text:
    JESSE J. BROOKS v. STATE.
    No. A-4743.
    Opinion Filed May 2, 1925.
    (235 Pac. 560.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence Sustaining Conviction for Transporting. Evidence examined and found sufficient to sustain tbe verdict and judgment.
    2. New Trial — Newly Discovered Evidence — Lack of Diligence. An accused is not entitled to a new trial on tbe ground of newly discovered evidence, unless due diligence was used to discover the evidence in the first instance.
    Appeal from County 'Court, Greer County; Jarrett Todd, Judge.
    Tom Brooks was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Jesse J. Todd and Percy Powers, for plaintiff in error.

      George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Greer county on a charge of transporting whisky, and sentenced to pay a fine of $50 and to serve 30 days in the county jail. In his brief, three assignments of error are made: First, that the verdict of the jury is not supported by the evidence; second, that the court erred in forcing the defendant to trial without allowing him time to procure counsel; third, error in overruling the motion for a new trial on the ground of newly discovered evidence.

The record shows that on January 6, 1922, a Ford car drove up near the light plant at Mangum and two persons got off carrying a jar, and two persons in the car drove away. Some officers were watching the car and attempted to stop it, but did not succeed. The two occupants, both of whom were in the front seat, managed at that time to escape, and were not arrested until the next day, but while the officers were in pursuit of the car three jars were thrown out, one of which was broken, and the two others, one a quart and one a half gallon, were secured; all contained corn whisky. The plaintiff in error was the driver of the car. The evidence on the part of the state was ample to sustain the verdict and judgment. The defendant did not testify and offered no evidence.

The second contention that the defendant was forced into trial without having thei opportunity to confer with counsel is not sustained by the record. The offense occurred on January 6, 1922. The case was called for trial on October 23, 1922. A continuance was granted on the application of the plaintiff in error, and the case was tried on February 19, 1923. No application for a further continuance appears in the record. There is nothing in this assignment.

The further assignment that the plaintiff in error should have had a neiw trial on the ground of newly discovered evidence is not tenable. It is based on an affidavit of H. C. Davis, who states that he was one of the occupants of the car at the time they drove into Mangum, and that the occupants of the car were carrying whisky, but that the plaintiff in error Brooks did not know of such fact.

To say that one charged with transporting whisky had used due diligence to ascertain evidence material in his defense, and had not interrogated a person who was his companion at the time, and did not know what his testimony would be until after the trial had closed, does not make such a showing of diligence as to carry serious consideration. It would appear that the most perfunctory effort to procure evidence in his behalf would be to interrogate his companions at the time, if he did not know what their evidence would be, and his failure to do so is not diligence

The affidavit of H. L. Neighbors, also attached to motion for new trial, throws no light on the transaction. He merely states that he saw the car driven by the plaintiff in error at the time in question, and the officers in pursuit, and did not learn until the next day who was driving the car.

Finding no substantial error, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    CRESTUS H. PAYNE v. STATE.
    No. A-4730.
    Opinion Filed May 2, 1925.
    (235 Pac. 558.)
    (Syllabus.)
    1., Constitutional Provisions. Under section 17, Bill of Rights, no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.

      2. Indictment and Information — Information After Preliminary Hearing to Charge Only Offense for Which Accused Was Held. Where a charge of felony is made before an examining magistrate, and a preliminary examination had, and the accused held for the district court upon the offense charged in the complaint, the county attorney is authorized to file an information against the accused charging only the offense for which the accused was held.
    3. Same. In filing such information, the county attorney may not substitute one offense for another, but the information may vary in charging circumstances, methods, or means, or in formal and nonessential matters of the crime; or, where the offense is divided into degrees, or where a higher offense, includes a lower, he may file an information charging any of the degrees, or any included offense, so long as the offense charged in the information is the same as the offense for which accused was held..
    4. Same — Shooting with Intent to Kill not Same Offense as, and Does not Include, Assault and Battery in Resisting Execution of Legal Process. The crime of shooting with intent to kill, as defined in section 1756, Comp. St. 1921. is not the same offense and does not include the crime of assault and battery in resisting the execution of any legal process, as also defined in said section.
    Appeal from District 'Court, Payne County; C. C. Smith, Judge.
    Crestus H. Payne was convicted of assault and battery with a deadly weapon, and appeals.
    Reversed and remanded.
    Freeman E. Miller, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant, as in the court below.

The defendant was convicted in the district court of Payne county on a charge] of assault and battery with a deadly weapon while resisting the execution-of legal process, and his punishment fixed at imprisonment in the penitentiary for a term of 2 years. The record discloses that the defendant was wanted for an assault and battery alleged to have been committed in Payne county. He was arrested at thei town of Cushing by the police officers, held in the city jail over night and the next morning delivered to McDaniels, a deputy sheriff, to be taken to Stillwater. He was transported in a Ford car driven by McDaniels, and on the road to Stillwater an altercation arose between defendant and McDaniels. Defendant took a pistol off the person of McDaniels, assaulted him with it, put handcuffs on him, forced him to drive to Stillwater, and there defendant surrendered himself.

A preliminary complaint was filed charging the dei-fendant with the crime of assault with intent to kill Mc-Daniels, evidently drawn under the provisions of section 1756, Compiled Stats. 1921, the charging part of which is as follows:

“That Crestus H. Paynei, then and there being, did then and there unlawfully, wrongfully, wilfully, and feloniously, and with malice aforethought, and with a premeditated design to effect the death of one A. N. McDaniels, * * * with a certain 'Colt’s pistol make an assault upon, * * * said A. N. McDaniels, and did then and there shoot off and discharge at and toward the said A. N. McDaniels, the aforesaid pistol, with intent of him, the said Crestus H. Payne, the said A N. McDaniels then and there to kill and murder, and did then and there beat, bruise, wound, and injure the said McDan-iels * * * with said pistol, and did feloniously attempt to kill and murder the said A. N. McDaniels.”

A preliminary examination was had, and the defendant held for the district court for the crime of “attempt to kill, as charged in the complaint.” An information was then filed by the county attorney charging the defendant with committing an assault and battery upon McDaniels, with intent to kill, and by means of a deadly weapon, in resisting the execution of legal process — the service of a warrant. Later, by leave of court, an amended information was filed charging that defendant did with a certain pistol, then and there a deadly weapon, make an assault on McDaniels in resisting the execution of legal process, to wit, the execution of a warrant by the said McDaniels, he being then and there a deputy sheriff, by means and force as likely would produce death.

The defendant was tried on the amended information, and the verdict of the jury finds the defendant “guilty of the crime of assault and battery with a deadly weapon in resisting the execution of legal process.”

The only assignment of error necessary to oe considered is as follows: The court erred in overruling defendant’s motion to quash and set aside the amended information, for the reason that defendant had not had a preliminary hearing on the charge in the information and the amended information. That the charge in the information and the amended information was not the ehargei on which the defendant was held to the district court.

In considering this contention it will be noticed that the complaint charges an assault with intent to kill. No allegation is made that thei person assaulted was an officer, or that there was any resistance to any legal process. Upon a trial he was held for the offense of “attempt to kill as charged in the complaint.” In thei commitment no reference is made to resistance of any legal process. Section 17 of the Bill of Rights of the state Constitution provides that no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Since both the information and the amended information charged the defendant with an assault and battery by means of a deadly weapon, in resisting the execution of legal process, it is necessary to determine whether or not the charge of assault with intent to kill, as made in the complaint, includes the offense of assault with a deadly weapon in resisting thei execution of legal process, as charged in the information and the amended information. If it does, the defendant was properly informed against. If it does not, he has not had a preliminary for the offense for which he was tried as required by the Constitution, and the court erred in overruling his motion to quash based on that ground. In a preliminary examination the magistrate may hold the accused for the offense charged in the complaint or for any other offense according to the facts. Section 2497, Comp. St. 1921.

This is a judicial determination by the magistrate of the offense found, and, when that has been done as in this case, the county attorney is thereby authorized to file an information charging the offeinse for which the accused was held, or substantially the same offense. Sayers v. State, 10 Okla. Cr. 195, 233, 135 P. 945; Ponoksy v. State, 8 Okla. Cr. 116, 126 P. 451; Morgan v. State, 8 Okla. Cr. 444, 128 P. 159; Stephens v. State, 12 Okla. Cr. 90, 152 P. 138; Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332; Chappelear v. State, 10 Okla. Cr. 392, 136 P. 978.

