source: Caselaw Access Project

author: DOYLE, P. J-

license: Public Domain

text:
    SAM GORUM v. STATE.
    No. A-9487.
    July 28, 1939.
    (92 P. 2d 1086.)

      Mack M. Braly, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J-

This appeal is from a judgment of conviction rendered in the district court of Pontotoc county, wherein appellant, Sam Gorum, was found guilty of the crime of robbery with fire-arms, and was sentenced to serve a term of 15 years in the state penitentiary.

The errors assigned will be noticed in the order presented.

The first contention in this case is that the trial court abused its discretion in denying the application for a continuance for the purpose of taking the deposition of an out of state witness, and because of the absence of witnesses who had been subpoenaed.

The record shows that on April 16, 1937, defendant Sam Gorum, present and by his attorney, Homer Bishop, waived formal arraignment and requested time and was given ten days in which to plead.

On April 24th defendant filed a demurrer to the information on the ground that the same did not state facts sufficient to constitute a charge of robbery with fire-arms, which was overruled.

On September 13th, the case was assigned for trial on September 27th, and on that day passed to October 5, 1937.

That on October 1st there was filed officer’s return on the notice, showing that defendant had been furnished with a list of the witnesses to be called in chief, and their post-office addresses, together with a true copy of the information.

On October 2d permission to file a motion to quash was granted, which motion alleged that the information was duplicitous, in that it attempted to charge three distinct offenses in one count. On the same day this motion was overruled.

On October 5th defendant filed motion to strike and set aside the order setting this case this day for trial, for the reason that a plea of not guilty had not yet been entered by this defendant, which was overruled. Thereupon in open court the defendant Sam Gorum pleaded not guilty.

On the same day and thereafter the affidavit and application for continuance, together with proof of service of notice to county attorney of intention • to make application to said district court for commission to take deposition of an out'of state witness was filed, with copy of application attached.

The rule is well settled that it is the duty of the defendant to use all reasonable diligence in order to secure the attendance of witnesses in his behalf, and it must be made to appear from the application for a continuance that he has used due diligence to procure the attendance of his witnesses, and the application must set out facts fully which constitute such diligence. The mere statement of a defendant that he has used due diligence to secure the attendance of an absent witness is not sufficient to show diligence. Davis v. State, 10 Okla. Cr. 169, 135 P. 438.

The record in this case shows that this application for a continuance was presented to the court after the case was called for trial.

In his affidavit applicant states that on September 27, 1937, he caused a subpoena to issue for Paul Ingraham, Herman Johnson, Albert Wayman and Gene Horgan, all residents of Seminole, and that the subpoena for said witnesses has been returned “not found.” That he is unable to proceed to trial and adequately present his defense by reason of the absence of said witnesses, whose testimony he, with the exercise of due diligence, has been unable to secure. That witness Herman Johnson, if present, would testify that he has been acquainted with Bob Myers for several years, that on February 21st and a few hours before the arrest of Sam Gorum and others, he met Bob Myers in Seminole; Myers stated that he was looking for Craig Gyles, alias “Lettuce,” that he had been double crossed, but knew that Sam Gorum was not guilty of any unlawful act towards him, but he could not stand to lose $800 worth of whisky and was going to have the heat poured on Sam so that he would make up for this loss.

That the other witnesses for whom the subpoenaes issued, but not served, if present, each would testify of having known Craig Gyles, alias “Lettuce,” a long time prior to the robbery complained of; “that on the night of the 20th of February, 1937, in a conversation with these witnesses and each of them Craig Gyles told these witnesses that he had pulled a fast one on Sam Gorum. That he had hi-jacked Bob Myers and his wife. That he had taken $125 of money given to him by Sam Gorum to buy whisky from Bob Myers. That he had actually stolen Sam’s money, and that he had taken a large quantity of whisky from Mr. and Mrs. Bob Myers without paying for the same, and that he had made a clean get-away with the job; that Craig Gyles was intoxicated at the time of this conversation.”

