Barnett v. State
| Decision Date | 28 November 1928 |
| Docket Number | A-6146. |
| Parties | BARNETT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The jury is the trier of facts in a criminal case, and where the testimony, although conflicting, reasonably sustains the verdict, this court will not reverse the judgment on the facts.
If a defendant expects to use a witness, he should use diligence to procure his attendance. Where a defendant fails to have a subp na issued for a witness, and depends upon his being produced by the state, he has not used diligence, and his application for a continuance, based on the absence of such witness, should be overruled.
Errors occurring at the trial should be preserved by proper objections and exceptions. When this is not done, they are waived, unless the errors are fundamental.
The exclusion of witnesses under the rule is not an absolute right, but rests in the sound discretion of the trial judge. When a defendant requests the rule for the exclusion of witnesses, the trial judge, in the exercise of his sound discretion, should rule upon the request. To grant the request on the condition that the defendant shall first take the stand in presenting his side of the case is improper. The error in imposing such condition, however, is waived, if no exception is taken.
Appeal from Superior Court, Okmulgee County; J. H. Swan, Judge.
Jimmy Barnett was convicted of manslaughter in the first degree and he appeals. Affirmed.
Don Cameron, of Wewoka, and D. E. Ashmore, of Belleville, Ark for plaintiff in error.
Geo. F Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen for the State.
The plaintiff in error, hereinafter called defendant, was convicted of manslaughter in the first degree in the superior court of Okmulgee county and was sentenced to serve a term of four years in the state penitentiary.
The record discloses that on the day charged the defendant shot and killed one Albert Fisher. The killing occurred at the home of defendant in the presence of several witnesses. Deceased was shot in the back. The evidence for the state and for the defendant is sharply conflicting; that for the state tending to prove the homicide was murder; that for defendant tending to prove the killing was in self-defense. It is urged that the evidence is not sufficient to sustain the judgment. It has been many times held by this court that it is for the jury to pass upon the weight of the evidence and the credibility of the witnesses, and to say whom they will believe or disbelieve. Where the evidence, although conflicting, is such that the jury reasonably may find the guilt of defendant, this court will not substitute its judgment for that of the jury and reverse the case. Brimmage v. State, 17 Okl. Cr. 205, 187 P. 497.
The contention also is made that the court erred in overruling defendant's application for a continuance. This application is based on the absence of witnesses Orban Crowe and Sam Prince. Crowe was with Fisher in his car when he went to the home of defendant on the night of the homicide. A subp na was issued by the state to procure his attendance. None was issued by defendant. That this is not diligence is not an open question. If defendant desires to procure the attendance of a witness he must not rely upon the state procuring him, but must himself use diligence to secure his attendance. 9 Cyc. 197; Kirk v. Territory, 10 Okl. 46, 60 P. 797; Sanders v. State (Okl. Cr. App.) 252 P. 855. Defendant had a subp na issued for the witness Prince, which was not served. The whereabouts of this witness was unknown; the application states that he was last heard of in Wyoming. No probability of procuring his attendance at any subsequent trial is shown. There was no error in overruling the application.
Complaint is next made that the court excluded competent evidence offered by defendant and admitted incompetent evidence for the state. This assignment is directed to several items of testimony. It was sought to be shown that at 2 o'clock in the afternoon of the day of the homicide, and again at 4 o'clock, Fisher, the deceased, was apparently intoxicated, and that some days prior to the homicide, the exact time not being shown, he was armed and intoxicated at the office of a dentist in Henryetta. The homicide occurred at 8 o'clock p. m. Evidence of intoxication at 2 o'clock p. m., or even 4 o'clock, on the same day, is rather remote and of doubtful probative force. Even if deceased was intoxicated at the time of the homicide, such fact would not justify defendant in shooting him, except in his necessary self-defense.
It is also insisted that the court erred in allowing the rule for the exclusion of witnesses upon...
To continue reading
Request your trial