By the term “substantially the same offense” is meant offenses varying only in degree, or means, or circumstances. Thus where an offense for which an accused is held is divided into degrees, and the accused is held for the higher, an information may be filed for the lower, or where the details involved differ as to means, methods, or circumstances, and the charge in the information is for some form of that offense and not a different offense, the informing officer may vary the charge in formal and nonessential matters to meet the contingencies of the testimony. But he may not add or charge a new offense. The prosecuting officer, in other words, is not .permitted to substitute his judgment for that of the committing magistrate. He must look to the commitment alone for his authority to file an information against an accused. In this particular he acts in a mere ministerial capacity, and is restricted to the crime designated in the commitment or transcript of the magistrate. This particular point seems not to have been heretofore expressly stated by this court. But under similar provision the foregoing rule is definitely stated. People v. Nogiri, 142 Cal. 596, 76 P. 490; State v. Potello, 42 Utah, 396, 132 P. 14; State v. Sheffield, 45 Utah, 426, 146 P. 306; Solice v. State, 21 Ariz. 592, 193 P. 19; State v. McGreevey, 17 Idaho, 453, 105 P. 1047.

The general charge of ’’assault with intent to kill,” as defined in the first part of section 1756, Compiled Stat. 1921, does not include an “assault in resisting legal process,” as defined by the latter part of said section. This will appear from a mere cursory reading of said section. In the general charge of assault with intent to kill, as charged in the preliminary complaint, proof of the assault and the essential intent establish the offense. In the charge of assault and battery in resisting the execution of any legal process, as charged in the information and amended information, the proof of the assault and the essential intent does not establish the offense, but in addition there must be an allegation and a proof of the official capacity of the person assaulted, and that he was acting in that capacity by virtue of legal process, and that the assault was in resistance of such process. The combining of these separate offenses in one section of the statute has, no doubt, resulted in confusion, but the offenses nevertheless are different.

We are clearly of the opinion that the offense charged in the complaint upon which the preliminary hearing was had and for which the defendant was held for the district court does not comprehend the offense charged in the amended information upon which the defendant was tried. The defendant, therefore, has not had a preliminary upon the offense for which he was tried. Having raised this objection by timely motion, and submitted proof in support thereof, the trial court should have sustained the motion and have allowed the defendant a preliminary. A failure to do this was a denial of a constitutional right and is reversible error.

Several other assignments of error are advanced and argued in the briefs, but, as they refer to the proceedings subsequent to the preliminary, such as the sufficiency of the information and the amended information and the sufficiency of the verdict, it is not necessary to consider and discuss them.

For reasons assigned, the case is reversed and remanded.

BESSEY, P. J„ and DOYLE, J., concur.


text:
    ED EXLETON v. STATE.
    No. A-4588.
    Opinion Filed May 2, 1925.
    (235 Pac. 627.)
    (Syllabus.)
    1. Trial — Right to be Confronted with Witnesses — Transcript of Evidence of Witnesses at Preliminary Hearing. Where an accused at a preliminary hearing had been confronted by a witness against him and had the privilege of cross-examination, if it satisfactorily appears, upon a subsequent trial involving the same issue, that for any of the reasons recognized by the law, the oral testimony of the witness is not available, the admission of a transcript of the evidence taken at the preliminary is not In violation of the. constitutional right of the accused to be confronted with the witnesses against him.
    2; Evidence — On Refusal of Witness to Testify for Reason, That Testimony Will Tend to Incriminate Hxin, Former Testimony Riven at Preliminary Trial Admissible. Where in a criminal case a witness for the state has voluntarily testified at a preliminary trial, and an opportunity for cross-examination offered the accused, and at the final trial such witness is again offered by the state, but refuses to testify for the reason that such testimony will tend to incriminate him, his former testimony given at the preliminary, otherwise competent and material, is admissible.

      3. Same — Transcript of Evidence Taken at Preliminary Trial Need Not be Filed with Court Clerk to be Admissible. It is not an essential prerequisite that a transcript of the evidence taken at a preliminary trial be filed with the court clerk in order to render it admissible in evidence, when otherwise competent and material.
    4. Trial — Refusal to Permit Interview with State’s Witness, Imprisoned in Jail — Discretion of Court. In a criminal case it is ordinarily discretionary with the trial court whether he will make an order giving counsel for an accused the right to interview a state’s witness, incarcerated in jail, and a refusal of an interview will not he error, unless an abuse of discretion is shown.
    5. Same — Denial of Interview of Accused’s Accomplice, Whose Testimony at Preliminary Hearing Was Used at Trial, Held Error. Where an accomplice of an accused is incarcerated in jail as a witness for the state and his evidence taken at a former hearing is used against the accused on the trial of the case, the accused is entitled to a reasonable opportunity to interview such accomplice and a denial of an opportunity to do so is error.
    Appeal from District Court, Mc'Clain County; W. L. Eagleton, Judge.
    Ed Exleton was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded.
    Moman Pruiett, C. G. Moore, and Glaseo & Glaseo, for plaintiff in error.
    George F. Short, Atty Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant, as in the court below.

Thei defendant was charged with murder of one E. L. Trimble on the 27th day of August, 1921. He was convicted of manslaughter in the first degree and sentenced to serve a term of 8 years in the state penitentiary. The homicide on which the charge was based, as disclosed by the record, is about as follows: On the morning of August 28, 1921, the train crew on the south-bound Santa Fe, out of Purcell, discovered a'body on the track, but too late to stop the train and the body was severed near the middle. On examination a bullet wound was found which had severed the aorta and caused death. Onei Jesse Waters and the defendant were arrested. The defendant ran a hotel at Purcell, and the mother of Waters was an employee there. Waters was about 19 years of age, and was tried a few days before the defendant and was convicted and sentenced to serve a term of 12 years in the penitentiary. At the preliminary hearing of the defendant, Waters was called as a witness for the state and was examined and cross-examined fully by counsel for defendant. His testimony was that hei shot and killed the deceased at the solicitation and on the advice and direction of the defendant.

Upon thei final trial of the defendant, Waters was again put on the stand by the state, and when asked a preliminary question said, “If I testified in this case, it would be different than what I did before,” and on the question being repeated said, “I said my case is still pending. I cannot testify because it would be different from what I did before.” Then one of the attorneys for Waters asked permission of the court to inform him of his rights if his testimony might incriminate him. The court then informed the witness of his rights, and witness stated that he claimed this right. Thei court, after argument, ruled that the witness was competent and ordered him to testify, and he did thereupon answer several questions of a preliminary character, and thereupon the counsel for defendant requested the court’s permission to confer with the witness, which was denied by the court, then counsel for the witness Waters requested permission of the court to confer with the witness in private, which was allowed hff the court. After the consultation Waters was again placed on thei stand and refused to testify further, although ordered to do so by the court. On this latter questioning of the witness Waters, the counsel for defendant objected. Upon the refusal of Waters to testify further, the state offered a transcript of his evidence taken in the preliminary of the defendant, which when identified and its cor-rectneiss established was admitted in evidence. The defendant objected on the ground that it was not admissible as the witness was present in court, and on the further ground that the transcript had not been filed with the clerk of court as provided by statute, which objections were overruled and the former evidence read to the jury.

In the brief of defendant only three propositions are argued. First: That the court erred in admitting in evidence the transcript of the testimony of the witness Waters given on the preliminary examination; second, that the court erred in refusing to permit counsel for defendant to interview the witness Waters before the preliminary commenced and again before the case had closed; third, that the court erred in not directing a verdict for defendant on the ground that the witness Waters was an accomplice and his testimony not sufficiently corroborated. These assignments of error will be considered in the order presented. Section 20 of Bill of Eights of the state Constitution provides that the accused in a criminal case shall have the right to be confronted by the witnesses against him. Those sections of the statute which have a bearing on the legal questions presented are section 2345, Comp. St. 1921, as follows:

“The preieedure, practice and pleadings in the courts of record of this state, 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”

—and section 2491, Comp. St. 1921, referring to preliminary examinations, in part, as follows:

“* * * On the request of the county attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, * * * and * * * filed with the clerk of the district court, by the examining magistrate. * * *”

The general rule sustains the view that under the Constitution and this or similar statutes where an accused has once been confronted with a witness who testifies against him, and had the right to cross-examine, the admission of such testimony in a subsequent trial of the same issue where the witness has died, become insane, or is sick or unable to testify, or his presence cannot be had, is not a violation of the constitutional right of the accused. Davis v. State, 20 Okla. Cr. 203, 201 P. 1001; Golden v. State, 23 Okla. Cr. 243, 214 P. 946; Hawkins v. United States, 3 Okla. Cr. 652, 108 P. 561; Smith v. State, 147 Ga. 689, 95 S. E. 281, 15 A. L. R. 490; Underhill Crim. Ev. § 265.

