form shall be provided free of charge to the applicant by the Administrative Director of the Courts through the Court Clerk with instructions on how to obtain effective publication notice. The applicant shall notify the last person in possession of such property prior to such property being seized by the Nation of the hearing by mailing a copy of the notice by certified mail return receipt requested at the last-known address of such person, unless such person has signed a nonownership affidavit pursuant to this section disclaiming any ownership rights to such property. If the last person in possession of the property is unable to be served notice by said certified mail, notice shall be provided by one publication in a newspaper of general circulation in the county where the property is held in custody. The applicant shall notify the Prosecuting Attorney and the Court when notice has been served to the last person in possession of such property or published pursuant to this section. The hearing shall be held not less than ten (10) days or more than twenty (20) days after the Court has been notified that the notice has been served or published.
D. If the Magistrate determines that the property is needed as evidence the Magistrate shall determine ownership and determine the procedure and time frame for future release. The Magistrate may order the release of property needed as evidence pursuant to 22 CNCA § 1327, provided however, the order may require the owner to present such property at trial. The property shall be made available to the owner within ten (10) days of the court order for release. The Magistrate may authorize ten (10) days additional time for the return of such exhibit if the Prosecuting Attorney shows cause that additional time is needed to photograph or mark such exhibit.
E. If the property is not needed as evidence, it may be released by the Magistrate to the owner or designated representative of the owner upon satisfactory proof of ownership. The owner of the property or designated representative of the owner may make application to the magistrate for the return of the property. The applicant shall notify the last person in possession of such property prior to such property being seized by the Nation of the hearing by mailing a copy of the notice by certified mail return receipt requested at the last-known address of such person, unless such person has signed a nonownership affidavit pursuant to this section disclaiming any ownership rights to such property. If the last person in possession of the property is unable to be served notice by said certified mail, notice shall be provided by one publication in a newspaper of general circulation in the county where the property is held in custody. The applicant shall notify the Prosecuting Attorney and the Court when notice has been served to the last person in possession of such property or published pursuant to this section. The hearing shall be held not less than ten (10) days or more than twenty (20) days after the Court has been notified that the notice has been served or published.
F. When property alleged to have been stolen comes into the custody of a peace officer and such property is deemed to be perishable said peace officer shall take such action as he deems appropriate to temporarily preserve the property. Provided, however, within seventy-two (72) hours of the time the property was recovered, the receiving agency shall make application for a disposition hearing before a Magistrate and the receiving agency shall notify all persons known to have an interest in the property of the date, time and place of such hearing.
G. In any case, the Magistrate may, for good cause shown, order any evidence or exhibit to be retained pending the outcome of any appeal.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1322. Stolen property-Magistrate to order delivery, when
On satisfactory proof of title to the property, the Magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the owner on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the Magistrate. The order entitles the owner to demand and receive the property. Such property shall be made available to the owner within ten (10) days of the issuance of the order. The Court, however, may keep the property as evidence or on the issuance of an order, require the owner to present such property at trial.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1323. Magistrate to deliver stolen property, when
If the property stolen or embezzled comes into the custody of a Magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the Magistrate.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1324. Trial Court may deliver stolen property
If property stolen or embezzled has not been delivered to the owner, the Court before which a trial is had for stealing or embezzling it, may, on proof of his title, order it to be restored to the owner.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1325. Unclaimed property or money in Sheriff's possession-Disposition-Procedure
A. The Marshal is authorized to sell personal property which has come into his possession, or deposit with Cherokee Nation, as hereafter provided, all money or legal tender of the United States which has come into his possession, whether said property or money be stolen, embezzled, lost, abandoned or otherwise, the owner of said property or money being unknown or not having claimed the same, and which the Marshal or Sheriff has held for at least six (6) months, and such property or money, or any part thereof, being no longer needed to be held as evidence or otherwise used in connection with any litigation.
B. The Marshal or Sheriff shall file an application in the District Court requesting the authority of said Court to conduct a sale of such personal property, and shall attach to his application a list describing such property, including all identifying numbers and marks, if any, the date said property came into his possession and the name of the owner and his address, if known. The Court shall set said application for hearing not less than ten (10) days nor more than twenty (20) days after filing.
C. Notice shall be given of said hearing to each and every owner known and asset forth in said application by certified mail directed to his last-known address at least ten (10) days prior to the date of said hearing. Said notice shall contain a brief description of the property of said owner and the place and date of the hearing. In addition thereto notice of said hearing shall be posted in three public places in the county, one being the District Courthouse at the regular place assigned for the posting of legal notices.
