author: BAREFOOT, P. J. BAREFOOT, P. J.

text:
    WOODROW (WOODY) WILKINS v. STATE.
    No. A-10428.
    April 4, 1945.
    Supplemental Opinion April 18, 1945.
    (157 P. 2d 764.)

      L. Keith Smith, of Jay, for plaintiff in error.
    Randell S. Cobh, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Riley Q. Hunt, Co. Atty., of Jay, for defendant in error.
   BAREFOOT, P. J.

Defendant Woodrow (Woody) Wilkins was charged in the district court of Delaware county with the crime of larceny of livestock, to wit: One cow. He was tried, convicted and sentenced to pay a fine of $250, and serve four years in the State Penitentiary, and has appealed.

The only contention of defendant is that the court erred in granting a severance upon the application of the state after the jury had been impaneled to try the case. With reference to this, the record reveals that an information was filed on January 13, 1943, charging the defendant and Sidney Hilliard and Andrew Williams jointly with the larceny of livestock. A preliminary complaint had been filed in the justice of the peace court on September 4, 1942, and on October 19, 1942, defendant was given a preliminary hearing and was bound over to the district court. He was present at the preliminary hearing, and was represented by the same counsel who represented him in his trial in the district court. There is nothing in the record to show that the two codefendants ever had a preliminary hearing in the justice court.

The case was called for trial in the district court on January 27, 1943. Defendant was present in person, and by his counsel. Neither of the codefendants was present. The record recites, “the state and defendant each announce ready for trial.” With this announcement a jury was selected and sworn to try the case, and the county attorney made an opening statement to the jury. Counsel for defendant reserved his statement. Up to this point neither of the codefendants had been present in the courtroom, and no objection had been made to their being absent, and no request made for their presence. At this time counsel for defendant moved the court to direct the jury to return a verdict of not guilty, which was overruled by the court, and exception reserved. Counsel for defendant then made ah oral objection to the taking of evidence, for the reason that the codefendants were not in the courtroom and were not present at the time the jury was impaneled; and asked that the court make a finding in the record to this effect, which was done.

The record reveals the following:

“Mr. Hunt (County Attorney) : The state has a right to choose which one of them it wants to try. Mr. Smith (for defendant) : There neither has been a severance asked for by anybody or granted. Will the court make the finding into the record? The Court: Let’s not be in any hurry about it. Let the record show that during the proceeding's up to this point the defendants Andrew Williams and Sidney Hilliard were not present. The defendant Woodrow Wilkins was present. As the record shows all the record made up to this time, the impaneling of the jury, the opening statement and the announcements that the defendant Wilkins was ready for trial was received on the theory that the defendant Wilkins was going on trial and the various objections that were made by Wilkins were just dictated into the record, as shown by the record, immediately before this ruling. The court refuses, at this time, to declare a mistrial and announces to the county attorney that he can ask for a severance. Mr. Hunt: Comes now the State of Oklahoma and requests the court for a separate trial for the defendant Woodrow (Woody) Wilkins. Mr. Smith: Comes now the defendant, Woodrow Wilkins, and objects to the request of the state and renews his motion for the court to declare a mistrial and asks the court to affirmatively find in the record that prior to this moment neither one of the three defendants nor the state had asked for a severance and a separate trial. The Court: Well, the record shows that. Severance is granted. The court, in the exercise of his discretion, orders that this defendant Wilkins be tried separately, in addition to the motion of the county attorney. Mr. Smith: On the order of the court, the defendant again asks the court to declare a mistrial; that a new jury be drawn and the proceedings begun anew. The Court: Overruled. Mr. Smith: Exception.”

The court then proceeded with the trial of the defendant, with the result above stated.

22 O. S. 1941 § 838 provides:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.”

It will be noted that the above statute gives to the defendant the absolute right of a severance in a felony case. The court is without power to refuse it to him when demanded. The statute is silent as to the right of the state to have a severance. Under the common law the state, and not the defendant, had the right of severance, subject to the discretion of the court, as to whether defendants be jointly or separately tried. And while the statute above quoted changes the common law rule to give the defendant the right to demand a severance in felony cases, it does not take away the right of the state as it existed under the common law to separately try each of several defendants jointly indicted for a felony. In other words, the common law rule has not been abrogated by the above statute. Hoffman v. Commonwealth, 134 Ky. 726, 121 S.W. 690. The decisions of this court are in accord with the above doctrine.

It will thus be noted that while the statute gives to the defendant the right of severance, it does not confer upon him the right of a joint trial, nor does such right exist at common law. And the court in its discretion may order a separate trial on its own motion, without application therefor by either party. Hoffman v. Commonwealth, supra, citing the following cases: 19 Encyc. Pleading & Practice, 527; 12 Cyc. 506; Clark’s Criminal Procedure, 154; Barnes v. Commonwealth, 92 Va. 794, 23 S. E. 784; Gathings v. State, 44 Miss. 343; State v. Prater, 52 W. Va. 132, 43 S. E. 230; State v. Roberts, 50 W. Va. 422, 40 S. E. 484; State v. Thaden, 43 Minn. 325, 45 N. W. 614; In re Curran, 7 Grat., Va., 619.

Having decided that the state has the right under the statute to apply for a severance, the same as the defendant, or that the court has the right to order a severance on its own motion, the question arises in this case as to when this severance may legally be had with reference to the trial of the case; and whether the defendant has been prejudiced by the action of the court, or waived his right to question the procedure had in the instant case.

In the early case of Bates v. State, 8 Okla. Cr. 436, 128 P. 163, 164, Ann. Cas. 1914C, 400, this question was before the court in an action where application was made by the state for a severance under the statute after the case was called for trial, and each party had announced ready. The court held that the court did not err in granting the severance, and adopted as its opinion the statement made in the brief of the Assistant Attorney General, which is as follows:

“It is contended that the trial court erred granting a separate trial, upon the application of the county attorney, of each of the defendants jointly informed against.
“Counsel for plaintiff in error contend that a severance could only be had at the request of either of the defendants, because the state, by informing against them jointly, had thereby elected to try them jointly, and was bound by such election. Counsel admits that he has been unable to find authority to support his contention. There is none.
“The statute of the state governing is section 6830 Compiled Laws of Oklahoma (22 O. S. 1941 § 838) as follows: ‘When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.’
“In the first place, it must be admitted that the state could have accomplished the separate trial of these defendants by informing against them separately; and neither defendant could have said nay, although jointly complained against, tried, and bound over, by the examining-magistrate. People v. Plyler, 121 Cal. 160, 53 P. 553. If that be true, what would be the reason for a construction that the state may not directly do what it could have accomplished by indirection?
“An accused jointly indicted or informed against in a felony case has no absolute right to a joint trial. He cannot compel his codefendants to be tried with him; but each of them, by demanding separate trials, may thereby compel him to be separately tried. One of two joint defendants may plead guilty, thereby compelling the other to be tried alone.
“Will this court say that just because two men are jointly accused that they, or either of them, may compel the state to try both at the same time, or else not try either? Suppose one of them should never be arrested, or else make his escape after his- arrest, then what remedy would the state have? Proceed against the other? No; because you have elected to prosecute him with the other, and you are bound by such election. Therefore he escapes punishment altogether, or the state must wait until the other is apprehended. What utter nonsense such a theory really is.
“In the case of In re Curran, 48 Va. 619 [7 Grat. 619], the General Court of Virginia said the following: ‘I am of opinion that the objection upon which the third error assigned is based is neither sound nor plausible. It alleges “that it was error to try the prisoner separately; it not appearing that he elected to be so tried.” By the common law, until it was changed by a recent act for the summoning of venires and impaneling juries in criminal cases, the commonwealth, and not the prisoner, in case of joint indictments, had the right of election, subject to the control and discretion of the court, whether to arraign and try prisoners or defendants, jointly indicted, separately or jointly. By the law now in force (see Revised Criminal Statute, Session Acts 1847-48, p. 149, §§ 11 and 12), each defendant has a right to a separate trial, if he so elect. Indeed, they must necessarily be tried separately where the offense is a felony, unless they elect a joint trial and agree in their challenges. But, even if they should so elect, the attorney for the commonwealth or the court may nevertheless elect to have a separate trial; so that whilst any and every joint defendant is entitled to a separate trial, if he so elect, against the will of the court or the attorney for the commonwealth, joint defendants cannot be tried jointly without the concurrent election of themselves, on the one hand, and the attorney for the commonwealth or the court, on the other.’
“The following decisions are to the same effect: Stewart v. State, 58 Ga. 577; State v. Johnson, 34 La. Ann. 48; State v. Thaden, 43 Minn. 325, 45 N.W. 614; Metz v. State, 46 Neb. 547, 65 N.W. 190; Com. v. Hughes, 11 Phila., Pa., 430; State v. Marvin, 12 Iowa 499; Allen v. State, 10 Ohio St. 287; 1 Wharton’s Crim. Law, § 433; Bishop’s Crim. Proc. § 1018; State v. Bradley, 9 Rich. S. C., 316; Hawldns v. State, 9 Ala. 137, 44 Am. Dec. 413; State v. Thompson, 13 La. Ann. 515; State v. Roberts, 50 W. Va. 422, 40 S. E. 484.
“Our statute was not intended to abrogate the common-law rule that in the discretion of the court, a separate trial of joint defendants may be granted on the application of the state. It was intended by the statute to confer upon defendants a greater privilege than ever before possessed by them, the privilege of the right to a separate trial in felony cases upon their demand — a right not to be defeated by either the court or the prosecuting attorney.
“In such cases the severance must be granted by the court. In all other cases the severance may be granted by the court. And this section, in order to promote the interests of justice, must be construed to mean that such a severance may be granted on the application of either the state or defendant.
“A resume of our position, concisely stated, is this: That in felony cases, where a defendant demands it, a separate trial must be granted; that in felony cases, where the state asks it, a separate trial may be granted, in the discretion of the court; that in misdemeanor cases, where either party asks the severance, it is discretionary with the trial court to grant it.”