There is an exhaustive note on this point to the case of State v. Hefferman, 22 S. D. 513, 118 N. W. 1027, 25 L. R. A. (N. S.) 868, and also an exhaustive note to the case of Blackwell et al. v. State (Fla.) 15 A. L. R. 465.

In the instant casei the unusual situation is presented of a witness who at the preliminary trial voluntarily testified for the state, now declining to testify on the ground that his evidence will incriminate him. At the timei of the final trial of this case, the witness had been tried for the same offense for which the defendant was on trial and had been convicted, and the time within which he might appeal had not expired. There is no question about the good faith of the state in desiring to have him testify orally. The claim of exemption was not due to any procurement or act on the part of the prosecution. The transcript of the evidence offered had not been filed with the clerk of the district court as provided by section 2491, Comp. St. 1921, supra. But this court in the case of Baldock v. State, 16 Okla. Cr. 203, 182 P. 265, has held that such filing is not essential. It is apparent that section 2491, supra, in so far as it relates to the filing of this transcript with the clerk of the court, is a directory and not a mandatory statute, its purpose being to provide a depository so that the question of the authenticity and identity of the transcript may not be drawn in question.

Theire is some diversity of authority on the admissibility of evidence where the witness can be personally present and is not physically unable to testify. 2 Wigmore on Evidence, beginning with section 1401, discusses the admissibility of this character of evidence at some length, and in section 1402 says:

“The principle upon which depositions and former testimony should be resorted to is the simple principle of necessity, i. e., the absence of any other means of utilizing the witness’ knowledge. If his testimony given anew in court cannot be had, it will be lost entirely for the purposes of doing justice if it is not received in thei form in which it survives and can be had. The only inquiry, then, need be, Is his testimony in court unavailable? We may of course distinguish further between testimony unavailable by any means whatever and testimony unavailable without serious inconvenience. The common-law rulings certainly stopped at unavailability of the former sort; conditions of the latter sort rest wholly on statutory sanction. But the common-law principle clearly went in theory as far as the former line, i. e., there are indications of a principle broad enough to sanction any case in which the present testimony is in fact unavailable by any means whatever. Such a broad principle was never fully and consistently enforced in practice, but clearly existed in gremio legis.”

Quoting by way of illustration from Wells v. Insurance Co., 187 Pa. 166, 40 A. 802, as follows:

“The cause of the subsequently occurring incompetency is not material. It may arise from absence, from sickness, from interest, from death or from a newly created statutory incompetency; * * * such is the sense of all the modern decisions, and we think the conclusion is reasonable and just.”

Greenleaf on Evidence (16th Ed.) § 162g, in enumerating the grounds sufficient to render the formeir testimony admissible, says:

“Disqualification since the former trial, by reason of interest, infamy, or other disqualification should be sufficient.”

In the case of State v. Stewart, 85 Kan. 404, 116 P. 489, it was held (syllabus 6) :

“The testimony of a witness, voluntarily given in the preliminary examination of the charge on which the accused is on trial, is admissible in evidence, where the accused had full opportunity to cross-examine the witness, and the direct testimony of the witness had become absolutely unavailable to a party by reason of such witness claiming the statutory privilege of withholding his direct testimony, because of being the husband of the accused.”
Chief Justice Johnston, speaking for the court, in that case reasoned as follows:
“In this instance the witness was living and was present at the trial, but he claimed his statutory privilege and) declined to testify against his wife. Crim. Code, § 215 (Gen. St. 1909, § 6791). He was a competent witness and had a right to testify against her, either with her consent or over her objection. State v. Geer, 48 an. 752, 30 Pac. 236. He had voluntarily testified in the preliminary examination in her presence, and where the accused was given full opportunity to cross-examine him and to test the accuracy and truth of his statements. That testimony had been reduced to writing and thus preserved and perpetuated for future use. It was voluntarily given by a competent witness. It was legal evidence when given. It was a closed and completed thing, capable of reproduction, and was available in subsequent trials in cases where it was the best evidence obtainable. His refusal to testify viva voce at the trial made the information, which he had formerly given, as inaccessible to plaintiff as if he had been dead or out of the jurisdiction of the court.
“It is sometimes said that the testimony of a witness at a former trial cannot be read if he is present at the trial, but its admissibility does not depend so much on the presence or availability of the witness as it does on the availability of the testimony; and the testimony of Stewart was just as unavailable as if he had walked over the state line, where process could not be served upon him. It has been held that, if a party to an action dies after a first trial, thereby rendering the other incompetent to testify, the testimony of the deceased at the first may be produced or proved at the second trial. Lee’s Adm’r v. Hill, 87 Va. 497, 12 S. E. 1052, 24 Am. St. Rep. 666. In Pratt v. Patterson, 81 Pa. 114, a trial was had in which both parties testified, and the verdict returned was set aside. Afterwards the defendant died and his executors were substituted. In the next trial the plaintiff was incompetent as a witness, but it was ruled that the testimony given by him at the first trial could be proven and read in evidence. It was held by the Supreme Court of Louisiana that testimony taken and reduced to writing on a first trial is admissible in evidence, when the witness has since become interested in and a party to the suit. Wafer v. Hempken, 9 Rob. (La.) 203. Other cases of like import are Matter of Budlong, 54 Hun, 131, 7 N. Y. Supp. 289; Evans v. Reed, 78 Pa. 415; Wells v. Insurance Co., 187 Pa. 166, 40 A. 802; Gold v. Eddy, Administrator, 1 Mass. 1; Smithpeters v. Griffin’s Adm’r, 49 Ky. 261.
“If a witness cannot prevent the use of his testimony by stepping outside the jurisdiction of the court, or the acquiring of an interest, or other act which disqualifies him as a witness, it would appear that he cannot defeat the use of testimony given when he was competent, and which was reduced to writing, by claiming a statutory privilege and refusing to testify viva voce when called to the witness stand. It may also be said that he did not object to the introduction of his former testimony, although such an objection probably would have been ineffectual. It is admissible because it was competent and legal when taken and preserved, and that for some reason the direct testimony of the witness cannot now'bei procured. All the requirements of the law were satisfied when the testimony of Stewart was taken, and when he refused to testify his. former competent testimony, which was in legal form, was as admissible as if he had been dead or beyond the reach of the court’s process.”

The earlier case of State v. Conway, 56 Kan. 682, 44 P. 627, turns on the competency of the witness and not on the competency of evidence, and is not in point here.

There is language in the former opinions of this court (Hawkins v. U. S., supra, Davis v. State, supra, Golden v. State, supra), from which it might be inferred that this court meant to hold that the transcript of the former testimony was to bei excluded in all cases, when the witness could be had in person at the final trial; but we do not so construe them. The admissibility of the transcript in those cases turned on the question of ability to procure the witness or diligence in attempting to procure, and not on the availability of his oral testimony after his presence had been procured as in Stewart v. State, supra, and as in the instant case.,

We are of thei opinion that the former testimony of the witness Waters was properly admitted in evidence by the court.

Upon the second assignment of error it appears that at the time of the trial and prior thereto the witness Waters was confined in jail. At the time of thei beginning of the trial, counsel for defendant, in open court, stated to the court that the name of the witness Waters had appeared on the information, and was on the list of witnesses furnished by the state, and stated to the court that thei witness was confined in the jail of Garvin county, and that they had made application to the sheriff to interview or confer with said witness, which request had been denied, and asked the court for an order permitting them to confer with said witness before making their announcement. This application was denied by thei court. Again, when the witness Waters was put on the stand, the counsel for defendant requested leave to confer and talk with him, which was by the court denied. The defendant did not announce ready for trial.

Just before concluding the evidence of the defendant, his counsel again requested the court for leave to interview the witness Waters, stating to the court that they had had a subpoena issued for him, and desired to interview him to ascertain if they wished to call him as a witness for the defendant. This application was also denied by the court, unless they should procure the presence of the attorneys for Waters.

Section 20, art. 2, of the state Constitution provides that, in capital cases at least two days before the case is called for trial, an accused shall be furnished with a list of the witnesses that will be called in chief, together with their post office addresses.

