Adams v. State

• Decision Date: 26 May 1923
• Docket Number: A-4064.
• Citation: 220 P. 59,25 Okla.Crim. 298
• Parties: ADAMS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

220 P. 59

25 Okla.Crim. 298

ADAMS v. STATE.

No. A-4064.

Court of Criminal Appeals of Oklahoma

May 26, 1923

Rehearing Denied Dec. 4, 1923.

Syllabus by the Court.

Where the petition for a change of venue fails to meet the statutory requirements, there is no error in the trial court in striking the petition from the files and refusing the change.

Whether or not one jointly charged with defendant with the commission of the crime is an accomplice is generally a mixed question of law and fact, and, where the evidence is conflicting on such issue, the trial court should submit the question to the jury under proper instructions, and should further instruct as to the necessity of corroborating an accomplice by independent evidence tending to connect defendant with the commission of the crime; but failure to instruct as to the necessity of such corroboration will not be held to be reversible error where no such instruction was requested, and where there is ample corroborating evidence introduced; such alleged error being harmless under the provisions of section 2822, Comp. St. 1921.

The title to the act (chapter 102, Sess. Laws 1919; section 2120 Comp. St. 1921) is held not to be in contravention of section 57, art. 5, Constitution.

Appeal from District Court, Nowata County; C. W. Mason, Judge.

Tom Adams was convicted of the larceny of an automobile, and he appeals. Affirmed.

Bert Van Leuven, of Nowata, for plaintiff in error.

George F. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty Gen., for the State.

MATSON P.J.

Plaintiff in error, Tom Adams, was jointly informed against with one Emmett Taylor in the district court of Nowata county charged with the theft of an automobile the property of one William Myers, alleged to have occurred in said county on or about the 18th day of December, 1920. On a separate trial Adams was found guilty of the offense, and his punishment fixed at imprisonment in the state penitentiary for a period of 15 years.

The facts are about as follows: William Myers was the owner of a Buick Six automobile, 1920 touring model. When not in use Myers kept his car in a public garage in the city of Nowata. On the 18th day of December, 1920, a daughter of Myers, who had been using the car, took the same to the garage for the purpose of leaving it there. This occurred about 4:30 in the afternoon. The owners of the garage were at that time busy cleaning it out, and had the Myers girl to park the car in the street near the garage. One of the employés of the garage saw the car parked there as late as 6:30 in the evening. The car was missed about 7:30 that evening, and immediately a search was made for it, and the officers notified that it was missing. Some time later that night, probably between 10 and 12 o'clock, this defendant and his codefendant, Emmett Taylor, were found in possession of the car in the city of Tulsa, Okl., and were there arrested, charged with its theft and were on the next day brought back to the city of Nowata.

Taylor voluntarily testified as a witness on behalf of the state, in this prosecution, and detailed the circumstances under which the car was taken. Adams denied taking the car, but testified that Taylor stole it, and that he was merely riding with Taylor to the city of Tulsa at the time they were arrested.

The first alleged error assigned as grounds for reversal is the action of the trial court in striking and overruling the motion and application of the defendant for a change of venue from the county. This application alleges that the defendant cannot have a fair and impartial trial in said county for the reason that the minds of the inhabitants of the county generally are so prejudiced against him by reason of the activities of the Nowata county automobile association, which embraces every automobile owner in Nowata county, and which association had interested itself in the prosecution of the case to the extent of employing special counsel to assist the county attorney, and by reason of the offer of rewards, etc and the application is accompanied by a copy of an advertisement contained in the Nowata Star, which advertisement of the Nowata county automobile association offers a standing reward of $250 for the arrest and conviction of any one stealing an automobile from any citizen of Nowata county, a further reward of $100 for the return of a stolen automobile, and a further reward of $1,000 for the dead body of any automobile thief taken in resisting arrest after having stolen any automobile from any citizen of Nowata county. The application is subscribed and sworn to by the defendant, Tom Adams. No affidavit of any residents in said county as to the truth of the allegations in such petition were filed therewith.

The statute upon which this application and petition for a change of venue was based is as follows "Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. The county attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant." Section 2628, ...