And while the facts are not identical with those in the instant case, the reasoning is applicable.

We also cite the case of Nichols v. Territory, 3 Okla-622, 41 P. 108, decided by the Territorial Supreme Court. In this case the application for a severance was made by the defendant after the jury was impaneled, but the reasoning in the opinion is convincing when applied to the facts here presented. After quoting the above statute, it is there said:

“The right to separate trial in felonies is a privilege extended to the defendant, to be granted by the court on his request or demand. This privilege or right is one he may waive, and he does waive it in all cases where he fails to make the request within proper time. It is a rule that, where statutory rights and privileges may be waived by the party entitled to same, such waiver may be by conduct as well as by express declaration. It appears from the record in this case that, on the day the cause was set for trial in the district court, the plaintiff in error and his codefendant were present in person and by counsel, and all parties announced ready for trial, and the impaneling of the jury was in progress, when the defendants demanded a separate trial. The demand was denied for the reason that it was not made in time. In the case of Hullinger v. State, 25 Ohio St. 441, the supreme court of Ohio construed a similar statute, which provides: Where two or more persons are indicted for a felony, each person so indicted, shall, on application to the court for that purpose be separately tried.’ In the Ohio case the defendants demanded a separate trial after the jury was impaneled, but before it was sworn. The court said: ‘There is no doubt that the right of separate trials, thus secured, may be waived by the parties. Nor is there any doubt that such waiver may be implied from the conduct of the parties. The question here is whether the exercise of the right of challenge during the impaneling of the jury is such conduct on the part of the accused as will imply such waiver. We think the application for separate trials must be made before exercising the right of challenge, otherwise the right of separate trials will be deemed to have been waived.’ It is true, in the case under consideration, it does not appear that any challenge had been exercised, but we think the conduct of the defendant calls for the application of the same rule. The same rule is announced by Judge Maxwell in his Criminal Procedure. Maxw. Cr. Proc. 562. In McJunkins v. State, 10 Ind. 140, the court held under a similar statute that the right to a separate trial was waived when the demand ivas not made [until] after the jury was sworn. Moore Cr. Law § 293. It is contended that it was held in Babcock v. People, 15 Hun 347, that the statutory right to a separate trial is available after the jury is sworn. We cannot assent to such doctrine. If it may be made after the jury is sworn, we see no good reason why it may not be made after the evidence of the territory is in, or after the court has instructed the jury, or at any other time before final sentence. If this right to separate trial may be demanded after the trial begins at one stage of the proceedings, why may it not at any stage? Where will the court draw the line? No authority will question the proposition that the trial has been commenced when the jury is sworn. We think the correct rule is to require such demand to he made before any of the steps are taken in the progress of the trial of the cause. It is not reasonable, fair, or just to suppose that it was intended that the courts should be used to satisfy the whim or caprice of those who may have business before them, or that a defendant may elect to go to trial, and after finding that he does not like the looks of the jury, or for some other trivial cause, demand a separate trial, and thus cause the work of the court to all be gone over again. For the purpose of determining when this right of separate trial shall be requested, we hold that it may be at any time before the trial begins; and for this purpose the trial commences from the time the parties have announced ready for trial and the work of impaneling the jury begins. The supreme court of the United States in Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202 [28 L. Ed. 262], said: ‘For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.’ And this doctrine was approved in Lewis v. United States, 146 U. S. 370, 13 S. Ct. 136 [36 L. Ed. 1011]. The demand for a separate trial having been made in the case at bar after the work of impaneling the jury was in progress, it was made too late, and there was no . error in overruling it.”

It will be noted that it is there held that the defendant is required to make his application before the exercising of the right of challenge, or he will be deemed to have waived his right to a separate trial. If this be true, why then should he be allowed to sit idly by and permit the impaneling and swearing of the jury and permitting the county attorney to make an opening statement before demanding a joint trial. The argument in that case is that “if this right to separate trial may be demanded after the trial begins at one stage of the proceedings, why may it not be at any stage?” The defendant had made no attempt in the instant case to object to his codefendants not being present during the impaneling of the jury. He undoubtedly knew that they had never had a preliminary hearing and therefore could not be tried at that time. It must have been evident to him that the state intended to permit these codefendants to turn state’s evidence and testify against the defendant.

We think the proper rule would be that the request for a severance should be made before the exercising of the right of challenge to the jurors, but we are also of the opinion that the defendant by his conduct has waived any right he may have had to a joint trial with his co-defendants in' this case. He has no vested right to be tried jointly with his codefendants. The county attorney had the right to file separate charges against each of the defendants and then he would have been tried separately.

As was said in the Nichols case:

“It is not reasonable, fair, or just to suppose that it was intended that the courts should be used to satisfy the whim or caprice of those who may have business before them,” or that at any stage of the proceedings he may demand to have a joint trial because “he does not like the looks of the jury, * * * and thus cause the work of the court to all be gone over again.”

In the case of Martin v. Commonwealth, 26 Ky. 688, 108 S.W. 2d 665, 668, the Supreme Court of Kentucky had before it the question of granting a severance upon the motion of the commonwealth after the jury had been sworn. It is there said:

“It is complained that the commonwealth was allowed a severance of trial after the jury was sworn. On this point the record shows that when the case was called for trial the commonwealth announced ‘ready’ and the defendant ‘not ready’ and appellant moved for continuance and filed his affidavit showing that his wife was ill and could not attend court.
“Another order of the same day recites that the defendants each announced ready for trial, and the selection of the jury was begun. Only ten of the regular panel was present. By agreement of parties the judge drew from the wheel. On the next day the jury was completed and at this point an order recites: ‘On yesterday, the commonwealth by counsel moved the court for a severance of the trial, at which time Maggie Martin was not in court, but she is present in court today, and the jury is sworn as to both defendants. The commonwealth is insisting upon a severance * * * and to this the defendants and each of them object. Maggie Martin was not in court on yesterday when the selection of the jury was begun; seven of the jury having been selected by both sides. The court is of the opinion that the motion to sever should be and is sustained, and the defendant Dan Martin was elected by the commonwealth to be tried first. To all of which the defendants object and except. When the selection of seven of the jury was perfected on yesterday, Maggie Martin was not present, therefore Dan Martin alone was on trial.’
“Appellant thereupon waived arraignment, entered a plea of not guilty, but at this point made no motion for continuance, or to discharge the jury. Appellant complains that motion for severance comes too late after the jury is sworn, and cites the case of Radley v. Com., 121 Ky. 506, 89 S. W. 519. In that case it was found that motion for a severance was not made by the accused until after the jury was sworn, and we held that it was too late, because jeopardy began with the swearing of the jury. In this case the order recites, that the motion was made prior to the selection of the jury. It was reasonable for the court not to pass on it at that time, because of the affirmative showing made by appellant as to his wife’s absence on account of illness. The codefendant may be able to make complaint on her trial that she has once been in jeopardy, a matter not now considered. We have held that the commonwealth may claim a severance, which the court in his discretion may allow. Jenkins v. Com., 167 Ky. 544, 180 S. W. 961, 3 A.L.R. 1522; Drake v. Com., 214 Ky. 147, 282 S. W. 1066; Hoffman v. Com., 134 Ky. 726, 121 S. W. 690.”