This court in the case of State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091, says that this provision of the Constitution confers a valuable right upon a defendant, as it gives him an opportunity to makei inquiry as to the character, bias, and antecedent of the witnesses against him, and to learn something of their testimony and thereby better enablei him to prepare for trial. See, also, Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636. Ordinarily it is discretionary with the court whether or not he will order an interview with a witness for the state. In the case of White v. State, 52 Miss. 216, the court held:

“The refusal of the court to allow the counsel for the prisoner to have any conversation with Matilda Given, she haying been summoned as a witness by the defendant, and being in the courthouse when the trial began, is assigned for error. * * * Are there exceptional reasons, applicable to this witness, which would justify the order? The prisoner was jointly indicted with heir; she had been convicted, and was awaiting the judgment of the court. It will not do to assume that the conversation in progress with this witness was for any other than a legitimate purpose. Suppose that the counsel proposed to introduce the woman to prove an isolated fact important to the defensa Would it not be proper to inquire in advance as to her knowledge? It might be, if she knew nothing of it, that another witness might be sent for. Without such conversations beforehand, the prisoner might be surprised on the trial, without means or ability then to repair it with other testimony.”

It is true in that case the witness was subpoenaed for the defendant, but this fact would not change the rule, whereas here the defendant had had a subpoena issued for the witness, and the court had ruled that the witness was competent and not entitled to claim privilege on the ground of incrimination, and had ordered him to testify for the state, and a transcript of his evidence had been admitted. If any privilege existed, it was for the witness to claim, not thei court to claim it for him. Under other conditions this denial of the right to interview might not be an abuse of discretion. Williams v. State, 53 Fla. 89, 43 So. 428; Wilkerson v. State (Tex. Cr. App.) 57 S. W. 956; Robinson v. State, 8 Okla. Cr. 667, 130 P. 121.

Where a material witness, and particularly as in this case, an accomplice, is incarcerated in jail and to that extent under the control of the prosecution, and the defendant makes application for leave to interview or question such witness in reference to his testimony, under all the facts shown here, the court should afford a reasonable opportunity for such purpose, and the denial of the request of the defendant was error.

Lastly, it is argued that there is no sufficient corroboration of the evidence of Waters, who is an accomplice of the defendant. Thei evidence was not corroborated other than by circumstantial evidence. But it is generally held that corroboration need not be direct, but may be circumstantial. Moody v. State, 13 Okla. Cr. 327, 164 P. 676.

Without in detail specifically pointing out the circumstances which tend to connect the defendant with the commission of the crime, and corroborating the accomplice Waters, we believe that there was sufficient on this point to go to the jury.

The case is reversed and remanded.

BESSEY, P. J„, and DOYLE, J., concur.


author: BESSEY, P. J.

text:
    ALLEN SNODDY v. STATE.
    No. A-4661.
    Opinion Filed March 7, 1925.
    Rehearing Denied May 2, 1925.
    (235 Pac. 248.)
    (Syllabus.)
    1. ¡Indictment and Information — Different Means by Which Offense Committed May be Alleged in Alternative in Same Count. Where an offense may be committed by the use of different means, the means or methods may be alleged in the alternative, in the same count
    2. Continuance — Refusal for Illness of Accused and Absence of Witness Held not Abuse'of Discretion. The granting of a continuance lies largely in the discretion of the trial court, and under the circumstances recited in the opinion that discretion was not abused.
    3. Trial — Admissions by Arrested Person — Admissibility for Court and Weight for Jury. Admissions made by a person under arrest tending to show guilt may be voluntary. Where it is claimed that they were made under duress or obtained by means of premises of some favor or advantage to the accused, the court should hear upon that point and should decide, as a question of law, whether such admissions should be admitted, or excluded, according to the preponderance of the evidence. Thereafter their weight becomes a question for the. jury.
    4. Instructions Held Sufficient. The instructions examined, and held sufficient.
    Appeal from District Court, Garvin County; W. L. Eagleton, Judge.
    Allen Snoddy was convicted of embezzlement, and he appeals.
    Affirmed.
    H. M. Carr, for plaintiff in error.

      The Attorney General and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This was a prosecution for embezzlement and dissipation of funds from the Bank of Stratford, growing out of the insolvency and closing of the bank, the affairs of which were taken over by the bank commissioner on April 19, 1922. Plaintiff in error was found guilty as charged, with his punishment fixed at imprisonment in the state penitentiary for ten years and a fine of $500.

This prosecution was brought under the provisions of section 4178, Comp. Stat. 1921. The proof on the part of the state was to the effect that Allen Snoddy, plaintiff in error, was one of the owners and active managers of this bank, that he participated in and was responsible for the embezzlement and unlawful dissipation of $17,480 from said bank a short while before its failure, and that the unlawful conversion of these funds directly contributed to the insolvency and failure of thei bank to the injury of its depositors and others interested therein.

Many of the things insistently urged in the brief and reply brief of plaintiff in error — as the crime of the deflation of the currency, the criticism of the harmless error statute, the fact that the accused was not a banker of experience and discretion, the claim that the creditors of the bank who had been favored by the accused did not come to his relief, and the excuse that the conduct of plaintiff in error’s associates was more reprehensible than his— are matters not properly involved in this appeal.

The first contention of plaintiff in error worthy of consideration is the claim that the information is insufficient and duplicitous. The information in effect states that the plaintiff in error, as an agent and officer of the bank, was intrusted with the possession and safe-keeping of its funds, and the funds of diveirs depositors, and that he fraudulently took from the funds of the bank and converted to his own use $17,480, with the intent of injuring and defrauding the bank and others interested, and to deceive the bank examiner.

One of the provisions of section 2558, Comp. Stat. 1921, is to the effect that “where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.” Applying this statutory provision to this information, we hold that the information here was not duplicitous, and that it was otherwise sufficient.

It is claimed that the court erred in refusing a continuance on account of the illness of plaintiff in error, and because the brother of the accused, for whom a subpoena had been issued, was not present. It seiems that the application for a continuance was supported by a certificate of a physician, but this certificate, if there was one, has not been made a part of the record, so that this court cannot pass upon the sufficiency of its contents. The application states that the plaintiff in error was ill and not in physical condition to appear for trial. The application was resisted by the state by the introduction of several witnesses controverting the showing made in the application. From other parts of the record we infer that the brother was probably at that time a fugitive from justice; there was no showing made as to when this witness could probably be procured, if ever. Under all the circumstances shown the trial court did not abuse his discretion in refusing a continuance.

It is next contended that a written confession signed by plaintiff in error was improperly admitted in evidence for the reason as claimed, that it was procured under duress, and by a promise from the bank examiner that he would intercede with the county attorney to defer taking the plaintiff in error to jail, from Saturday, the day the confession was signed, until Monday following, and that the bank examiner promised to intercede with the county attorney for a mitigated sentence, and for the further reason that plaintiff in error signed this statement when in a state of intoxication, so that he did not fully realize its meaning or significance.

Upon these collateral issues the court heard testimony in the absence of the jury. The bank examiner and others persent when the confession was signed testified that the plaintiff in error was not drunk when he signed the statement, and that no promises or inducements were made to procure the signature. By a great preponderance of the evidence it appears to us that the statement was signed without duress or promises of material favors; that it was free and voluntary, and therefore properly admitted.

It is next contended that the plaintiff in error was tried by an unfriendly court, surrounded by hostile influences engendered by persons who had suffered pecuniary losses on account of this bank’s failure. Doubtless many there present, who had lost their money through the failing of this bank, did not have the most kindly feeling toward the accused man on trial. But this fact of itself does not imply that the plaintiff in error did not have a fair trial; There is a vast difference between feelings of bias and prejudice and a feeling of just and righteous indignation. The record shows that during the progress of the trial the trial judge accorded the plaintiff in error every substantial right to which he was entitled.

The fact that people everywhere regard the robbery of a bank from the inside by its trusted officers as being more reprehensible than robbery from the outside by force of arms, cannot be consistently urged as a defense, or in mitigation of the offense.

The proof shows that these embezzlements were accomplished at different times by the fraudulent transferring of different sums of money to other accounts, and may have constituted different and distinct crimes. The court, however, in his instructions to the jury, limited the consideration of this character of proof to its connection with the specific offense for which the accused was on trial. It has often been held that where it is developed by the evidence that other like acts were committed in the course of the perpetration of the offense charged, the testimony tending to show the commission of such other acts will not be excluded merely because it shows that the accused committed other offenses at different times. Highfill v. State, 26 Okla. Cr. 420, 224 P. 729; Littrell v. State, 21 Okla. Cr. 466, 208 P. 1048; Miller v. State, 9 Okla. Cr. 255, 131 P. 717, L. R. A. 1915A, 1088.

