Barber v. State
| Decision Date | 20 November 1963 |
| Docket Number | No. A-13252,A-13252 |
| Citation | 388 P.2d 320 |
| Parties | Jack Allen BARBER, 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 |
Syllabus by the Court
1. Objections which appear upon the face of an indictment or information, except those which relate to the jurisdiction of the court, or subject matter of the offense, or that facts stated do not constitute a public offense, must be presented by demurrer, and if not so presented in proper time, they are waived.
2. Defendant's remedy to test sufficiency of the information, after announcing ready for trail, was by motion objecting to introduction of evidence at time of trial or in arrest of judgment, but not by demurrer. 22 O.S.A. § 512.
3. In ruling upon demurrer to information, it was only incumbent on trial court to determine whether information was reasonably certain as to offense charged and was couched in such language as to enable a person of common understanding to know what is intended so that he may prepare his defense, and so that a judgment of acquittal or conviction would be a bar to a subsequent prosecution for the same offense.
4. Where the testimony of the witness was given at the preliminary examination and taken down by the reporter in the presence of the defendant and his counsel, who cross-examined him, and such testimony was filed with the clerk, the transcript is admissible where the witness is not present and cannot be found in the jurisdiction.
5. A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of an offense, or the circumstances thereof. 22 O.S.A. § 742.
6. Where the sufficiency of the evidence to corroborate an accomplice is challenged, Court of Criminal Appeals will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect defendant with the commission of the offense, it will uphold the verdict.
7. It is not essential that corroborating evidence shall cover every material point testified to by an accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or circumstances thereof.
8. The weight and sufficiency of corroborating evidence is for the jury, and where the jury has returned its verdict, the Court of Criminal Appeals will take the strongest view of the corroborating testimony that the evidence warrants.
9. Errors to which no exceptions were taken will not be considered on appeal unless they are jurisdictional or fundamental in character.
10. It is not error alone that reverses judgments of conviction of crime in this State, but error plus injury, and the burden is upon the plaintiff in error to establish to the Court of Criminal Appeals the fact that he was prejudiced in his substantial rights by the commission of error.
11. All instructions given by the trial court should be considered, and where they fairly and fully present the issues involved, and no fundamental error occurs whereby the defendant has been prejudiced or deprived of a substantial right, the case will not be reversed on appeal.
12. It is not error for trial court in criminal prosecution to refuse defendant's requested instructions where substance of requested instructions is covered by given instructions.
Appeal from the District Court of Tulsa County; Robert L. Wheeler, judge.
Jack Allen Barber was convicted of the crime of robbery with firearms, after former conviction of a felony, and appeals. Affirmed.
Ed Parks, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
On August 25, 1961 the plaintiff in error, Jack Allen Barber, hereinafter referred to as defendant, was charged by information in the district court of Tulsa County with the crime of robbery with firearms, conjoint. The information named as defendants Max Leroy Steed, Charles Henry Woods, Jack Allen Barber and B. M. (Pete) Bishop as defendants. The information charge that the offense was committed on or about July 30, 1961 in Tulsa County. This defendant was arraigned on September 30, 1961, entered a plea of not guilty, and the case was set for trial on the October district court docket. The case was passed, and on November 8, 1961 a codefendant requested a severance, and the same was granted. After several continuances, and on February 22, 1962 the State was granted permission to file an amended information, against this defendant.
On March 8, 1962 the jury returned a verdict finding defendant guilty, and on March 9, 1962 the State read to the jury the information on a former conviction and presented evidence, the court instructed on same, and argument of counsel was heard. The jury found the defendant guilty of robbery with firearms after former conviction of a felony, and assessed his punishment at 15 years in the state penitentiary. Defendant was sentenced on March 19, 1962, and appeal has been perfected to this Court.
Defendant's first proposition is that the court erred in overruling the demurrer of the defendant to the information filed. The accused by counsel had entered a plea of not guilty on his first appearance in court, and had later, when the case was called for trial, through his counsel, announced ready for trial without filing a demurrer to the information. Then after the jury had been selected and sworn, and the opening statement by the plaintiff given, the accused, through his attorney, undertook for the first time to orally demur to the information, on the grounds that there were only three men charged on the face of the information with robbery, while there were four mentioned in the body of the information. This proposition certainly has no merit for this Court has held that:
'Objections which appear upon the face of an indictment or information, except those which relate to the jurisdiction of the court, or subject matter of the offense, or that facts stated do not constitute a public offense, must be presented by demurrer, and if not so presented in proper time, they are waived.'
Richards v. State, Okl.Cr., 278 P.2d 253; Simpson v. State, 16 Okl.Cr. 533, 185 P. 116; and Roberts v. State, 72 Okl.Cr. 384, 115 P.2d 270.
The defendant's remedy to the sufficiency of the information, after announcing ready for trial, was by motion objecting to introduction of evidence at time of trial or in arrest of judgment, but not by demurrer. Jennings v. State, 92 Okl.Cr. 347, 223 P.2d 562.
And finally this Court has held that in ruling upon a demurrer to the information, it is only incumbent on the trial court to determine whether the information was reasonably certain as to the offense charged and was couched in such language as to enable a person of common understanding to know what is intended, so that he may prepare his defense, and also so that a judgment of acquittal or conviction would be a bar to a subsequent prosecution for the same offense. Johnson v. State, 79 Okl.Cr. 71, 151 P.2d 801.
The second proposition presented is that the trial court erred, when it allowed the testimony of a key witness for the State to be introduced by transcript. The defendant relies on four cases to sustain his contention, Golden v. State, 23 Okl.Cr. 243, 214 P. 946; Davis v. State, 20 Okl.Cr. 203, 201 P. 1001; Scott v. State, 43 Okl.Cr. 232, 278 P. 393; and Foster v. State, 35 Okl.Cr. 70, 248, P. 847.
Each of these cases was distinguishable from the present case. The Golden case presents a subpoena that was returned with a notation, 'not found' endorsed thereon and there was no evidence or showing that the witness was out of the State or out of the jurisdiction of the court. The circumstances in the Davis case showed that the witness was a resident of Grady County and no subpoena had been issued for him, he had merely orally promised to attend the trial and no effort had been made to serve him. Further evidence showed that he was only temporarily out of the State, therefore the transcript from the preliminary could not be introduced.
In the Foster case the transcript that the State attempted to introduce was one taken in a case other than the one being tried, therefore this Court held that evidence taken in a proceeding in which the defendant was not a party was prejudicial error.
Finally, in the Scott case, the record shows there was great confusion as to the whereabouts of the witness whose testimony the State attempted to introduce by transcript. However, there was to definite proof that he was not within the State of Oklahoma, therefore the Court in an opinion by Judge Davenport held that the transcript could not be introduced.
In the instant case there is no question as to the whereabouts of Charles Henry Woods. He had been in the custody of the Federal Government for some time, and was confined in the Federal prison in Texarkana, Texas, at the time of the present trial. This Court has been very explicit in this and as so ably pointed out in the State's brief, 'There can be no question under the circumstances of this case.'
Where the testimony of the witness was given at a preliminary examination, and taken down by the reporter in the presence of the defendant and his counsel who cross-examined him, and such testimony was filed with the clerk, the transcript is admissible where the witness is not present and cannot be found in the jurisdiction. Fitzsimmons v. State, 14 Okl.Cr. 80...
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