D. At the hearing, if no owner appears and establishes ownership to said property, the Court shall enter an order authorizing the Sheriff to sell said personal property to the highest bidder for cash, after at least five (5) days' notice has been given by publication in one issue of a legal newspaper of the county. The Sheriff shall make a return of said sale and, when confirmed by said Court, the order confirming said sale shall vest in the purchaser title to said property so purchased.
E. The Marshal, having in his possession money or legal tender under the circumstances provided in subsection (A) above, prior to appropriating the same for deposit with Cherokee Nation, shall file an application in the District Court requesting the Court to enter an order authorizing him to so appropriate said money for deposit with Cherokee Nation. Said application shall describe the money or legal tender, together with serial numbers, if any, the date the same came into his possession, and the name of the owner and his address, if known. Upon filing, said application, which may be joined with an application as described in subsection (B) above, shall be set for hearing not less than ten (10) days nor more than twenty (20) days from the filing thereof, and notice of said hearing shall be given as provided in subsection (C) above. Such notice shall state that, upon no one appearing to prove ownership to said money or legal tender, the same will be ordered by the Court to be deposited with Cherokee Nation by the Marshal or Sheriff. Said notice may be combined with a notice to sell personal property as set forth in subsection (C) above. At the hearing, if no one appears to claim and prove ownership to said money or legal tender, the Court shall order the same to be deposited by the Marshal or Sheriff with Cherokee Nation, as provided hereafter in subsection (F).
F. The money received from the sale of personal property as above provided, after payment of the court costs and other expenses, if any, together with all money in possession of said Marshal or Sheriff, which has been ordered by the Court to be deposited with Cherokee Nation, shall be deposited in the General Fund.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1326. Receipts for property taken from defendant
When money or other property is taken from a defendant arrested upon a charge of public offense, the officer taking it must at the time give duplicate receipts therefore, specifying particularly the amount of money or the kind of property taken. One of which receipts he must deliver to the defendant, and the other of which he must file with the Clerk of the Court to which the depositions and statement must be sent, as provided in 22 O.S. § 276.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1327. Disposition of exhibits
A. All exhibits which have been introduced, filed, or held in custody of the Nation in any criminal action or proceeding may be disposed of as provided for in this section.
B. The Court may, on application of the party entitled thereto, or an agent designated in writing by the owner, order all such exhibits, other than documentary exhibits, as may be released from the custody of the Court or the Nation, without prejudice to the Nation, delivered to such party at any time after the final determination of the action or proceedings; provided, however, where the action or proceeding has resulted in an order granting probation, such delivery may be made any time after the final determination of an appeal of such order, or after the time for such appeal has elapsed. Provided, further, if the owner of such exhibit is the victim of the offense for which such exhibit is held, said owner may make application to the Court at any time prior to the final disposition of the action or proceeding for the return of the exhibit. The applicant shall notify the last person in possession of such exhibit prior to such exhibit being seized by the Nation of the hearing by mailing a copy of the notice by certified mail return receipt requested at the last-known address of such person, unless such person has signed an on ownership affidavit pursuant to 22 CNCA § 1321 disclaiming any ownership rights to such exhibit. If the last person in possession of the property is unable to be served notice by said certified mail, notice shall be provided by one (1) publication in a newspaper of general circulation in the county where the property is held in custody. The applicant shall notify the Prosecuting Attorney and the Court when notice has been served to the last person in possession of such property or published pursuant to this section. The hearing shall be held not less than ten (10) days or more than twenty (20) days after the Court has been notified that the notice has been served or published. In the event the Court orders the release of said exhibit to the owner, the Prosecuting Attorney shall photograph or mark said exhibit with an identification number and return the exhibit to the owner within ten (10) days of the court order. The Court may authorize ten (10) days additional time for the return of such exhibit if the Prosecuting Attorney shows cause that additional time is needed to photograph or mark such exhibit. Such photograph or marked exhibit may be presented as the exhibit in any further action or proceeding. If the party entitled to such exhibits is unknown, or fails to apply for the return of such exhibits, the procedure for their disposition shall be as follows:
1. After the expiration of six (6) months from the time the conviction becomes final, or if the action or proceeding has not resulted in a conviction, at any time after the judgment has become final, the Court in which the case was tried shall make an order specifying what exhibits may be released from the custody of the Court without prejudice to the Nation. Upon receipt of such an order, the property shall be transferred to the Marshal, Sheriff or other proper governmental agency for sale to the public. At least ten (10) days prior to such sale, notice of the sale shall be sent by certified mail return receipt requested to the last person in possession of such exhibit prior to such exhibit being seized by the Nation at the last-known address of such person;
2. At any time prior to the time fixed for the transfer, the owner or any person entitled to the possession of any of such exhibits may obtain from the Court an order returning them to him;
3. Articles not returned to their owners or to persons entitled to their possession at or prior to the time set for the transfer shall be sold by the proper receiving agency for cash. The articles shall be sold singly or in combinations. The money received from such sales shall be placed in the appropriate fund of the governmental agency responsible for the sale;
4. Where the exhibit consists of money or currency and is unclaimed at the time of the transfer, it shall not be transferred but shall be immediately deposited in the appropriate fund of the governmental agency in possession of such property; and
5. If any property is transferred to the Marshal or other governmental agency pursuant to this section it may be sold in the manner provided by law for the sale of surplus personal property. If the Marshal or other proper governmental agency determines that any such property transferred to it for sale is needed for a public use, such property may be retained by the agency and need not be sold.