The instructions of the court fairly stated the law of the case. The plaintiff in error did not testify in his own behalf, and offered no witnesses to rebut the state’s evidence.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    JACK TREADWAY v. STATE.
    No. A-4981.
    Opinion Filed May 4, 1925.
    (235 Pac. 929.)
    (Syllabus.)
    1. Appeal and Error — Overruling Challenge for Cause not Reviewed Where Defendant Accepts Juror Without Exercising All Peremptory Challenges. Where a defendant interposes a challenge to a juror for cause, and the challenge is overruled, and he accepts the juryman, without exercising all his peremptory challenges, the action of the trial court will not be reviewed on appeal.
    2. Intoxicating Liquors — Conviction for Unlawful Possession Sustained. In a prosecution for unlawful possession of intoxicating liquor, evidence held to warrant a conviction.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.

      Jack Treadway was convicted of unlawful possession of intoxicating liquor, and he appeals,.
    Affirmed.
    M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Kill Johns, Asst. Atty Gen., for the'State.
   DOYLE, J.

The information in this case charged that Jack Treadway did in Muskogee county, on the 2d day of September, 1922, have the possession of one and one-half gallons of whisky with the intention of selling the same. On the trial the jury returned a verdict finding him guilty, but failed to agree as to punishment. The court sentenced the defendant to be confined in jail for 90 days and to pay a fine of $250 and the costs. From the judgment he appeals.

The evidence shows that Weathers, a deputy sheriff, Fisher, a policei captain, and Officer Harris were passing the defendant’s place, and heard a disturbance upstairs. They went in and met two negroes coming down the stairs, and found four or five negroes sitting around in thei front room; one negro was pouring out whisky. They found four empty whisky bottles and several whisky glasses. They also found a gallon and a half of whisky in another room and a pint of whisky in the kitchen.

The defendant testified in his own behalf, denying ownership of the whisky, and denying having brought the whisky to his house; that he was asleep during the time the negroes were drinking, and did not hear the disturbance.

The first assignment is “that the court erred in not sustaining the defendant’s challenge to five jurors on the ground that they were not qualified to serve as jurors in this case.”

It appears that the defendant asked each of the jurors on his voir dire if he was subpoenaed to serve as a juror, and if he appeared on August 29, 1923, for jury service. Each answer was affirmative. The challenges were disallowed.

It is urged that said jurors were disqualified under the statute which provides:

“No juror shall be allowed to serve morei than two weeks at one term, unless, at the end of such period, he is upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated: Provided, that if the judge is of thei opinion that the jury business of a term of court may be concluded within six days, he may require a jury, or a juror, to remain until the termination of said jury servicei, by entering an order t<5 that effect upon the court iournal.” Section 8517, C. S. 1921.

The question as to whether or not the jurors challenged werei shown to be disqualified or whether or not the trial court erred in 'disallowing the challenges interposed to them are not presented by the record for consideration by this court. Thei presumption is that the proceedings were regular and that a proper order was entered by the court. The challenges having been disallowed, the defendant did not seei fit to exercise his right of peremptory challenges, but accepted all of- said j urors.

It is well settled that, where a defendant interposes a challenge to a juror for cause, and the challenge is overruled, and he accepts the juryman, and not exercising all of his peremptory challenges, he cannot be heard on appeal to urge the action of the court in disallowing his challenge to the juryman as prejudicial error. Turner v. State, 4 Okla. Cr. 165, 111 P. 988; Colbert v. State, 4 Okla. Cr. 500, 118 P. 558; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 112.

Complaint is made of alleged misconduct of the county . attorney in the cross-examination of the defendant. Against his objections the defendant was asked and answered the following questions:

“Q. Have you ever been convicted of any felony? A. I have been convicted, but 1 never served any time.
• Q. “You appealed the case, A. Yes, sir. (The defendant moved that the questions and answers be, stricken.)
“The Court: The question as to his having been convicted when the case has not been finally tried is improper, and the jury is instructed to disregard it. (Counsel contends that the question was improper and prejudicial.)”

Our statute provides (section 585, C. S. 1921) that a witness may be discredited by showing on cross-examination his conviction of a crime, and section 2699 provides:

“The rules of evidence in civil cases are applicable also in criminal cases.”

The defendant had elected to testify as a witness in his own beihalf, and, having done so, the county attorney had a right to ask him on cross-examination any question pertaining to the matter at issue or that would go to his credibility as a witness. Key v. State, 10 Okla. Cr. 206, 135 P. 950.

Although he may have appealed from a judgment of conviction to this court, the fact of his former conviction of a crime remained, and the ruling of the court in striking out the question and answer was more favorable to the defendant than the law required.

Upon a careful consideration of the record there seems to be no reason to doubt that the verdict of the jury in this case was entirely in harmony with the interests of justice, and, finding no prejudicial error, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    HOYT HOWINGTON v. STATE.
    No. A-5009.
    Opinion Filed May 6, 1925.
    (235 Pac. 931.)
    (Syllabus.)
    Trial — Court’s Duty to See that Accused Gets Fair and Impartial-Trial. Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly coursei of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.
    Trial — Jury—Waiver of Rights to Trial by Jury, to be Heard by Counsel, etc. A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.
    'Trial — Right to Consult with Counsel and be Fully Advised Before Pleading. Under Bill of Rights, § 20, an accused has the right to consult with counsel and to be fully advised as to his rights, and, as to the consequences of his act before entering his plea to the indictment or information.
    Arraignment and Pleas — Permission to Withdraw Plea of Guilty Within Sound Discretion of Court. The granting or denying of permission to withdraw a plea of guilty either before or after judgment, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court. In -capital cases such discretion should bq liberally exercised in favor of life and liberty.
    Same — Plea of Guilty not to be Accepted until Accused Fully Advised by Court of His Rights and) Consequences of Plea. A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.
    Appeal and Error — Reversal for Denial of Constitutional Right Unless Right Waived, or Error Harmless. Where it appears on appeal that a defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial.
    Arraignment and Pleas — Prerequisites to Accepting Plea of Guilty of Capital Offense by Accused Without Counsel. Where a defendant charged with a capital offense appears before the court without counsel and offers to enter a plea of guilty, the court before accepting such plea should make sure that the defendant has full knowledge of his rights, and that he fully comprehends the serious consequences of the plea which he is proposing to enter.
    8. Same — Plea of Guilty of Murder im First Degree Held not Mad© Voluntarily with Full Knowledge of Consequences. Where one accused of murder in the first degree was arraigned without counsel, and court did ñól inform him that in case he was tried by a jury and found guilty of murder, the jury in its discretion would have the right to decide whether the penalty to be imposed should be death or imprisonment for life, and that by pleading guilty he waived the right to have a jury exercise its jurisdiction as to that matter, it cannot be said that a plea of guilty then entered was voluntary or with full and perfect knowledge of the consequences.
    9. Trial — Prosecuting Attorneys’ Duty to See that Accused not Deprived of Constitutional Rights. It is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional rights as it is to prosecute him for the crime with which he is charged.
    Appeal from District Court, Oklahoma County; James I. Phelps,. Judge.
    Hoyt Howington pleaded guilty to a charge of murder and was sentenced to suffer death. From the judgment, he appeals.
    Reversed, with instructions.
    E. J. Giddings, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for. murder and sentence of death pronounced upon a plea of guilty entered by the defendant, Hoyt Howington, upon his arraignment on an information charging him with the murder of one Jack King. It appears from the record that the homicide was committed in Oklahoma City, January 20, 1924, about 11 p. m.; that defendant was arrested the next evening about 7 p. m. The next day complaint was filed against him before a justice of the peace. Thereupon defendant waived preliminary examination and was held to the district court. On the same day the information was filed in the district court, and the defendant was brought into court. Upon his arraignment the following colloquy occurred between him and the court:

“Do you desire to have a lawyer to represent you?
“The Defendant: No. sir; I will just plead guilty.
“The Court: Do you understand fully the nature and consequence of your act in entering a plea of guilty for the crime of murder? And do you fully understand that it will be necessary for the court to send you to the penitentiary for life or sentence you to death in the electric chair if you enter a plea of guilty?
“The Defendant: Yes, sir.
“The Court: And fully understanding that, then you desire to enter a plea of guilty?
“The Defendant: Yes, sir.
“The Court: Are you making this plea of guilty as your own free and voluntary act and deed?
“The Defendant: Yes; sir; and throw myself on the mercy of the court.
“The Court (to court clerk) : Let a plea of guilty be entered.
“The Court: It now becomes the court’s unpleasant duty to try to decide either to sentence you to the penitentiary for life or give you the electric chair, and I would like to hear any statement you desire to make.-
“The Defendant: I will just say this, that I will' ask for the mercy of the court; that the court ought to give me a chance; that when I done this, I was drinking; and that’s all. . .
“The Court: You killed this man for the purpose of robbing him, did you?
“The Defendant: No, sir; I didn’t aim to kill him.
“The Court: Well, you went in there to rob him and killed him because he was resisting.
“The Defendant: To keep him from killing me.
“The Court: I have read this statement you have made and the county attorney has just handed me.”

