Bailey v. State
| Decision Date | 09 March 1934 |
| Docket Number | A-8633. |
| Parties | BAILEY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Where a defendant is being prosecuted by information for a felony, if in fact defendant has not had a preliminary examination and been bound over to answer the charge contained in the information, and has not waived such examination, these matters can only be presented by a motion to set aside the information, and cannot be raised by a motion to exclude the testimony of the witness.
2. In a prosecution for robbery with firearms, where the testimony of a witness was given at the preliminary examination, and his testimony taken by a reporter in the presence of the defendant who cross-examined the witness, and said testimony transcribed by the reporter who took the testimony at the preliminary hearing, and the witness is not present at the final trial and the state shows such witness cannot, with due diligence, be found within the jurisdiction of the court, and is absent from the state, the testimony taken at the preliminary may be read to the jury.
3. There are no errors in the record warranting this court in reversing the judgment.
Appeal from District Court, Jackson County; Frank Mathews, Judge.
Tom Bailey was convicted of robbery with firearms, and he appeals.
Affirmed.
Herman S. Davis, of Mangum, for plaintiff in error.
J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
The plaintiff in error, hereinafter referred to as the defendant was convicted of robbery with firearms, and his punishment fixed at confinement in the state penitentiary for five years, and appeals.
The testimony in this case is brief. R. J. Davis testified on behalf of the state, in substance: My home is in Denton, Tex.; on the 12th day of November, 1932, I was in the Santa Fe yards in Altus, Jackson county, Okl.; the defendant walked down behind the train, he was drinking, and called to me to the back of the car, I thought with the intention of giving me a drink; he walked on out to the back of the track a little ways and drew a gun on me and told me to stick up my hands, and went through my pockets, took out papers and money I had in my pocket, handed the papers back to me and told me to put them in my pocket; held me a while and walked down the track a little ways and then called me back again looking for papers and money; he turned me loose and told me to go to the station. I went up and notified a fellow at the depot; this was between 10 and 10:30 at night. I am positive Tom Bailey, this defendant, is the man that held me up. The defendant gave me back the money next day after he was arrested in the state of Texas. This property was taken without my consent. I was afraid I might be injured if I did not submit to his taking the money. This is the testimony of Davis taken at the preliminary hearing.
The court advised the defendant he might cross-examine the witness, if he so desired, and defendant said, "Well, I want to ask him if he did not tell me he was out of tobacco when I gave him the twenty cents; Mr. Bush said you ought to give it back to him, he is out of tobacco, and I says, well, I will give him the money for cigarettes, you told me then you was broke and did not have any tobacco money." This is all the question the defendant asked the witness R. J. Davis, at the preliminary hearing.
Davis positively identified defendant as being the party who held him up with a pistol and took his 20 cents.
R. E. Lawson testified on behalf of the state, My home is at 520 West Liveoak, Altus, Okla.; I am car inspector and work for the Santa Fe Railroad; was on duty the 12th of November, 1932, at night; the defendant bears a description pretty well of the man I saw in the Santa Fe yards that night; it was a moonlight night, and he came to where I was culping up a hose on a cut of cars the train crew had shoved back; he came to the end of the car and said, "Stick 'em up." I looked around and just over to the left about ten feet, and saw three men, and one of these men had both hands stuck up as high as he could get them; this man bears the description of the man who was standing there right up like-and had something jammed-looked very much like a gun, in this fellow's side, he was feeling his pockets, he was holding him with a gun; I taken it to be a gun the way it looked; I had seen this fellow prior to that day, or at least it looked like the same fellow; I had encountered him prior to the time he held up Davis; he came over toward the engine when I started to work and begun to hollow at me before he came close to me, and said, when is that train going out, and as he got near he began talking and asking questions, and I said, Fellow, I ain't got time to fool with you, I have to look after this train, there is a crew over there waiting for me, and he walked close to me, and said, Don't come back at me, and I told him, You havn't got me beat-I got the difference too. He walked up to me and said, When this train is made up will it be on the main line.
The defendant testified in his own behalf, and denied he held up the witness Davis in the yards at Altus the night alleged in the information, or that he had anything to do with his being held up; says when he got to the yards a freight train was pulling out and he went on to Texas that night. He says he...
To continue reading
Request your trial