C. The Court may, on application of the party entitled thereto, or an agent designated in writing by the owner, order such documentary exhibits as may be released from the custody of the Court without prejudice to the Nation delivered to such party any time after the final determination of the action or proceeding; provided, however, where the action or proceeding has resulted in an order granting probation, such delivery may be made any time after the final determination of an appeal of such order, or after the time for such appeal has elapsed. Provided, further, if the owner of such exhibit is the victim of the offense for which such exhibit is held, said owner may make application to the Court at any time prior to the final disposition of the action or proceeding for the return of the exhibit. The applicant shall notify the last person in possession of such exhibit prior to such exhibit being seized by the Nation of the hearing by mailing a copy of the notice by certified mail return receipt requested at the last-known address of such person, unless such person has signed a nonownership affidavit pursuant to 22 CNCA § 1321 disclaiming any ownership rights to such exhibit. If the last person in possession of the property is unable to be served notice by said certified mail, notice shall be provided by one publication in a newspaper of general circulation in the county where the property is held in custody. The applicant shall notify the Prosecuting Attorney and the Court when notice has been served to the last person in possession of such property or published pursuant to this section. The hearing shall be held not less than ten (10) days or more than twenty (20) days after the Court has been notified that the notice has been served or published.
In the event the Court orders the release of said exhibit to the owner, the Prosecuting Attorney shall photograph or mark said exhibit with an identification number and return the exhibit to the owner within ten (10) days of the court order. The Court may authorize ten (10) days additional time for the return of such exhibit if the Prosecuting Attorney shows cause that additional time is needed to photograph or mark such exhibit. Such photograph or marked exhibit may be presented as the exhibit in any further action or proceeding. If the party entitled to such documentary exhibits is unknown, or fails to apply for the return of said exhibits, the procedure for their disposition shall be as follows:
1. After the expiration of six (6) months from the time the conviction becomes final, or if the action or proceeding has not resulted in a conviction, at anytime after the judgment has become final, the Court in which the case was tried shall make an order requiring such exhibits to be destroyed; provided, that no such order shall be made authorizing the destruction of any documentary exhibit if the destruction of such exhibit would prejudice the Nation; and
2. No exhibit shall be destroyed or otherwise disposed of until sixty (60) days after the Clerk of the Court has posted a notice conspicuously in three public places in the county, referring to the order for the disposition, describing briefly the exhibit, and indicating the date after which the exhibit will be destroyed or otherwise disposed of.
D. The provisions of subsection (B) of this section shall not apply to any dangerous or deadly weapons, narcotic or poisonous drugs, explosives, or any property of any kind or character whatsoever the possession of which is prohibited by law. Any such property filed as an exhibit or held by the Nation shall be, by order of the Trial Court, destroyed or sold or otherwise disposed of under the conditions prescribed in such order. This act shall not be interpreted to authorize the return of any property, the possession of which is prohibited by law.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Searches and Seizures <KEY>84.
Westlaw Topic No. 349.
C.J.S. Searches and Seizures §§ 276 to 289.
§ 1333. Clerk's fees
The Clerk furnishing such transcript shall be allowed the same fees for same as he is allowed by law for similar services, which shall be paid by the person entitled thereto.
History
Source. LA 10-90, eff. November 13, 1990.