It appears from the statement handed to the court by the county attorney that defendant’s age was 20 years and 6 months; that his mother died when he was 6 weeks old, and his father died when he was 2 years old; that one of his uncles kept him until he was 11 years old; that his grandfather kept him until he was 13 years old; that he never went to school; that the only time he was ever before arrested was at Sherman, Tex., by a police officer on a minor charge.

The court pronounced judgment, concluding as follows:

“It is the judgment and sentence of this court that you be taken from the bar of this court to the county jail, and the sheriff of this county be directed, within 10 days, to convey you to the state penitentiary at Mc-Alester, and that the warden of the penitentiary will be directed to execute the sentence of death in the electric chair on you on April 4, 1924.
“You are notified by this court tnat you have a right to appeal to the Criminal Court of Appeals from this judgment and sentence of the court, and that the court will at this time appoint Cody Fowler and Clarence Mills to appeal the case for you to the Criminal Court of Appeals.”

On the following day, Janury 23d, E. J. Giddings, Esq., appearing for defendant, filed a motion to vacate and set aside the judgment and for leave to withdraw the plea of guilty and to enter a plea of not guilty, for the following reasons:

“That the judgment is illegal and not rendered according to law; that defendant is a minor, of the age of 20 years, and was told that he would get 15 or 20 years and no more, if he pleaded guilty, and that he could not have a lawyer before he entered his plea; that he did not have “the benefit and privilege of counsel, and was not apprised of his legal rights, and did not waive his statutory time for judgment and sentence; that he is entitled to enter a plea of not guilty, because he could not be legally sentenced until two full days after said plea had been entered.
“Wherefore he moves the court to permit, him to withdraw his plea of guilty and enter a plea of not guilty herein, and to grant him a jury trial, for the reason that his rights under the Constitution and laws of the state of Oklahoma have been violated in the imposition of said judgment and sentence.”

The motion to set aside the judgment and application for leave to withdraw his plea of guilty coming on to be heard, the court ruled as follows:

“I would a thousand times rather this young man would have had a trial by a jury; but I feel that when he was arraigned in this court, that he was properly advised of his rights, and I am sure that he fully understood the nature and the consequences of his act; not like an immature child, but he stated, at the time, he was within a few months of twenty-one (21) years of age; that he desired no counsel, and insisted on entering a plea of guilty after the court had informed him it would be necessary for the court to either sentence him to the electric chair or to life imprisonment, and after being thus admonished, he still insisted on entering a plea of guilty. I was thoroughly convinced that he understood the gravity of the situation at that time, and I have seen nothing to change my mind about it since then, and merely because the court felt like inflicting a more severe penalty than the young man had hoped that he might receive, to my mind, is no reason or excuse for coming in, at this time, and asking for that sentence to be set aside, I mean, reason or excuse in law. In order to safeguard his rights, this court appointed counsel to appeal his case to the Criminal Court of Appeals. Since that time, he, or some one for him, has employed counsel to appeal from the decision of this court inflicting the death penalty, to the Criminal Court of Appeals. The law makes it this court’s duty to file a transcript of all of these proceedings with the Governor, and it makes it the Governor’s duty, if he desires, to call on the Criminal Court of Appeals for an opinion. And, safeguarding every right that the defendant has, it was the desire of this court, at the time he was sentenced, that his rights be thus safeguarded. I still want to say that his rights are safeguarded; if, within the discretion or the judgment of the Criminal Court of Appeals or the Governor that this young man should not suffer the penalty inflicted by this court, why, it is within their power and authority and duty to dispose of it otherwise; but, under all the circumstances shown, as unpleasant a duty as it has been, this court’s conscience is absolutely clear as to the procedure that followed.
“The motion will be overruled and exception allowed.”

In support of the contention of counsel for defendant that the judgment should be reversed and a new trial ordered, the errors assigned are in substance that the court was without jurisdiction to render said judgment; that the defendant was denied the rights guaranteed by the Constitution of the state; that the court erred in not appointing a time for pronouncing judgment as required by law; that the court abused its discretion in denying the defendant’s motion to set aside the judgment, and in refusing to permit him to withdraw his plea of guilty.

We have given this case, because of its great importance, involving human life, patient and careful consideration, and we are convinced that the judgment of conviction should be set aside and a new trial awarded.

No more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. When human life is to be taken under the judgment of a court, the act cannot be justified, except by the strict observance of the forms of the law of the land.

No act which a court can be called upon to perform is more grave and solemn than to pronounce judgment and sentence upon a plea of guilty in a capital case. In such cases “judges ought as far as the law permitteth in justice to remember mercy.”

The uniform holding of the courts is that, in capital cases, a plea of guilty can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea, and, where it appears on appeal from a judgment of conviction that the defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial.

A denial of a constitutional right to a person prosecuted for a crime is prima facie prejudicial.

Section 20 of the Bill of Rights provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and, counsel; and in capital cases, at least two days before the ease is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.”

In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of the law.

A person prosecuted for a crime may waive the rights guaranteed to him by this provision of the Constitution, and the first question presented is whether, under the fact shown in this case, the defendant did or did not waive such rights.

Where it appears that a defendant has been fully advised as to his rights and as to the consequences of his plea, that with such knowledge he deliberately enters a plea of guilty, the court is justified in accepting it, even in a capital case. But where a defendant charged with a capital offense appears before the court without counsel, and offer to enter a plea of guilty, the court before accepting such plea should make sure that defendant has full knowledge of his rights, and that he fully comprehends and appreciates the serious consequences of the plea he is proposing to enter. Polk v. State, 26 Okla. Cr. 283, 224 P. 194.

The record does not show that this defendant was at any time furnished with a list of the witnesses to be called in chief to prove the allegations of the information together with their post office addresses, or that he was served with a copy of the information, nor does the record show that the defendant waived these constitutional rights.

It is well settled that under this provision of the Constitution the defendant in a capital case does not have to demand a list of the witnesses to be called in chief, because the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with, unless the defendant has waived this right. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Spess v. State, 13 Okla. Cr. 277, 164 P. 131; Goben v. State, 20 Okla. Cr. 220, 201 P. 812.

The state attempts to safeguard the life and liberty of citizens, and as one of the steps in that direction secures to them, if prosecuted for crime the constitutional right to be heard by counsel, which includes the right of accused to consult with counsel at every stage of the proceedings, whether imprisoned or admitted to bail. Mullen v. State, 28 Okla. Cr. 218, 230 P. 285.

The 'statute provides that where it appears that the defendant has no means and is unable to employ counsel, the court shall in all such cases appoint counsel, to represent him. Section 2929, C. S. 1921. There can be little doubt, under the facts in this case, that the defendant was denied the right to be heard by counsel as guaranteed by the letter and the spirit of our state Constitution. There is nothing to show that the defendant waived this right. At the time he was brought before the court and arraigned, he had been given no opportunity to be advised by counsel as to his rights, or as to the consequences of any plea he might enter. The judge of the court asked him if he desired to have a lawyer, but the court did not tell him that he had a right to have an attorney, and the court did not inquire as to what means the defendant possessed by which he could employ a lawyer, and did not inform him that it was the duty of the court to appoint an attorney to appear for him in case he possessed no means to employ one. And the court did not direct any officer of the court to call a lawyer to consult with him, and made no offer to appoint an attorney for that purpose.