In the case of State v. Thaden, 43 Minn. 325, 45 N. W. 614, the court said:

“The defendant was indicted jointly with Draper and Kingsley. The defendant Draper had not been arrested or found at the time of the trial, and the defendant Kings-ley had given notice that he desired a separate trial, and appeared by a separate attorney.

“We think the court did not lose its right and authority to proceed with the separate trial of defendant Thaden, because no formal order therefor was made and entered when or before the case was called. The prosecution moved the case of ‘The State against Thaden/ and it was so understood by both parties, and the defendant made no objection till the jury was sworn, and we must presume that they were sworn in the case against him, and not against all the defendants. Babcock v. People, 15 Hun [N.Y.] 353. By the common law, the court might grant or refuse separate trials in its discretion. This is so far modified by our statute (Gen. St. c. 114 § 6) that the defendant is entitled to it as a matter of right if he require it, but the court may also so direct, on the application of the state.”

In Metz v. State, 46 Neb. 547, 65 N. W. 190, it was said:

“An information was filed in the district court of Lancaster county charging George Metz and Frank Mile-hem with the crime of burglary, by feloniously breaking and entering, in the nighttime, the storehouse and warehouse of one Jasper N. Rinford. Metz, without objection on his part until after the jury were selected and sworn, was given a separate trial, which resulted in a verdict of guilty. A motion for a new trial was overruled, and he was sentenced to an imprisonment of two years’ duration, and to pay the costs of prosecution, from which he prosecutes a petition in error.

“Objection is made that the plaintiff in error was tried separately, and not jointly with Frank Milehem, with whom he was jointly charged in the information. Section 465 of the Criminal Code declares: ‘When two or more persons are indicted for felony, each person so indicted shall, on application to the court for that purpose, be separately tried,’ etc. Under this statute, severance, and separate trials of persons jointly indicted or informed against, are permissible, in felonies, at the discretion of the court. The application to award separate trials may come from the prosecuting officer as well as the defendants. State v. Marvin, 12 Iowa 499; Allen v. State, 10 Ohio St. 287; Stewart v. State, 58 Ga. 577. The record in this case fails to disclose upon whose motion the severance was granted, nor does it appear that any objection or exception was made by the plaintiff in error to a separate trial until after the selection of the jury. This was too late to make the exception of any avail. State v. McLane, 15 Nev. 345; McJunkins v. State, 10 Ind. 140.

In State v. Johnson, 34 La. Ann. 48, the court said:

“It appears that the case was fixed for trial as to the defendant, which virtually ordered a separate trial for him, without objection on his part, he and his counsel being present at the time. Were there any question in regard to the legality of such trial, this waiver on the part of the accused, or failure to object at the proper time, would have cured the irregularity. We do not, however, consider that the separate trial, under the circumstances shown, was illegal or unwarranted. R. S. 1870, Sec. 999; 1 Wharton Crim. Law, § 433; 7th Ed. Bishop’s Grim. Prac.; 3d Ed. 1018.”

The evidence reveals, on behalf of the state, that this defendant, and two codefendants, entered into an agreement whereby the codefendants were to steal livestock in or near Delaware county, and they were to bring such stock to the premises of defendant, and he was to pay them so much per head, according to the value of the stock. In pursuance of this agreement, they stole the cow as alleged in the information, and numerous other livestock. The defendant paid them for their part, and it was divided between the two codefendants. These two codefendants, who were serving terms in the penitentiary, testified for the state. They were both accomplices, and it was therefore necessary that their testimony- be corroborated. 22 O.- S. 1941 § 742. An examination of the record reveals that their evidence is corroborated in a manner sufficient to sustain this conviction.

It is also assigned as error that the judgment and sentence is excessive.

The jury returned a verdict of guilty, but could not agree upon the punishment and left it to be assessed by the court. The statute under which this defendant was charged, 21 O. S. 1941 § 1716, provides for a minimum term of three years, and a maximum of ten years in the State Penitentiary, but does not provide for a fine. The trial court at the time of passing sentence, among other remarks, made this statement:

“From observation of the defendant and his history as given in open court at the time of sentence, his personal appearance and from the evidence in the case, the court is of the opinion that the defendant is worse than the man who stole the stock; that he was actually attempting to secure approximately half of the profits in the livestock business by having some more ignorant person than he do the stealing. He was keeping the stock in an obscure pasture; was engaged in the buying and selling of live stock and thought he was handling the matter in such a way that he could not be caught and could maintain his standing of respectability in the community and according to his own statement he was fairly well fixed financially; there was no occasion for him engaging in that business and if it were not for the fact that the humiliation that he will suffer and the humiliation his family will suffer and thereby be indirectly reflected on him, is considerable punishment, the court is of the opinion that he should have substantially more than the court is going to give him.
“The court has had the advantage of seeing the defendant personally on the witness stand, as well as the prosecuting witnesses, which he considers very important in fixing punishment.”

A reading of the record bears out the statement of the trial court. TIoAvever, as above noted, the statute under which defendant was charged does not provide for the imposing of a fine and the judgment and sentence is excessive in that respect, and is modified to the extent of striking out that part of the judgment and sentence assessing a fine of $250. As thus modified the judgment and sentence of the district court of Delaware county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.

Supplemental Opinion.

BAREFOOT, P. J.

Since the opinion in the above case was rendered on April 4, 1945, attention has been called to 21 O. S. 1941 § 64, which reads as follows:

“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding two hundred dollars in addition to the imprisonment prescribed.”

This statute was not referred to in the briefs. It will be noted that it gives the court the right to impose a fine of not to exceed $200, “in addition to the imprisonment prescribed”, where no fine is provided.

It has been held by this court that where a fine is imposed in addition to the assessment of a penitentiary sentence in a felony case, the defendant can not be confined in the State Penitentiary for the payment of the fine. Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239; Ex parte Farve, 64 Okla. Cr. 326, 79 P. 2d 1034.

The fine here assessed is $50 in excess of the amount permitted by the statute. The original opinion was recalled for correction on April 11, 1945. It is now ordered that the original judgment and sentence be modified to a term of four years in the State Penitentiary, and a fine of $200; and the original opinion in this case is refiled.

The judgment of the district court of Delaware county, as above modified, is affirmed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    OSCAR GRAHAM v. STATE.
    No. A-10373.
    April 4, 1945.
    (157 P. 2d 758.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Oscar Graham, was charged in the district court of Stephens county with the crime of murder; was tried, convicted of manslaughter in the second degree, and sentenced to serve one year in the county jail, and has appealed.

This is the second appeal by the defendant from a conviction in this case. In the former appeal, the case was reversed because of error of the trial court in communicating with the jury out of the presence of defendant and his counsel, after the jurors had retired to their jury-room. Graham v. State, 73 Okla. Cr. 337, 121 P. 2d 308. In said former appeal, the defendant had been convicted of manslaughter in the first degree and sentenced to serve 11 years in the State Penitentiary.

For a reversal of this case, the following propositions are presented: (1) The evidence is insufficient to sustain the verdict. (2) Misconduct of the Assistant Attorney General which prevented the defendant from having a fair trial. (3) Error of the court in giving certain instructions to the jury over the objections and exceptions of defendant.

The defendant shot and killed the deceased, Grace McCaulley, in the city of Duncan, at the home of the deceased on July 2, 1939. The defendant, a former constable who had resigned the previous year, had been associating Avith the deceased for several months. The defendant was married and so was the deceased, but the husband of the deceased was in the State Penitentiary at the time of the shooting.

There is very little dispute in the evidence as to the facts leading up to the actual killing. Defendant had been keeping company with the deceased for about two years prior to her death. On many occasions, they had gone to neighboring towns and stayed overnight. Deceased was engaged in the whisky business. On the afternoon of her death, defendant came to her home about 4 o’clock. He and deceased left in defendant’s car. Later, defendant and deceased returned and invited a sister of the deceased to go with them on a drive out into the country. They then left again with the sister of deceased accompanying them and were gone about two hours. During this time, everything was pleasant and agreeable. Some whisky was drunk by all of the parties. When they returned to the McCaulley home, the sister of deceased and deceased went into the house while the defendant drove off to park his automobile. A stranger came up to the porch before defendant returned and asked for some whisky. Just as the stranger was leaving, the defendant returned and entered the house. Up to that point, there is no apparent conflict in the testimony. The theory of the state was that the defendant returned to the home of the deceased and saw the stranger with the deceased and became jealous. That he ran the stranger away from the place and engaged in a quarrel with the deceased which lead up to the fatal difficulty.