That witness Albert Wayman would testify, if present, that he talked with Mr. and Mrs. Bob Myers, and they each said they knew Sam Gorum was not present at the robbery, and that they did not believe Sam Gorum to be guilty.

That none of these witnesses were absent by the procurement and consent of affiant. That there is no witness or witnesses by whom he can prove the facts stated herein.

Affiant further states that he has this day served notice on the county attorney of his intention to apply for a commission to take the deposition of Dale Robinson, who resides in Martinez, Cal., a copy of said notice and application being attached thereto.

Therefore defendant prays that a reasonable continuance may be granted in order to procure the same, and also procure the attendance of said absent witnesses.

It was stipulated and agreed that the subpoena as issued and directed to the sheriff for the witnesses named in the motion for continuance may be considered as attached to the affidavit and made a part of the same.

In his application for commission to take the deposition, the defendant states that Dale Robinson, in said deposition to be taken, will testify that he was personally acquainted with Craig Gyles, alias “Lettuce,” Clifford Harris, Floyd Harris and T. C. Barnwell; that in the city of Seminole, on the 18th day of February, 1937, the above-named persons proposed to witness that they hi-jack and rob Bob Myers and Mrs. Myers of a large quantity of tax-paid liquor; that said Craig Gyles stated that he would furnish cars to transport the party to the Myers place, and would furnish any firearms necessary for perpetrating said robbery. That witness Dale Robinson will further testify that he declined to take any part in said robbery; “that on February 20, 1937, the said ‘Lettuce’ told him that he together with T. C. Barnwell, Floyd Harris and Clifford Harris had accomplished the robbery and had divided the money of Sam Gorum between them, something over $125, and that the whisky had been divided, and that Sam Gorum knew nothing of said robbery.”

An application by a defendant in a criminal case to take the deposition of an absent witness as provided for in the Code of Criminal Procedure (secs. 3039, 3040 and 3041, 22 Okla. Sts. Ann. §§ 781, 782 and 783) should state facts from which the court or judge may satisfy himself that the deposition of the witness is necessary to the attainment of justice. Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L.R.A. 1918A, p. 312; Russell v. State, 41 Okla. Cr. 71, 270 P. 339.

In Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, this court held:

“It is no abuse of discretion to overrule an application for continuance, where no diligence is shown to procure the attendance or to take the deposition of a nonresident witness.”

Evidently, the trial court was satisfied that due diligence was not shown. This court has repeatedly held that applications for a continuance on account of absent witnesses are addressed to the discretion of the trial court, and that the ruling of the trial court on such a matter will not be disturbed on appeal, unless there appears to have been a manifest abuse of such discretion.

If the defendant had exercised due diligence, he could have procured the deposition of the nonresident witness. The delay of the defendant as shown by the record in procuring process for his witnesses amounts almost to indifference. We think the application for a continuance lacks the evidence of good faith, as well as that of due diligence.

It is our opinion, considering the entire record in the case, that the trial court did not abuse its discretion in overruling the application for continuance.

The next contention is that the court erred in overruling the defendant’s motion to declare a mistrial, because of the prejudicial conduct of the county attorney in the course of the trial.

The record shows that on the cross-examination of the witness McCollough he was asked if he had talked to some bell hops, who were witnesses, out in the hall of the courthouse yesterday. Answered, “Yes, sir, but I didn’t say anything about the case.” Asked if he saw a lady standing out in the hall, answered, “Yes, sir.”

Thereupon counsel for the defendant asked the court to declare a mistrial, based on the alleged misconduct of the county attorney. Motion overruled. •

It is the practice of the courts, whenever requested, as in this case, to have all the witnesses, both for the state and the defendant, called and sworn, and then instructed to retire beyond the limits of the court room, and there remain, without communication with any one as to what may have been testified to in the trial, until they are called to testify. And where the order of the court is willfully violated, it is a matter within the discretion of the court to allow or exclude the testimony of such witnesses. Kilgore v. State, 10 Okla. Cr. 446, 137 P. 364; Womble v. State, 50 Okla. Cr. 108, 296 P. 515.

As we view the record, we are satisfied that the error, if any, was not prejudicial to the defendant.