Under the facts stated, the defendant cannot be held to have waived his constitutional right to be heard by counsel. If the defendant had been permitted to consult with counsel learned in the law before he was arraigned, he would have been informed as to his constitutional and statutory rights, and he would have been informed that he had a right to be tried by a jury of 12 men, whose duty it would be to decide the question of his guilt; that in case he was tried by a jury and found guilty of murder, the jury in its discretion would have the right to decide whether the penalty to be imposed should be death or imprisonment for life. He would have been told that he could not be required to give evidence against himself either as tending to show that he was guilty of the offense charged or as tending to show any aggravating circumstances to be considered in fixing his punishment. He would have been informed, also, that in case he pleaded guilty, such plea would be a judicial confession that he was' guilty of murder and a waiver of his right to a trial by jury, and that the court would be authorized on that plea to find him guilty of murder without hearing other evidence. Mullen v. State, supra.

Under the facts in this case, the court had no right to assume that the defendant was fully advised as to his rights, and as to the consequences of a plea of guilty. The defendant was young, ignorant and inexperienced. Under such circumstances, the court was required to use caution in proportion to the gravity of the consequences.

Greenleaf on Evidence, vol. 1, par. 216, states the rule on this subject which is generally followed by the courts:

“Confessions are divided into two classes, namely, judicial and extrajudicial. Judicial confessions are those that are made before the magistrate or in court, in the due course of legal proceedings; and it is essential that they be made of the free will of the party, and with full and perfect knowledge of the nature and consequences of the confession. Of this kind are the preliminary examinations, taken in writing by the magistrate, pursuant to statutes; and the plea of guilty made in open court, to an indictment. Either of these is sufficient to found a conviction, even if to be followed by a sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge. Such was the rule of the Roman law, * * * and it may be deemed a rule of universal jurisprudence.”

Under the facts as shown by the record, it cannot be said that the defendant voluntarily entered his plea of guilty understandingly, and it is shown beyond question that the consequences of a plea of guilty were not fully explained to the defendant before a plea was accepted.

The trial judge has like official responsibility to that of the judges of an appellate court, and every reasonable presumption must be indulged that he properly guarded the rights of the defendant. A consideration of the facts here presented, however, impels the conclusion that the trial court erred in its view of the law.

The Attorney General very properly declines to support the judgment and sentence in this case.

It may be well to say here that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional rights, as it is to prosecute him for the crime with which he is charged.

It will be observed that the judgment and sentence of death was pronounced in this case within 2 days from the commission of the homicide and within 24 hours following the arrest of the defendant.

“The law travels with a leaden heel, but strikes with an iron hand,” is a maxim pregnant with obvious meaning. In this instance, it doffed the “leaden heel,” yet struck with the iron hand.

We do not deem it necessary to discuss other questions, presented by the record, as they have been fully considered in two cases cited. Polk v. State and Mullen v. State.

Our conclusion is that the trial court should have granted the defendant’s motion to vacate the judgment and should have permitted him to enter a plea of not guilty. In denying such motion, the court manifestly abused its discretion.

The judgment is reversed, with instructions to the trial court to set aside the judgment and allow the defendant to withdraw his plea of guilty and enter one of not guilty.

The warden of the penitentiary will surrender the defendant, Hoyt Howington, into the custody of the sheriff of Oklahoma county, who will keep him in custody pending further proceedings in the case.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    HOWARD MILES v. STATE.
    No. A-4989.
    Opinion Filed May 6, 1925.
    (235 Pac. 1116.)
    (Syllabus.)
    Evidences — Unlawful Possession of Liquor — Evidence Obtained by Unlawful Search of Person Without Warrant for Arrest. In a prosecution for unlawful possession of intoxicating liquor, the defendant cannot be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, nor the evidence of the possession thereof, so acquired, is admissible against him.

      Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    Howard Miles was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded, with direction to discharge accused.
    Tom Cheatwood, for plaintiff in error.
   DOYLE, J.

The plaintiff in error was tried upon an information charging that in Tulsa county, on the 30th day of June, 1923, he did have in his possession one gallon and three pints of corn whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in jail for five months and to pay a fine of $350. To reverse the judgment he appeals.

The undisputed facts are that in the afternoon of the date alleged, two police officers of the city of Tulsa were driving along the highway outside the city and met the defendant walking along the highway, they stopped their car, gbt out and searched the defendant, founjd about a gallon of whisky in a package he was carrying, and found three pint bottles of whisky in his pockets. The officers testified that the search was made without a search warrant and without a warrant for the arrest of the defendant. He was arrested, and this prosecution followed.

It appears that the evidence in the case was all admitted over the defendant’s objections, and at the close of the state’s evidence the defendant made motion to strike all the evidence, whether by way of exhibit or by testimony, obtained by reason of the search, and to withdraw the same from the consideration of the jury, on the ground that the search and seizure was in violation of his constitutional rights. The motion was overruled. He then moved for a directed verdict on the ground that the evidence was insufficient to sustain the allegations of the information. This was also overruled.

The main question presented in this case is passed upon in the case of Keith v. State, 30 Okla. Cr. 168, 235 P. 631, and other cases cited in the opinion, holding that:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his posession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

For the reasons given in these cases, the judgment is reversed, and the cause is remanded, with direction to discharge the defendant.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    C. S. GRUBBS v. STATE.
    No. A-4983.
    Opinion Filed May 6, 1925.
    (235 Pac. 1115.)
    (Syllabus.)
    1. (Evidence — Accused’s Character not to be Attacked Unless He First Introduces! Evidence of Good Character. The state cannot attack the character of the defendant, unless he first puts that in issue by. introducing evidence of his good character.
    2. Intoxicating Liquors — Permitting Evidence of Accused’s General Reputation for Commission of Similar dimes Prejudicial Error. It is error prejudicial to the rights of the defendant on trial for the' court to permit evidence of the general reputation of the defendant for the commission of the same or similar crimes to the one charged.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.

      C. S. Grubbs was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    Wilkinson & Hudson, for plaintiff in error.
    'George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that on April 29, 1923, C. S. Grubbs did have in his possession about two gallons of whisky, with the unlawful intent to sell the same. On the trial the jury returned a verdict, finding him guilty, and fixing his punishment at a fine of $100 and confinement for 30 days in the county jail. From the judgment he appeals.

Chester Nation, city marshal of Haileyville, testified that he saw the defendant riding a horse with a sack across the horse; that it was a moonlight night and he could see distinctly a block ahead; that he tried to stop the defendant, and he refused to stop and rode on, and witness drove his car around another way and intercepted him two blocks away; that he saw the defendant throw something into a ditch; that he searched the defendant with a flash light and found nothing at that time; that he found a sack containing a half gallon jar of whisky in the ditch and the next day arrested the defendant.

Over objection and exception by the defendant the trial court permitted the witness to testify that he knew the general reputation of this defendant as being a man who sells whisky, and that it was bad. The court also permitted, over objections and exceptions by the defendant, witnesses W. E. Gocher and J. B. Dowell to testify that they knew the general reputation of the defendant as being a man who handles intoxicating liquors, and that it was bad. At the close of the state’s testimony there was a motion for a directed verdict, which motion was denied.

The defendant testified that he had been to Harts-horne, trading’ horses, and returned to Haileyville in the company of Charley Blackard; that he rode to the water trough near the Telephone Exchange to water his horse and from there started home; that Chester Nation intercepted him at the railroad crossing and searched him, that was the first time that he saw Nation that night; that, if Nation had tried to intercept some one with a sack across the horse, it was not witness; that he did not have any whisky in his possession on the night of April 29th.

Of the various errors assigned, we deem it only necessary to consider the one that the court erred in admitting the testimony relating to the reputation of the defendant. The rule is well settled that the state cannot attack the character of a defendant, unless he first puts that in issue by introducing evidence of his good character.

In Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092, it is said:

“It is a doctrine as old as free government that men who are placed upon trial charged with the violation of criminal statutes are to be tried for the offense alleged against them and are not to be tried upon a reputation for having committed similar or kindred offenses. The issue in a criminal case is single, .and is always based upon the question: Is the defendant at the bar guilty of the offense charged against him in the information? and not, has he the reputation of being guilty of similar or other offenses againt the laws of this country?”

In Kirk v. State, 11 Okla. Cr. 203, 145 P. 307, it is said:

“If it were the law that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the state would doubtless be hard to answer; but the law is otherwise. It is the law that a defendant in a criminal case is presumed to be innocent until the contrary is proved by competent evidence beyond a reasonable doubt. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, whether it affords too great protection to the criminal, or too little to society, are not questions with which we have to do. It is not the province of the courts to change and relax the rules of evidence in order to facilitate convictions in a particular class of offenses. Until the lawmaking power intervenes and prescribes differently, the same rules of evidence must govern the trials of defendants in this class of offenses that govern in all other criminal trials.
“It follows that evidence of the general reputation of the defendants as to being bootleggers was incompetent to impeach the credibility of the defendants as witnesses, or for any other purpose: Its admission was therefore prejudicial to the substantial rights of the defendants.” And see Richards v. State, 12 Okla. Cr. 225, 154 P. 72; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A. L. R. 1212.

