Browder v. State
| Decision Date | 28 April 1919 |
| Docket Number | A-3161. |
| Citation | 180 P. 571,16 Okla.Crim. 43 |
| Parties | BROWDER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
To entitle the defendant to a change of venue, the affidavits filed in support thereof-when affidavits are alone relied upon-must set forth facts showing that a fair and impartial trial in the trial county is improbable.
Under the statute in this state, a change of venue rests in the discretion of the court to which such motion is made, and a refusal to grant a change of venue will not work a reversal of a case unless it be clearly shown by the defendant that the court abused its discretion in denying said motion.
To entitle a defendant to have reviewed by this court alleged improper remarks made by a county attorney to the jury, such remarks must not only be objected to, but defendant must go further also and move the court to exclude such remarks from the jury, and to instruct the jury not to consider such remarks for any purpose.
A careful examination of the entire record in this case shows that the evidence establishes the guilt of the defendant beyond a reasonable doubt, and that no prejudicial errors occurred in the trial of the cause.
Appeal from District Court, Stephens County; Cham Jones, Judge.
Bill Browder was convicted of a second violation of the prohibitory liquor law, and he appeals. Affirmed.
J. B Wilkinson and Bond & Kelb, all of Duncan, for plaintiff in error.
S. P Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
The plaintiff in error, Bill Browder, hereinafter designated "defendant," was by information charged with a second violation of the prohibitory liquor laws, the second violation charged being for having in his possession 98 quarts of beer and 7 quarts of whisky with intent to sell the same, convicted, and sentenced to be confined in the jail of Stephens county for a term of 90 days and to pay a fine of $200 and the costs of this prosecution, of $140, and to be further confined in said jail until said fine and costs are paid as required by law. To reverse the judgment rendered, he prosecutes this appeal.
The defendant moved for a change of venue from Stephens county upon the ground that he could not obtain a fair and impartial trial in said county, and in support of said motion filed affidavits of eight citizens of said county, to which the state did not file opposing affidavits or do anything to meet "said affidavits."
The court overruled the motion for a change of venue, and the defendant excepted.
The uncontradicted evidence in the case shows that, previous to the filing of the information in this case the defendant had been convicted and sentenced in the county court of Stephens county for a violation of the prohibitory liquor laws of this state, and that subsequent thereto 98 quarts of beer and 7 quarts of whisky were, at the time averred in the information in this case, found in the north room of the residence of the defendant, which was situated near the city of Duncan, in said Stephens county.
The defendant did not testify or offer any evidence in the case.
The foregoing being all the evidence in the case, the defendant requested the court to direct the jury to acquit the defendant, which was overruled and exception saved.
The county attorney in his argument to the jury said:
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