To support this theory, Clyde Williams, brother-in-law of the deceased, testified that he came to the home of the deceased just before the shooting occurred. That as he approached the house, he saw the defendant and another man 'come around from the back of the McCaulley house. The defendant was saying to the other man, “Hop, and I mean hop.” That the car of the stranger, to whom the defendant was talking, was parked across the street from the McCaulley house. Williams and his wife Lottie, who was a sister of the deceased, testified that they were standing in the southeast bedroom and heard loud talking and scuffling in the kitchen between the defendant and Grace McCaulley. That they seemed to be angry. That in a short space of time, defendant came out of the kitchen into the room where they were standing and said that Grace had stabbed him with an ice pick. There was some blood appearing through the shirt of defendant. That the deceased followed the defendant out of the kitchen and, upon hearing the defendant say that she had stabbed him, said, “Yes, and I’ll stab you again.” To which the defendant said, “If you do, I’ll kill you.” That the deceased had an ice pick in her hand. That she and the defendant went together and the defendant shoved her back momentarily, took a gun out of his right front pocket, and shot her. The shot struck deceased in the neck and ranged downward. She was taken to the hospital, where she died the following night.

The defendant interposed a plea of self-defense, and also, that the killing was a result of accident and misfortune.

As to the facts immediately surrounding the killing, the defendant testified that when he returned to Grace McCaulley’s house after parking his automobile, he saAV a car parked across the street from the McCaulley house. That he and deceased went in the kitchen where he wanted to get a drink of water. That he asked the deceased whose car that was sitting across the street. That deceased did not tell him whose car it was, but accused him of knocking her out of the sale of a pint of whisky. That an argument started and the deceased attempted to get defendant’s gun out of his hip pocket. That when she failed in this, she grabbed an ice pick and jabbed him four times on the arm with it. That he went into the southeast bedroom and was talking to Lottie and Clyde Williams when the deceased came in with the ice pick in her hand and rushed at him with it. That he had the pistol in his right front pocket with his hand on it. That when the deceased rushed at him with the ice pick, he pulled the pistol out of his pocket to ward off the blow. He and the deceased commenced to scuffle and during the scuffle the gun accidentally discharged killing the deceased.

We have not attempted to detail a summary of all of the other evidence, but have given only the testimony of the defendant and the other two eyewitnesses to the shooting. This testimony is sufficient to show that there is a dispute between the evidence of the state and the testimony of the defendant concerning the facts surrounding the actual commission of the homicide. If the jury had chosen to have believed the story of the defendant, they ■would have found him not guilty. Under the testimony of the state, as related by Clyde and Lottie Williams, the defendant could have been convicted of murder. The verdict as rendered was evidence of a compromise verdict. One year in the county jail was too lenient a punishment if the defendant was guilty, and, of course, if he was not guilty of a crime, he should not have been punished at all. However, the jury has fixed the punishment and the only question with which this court is concerned is whether there is any substantial evidence in the record to sustain the verdict. This question of law must be answered in the affirmative.

It is next contended that the Attorney General was guilty of misconduct which prevented the defendant from having a fair trial. In connection with this assignment of error, it is argued that the Attorney General made improper remarks in his closing argument to the jury. We have examined the record carefully in connection with this assignment of error. The argument of the Assistant Attorney General was not taken by the court reporter and there is no reference to the argument of the prosecutor until it appears in the motion for new trial filed by counsel for defendant. Counsel for the state do not admit that the argument as set forth in the petition in error was made by the Assistant Attorney General.

It is well-settled that counsel for defendant must object to the alleged improper statements by the prosecutor at the time they are made and move the court to exclude such remarks from the consideration of the jury, and make a proper record so that this court may determine from an examination of the record whether the alleged improper remarks were actually made, and, if so, whether they were invited or provoked by opposing counsel’s remarks. Sweet v. State, 70 Okla. Cr. 443, 107 P. 2d 817; Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646; Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300.

In the case of Rainey v. State, 71 Okla. Cr. 1, 107 P. 2d 371, 372, it is stated:

“Where there is no proper record in the case-made of an alleged improper remark of the prosecuting attorney to the jury, this court will not consider the same.”

In connection with the same assignment of error, it is contended that the Assistant Attorney General was guilty of improper conduct in the cross-examination of the defendant. Some of the questions asked by the prosecutor, and to which this proposition is directed, were argumentative, some were wholly irrelevant to the issue, but the question asked defendant concerning the conviction of the defendant on a charge arising out of an offense where the defendant was allegedly caught in immoral conduct with a woman was probably proper.

On cross-examination of a witness for the purpose of affecting his credibility, he may be asked if he has ever been convicted of a felony or of any offense which involves moral turpitude. Pryor v. State, 51 Okla. Cr. 345, 1 P. 2d 797.

The record discloses that as to all of the conduct complained of in each instance where an objection was interposed by counsel for the defendant, the trial court sustained the objection, and in connection with the question concerning the alleged conviction of the morals charge, the court instructed the jury that the question was improper and for them not to consider it for any purpose whatsoever. This was an error committed by the trial court in defendant’s favor, as the state had a right to ask of the defendant concerning any conviction he might have sustained on any offense involving moral turpitude. It appears throughout the record that in practically every instance where an issue concerning the admissibility of evidence arose, the court gave the benefit of any doubt to defendant. An example of this is best illustrated in the cross-examination by counsel for defendant of the witness Lottie Williams. The court allowed counsel for defendant to inquire concerning the conviction of a man with whom the witness had allegedly committed an immoral act. In furtherance of this contention of defendant that such evidence was admissible, the court allowed the information and judgment and sentence of the man to be read in evidence. There was no charge filed against the witness Lottie Williams, but counsel for defendant insisted that this evidence was admissible for the purpose of affecting her credibility because of her association with the convicted man. •

After making such a contention in connection Avith their cross-examination of the Avitness Lottie Williams, counsel for defendant are not in very good position to complain of the cross-examination of defendant.

The trial court gave a lengthy set of instructions. Several of those given were evidently requested by defendant in support of his theory of the case. Defendant contends that three of the instructions which were given were improper. These instructions are as follows:

“You are further instructed, gentlemen, that, if a person arms himself with a deadly weapon and voluntarily and unnecessarily enters into a mutual combat for the purpose of getting a pretext to slay his adversary, or if such person has reason to believe that such combat will, or may, result in death or serious bodily harm to one or the other of the persons engaged therein, then the right of self-defense will not arise in favor of such person, no matter to what extremity he may be reduced during the combat, unless before the fatal blow was struck or . the fatal shot fired, he in good faith withdraws or attempts to withdraw from the conflict, and either by word or act makes the fact of his intention to withdraw known to his antagonist, and the latter thereafter, continues to press him and gives him reasonable cause to believe that he is in danger of being killed or receiving great bodily injury at the hands of his assailant.”
“You are further instructed that with respect to the statements which have been admitted herein, as the dying declarations of the decreased, Grace McCaulley, (if you find that such statements were so made by her), you are told that unless you find that they were made under the conviction of impending death, on the part of said deceased, then you are to entirely disregard such statements and give them no weight whatsoever. If you find that they were made under the conditions aforesaid, you are not bound to believe such statements to be true, but you should consider them like any other evidence in the case, giving them such weight as you deem them entitled to have in the light of their surrounding circumstances and all the other facts and circumstances in the case.”
“You are instructed, gentlemen, that some evidence has been offered on the part of the state seeking to show the defendant attempted to flee and evade arrest immediately after the commission of the offense. In this connection, gentlemen, you are instructed that flight is regarded as some evidence of guilt, but in this case, it is for you to determine whether or not the defendant made an attempt to flee or evade arrest and unless you find, beyond a reasonable doubt, that he did flee for the purpose of evading arrest, you should entirely disregard this evidence, but on the other hand, should you find, beyond a reasonable doubt, that he did attempt to flee for the purpose aforesaid, you may then consider it in determining the guilt or innocence of the defendant.”

It is conceded that the first instruction is correct as an abstract proposition of law, but it is contended that it is not applicable to the evidence in the case. This instruction could very well have been omitted, but, when considered in connection with the four instructions just preceding it, it clarifies all of the law relative to self-defense. The jury came to the conclusion that the killing of the deceased was the result of the culpable negligence of the accused, as they only convicted him of manslaughter in the second degree with a penalty of one year in the county jail.

