Baker v. State, A-12379

• Citation: 306 P.2d 344
• Decision Date: 09 January 1957
• Docket Number: No. A-12379,A-12379
• Parties: J. R. BAKER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 344

306 P.2d 344

J. R. BAKER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12379.

Criminal Court of Appeals of Oklahoma.

Jan. 9, 1957.

Syllabus by the Court.

1. The exclusion of witnesses for the state, at defendant's request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule.

2. It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state's witnesses generally are excluded.

3. Where no objection is made to the court's refusal to give a requested instruction, the same is too late to be available to the defendant on appeal.

4. Only those assignments of error preserved in the motion for new trial will be considered in an appeal to this court unless the error is of fundamental character.

Appeal from the Superior Court of Okmulgee County; Don Barnes, Judge.

Plaintiff in error, J. R. Baker, was charged with the crime of theft of domestic animals, convicted, sentenced to a term of three years in the state penitentiary and he appeals. Affirmed.

Bailey & Pitchford, by J. I. Pitchford, Okmulgee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiff in error, J. R. Baker, defendant below, was charged in the Superior Court of Okmulgee County, Oklahoma, by information with having committed the crime of theft of domestic animals, to wit: two white face heifers and one white face steer, on or about the 1st day of November, 1955, in the aforesaid county and state. He was tried by a jury, convicted, and the jury being unable to agree upon the punishment, left the same to the discretion of the trial court which fixed the punishment at three years in the state penitentiary. Judgment and sentence were entered accordingly from which this appeal has been perfected.

The defendant raises three contentions. First, he contends that the trial court permitted the Sheriff of Okmulgee County to remain in the courtroom after the rule for the exclusion of witnesses had been called for. In this regard, it was alleged that by reason of the investigation he had made, the Sheriff was one of the state's principal witnesses.

This contention has been resolved against the defendant in Harrell v. State, 36 Okl.Cr. 225, 253 P. 516, wherein the rule was stated as follows 'The exclusion of witnesses for the state, at defendant's request, is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule.

'It is proper practice to permit the prosecuting witness, or some officer active in the prosecution of the case, to remain in the courtroom to advise the prosecuting attorney as to the facts, interest, and character of witnesses, etc., though the state's witnesses generally are excluded.'

To the same effect are McKinnon v. State, Okl.Cr., 299 P.2d 535; Hatfield v. State, 49 Okl.Cr. 41, 292 P. 1058; Barnett v. State, 41 Okl.Cr. 153, 271 P. 956.

It is next contended by the defendant that the trial court erred in receiving the jury's informal verdict to the effect that they found the defendant guilty and left the punishment to the trial...