Another contention is that the county attorney was guilty of misconduct “in making a highly prejudicial closing argument to the jury, in referring to the fact that the defendant failed to call his codefendant, John Eggleston, to the stand to corroborate the defendant’s evidence, and in making other statements outside of the record, that were improper and prejudicial.”

In the case cited, Hopkins v. State, 11 Okla. Cr. 385, 146 P. 917, 919, it is said:

“The court, by refusing to sustain the objections to the improper remarks, and in refusing to instruct the jury that, under the law, the defendant had no more right than the state had to call his codefendants as witnesses, and that his failure to call certain codefendants as witnesses should create no presumption against him, and the court’s failure to direct the jury to disregard such improper remarks as not within the limits of legitimate argument, gave the jury to understand that they might properly and lawfully consider the same, all of which was manifestly prejudicial to the substantial rights of the defendant.
“Considering the doubtful character of the testimony introduced against the defendant, we think the improper remarks of the prosecuting attorneys in their arguments to the jury and the erroneous rulings of the court thereon probably determined the verdict.”

In the instant case, however, it appears from the record that no objections were made at the time, nor was the attention of the trial court in any manner called to the alleged improper remarks.

It also appears that the arguments of counsel for the defendant are not incorporated in the record.

As a general rule, in order to make improper remarks available as a ground for a new trial, objections should be interposed at the time the prejudicial statements are made. To entitle a defendant to have reviewed-by this court alleged improper remarks made by a county attorney to the jury, such remarks must not only be objected to, but defendant must go further and also move the court to exclude such remarks from the jury, and to instruct the jury not to consider such remarks.

In Cummings v. State, 57 Okla. Cr. 428, 48 P. 2d 879, this court held:

“To preserve the question of alleged misconduct of the county attorney in his argument to the jury, the attention of the court should be called to the argument at the time by proper objection and a ruling had thereon and an exception to the adverse ruling reserved and the same assigned as error in the motion for new trial and the petition in error. When this is not done, the question is not presented to this court for review.”

In Simpson v. State, 40 Okla. Cr. 58, 266 P. 783, this court held:

“Where two or more defendants are charged in the same information, and are tried separately, a codefendant is a competent witness only with his own consent. He cannot be compelled to testify so long as the action is pending against him, and any comment by counsel for the state on the failure of defendant to call his codefendant not on trial to testify is not legitimate argument. Unless the case is close on the facts, and this misconduct may have influenced the verdict, it is not necessarily reversible error.”

In Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646, 665, it is said:

“The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact as well as in matters of law by full and fair forensic discussion. Argument may violate ethics and not violate law. It may be improper, but not illegal. Improper remarks by the prosecuting attorney in the argument do not require a reversal, where they appear to be strictly in reply to allusions of counsel for the defendant.”

It follows from the foregoing that this contention is not tenable.

The remaining errors question the sufficiency of the evidence to support the verdict and judgment of conviction.

It is urged that defendant’s demurrer to the evidence should have been sustained, because there was no evidence other than that given by accomplices that connected defendant with the crime charged.

The statement of the case is a sufficient answer to this contention. Obviously, it is destitute of merit. In our opinion the guilt of the appellant is clearly and conclusively established by the evidence in the case.

This court has ever been zealous to protect the constitutional and statutory rights of a person convicted of crime, and to give to his appeal the fullest consideration permitted by law. We have done that in this case.

Upon a careful review of the entire record, it is the opinion of this court that the appellant is guilty of the crime charged, that he received a fair and impartial trial, and that the punishment assessed is merited by the evidence. It follows that the judgment of the district court of Pontotoc county herein must be affirmed. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


author: DOYLE, P. J.

text:
    CAD PATTERSON v. STATE.
    No. A-9598.
    Aug. 4, 1939.
    (92 P. 2d 1079.)
    Hal Welch and Carloss Wadlington, both of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

In this case the information in substance charged that Cad Patterson, in Pontotoc county, on or about the 8th day of March, 1936, did have in his possession about 315 pints of whisky, with the unlawful intent to sell the same. Upon the trial the jury returned their verdict finding him guilty as charged in the information, and fixed his punishment at a fine of $50 and 30 days’ confinement in the county jail.