As to the second instruction, counsel have cited no authority to sustain their contention that it was error to submit the competency of the dying declaration to the jury. Counsel for the state, in their answer brief, also, do not submit any authority to sustain this instruction. In fact, they omit any discussion of this question in their brief.

It has been held that it is the duty of the trial court to determine in the first instance the admissibility of statements offered in evidence as a dying declaration, and if such declaration is admitted as competent and made while the declarant was in extremis, it is then a question for the jury to pass on its credibility. Bilton v. Territory, 1 Okla. Cr. 566, 99 P. 163; Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918C, 416.

In Looper v. State, 42 Okla. Cr. 341, 276 P. 503, it is stated:

“It is the province of the court to determine, in the first instance, the admissibility of declarations offered in evidence as dying declarations, and, for the purpose of proving the declarant’s sense of impending death, expressions or statements of the deceased are always admissible, if made at or about the time the dying declarations were made; and in this case it was the duty of the court to hear the evidence offered by the defendant, before determining that the dying declarations were competent and admissible.
“Where, in the trial of a criminal case, the court as a matter of law passes upon the competency of dying declarations and finds that they are competent to be submitted to the jury, and they are submitted to the jury, it is not error for the court by an instruction, to again submit the question to the competency of such declarations to the jury for their consideration.”

See, also, to the same effect, Beason v. State, 18 Okla. Cr. 388, 195 P. 792; and Willoughby v. Territory, 16 Okla. 577, 87 P. 56, 8 Ann. Cas. 537.

As to the third instruction above quoted, it is not contended that the instruction is incorrect as to form, but it is contended that there was no evidence showing flight on the part of defendant.

The testimony of the officers was that they followed defendant out into the country to the home of a brother. That when they arrived there, defendant’s car lights were on and the door to his car was left open. They searched but could not find defendant.

Defendant himself testified that he went to his brother’s home about 14 miles west of Duncan immediately after the shooting. That he left the lights of his car on. That Avhile talking to his brother, he saw the lights of the car of the officers approaching and that he Avalked across the pasture to another man’s house and got him to bring him to town. That he Avas not trying to flee the jurisdiction of the court, but was trying to find, someone to make his bond.

Two ladies, who were at the Graham home, testified that defendant drove up into the yard of his home, called his wife to the car, and then drove off west at a high rate of speed.

The state contended that defendant was attempting to flee and infer that he would have left the county except for the restraining influence of his brother and family. The evidence as to flight was not strong, but a reading of the above instruction will show that the court clearly advised the jury to disregard the evidence of the attempted flight unless they found, beyond a reasonable doubt, that defendant had attempted to flee and evade arrest immediately after the commission of the offense. It appears that the instruction as given was not injurious to the defendant and under all of the facts and circumstances was a proper and necessary instruction.

As stated in the beginning, this is the second occasion that we have had to review the record growing out of this tragedy. In • any case as hard-fought as this, there may be found a few instances where errors might have been made in the conduct of the trial, but on the whole, a reading of this record emphasizes the fairness which characterized the rulings of the trial judge. There is certainly nothing in the record which would justify this court in concluding that the defendant had been deprived of any substantial right or that there were errors of such consequence as deprived him from having that fair trial guaranteed by our laws.

The judgment of the district court of Stephens county is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    Ex parte JESS LEROY JONES.
    No. A-10557.
    April 11, 1945.
    (157 P. 2d 916.)
    Hulsey & Hulsey, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Jess Leroy Jones, to secure bis release from confinement in the State Penitentiary.

The verified petition filed herein alleges that on January 29, 1941, the petitioner entered a plea of guilty in the district court of Stephens county to the charge of robbery with firearms and was sentenced to serve a term of 50 years in the State Penitentiary; that defendant was young and inexperienced in criminal proceedings and wholly ignorant of his statutory and constitutional rights; that he made only one appearance before said district court and that was on the 29th day of January, 1941, when the information was read to him; that petitioner had no attorney and had no funds with which to pay an attorney and was not advised by the court that he was entitled to counsel at the expense of the state if he so desired; that defendant was not advised of his statutory right of 24 hours in which to plead, but that said court demanded that petitioner immediately enter his plea; that after petitioner entered his plea of guilty, the court immediately pronounced sentence without fixing a time for pronouncing sentence 48 hours after the plea was entered and without the petitioner waiving his right to have a time fixed for pronouncing sentence in less than 48 hours after the plea was entered.

The warden of the State Penitentiary filed a response in which he denied the allegations of the petition except the allegation that he was holding the petitioner under a commitment of the district court of Stephens county, whereby said petitioner was committed to said penitentiary for a term of 50 years for the crime of robbery with firearms; the response further alleges that petitioner is not young and inexperienced but that he is now serving his sixth term in the State Penitentiary pursuant to a conviction for a felony.

The response further alleges that the petitioner was duly charged by complaint filed in the county court of Stephens county on December 24, 1940, and a preliminary hearing set for December 30, 1940; that on December 30, the defendant, after being fully advised by the county judge of all his rights, including his rights to counsel and to a preliminary hearing, stated that he did not desire counsel and waived a preliminary hearing; that an information was filed in the district court on January 17, 1941; that defendant appeared in the district court for arraignment on January 29, 1941; that he was advised of all his statutory and constitutional rights, including his right to counsel, right to trial by jury, and right to have additional time in which to enter his plea; that defendant stated that he desired to waive his right to counsel and time to plead and enter a plea of guilty and further waived time for pronouncement of judgment and sentence and was thereupon sentenced by the district court to serve 50 years for the crime of robbery with firearms.

Attached to the response ivas an affidavit by the district judge, copy of the transcript from the county court in connection with the preliminary proceedings, and a certified copy of the information and judgment and sentence pronounced in the district court.

A hearing ivas held before this court and the evidence fully sustains the allegations of the response. The record discloses that the petitioner has served time in the State Penitentiary upon conviction for grand larceny, theft of an automobile, for an assault with a dangerous weapon, burglary in the second degree, and for forgery. His varied criminal career started with his first conviction in 1928. With such a background, it could hardly be said that the petitioner was young and inexperienced in criminal procedure.

It is evident that petitioner misled his counsel in furnishing him information upon which the petition was based. Under the record as presented to this court, there is no evidence to show that the judgment and sentence rendered against defendant is void, and a writ of habeas corpus is accordingly denied.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


author: BAREFOOT, P. J.

text:
    BOOKER T. HOOD et al. v. STATE.
    No. A-10398.
    April 11, 1945.
    (157 P. 2d 918.)

      Paul O. Simms, of Yinita, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen and Paul Hugh, Asst. Attys. Gen., and Homer Melton, Co. Atty., of Yinita, for defendant in error.
   BAREFOOT, P. J.

Defendants, Booker T. Hood and Helen Butler, were charged by information in the district court of Craig county with the crime of conjoint robbery; were tried, convicted and each sentenced to serve a term of five years in the State Penitentiary, and have appealed.

The following assignments of error are presented by defendants:

“1. Irregularity in the proceedings of the court, jury and county attorney and abuse of discretion by which the plaintiffs in error were prevented from having a fair trial.
“2. That the verdict is not sustained by sufficient evidence, and is contrary to law.
“3. The failure of the state to prove any force or fear to justify a verdict of guilty as to a robbery charge.”

It becomes necessary to give a short statement of the facts in this case.

Defendants, who are both negroes, were charged with robbing Donald Gregory, in the city of Vinita, on the night of August 6, 1942, between 9:30 and 10 o’clock.

As he crossed the Katy railroad tracks, the prosecuting witness was approached by a man and a woman. The man asked him for a match, and when he started to give him a match, the man ordered him to walk down the track. While going down the railroad track, the woman took his billfold out of his right hip pocket, and $30 from the billfold. The man and woman then ran behind some box cars. The prosecuting witness, Gregory, chased them and caught the woman some block and a half away from where the robbery , was committed, and attempted to recover his money. She drew a knife, struck at him three times, and the prosecuting witness abandoned his attempt to recover the money, and went home. He changed his clothes, and returned to the Katy yards, and saw the colored watchman, Clyde Hardrick. The prosecuting witness testified:

“Q. What was his name? A. Hardrick, and I asked him if he had seen me chasing anybody down there. Q. What did he say? A. He said he had seen people running, and he had an idea as to who it was.”

