Connery v. State, A--16607

• Decision Date: 21 June 1972
• Docket Number: No. A--16607,A--16607
• Citation: 499 P.2d 462
• Parties: William Higgins CONNERY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 462

499 P.2d 462

William Higgins CONNERY, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--16607.

Court of Criminal Appeals of Oklahoma.

June 21, 1972.

Frank E. Hensley, Guymon, for appellant.

Larry Derryberry, Atty. Gen., Paul Ferguson, Asst. Atty. Gen., for appellee.

DECISION AND OPINION

BRETT, Judge:

William Higgins Connery was tried by a for the offense of obtaining money by a jury in the District Court of Texas County false pretense. He was found guilty, sentenced to serve three (3) years in the state penitentiary, and from that conviction, this appeal has been perfected. Appellant Connery will hereafter be referred to as defendant, as he appeared in the trial court. We affirm.

The information alleged that the defendant obtained money by false pretenses by claiming to be the long absent nephew of Mr. and Mrs. Price Brown. The prosecution proved that defendant went to the residence of Mr. and Mrs. Price Brown on November 3, 1970, in Texhoma, Oklahoma, where he asserted that he was Ray Finley, a nephew whom Mrs. Brown had not seen for some twenty years. Mrs. Brown testified that defendant told her that he needed some financial help; that his car 'got busted up and he had to post bond.' She said that he asked for five hundred dollars ($500.00), but all she had in cash was four hundred dollars ($400.00) in twenty dollar denominations. She gave him the money expecting him and his wife to return later that evening; but the man never returned to her home. Mrs. Brown, even though seventy-eight years of age, identified the defendant in the courtroom, after having described the manner in which he was dressed on November 3, 1970.

Charlotte Hughes testified, prior to Mrs. Brown, and identified the defendant as the man who came to her door on November 3, 1970; he said that he was looking for an elderly couple who drove a light cream colored car. She said she remembered that her grandparents, who lived about two blocks from her house, drove an old 1950 Ford which was cream colored. So, she told the defendant how he could find the home of Mr. and Mrs. Brown.

The last witness offered in chief, by the state, was Deputy Sheriff Jess Scoggin, who related that on December 9, 1970, he returned the defendant from Scottsdale, Arizona, to Texas County. The state rested its case and defendant entered his demurrer to the state's evidence, which was denied.

Defendant did not testify in his own behalf but instead offered the testimony of Patrick and Chris Connery, two of his sons, and that of his daughter, Shelly Hanes. All three witnesses lived in Albuquerque, New Mexico, and they all three testified that their father was in Albuquerque on November 3, 1970, visiting in the home of their mother, Mrs. Robert Hedberg. Mrs. Hedberg was the divorced wife of the defendant. When defense counsel called for Mrs. Hedberg to testify, the state objected on the grounds that her testimony would be in the nature of alibi, and that no notice had been served upon the prosecutor, either in writing or orally, as required by the statutes. The court sustained the state's objection and defense counsel took exception and made a record, as to what Mrs. Hedberg would testify. In substance, it was asserted that Mrs. Hedberg would testify that she is the mother of the three witnesses who testified for defendant; that their testimony was true and correct; that she could corroborate their testimony; and that she saw the defendant in her home in Albuquerque, New Mexico, during the noon hour on November 3, 1970, and again later that evening. The court did not permit this testimony to go to the jury.

Defendant's first proposition asserts that he was substantially prejudiced by the exclusion of the testimony of Hilda Hedberg, his former wife. He asserts further that the provisions of Section 585, of Title 22, are not mandatory; that the intention of the statute is that, in the event notice of an alibi witness is not given, the court may, in its discretion upon motion of the prosecutor, grant a sufficient continuance to enable the prosecution to make investigation of the alibi witness. The Attorney General in his brief admits that section of the statute does not contemplate the excluding of the testimony of an alibi witness, but only contemplates a postponement of trial, at the request of the District Attorney, to properly validate the anticipated testimony of the alibi witness. But, the Attorney General asserts further, that the testimony of Hilda Hedberg would have been cumulative in nature; and therefore, defendant was not prejudiced by the exclusion of her testimony. After reviewing the transcript of testimony, we agree that the Attorney General is correct in his statement. Title 22 O.S.1961, § 585, concerning postponement for investigation of claimed alibi, provides as follows:

'Whenever testimony to establish an alibi on behalf of the defendant shall be offered in evidence in any criminal case in any court of record of the State of Oklahoma, and notice of the intention of the defendant to claim such alibi, which notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense, shall not have been served upon the county attorney at or before five (5) days prior to the trial of the case, upon motion of the county attorney, the court may grant a postponement for such time as it may deem necessary to make an investigation of the facts in relation to such evidence.'

When the defendant called his former wife as his last witness, the court called for a recess and heard the objections outside the presence of the jury. The proceedings were as follows, with the prosecutor speaking first:

'MR. WOOD: We would object to any testimony from anyone in the nature of alibi since we have not received notice of her being called until this morning, either written or oral, particularly no written notice ever. I would specifically say I never received oral notice we would have Mrs. Hedberg called.

'THE COURT: Make your record.

'MR. BECKER: May it please the court, at this time I ask that Mrs. Hedberg be called and at least sit here while I make offer of proof. I think it is proper. I think it is proper to make an officer (sic) of proof.

'THE COURT: You can dictate what she would testify. Dictate in the record what she would testify to.

'MR. BECKER: All right. Comes now the defendant and offers to prove by Mrs. Hedberg, who is the mother of the three witnesses who just testified in this case on behalf of the defendant, to the effect that the testimony of those witnesses is true and correct and that she can corroborate their testimony in that around ten o'clock A.M. on the morning of November 3, 1970, her brother-in-law who had seen the defendant, W. H. Connery . . ..

'THE COURT: She couldn't testify what her brother-in-law told her.

'MR. BECKER: I haven't got it in yet.

'THE COURT: Go ahead.

'MR. BECKER: That he had seen W. H. Connery near the home and that he presumed he was going to the house. That at Noon that day she left the Sandia Corporation offices, went by the polls and voted and drove to her home and found the deefndant and two or three of their children sitting in the living room at her home in Albuquerque, New Mexico. That about 1 o'clock she returned to the office where she was working and that again around 5 o'clock she left the office and returned to her home and the defendant was there and their youngest child, Paul Connery, were there in the house at her home.

'THE COURT: Of course, Mr. Becker, that would be competent testimony in the...