Motion for new trial was on December 6, 1938, overruled; thereupon the court rendered judgment in pursuance of the verdict.

From the judgment an appeal was perfected by filing in this court February 2nd, 1939, petition in error with case-made attached.

The undisputed facts are that the defendant had a farm a mile east and about a quarter of a mile north of Ada; that three or four officers, in executing a search warrant on the date alleged, searched the defendant’s place and found about 300 pints of tax-paid liquor in the barn and 15 or 20 pints in the house; that there were no persons at the place when the search was made. The search warrant was posted on the door of the house.

Charles Shockley, a deputy sheriff, testified that he assisted in the search, that shortly afterwards in a conversation with the defendant, near the courthouse in Ada, the defendant stated that he was storing the whisky there for Louis Crim, and was getting $50 a month for storing it there, that he was making some easy money that way; that he was not selling the whisky; that they loaded the whisky in cars and brought it to the courthouse.

Allen Stanfield testified that he was a deputy United States marshal, and was with Shockley and Alvis Jones when they searched the defendant’s place, about a mile east and a quarter of a mile north of town, and found about 30 bottles in the house and about 300 bottles or more in the barn; Alvis Jones, who has since died, had the search warrant and tacked it on the east door.

Cad Patterson took the stand in his own behalf and testified: “I have owned that place about three years. On the 10th day of February, 1936, a taxi drove up there and the driver introduced me to Louis Crim, who wanted to rent the house.” He said he had just himself and his wife. He told Crim that he wanted to rent it until his wife, who was on a visit to California, came back, and he rented the house to Crim; did not know that Crim was going to put any liquor out there; that he left on the 28th of February, and went to a place called Wild Cat and returned Saturday evening, the day the officers raided his place. Sunday morning following, Crim called him over the telephone and told him they raided the place he had rented; that morning he met Charles Shockley and Alvis Jones down on the street, and told Shockley that he was going to take the whisky out, and that was the only conversation he had with Shockley. That he did not tell him that he was letting Louis Crim store liquor out there. That his wife got back from California around the 3rd or 4th of March.

On cross-examination he stated that he did not rent Crim the livestock or the chickens. Asked why he failed to appear on February 29th, the first time this case was called for trial, when his bond was forfeited, answered, “Because there was a man came to me and told me that he could fix it with you for $25, and I thought he had fixed it, and he didn’t come in and fix it, I guess.” That Bud Rich was the man, but he did not pay him the $25.

On redirect he testified: His wife was at her sister’s place about a quarter of a mile from his place; that Bud Rich told his wife that he had fixed it.

C. S. Hubbard testified that he lives on Cad Patterson’s place, about 150 yards east of where the officers found the liquor; that Cad Patterson was not living out there when the place was raided; that no one was staying there, but they were going in and out; Cad’s wife was down at her sister’s at the time, or in town.

On cross-examination he stated that Cad Patterson came back Monday night or Tuesday morning after the search, and his wife came there Monday morning; that he had been milking the cows for them; that he tended all the livestock, including the mules; that Cad came out Sunday morning after the raid; that about twice a day he would see people driving in and parking cars there and coming out with something. Asked if he knew whether the whisky was put in the barn, answered: “I sure did.” Asked how long he had known that, answered, “About 15 days”; that about 10 days before the raid Cad Patterson had been there, and three or four days before the raid Mrs. Patterson came out there and he didn’t milk the cows that morning or night.

Charles Mqsgraves testified that he lives in Ada, and was present when Cad Patterson rented his place to Louis Crim; that Louis Crim was down at the cab station where he was working and wanted to rent a place, and he told him about Cad Patterson’s place and then took him out to Cad’s place in a taxi. That Cad was not at home, then he took Crim down to Cad’s father’s place on Main street; Crim said he wanted to buy a place and he had been out there; Cad said he wanted to rent his place; that he was acting as a taxi driver and nothing more.