No objection was made and no exception taken by the defendants to this testimony.

The witness then went to the police station and reported the occurrence to the police. Two police officers took him in a car and they went to see the watchman with whom the prosecuting witness had talked. The trial court sustained every objection of the defendants,, and,. did not permit the witness to testify to any conversation by himself or the officers with Clyde Hardrick, the watchman.

Later in the night, the officers arrested the defendants at a place known as “Blue Barbacue,” or “Blue’s Beer Garden.” Both defendants were searched at the police" station. Nothing was found on Helen Butler. They found $14 in currency and change on the defendant Hood. The prosecuting witness identified the money found on the defendant Hood as being a part of the money taken from him. This identification was made by reason of “some yellow streaks off my pocket.” He further testified, when the money was introduced in evidence: “but that don’t look like the money he had that night.”

After the arrest of the defendants, the officers and the prosecuting witness went to the room in a hotel occupied by the defendants, and there prosecuting witness identified a dress and a pair of shoes as that worn by the defendant Helen Butler at the time of the robbery. She testified that she had been to her room prior to her arrest at “Blue’s Place,” but testified that she had not worn the dress or the shoes that night, or for some time.

Both defendants presented what is known in law as an alibi. They testified that they were riding together in a car until about 8:30. Hood testified that he got out of the car about 8:30 and played whist until about 10 o’clock, and then went to “Blue’s Barbacue.” Helen Butler testified that when Hood got out of the car, she went first to.Blue’s place, stayed a few minutes, and then went to the hotel room and stayed there until about 10:30, when she returned to Blue’s place. They were arrested there about 10:30. Both of the defendants were transients, and were occupying the same room at the hotel. When asked if Helen Butler was related to Mm, defendant Hood testified: “I just know bier; she is a girl friend of mine.”

It is contended by defendant that they did not have a fair trial by reason of a violation of art. 2, sec. 20, of the Constitution of the state, which provides:

“In all criminal prosecutions the accused shall have the right * * *, and be confronted with the witnesses against him.”

And by reason of the violation of 22 O. S. 1941 § 13, which provides:

“In a criminal action the defendant is entitled: * * *
“3. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court.”

It is contended that by reason of the opening statement of the county attorney, and his failure to place upon the witness stand Clyde Hardrick, whose name was endorsed on the information as a state’s witness, that the constitutional and statutory provisions above quoted were violated.

It is not necessary for the state to place upon the witness stand all of the witnesses whose names are endorsed upon an information. If the defendants deemed that any of those witnesses would give evidence favorable . to them, and they desired to use them as witnesses, it was their duty to issue a subpoena for them, and not rely upon their use by the county attorney so that they would have the privilege of cross-examining them. No subpoena was issued by the defendants for the witness Hardrick. The mere fact that the county attorney in his opening statement made reference to this witness by name, and to statements made by him in the presence of the defendant, is not sufficient for the defendants to conclude that he would be used by the state as a witness in the case.

It will be noted from the evidence above quoted that the defendants did not object or except to the testimony of the prosecuting witness with reference to the statement made by the witness Hardrick; and when the state attempted to introduce in evidence statements made by Hardrick to the police officers the court promptly sustained all objections to this testimony as hearsay, and did not permit it to be introduced.

After the state had rested, no effort was made by defendants to secure the evidence of the witness Hard-rick, nor was any delay asked that his evidence might be secured. We find that the court did not err in refusing to sustain the motion of the defendants; and that the defendants were not deprived of any constitutional or statutory right by reason of the failure of the state to place the witness Hardrick on the stand.

The second assignment of error, that the verdict is not sustained by sufficient evidence and is contrary to law, is based upon the fact that the evidence against the defendants was circumstantial, and the identification of the dress and shoes of the defendant Helen Butler, and of the money found on the person of the defendant Hood were not sufficient.

It may be admitted that the evidence in this case is not strong. The robbery was committed in the nighttime, and at a place where it was dark. The prosecuting witness was positive in his identification of the dress and shoes of the defendant Helen Butler, and of the fact that the money taken from the person of the defendant Hood was the same money taken from his person at the time of the robbery. This identification was made by reason of certain “acid stains” gotten there while he was working at the DuPont Powder Plant, where prosecuting witness worked. And while this witness on cross-examination answered some questions in a manner that might have had a tendency to weaken his testimony, yet the jury had the opportunity to hear all the facts and circumstances and they were sufficient to sustain the judgment and sentence.

We recognize the general rule that where the state relies for conviction upon circumstantial evidence, all the facts and circumstances must be consistent with the guilt of the accused, and inconsistent with any other reasonable hypothesis except the guilt of the defendant. Sears v. State, 79 Okla. Cr. 437, 156 P. 2d 145; Edison v. State, 77 Okla. Cr. 401, 142 P. 2d 141; Key v. State, 22 Okla. Cr. 284, 210 P. 1044.

We call attention to the fact that in the instant case we have positive and direct testimony by the prosecuting witness, in addition to the circumstantial evidence. The defendant Hood testified to bringing to Yinita the sum of $30, which was the exact amount .taken from the prosecuting witness. They were arrested in close proximity to where the crime was committed. Both defendants were transients, stopping in the same room at the hotel, and the inference is that they were not married. A knife was found in the pocket of Hood, and two other knives were discovered in their room at the hotel, one of which Helen Butler admitted belonged to her. All of these circumstances, when taken into consideration with the testimony of the prosecuting witness, were sufficient to justify the jury in coming to the conclusion that the defendants were the parties who robbed Donald Gregory.

The jury was fully instructed on the question of circumstantial evidence, and it is not the policy of appellate courts to set aside a verdict of a jury where they have determined the facts and rendered a verdict of guilty, and the facts are sufficient to sustain the verdict and the judgment and sentence. Belt v. State, 59 Okla. Cr. 69, 56 P. 2d 910; Armstrong v, State, 61 Okla. Cr. 352, 68 P. 2d 114; Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389.

It is next contended that the state failed “to prove any force or fear to justify a verdict of guilty as to a robbery charge.”

21 O. S. 1941 § 791 defines robbery as follows:

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

And 21 O. S. 1941 § 792 provides:

“To constitute robbery, the force or fear must be employed to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means pf escape, it does, not constitute robbery.”

The facts and circumstances under which this crime was committed have been heretofore outlined. From these facts and circumstances it is established that the crime of robbery was committed. It was demanded of the prosecuting witness that he walk down the railroad tracks. It was dark. The natural inference is that he obeyed by reason of fear for his personal safety. While doing as commanded, by reason of fear, the sum of $30 was taken from his pocket and billfold. There was no stealth in the taking, but it was permitted through fear of bodily harm. When the prosecuting witness Gregory pursued the woman who had taken his money, and caught her, and attempted to recover his money, she struck at him three times with a knife held in her hand, forcing him to desist in his efforts to recover his money. Certainly this state of facts was sufficient to come within the provisions of the statute defining robbery. The “force or fear” necessary to constitute robbery may be/employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. 21 O. S. 1941 § 792, above quoted. • It is not necessary that both force and fear be employed. People v. Borra, 123 Cal. App. 482, 11 P. 2d 403.

Finding no substantial error in the record, the judgment and sentence of the district court of Craig county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    BURNICE BRUMMITT v. HIGGINS, Judge.
    No. A-10613.
    April 11, 1945.
    (157 P. 2d 922.)

      Hulsey & Hulsey, of McAlester, for petitioner.
    Tom G. Haile, Co. Atty., of McAlester, for respondent.
   JONES, J.

This is an original proceeding instituted by the petitioner, Burnice Brummitt, in which he seeks a writ of mandamus directed to the respondent, R. W. Higgins, district judge of Pittsburg county, ordering the said respondent to dismiss a criminal action filed against the petitioner in the district court of Pittsburg county, for the reason that several terms of court have passed since an information was filed against petitioner, charging him with the crime of murder, and that petitioner lias been denied his right to a speedy trial as guaranteed by the Constitution and statutes of the State of Oklahoma.

The verified petition filed herein alleges that an information was filed in the district court of Pittsburg county on May 19, 1943, charging the petitioner with the crime of murder. That petitioner was arraigned, entered his plea of not guilty, and said cause set for trial on June 11, 1941. That the case was set on the heel of the docket. That on June 11, 1941, petitioner, who was an inmate of the State Penitentiary, was in the courtroom ready for trial. That it appeared that the case would not be reached on said assignment. That the petitioner was suffering with active tuberculosis, and was held in solitary confinement in the State Penitentiary, by reason of the murder charge which was pending against him. That because of this and being desirous of having a speedy trial, the petitioner agreed to waive a jury trial, which was done.