There are other errors in the record which need not be noticed.

For the errors indicated, the judgment is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Ex parte WILLIE CLARKE.
    Np. A-5537.
    Opinion Filed May 6, 1925.
    (236 Pac. 66.)
    (Syllabus.)
    L Punishment — Statutory Penalty of Pine and Imprisonment — Judgment for Imprisonment Alone not Void. Where a penal statute fixes the penalty at a fine and confinement, in the conjunctive, and the court renders judgment for confinement alone, under our procedure the judgment is erroneous but not void.
    2. Same — Void Sentence Distinguished from Erroneous Sentence. A sentence of a different character from that authorized by law is void, while a sentence of the character prescribed by law, where, some feature of the legal punishment is omitted, is usually erroneous only.
    3. Same — Statute Fixing Punishment at Fine “and” Confinement “or Bothi” Held to Permit Fine “or” Confinement. Construing a statute fixing the punishment at a fine “and” confinement, “or both,” held, that the phrase “or both” imports that the punishment shall be a fine “or” confinement, or both.
    (a) For the reasons for such construction see the body of the opinion.
    Application by Willie Clarke for writ of habeas corpus.
    Petition dismissed.
    C. M. Anderson, for petitioner.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The petition avers that Willie Clarke is illegally restrained of his liberty in the penitentiary at McAlester, pursuant to the terms of a void judgment and' commitment against him, rendered and issued by the district court of Stephens county, where, by verdict of a jury, the petitioner was found guilty of a violation of the Narcotic Drug Act, his punishment fixed at confinement in the penitentiary for a term of 5 years, but with no fine assessed as provided by statute. The court rendered judgment in accordance with the verdict and caused a commitment to issue accordingly.

The petitioner claims that the court was without jurisdiction or authority to render a judgment assessing the punishment at confinement alone, and that his consequent incarceration in the penitentairy is illegal.

The statute providing the penalty for the offense of which petitioner was convicted (section 8888, Comp. Stat. 1921) reads thus:

“Any person who violates any of the requirements or provisions of this act shall, upon conviction, be deemed guilty of a felony and be fined not less than five hundred dollars nor more than five thousand dollars and shall be imprisoned not less than one year nor more than seven years, or both.”

The language used in this statute with reference to the penalty, as quoted, is ambiguous. It provides for a fine “and” confinement, “or both.” The petitioner assumes that, since fine and confinement are stated in the conjunctive in the statute, both must be assessed. He urges the novel claim that, because no fine was assessed against him, the penalty of confinement is void; that the court was without jurisdiction to render judgment for confinement alone. In other words, he complains, not of an excessive penalty, but of the fact that the court and jury failed to assess a fine against him in addition to imprisonment, and claims that such failure operates to avoid the judgment of confinement in the penitentiary.

The weight of authority is the other way. A sentence which is for less than the statute prescribes is usually not void but merely erroneous. In re Reed, 143 Cal. 634, 77 P. 660, 101 Am. St. Rep. 138; 8 R. C. L. 238.

Our own court has held, pursuant to statute, that, where a jury assesses punishment greater than the law prescribes, the defendant shall be given the maximum prescribed by the statute. Section 2752, Comp. Stat. 1921; In re Wm. Taylor, 7 S. D. 382, 64 N. W. 253, 25 L. R. A. 136, 58 Am. St. Rep. 843.

Since it is the policy of our law, made so by statute, where an excessive penalty is imposed, to enforce the punishment within the bounds prescribed by law, thus holding that the judgment is not void but merely erroneous, by analogy it would seem that, if the penalty assessed merely omitted the fine and provided for confinement within the maximum prescribed by statute, the punishment to that extent should be upheld.

This conclusion is further confirmed by another well-established principle of law, to wit, that, where a court has jurisdiction of the person and the offense, a defendant cannot take advantage of an error in his favor. Under such circumstances the state alone may complain. That such a judgment is, only erroneous and not void, see section 3092, Criminal Law, 16 C. J. 1311; Caudill v. State, 9 Okla. Cr. 66, 130 P. 812; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Freeman on Judgments, § 625; 3 Wharton, Criminal Law, § 3403; 1 Bishop, Criminal Law, § 930.

In this case the court had jurisdiction to impose a penalty of confinement, as was done, for a period of 5 years, and, because the court failed or refused to assess a fine in addition thereto (assuming that the statute so requires), that fact would not divest the court of its jurisdiction to impose the confinement. The court did not exceed its jurisdiction; it merely failed to exercise to the fullest extent the jurisdiction it possessed.

In Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109, it was held that the failure of the court to assess disfranchisement as a part of the penalty is an error of which the accused cannot complain. Amd even in cases where the judgment is excessive it has been held that the judgment is not void, but merely erroneous. In this connection the case of In re Fanton, 55 Neb. 703, 76 N. W. 447, 70 Am. St. Rep. 418, discusses exhaustively the subject of penalties assessed not authorized by statute. The rule deduced from the authorities analyzed in that case is thus stated:

“A sentence of a different character from that authorized by law is void, while a sentence which imposes the statutory kind of punishment is not absolutely void, although excessive. In the one case the entire judgment is invalid, while in the other the excessive portion is erroneous only.”

In the following cases cited by the petitioner the judgment was held erroneous but not void: Dunbar v. State, 15 Okla. Cr. 513, 178 P. 699; Tucker v. State, 14 Okla. Cr. 54, 167 P. 637 (exact point not decided, reversed on other grounds) ; Caudill v. State, supra; In re Wilkins, 7 Okla. Cr. 422, 115 P. 1118.

Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591, was a case in which the defendant was charged with using obscene language and punished as for disturbing the peace, including the granting of an unauthorized parole. In that case the court held that such a judgment was absolutely void, and that the petitioner was entitled to relief by habeas corpus. To the same effect see Ex parte Harris, 8 Okla. Cr. 397, 128 P. 397.

We now pass to the consideration of the language of the statute, providing for a fine and confinement, or both. Does this statute provide for a fine and confinement, in the conjunctive; or does it mean either the one or the other, or both, in the discretion of the court or jury?

Applying a well-known principle of statutory construction, to wit, that, where a statute is susceptible of different constructions, that construction should be adopted which gives effect to every phrase and portion of the act if such construction is rational and in keeping with the purposes and objects to be attained, to give effect to the phrase “or both” we must construe the conjunctive “and” in this case to mean the disjunctive “or.” 25 R. C. L. Statutes, §§ 246, 247.

In ambiguous writings the word “or” is sometimes construed to mean “and”; more frequently the word “and” is construed to mean “or.” The court will adopt the appropriate construction indicated by the context and the purposes of the act. State ex rel. Caldwell v. Hooker, 22 Okla. 713, 98 P. 964; Williams v. U. S., 17 Okla. 28, 87 P. 647; 25 R. C. L. 917; 1 Bouvier’s Dict. 194; extended notes and annotations to Janney v. Sprigg, 48 Am. Dec. 573; 1 Words and Phrases, First Series, p. 389; 1 Words and Phrases, Second Series, p. 208.

Giving effect to the phrase “or both” is equivalent to saying that the punishment may be fine, or imprisonment, or both fine and imprisonment, and that the conjunction “and” in this case means “or.” It has been the policy of our Legislature, in providing for punishment of offenders, to fix a maximum and a minimum punishment, so that the court or jury may exercise a wise, humane discretion to fit each particular case. In doing this the moral responsibility, the age and character of the offender, and other factors, may properly be considered. It is manifest that some persons who have been found guilty of violating the Narcotic Drug Act (Comp. St. 1921, §§ 8886-8888) should be dealt with most severely, while in other cases the punishment should be light.

Such construction is in keeping with another rule of statutory construction, to wit, that, where the terms of a penal statute relating to the severity or character of the punishment are ambiguous, such provisions must be construed most favorably to the accused. 21 R. C. L. 209; Ex parte McClure, supra.

For these reasons we construe this statute to mean that the penalty for the offense for which the petitioner was convicted may be a fine, or imprisonment, or both.

The demurrer to the petition for writ of habeas corpus is sustained, and the petition dismissed.

DOYLE and EDWARDS, JJ., concur.