On cross-examination he stated: “I have known Cad Patterson six or seven years, I have known Louis Crim since he blowed into town; I knew that he had been arrested from time to time for handling liquor”; that nothing was said about the livestock and chickens in the deal; that he thought they could figure that out themselves; that it was just a matter of cab fare to him.

In rebuttal Clyde Kaiser, sheriff, testified that on Monday after Cad Patterson’s place was searched on Saturday night, he went out there about 9 o’clock in the morning with another search warrant and found Mrs. Patterson working in the front yard.

Charles Shockley, recalled, testified that another time after his conversation Sunday morning after the raid, Patterson was kidding him about some stuff that we had overlooked, a load of bottled in bond in a wagon down in the lot with manure piled on top of it.

The defendant, recalled, testified that he heard the testimony of Charles Shockley, and admitted that he had talked to him three or four times, but he did not tell Shockley that he rented that place to store liquor; that he did not tell Shockley that he had not found all the liquor out there, that they were talking about the liquor out there and the use of prods there to find it, and he said to Shockley, “Why didn’t you stick them things in that load of manure out there,” but he was just kidding Shockley.

Counsel in their brief say:

“There are 17 specifications of error in the brief, but the main propositions which will be argued in this brief are, that the court erred in refusing to direct a verdict for the defendant, and that the court erred in refusing to give several of the defendant’s requested instructions, and misdirected the jury. These two propositions will include most of the assignments set out in the petition in error.”

The record shows that at the close of the state’s evidence in chief, the defendant interposed a demurrer thereto, and moved the court to advise the j ury to return a verdict of not guilty, for the reason that the search was illegal in that no return was made on the warrant as required by law, as shown by the search warrant identified by the witness A. W. Oliver, the justice of the peace who issued the same.

It is the settled law of this state that a search warrant, otherwise valid, which has been executed within 10 days from the time it is issued, is not rendered invalid by failure of the officer to make return thereon. Hensley v. State, 53 Okla. Cr. 22, 3 P. 2d 211.

The contention that the evidence was obtained by an illegal search is not tenable.

It follows that the demurrer and motion were properly overruled.

It is contended that the court erred in refusing to give 12 written instructions submitted by the defendant.

Upon a careful examination of the instructions given by the court, and the instructions requested, it is the opinion of the court that the requested instructions were properly refused, as the instructions given fairly state the law of the case.

The instructions given must be considered as a whole, and, when considered together, if they fairly state the law applicable to the case, they will be sufficient.

The statute provides that:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room; * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.” (Chapter 153, sec. 3, Session Laws 1933, Okla. St. Ann., tit. 37, p. 567, sec. 82, amended section 2626, Sts. 1931.)

Among other instructions the court gave the jury the following:

“You are instructed that in the prosecution of this case, it is not sufficient merely to show that the defendant had charge and control of the premises upon which whisky was found. You must be convinced beyond a reasonable doubt that the defendant was the owner of the whisky, or was in some manner interested in it or voluntarily permitted the use of his premises for storing the same, before you can return a verdict of guilty in this case.”

The only error pointed out in the instructions given is the use of the word “gallon,” instead of the word “quart,” as used in the statute above quoted.

A defendant will not be heard to complain because error was to his advantage. We think the law of the case was stated more fairly to the defendant than the evidence would warrant. In fact, the defendant was given in the court’s instructions the full benefit of the defense sought to be made.

It is further insisted that the evidence is insufficient to support the verdict.

With this contention we cannot agree. It is only where there is a total failure of substantial evidence of the elements or some one element of the offense that this court on appeal is permitted to reverse a conviction on the ground that the evidence is insufficient to sustain it.

All persons aiding in the commission of a misdemeanor are principals and may be so charged, tried and convicted.

As we view the evidence in this case, it cannot, with propriety and due respect for the law, be held that there is an absence of competent evidence on which to base the conviction.

The case was ably prosecuted and ably defended, and it is seldom a record so free of error is presented to this court for review.

Finding no reversible error in the record, it is the opinion of the court that the judgment appealed from should be affirmed; and it is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.