That although a jury trial was waived for the specific purpose of getting a trial at that térm of court, his cause was never assigned for trial to the court nor to a jury during that term.

That said cause was later placed on the jury trial docket for trial on October 9, 1941. That no trial was afforded defendant on that date and no continuance nor postponement of the trial was made with his knowledge or consent.

That said cause was not assigned for trial after October 9, 1941, until October 13, 1942. That petitioner was ready for trial on October 13, 1942, but no trial was afforded him and the case was not stricken from the assignment nor continued with his knowledge or consent. That said cause was next assigned for trial on the jury docket for June 8, 1943. That petitioner was ready for trial and urging his attorney to see that he was afforded a trial, but notwithstanding this, he was not granted a trial on June 8, 1943, and the cause was not continued nor stricken from the assignment with his knowledge or consent.

That on September 8, 3943, he employed Hulsey & Hulsey as attorneys, who filed on that date a motion to dismiss said cause for the reason that he had been denied a speedy trial. That thereafter, the cause was again assigned for trial on October 20, 1943. That notwithstanding he had filed a motion to dismiss the cause for want of a speedy trial, he was not tried on October 20, 1943, and did not give his consent to a postponement or continuance of the trial. The said cause was later assigned for trial on February 2, 1944. That prior thereto and on January 31, 1944, the petitioner filed another motion to dismiss the case because he had been denied his right to a speedy trial.

That the cause was not. tried on February 2, 1944, and no order made striking the same from the assignment for trial on that date, and no order was made continuing the trial to a subsequent term of the court.

That the cause was never assigned for trial at any time after its assignment for trial on February 2, 1944, and, accordingly, on December 6, 1944, the petitioner filed a third motion to dismiss because he had been denied his right to a speedy trial. That on February 7, 1945, all of the motions to dismiss were overruled, and the cause assigned for trial on March 1, 1945.

The petition further alleges that if he had been granted his right to a speedy trial as was being demanded by him, that he could have had Avitnesses to have established his innocence, but that the only Avitnesses to the alleged crime Avere inmates of the State Penitentiary, but that on account of the long delay in affording petitioner a trial, that the witnesses have either died or been discharged from the penitentiary to where they are not now available, and he is unable to produce them at the trial on March 1, 1945, and that unless this court issues a Avrit of mandamus directing the district court of Pittsburg county to dismiss said cause, the petitioner will be denied his constitutional and statutory rights and will not be afforded due process of law.

Attached to the verified petition are copies of the motions to dismiss filed by the defendant in the district court of Pittsburg county.

The county attorney of Pittsburg county filed a response to the said petition which in substance recited as follows :

That he denied each and every allegation of the petition except such as are expressly admitted.

The respondent admits that the case against defendant was set for trial on the dates alleged in.the petition. The response further alleges that on each of the occasions that the case Avas set for trial, the state caused subpoenas to be issued and was ready for trial. That the case was stricken from the first trial assignment because the defendant through his counsel waived a trial by jury. That the cause was stricken from the assignment of October 9, 1941, because defendant’s counsel and the county attorney were trying to agree upon a sentence which might be given the defendant on a plea of guilty. That the county attorney who had charge of the prosecution on October 13, 1942, is now in the armed services, and the present county attorney is not advised and is unable to state why the cause was not tried at the setting on October 13, 1942.

That the present county attorney assumed the duties of his office in January, 1943, and being in ignorance of the agreement to waive a jury, had the cause set on the jury trial docket for June 8, 1943. That when the defendant was brought before the bar of the court at that time, the court recalled the agreement between the defendant and the former county attorney to waive a jury and the cause was stricken from the docket with the understanding that a trial of the said cause would be had after the close of the jury term. The respondent further alleged that the criminal dockets in Pittsburg county were congested on account of a large influx in the population caused by the location of a United States Ammunition Depot in Pittsburg county. That said cause was not set for trial again until October 20, 1943. That the case was not tried at that time because of the pending motion which had been filed by the defendant on September 8, 1943, to dismiss said case.

That the cause was again set for trial on February 2, 1944, but that counsel for defendant on January 31, 1944, filed another motion to dismiss and on account of the allegations of said motion, said cause was continued from trial on that date. That the cause was not set for trial subsequent to February 2, 1944, because of the pen-dency of the motion to dismiss. The respondent further alleges that the defendant has not been injured by said continuances. That he is now claiming an alibi but at the time he was apprehended he admitted the killing and related to the officials of the institution the manner in which the killing occurred.

When the motion to dismiss was heard by the district court of Pittsburg county on February 7, 1945, testimony was taken and a transcript of this testimony was prepared, and, by agreement, the cause in this court was submitted upon the transcript of the evidence taken in the hearing before the district court of Pittsburg county. The parties hereto further agreed that the trial of the defendant in the district court of Pittsburg county set for March 1, 1945, would be stayed until the disposition of this cause by the Criminal Court of Appeals.

There is very little dispute as to the facts which have a bearing upon the issues before this court. In the response, there is an explanation as to why the defendant has not been tried and this court can understand the predicament in which the present county attorney finds himself. But we are unable to conclude that the matters set forth in the response amount to a legal justification for the failure to try the defendant.

The evidence specifically shows that the cause was never stricken from the trial assignment nor continued by agreement, of defendant or his counsel or at their request. The defendant and his counsel both so testified, and there is no evidence in the record to refute it. The appearance docket of the court clerk and the minutes of the court fail to show any order of the court striking the cause from the trial assignments or continuing it from one term to the other. The clerk testified that the case just wasn’t tried, that the court did not issue an order striking it from the assignment or continuing the trial to another term, but that it just was left on the docket and never tried. The defendant and his counsel testified that they were ready at all times for trial.

The Bill of Rights of the Oklahoma Constitution provides: “Right and justice shall be administered without sale, denial, delay, or prejudice,” Art. 2, sec. (>; and, further, “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.” Art. 2, sec. 20.

22 O. S. 1941 § 812 provides:

“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 indictment or information is triable after it is filed, the court must order the prosecution to be dismissed unless good cause to the contrary be shown.”

In the case, of Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419, 427, it is stated:

“The term ‘speedy,’ as employed in the constitutional provisions under consideration, being a word of indeterminate meaning, permits legislative definition to some extent ; and the authorities generally hold that statutes providing for a-discharge of accused unless trial is had within a stated time after indictment, information, or commitment, or which require an indictment or information within a stated time, are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision, and must be construed fairly to the accomplishment of that end. 22 C.J.S., Criminal Law, § 467, p. 716.
“See, also, Ex parte Leathers, 66 Okla. Cr. 172, 90 P. 2d 450; Ex parte Menner, 35 Okla. Cr. 252, 250 P. 541; Ex parte Munger, 29 Okla. Cr. 407, 234 P. 219.”

And, also:

“As there is no hard and fast rule for determining the question as to what is meant by the term 'unless good cause to the contrary be shown,’ § 2872, supra, it becomes a matter for judicial determination under the facts and circumstances in each particular case.”

In Harrell v. State, 41 Okla. Cr. 305, 272 P. 1038, it is stated:

“Accused, applying for dismissal for unnecessary delay, need only show expiration of statutory time and lack of postponement on his application; on accused’s application to dismiss .for delay, prosecution must show cause for continuing him over statutory time.” Comp. St. 192.1 § 2913 [22 O. S. 1941 § 812].

To the same effect, see Parker v. State, 7 Okla. Cr. 238, 122 P. 1116, 124 P. 80; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 P. 485; Culver v. State, 11 Okla. Cr. 4, 141 P. 26; Smith v. State, 27 Okla. Cr. 294, 227 P. 901.

It has been held that where the defendant is on bail the presumption is that the delay was caused by or with the consent of the defendant and the record must affirmatively show that he demanded a trial or resisted the continuance of the case. However, if the defendant is not on bail, the law makes the demand for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause. State ex rel. Davis v. Bayless, 38 Okla. Cr. 129, 259 P. 606; Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Bowes v. State, 7 Okla. Cr. 316, 126 P. 580.