REWARDS
§ 1334. Dumping, etc. of trash on public or private property-Evidence-Rewards
A. Cherokee Nation may offer and pay a reward, from funds set aside for that purpose, in an amount not less than fifty percent (50%) of the fine imposed, for the arrest and conviction or for evidence leading to the arrest and conviction of any person who violates the provisions of 21 CNCA § 1761.1.
B. Cherokee Nation may create and maintain a reward fund which shall be a revolving fund not subject to fiscal year limitations, from which to pay the rewards provided for in subsection (A) of this section. Any monies for which no claim is filed within the period provided in subsection (C) of this section, shall revert to the General Fund. Any monies remaining in the reward fund after all claims have been paid or denied shall revert to the General Fund.
C. Claims for rewards shall be on forms provided by Cherokee Nation and shall be submitted to the Prosecuting Attorney no later than thirty (30) days after sentencing of the defendant. The Prosecuting Attorney shall investigate the validity of the claim and make a nonbinding written recommendation to the Council.
D. All claims relating to a conviction shall be considered together at the next regular meeting of the Council following receipt of the Prosecuting Attorney's report.
E. In determining the amount of the reward, the Council shall have sole discretion to honor or deny the claim, but shall consider:
1. The severity of the offense;
2. The size of the fine imposed;
3. The number of persons claiming a reward and the degree to which each claimant was responsible for the arrest or conviction;
4. The burden, if any, incurred by the claimant including cost to appear at trial; and
5. Other factors which the board or governing body deems appropriate.
F. No reward shall be authorized and no debt shall accrue to Cherokee Nation upon the depletion of the reward fund authorized by this section.
G. The reward authorized by this section shall be in lieu of any other county or municipal reward.
H. Full-time peace officers of this Nation or of any state, county or municipality within this nation shall not be eligible for the reward provided by this section.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Rewards <KEY>0.5 to 15(6).
Westlaw Topic No. 340.
C.J.S. Rewards and Bounties §§ 1 to 47.
SHOPLIFTING
§ 1341. Definitions
As used in this section:
1. "Mercantile establishment" means any mercantile place of business in, at, or from which goods, wares and merchandise are sold, offered for sale or delivered from and sold at retail or wholesale;
2. "Merchandise" means all goods, wares and merchandise offered for sale or displayed by a merchant;
3. "Merchant" means any corporation, partnership, association or person who is engaged in the business of selling goods, wares and merchandise in a mercantile establishment;
4. "Wrongful taking" includes stealing of merchandise or money and any other wrongful appropriation of merchandise or money.
Library References
Larceny <KEY>21.
Westlaw Topic No. 234.
C.J.S. Larceny § 41.
§ 1342. Peace officers-Arrest without warrant
Any peace officer may arrest without warrant any person he has probable cause for believing has committed larceny of merchandise held for sale in retail or wholesale establishments, when such arrest is made in a reasonable manner.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>63.4(5).
Westlaw Topic No. 35.
C.J.S. Arrest §§ 17 to 18.
§ 1343. Detention of suspect-Purposes
Any merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, may detain such person in a reasonable manner for a reasonable length of time for all or any of the following purposes:
1. Conducting an investigation, including reasonable interrogation of the detained person, as to whether there has been a wrongful taking of such merchandise or money;
2. Informing the police or other law enforcement officials of the facts relevant to such detention;
3. Performing a reasonable search of the detained person and his belongings when it appears that the merchandise or money may otherwise be lost; and
4. Recovering the merchandise or money believed to have been taken wrongfully. Any such reasonable detention shall not constitute an unlawful arrest or detention, nor shall it render the merchant, his agent or employee criminally or civilly liable to the person so detained.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Arrest <KEY>64.
Westlaw Topic No. 35.
C.J.S. Arrest §§ 11 to 13.
§ 1344. Concealing unpurchased merchandise-Presumption
Any person concealing unpurchased merchandise of any mercantile establishment, either on the premises or outside the premises of such establishment, shall be presumed to have so concealed such merchandise with the intention of committing a wrongful taking of such merchandise within the meaning of 22 CNCA § 1341, and such concealment or the finding of such unpurchased merchandise concealed upon the person or among the belongings of such person shall be conclusive evidence of reasonable grounds and probable cause for the detention in a reasonable manner and for a reasonable length of time, of such person by a merchant, his agent or employee, and any such reasonable detention shall not be deemed to be unlawful, nor render such merchant, his agent or employee criminally or civilly liable.
History
Source. LA 10-90, eff. November 13, 1990.
Library References
Indians <KEY>611.
Westlaw Topic No. 209.
C.J.S. Indians §§ 151 to 179.