In the instant ease, the defendant was not out on bail. After defendant showed the failure to try the case was not upon his application, the burden, therefore, was upon the state to show good cause why the defendant was not brought to trial at the next term of court after the information was filed. The respondent attempts to meet this burden by alleging that the state was ready for trial on each of the various times the cause was assigned for trial during the period of about four years that the case has been pending. On one occasion, it is alleged that the cause was delayed because defendant’s counsel was seeking to secure a short sentence upon a plea of guilty. However, there was no proof as to this fact introduced at the hearing. The defendant is not contending that the state was not ready for trial at the various times the cause was assigned for trial, but he is complaining because the state did not proceed with the trial. The state does not meet the requirements of the law by merely being ready for the trial, but the accused is guaranteed a speedy trial. The records in the court clerk’s office do not disclose and the record before us is silent as to any reason for the case not being tried on one or two occasions when it was set for trial. During one period, over a year expired when it was not even set on a trial docket. There was no shortage of funds because the court clerk testified that all of the costs incident to a trial of a crime committed within the penitentiary were borne by the state and not by Pittsburg county. We cannot perceive any legal reason why the cause was not tried, and there has been no serious attempt to justify the failure to try the accused. This might probably be accounted for by the fact that the county attorney knows that the cause can be dismissed and that such dismissal is not a bar to the filing of another prosecution for the same offense. 22 O. S. 1941 § 817; Ex parte Warrenburg, 63 Okla. Cr. 125, 73 P. 2d 476.

- As to whether mandamus is the appropriate remedy, where the defendant has been denied his right to a speedy trial, see McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160; State ex rel. Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736; State ex rel. Sims v. Carruthers, 1 Okla. Cr. 428, 98 P. 474.

In McLeod v. Graham, supra, it is held:

“Where a defendant is prosecuted, either by information or by indictment, and is not brought to trial at the next regular term of the court in which said case is triable after the prosecution is begun therein, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown, or unless the trial of said cause has been postponed upon the application of the defendant, or with his consent; and if the trial court, upon application of the defendant, refuses to make this order, mandamus proceedings Avill lie in behalf of the defendant to compel the dismissal of said cause.”

It is our conclusion after a revieAV of the record in this case that the defendant, being in custody and not on bail, had only to show that he Avas not brought to trial at the next term of court after the information Aims filed, that the delay was not on his application or with his consent, and, then, the burden shifted to the state to show good cause why the defendant had not been tried; that the state has failed to sustain this burden; that the explanation of the failure to try the accused at the various terms of court that have passed is not sufficient to amount to a legal cause for failure to give him a speedy trial.

It is, therefore, ordered that the respondent, the Honorable R. W. Higgins, judge of the district court of Pittsburg county, be and he is hereby directed and commanded to dismiss the prosecution in case No. 4865, wherein the State of Oklahoma prosecutes the defendant, Bur-nice Brummitt, for the crime of murder, in the district court of Pittsburg county.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    TIP O’DELL v. STATE.
    No. A-10391.
    April 18, 1945.
    (158 P. 2d 180.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Tip O’Dell, was charged in the county court of Kiowa county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $200, and has appealed.

The record shows that a highway patrolman pursued the defendant from the city of Hobart west on Highway No. 9, through the town of Lone Wolf to a point about four miles north of Granite, in Greer county. The patrolman testified that on the entire route between Hobart to where the defendant was stopped the defendant drove in excess of 80 miles per hour. That during most of the trip, the speedometer on his automobile registered from 88 to 90 miles per hour. That this speed was maintained through the town of Lone Wolf, where there were several cars parked at the curb, and one car was being driven down the street in that town when defendant passed. The highway was approximately 22 feet in width according to the testimony. The defendant was finally stopped by the firing of a shotgun by the companion of the highway patrolman. The patrolman had no warrant for the arrest of the defendant, nor search warrant for his automobile, but after he stopped the defendant, he placed him under arrest for the alleged offense of reckless driving, searched defendant’s automobile and found three gallons of intoxicating liquor. Reckless driving charges were filed before a justice of the peace in the city of Hobart, and upon a trial to a jury of six men, the defendant was acquitted.

It is now contended on appeal by the defendant that the verdict of the jury finding the defendant not guilty is a conclusive determination that the defendant did not commit the misdemeanor of reckless driving in the presence of the highway patrolman which authorized his arrest and could not be used as a legal justification for a search of the defendant’s automobile. That accordingly the motion to suppress evidence presented by the defendant prior to the trial should have been sustained.

The defendant did not testify either on the motion to suppress evidence or at the trial of the case. It, therefore, may be assumed, for the purpose of disposing' of the contention here presented, that the testimony of the highway patrolman and his companion that defendant had driven his automobile for many miles on the highway and through the town of Lone Wolf at a speed of from 88 to 90 miles per hour is correct.

In the case of Blair v. State, 75 Okla. Cr. 265, 130 P. 2d 545, it is held:

“Whether search of, and seizure from, an automobile upon a public highway, without a search warrant, is reasonable, is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.
“Where a misdemeanor is committed in the presence of an officer he has the right to arrest the offender without the necessity of having a search warrant. If the arrest is not a subterfuge, and is in good faith, the officer has the right to search defendant and his immediate surroundings, without the necessity of a search warrant.
“Where an arrest is made under the above circumstances, it is the best practice for charges to be filed on both violations.”

In the body of the opinion in that case, it was disclosed that the arresting officer observed the defendant driving on the highway at a speed of approximately 75 miles per hour. No charges for reckless driving were filed against defendant, but this court held that under the testimony of the sheriff the offense of driving on the public highway in a reckless manner was committed in his presence, and the search of defendant’s car was sustained.

The United States Supreme Court, in the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 285, 69 L. Ed. 543, 39 A.L.R. 790, has held that a federal officer has the right to search an automobile on the public highway without a warrant when such officer has probable cause to believe such car is being used to violate the National Prohibition Act, 27 U. S. C. A. § 1 et seq. After adopting the rule that the officer must have probable cause in order to justify his search of an automobile without a warrant, the court stated:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”

This court has condemned the arrest of individuals as a subterfuge for the purpose of justifying a search without a warrant. Bowdry v. State, 64 Okla. Cr. 86, 77 P. 2d 753; Tucker v. State, 62 Okla. Cr. 406, 71 P. 2d 1092.

In Blair v. State, supra, and many other cases, this court has.held that the question as to whether the search is reasonable is a judicial one to be determined by all the circumstances in each individual case.

The defendant contends that the verdict of acquittal in the justice of the peace court is a conclusive determination that he did not commit a misdemeanor in the presence of the arresting officer. We cannot agree with this contention. At the hearing upon the motion to suppress, it was proper to make the showing that the defendant had been acquitted of the charge of reckless driving, but this acquittal, while conclusive so far as the prosecution for reckless driving is concerned, is not conclusive upon the question as to whether the defendant had committed a misdemeanor in the presence of the arresting officer, so as to authorize a search of defendant’s automobile. The fact that defendant was acquitted might be highly pursuasive upon the trial court at the hearing on the motion to suppress evidence, but such court is not bound by that verdict. It might have been that upon the trial of the defendant upon the reckless driving charge, one or more of the state’s witnesses were not available for the trial, or that particular testimony which might have been important was omitted, or it might simply be explained by the following statement which we often hear made: “Two things are unpredictable in Oklahoma. One is the weather, and the other is the verdict of a jury.”

The testimony of the state showed that the defendant was driving in a reckless manner. Neither the defendant nor any witness testified in his behalf to refute the testimony of the state’s witnesses.

If the rule contended for by defendant were to be sustained, then, in every case where a man is arrested for being drunk in a public place, or for driving while drunk on a public highway, or for any other misdemeanor allegedly committed in the presence of an arresting officer, which is used as a legal justification for a search after the arrest is made, then no prosecution could be maintained on account of the liquor seized by such search, unless a prosecution was also commenced in the case involving the alleged commission of the misdemeanor for which the accused is arrested, and, further, until it is finally disposed of by verdict of the jury, or in case of a conviction until it was reviewed by the appellate court.

The purpose of the constitutional provision against unreasonable searches is to prevent exploratory searches upon mere suspicion. Where a motion to suppress evidence is interposed by one accused of violating the liquor law, and the trial court finds that the purported arrest of the accused for the commission of a misdemeanor in the presence of the arresting officer was merely a subterfuge, in an effort to justify the search, then, the motion to suppress should be sustained.

In the instant case, an issue was presented to the trial court in the hearing on the motion to suppress evidence as -to whether a misdemeanor was committed in the presence of the officer which authorized the arrest of the accused without a warrant. The evidence of the state abundantly shows that a misdemeanor was committed. Under such circumstances, the trial court’s finding on the motion to suppress evidence will be- sustained by this court on appeal.

The judgment of the county court of Kiowa county is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.