Crosswhite v. State, A-12481

• Decision Date: 30 October 1957
• Docket Number: No. A-12481,A-12481
• Citation: 317 P.2d 781
• Parties: James L. CROSSWHITE, 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 781

317 P.2d 781

James L. CROSSWHITE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12481.

Criminal Court of Appeals of Oklahoma.

Oct. 30, 1957.

Syllabus by the Court.

1. When an affidavit is filed for continuance, by reason of the absence of a witness, and the affidavit does not contain the necessary averment that the affiant believes that the facts the absent witness, as averred in said affidavit, would testify to are true the same is fatally defective under the requirements of 12 O.S.1951 § 668.

2. Under 12 O.S.1951 § 668, a motion for continuance, on account of the absence of evidence, can be made only upon affidavit, and traverse thereof would be by counter-affidavit to keep such proceedings from getting out of hand and expanding into a hearing on the merits.

3. Under the provisions of 22 O.S.1951 § 584, reading: 'When an indictment or information is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, as in civil cases, direct the trial to be postponed to another day in the same or next term.', the phrase, 'as in civil cases,' makes the provisions of 12 O.S.1951 § 668 clearly applicable in criminal cases.

4. Where it is made evident by the affidavit of the absent witness that he would not give the testimony set out in the application for continuance, the burden is on the movant to establish that he would not testify as set out in the counter affidavit.

5. It is not error to refuse to grant a continuance to secure an absent witness where the material facts to which it is claimed he will testify are contradictory to such witness' previous sworn statements or affidavits.

6. Motions for continuance are addressed to the trial court's sound discretion and in the absence of abuse, the ruling thereon will be sustained.

7. Evidence of a conflicting nature presents a question for the sole determination of the jury.

Appeal from the District Court of McCurtain County; Howard Phillips, Judge.

Plaintiff in error, James L. Crosswhite, was convicted of the crime of assault with a dangerous weapon with intent to kill, sentenced to a term of fifteen years in the state penitentiary, and he appeals. Modified and affirmed.

James M. May, McAlester, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, James L. Crosswhite, defendant below, was charged by information in the District Court of McCurtain County, Oklahoma, with the crime of assault with a dangerous weapon by means of a .38 cal. Smith & Wesson pistol, with intent to kill, 21 O.S.Supp.1955, § 652, by shooting Russell Pennington in the shoulder resulting in permanent paralysis in his lower extremities. He was tried by a jury, convicted, and his punishment fixed at fifteen years confinement in the state penitentiary. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

Briefly, the facts are that on the 24th day of December, 1955, the defendant, James L. Crosswhite, the prosecuting witness, Russell Pennington, and Everett Pannell, all brothers-in-law, were engaged in some pre-Christmas drinking in a tavern to which they had gone in the defendant's car. Crosswhite appears to have become intoxicated. He had been teasing Pennington for some time and on this occasion particularly about his hair cut. It appears Crosswhite became profane and abusive and Pennington invited him out of the tavern to the rear where they engaged in a fight. Pennington, weight one hundred and seventy five pounds, knocked Crosswhite, weight two hundred twenty five pounds, down and Crosswhite got a brick with which to strike Pennington, which Pennington took away from him. At this time, they were separated by Pannell. Crosswhite said to Pennington 'You'll have to do it over', to which Pennington replied, 'All right.' Pennington and Pannell left and went to the main street of the town where they borrowed a car from Ed McGowen, another brother-in-law, in which they started home. They also picked up McGowen's two and one-half year old daughter to take with them. On the way home, they were met by Crosswhite going in the opposite direction in his automobile. Crosswhite flagged them down, stating he wanted to talk to Pannell. Both cars stopped with their back bumpers in line. The record at the trial discloses Pannell got out of the car and went around to the front. The defendant had stepped out of his automobile to the rear of the car Pannell was driving and started shooting through the car at Pennington who was seated on the right side with the little girl next to him. Crosswhite fired six times, he admitted on direct examination, two of which bullets struck Pennington in the shoulder, one of which glanced down into his spine, causing paralysis of his lower extremities. The record shows neither Pennington nor Pannell were armed. After the shooting, Pannell drove away to avoid further difficulty. The record shows the defendant, Crosswhite, followed them home and made further threats that he would finish off both Pennington and Pannell. The defendant was finally subdued by his wife and disarmed. He got into his car and drove out of the state into Arkansas where he was apprehended.

The defendant's defense was that his life had been threatened and he went home, got the pistol, and laid it on the seat of the car when he started back to town. He testified when he approached Pennington and Pannell, they flagged him down. When Pannell got out of the automobile and came across the road, he had a knife in his hand and Pennington was getting out of the car. He feared they were going to whip him and said he was not about to take a beating. He admitted, however, Pennington never did get out of the car and the physical facts support this admission. It appears Pennington was shot from the back and fell on the floor of the car in the front seat. Crosswhite admitted that Pannell did not advance toward him after he saw the gun but ran back to the car after the shooting and drove away. Crosswhite admitted that Pannell did not have anything in his hand that he could see. (It is interesting to note that notwithstanding these admitted facts, the defendant shot Pennington and not Pannell, indicating a pre-conceived intent.) Crosswhite admitted the shots were fired from about six or eight feet back of the car. He admitted that he reloaded the pistol at the scene of the shooting. On these facts, the jury found the issues against the defendant and the evidence is sufficient to support its findings which are binding on this Court. Dodson v. State, Okl.Cr., 284 P.2d 437.

It further appears that Pannell was home on leave from the Navy when the foregoing events occurred. Probably in anticipation of his absence at the trial, the County Attorney took his sworn affidavit detailing the facts leading up to, at the time of, and following the shooting. At the time of trial, Pannell was in Korea and when the case was called, the defendant filed and urged his motion for continuance on the ground of the absence of Pannell. Attached to the motion was the defendant's affidavit setting up what the defendant said Pannell would testify to. The motion for continuance was overruled and this action is assigned as ground for reversal.

The pertinent part of the defendant's affidavit reads as follows:

'* * * that the three of them were drinking considerable intoxicants; that he was present at the beer tavern in the town of Broken Bow, at which place there arose a difficulty between the defendant and the said Russell Pennington; that said witness would testify that the said Russell Pennington was the aggressor and provoked the said difficulty, at which time the said Russell Pennington attacked the defendant and threatened to kill defendant with a certain rock; that after said difficulty at the beer tavern the defendant left same and that he and the said Russell Pennington followed the defendant with the avowed intention of again attacking him; said witness would testify that it was he and the said Russell Pennington later stopped the defendant and there threatened him, at which time the shots were fired which resulted in the injury of the said Russell Pennington; that the said Everett Dale Pannell was threatening the defendant with a shot gun, intending to shoot him, and that was the reason the defendant, with his said wife, left the place. That these material facts cannot be proven by any other witness.'

To this affidavit, the state offered Pannell's affidavit counter thereto. The statement of facts in this counter affidavit are almost identical to the testimony of Pennington which, as to the shooting, constituted the state's case. We might state, however, that the affidavit of Pannell was much more damaging in some particulars to the defendant than was the testimony of Pennington. In addition to the delineation of facts as hereinbefore set forth, the affidavit of Pannell revealed that when Crosswhite got out of his automobile, he came to the back door of the car and said: 'I am going to kill you Rusty (Pennington).' Then he opened fire. When the shooting began, Pannell related, both he and Pennington were seated in their car. Pannell said when Crosswhite fired his last shot, he ran to him and grabbed him by the arm, throwing him to the ground. Crosswhite got to his feet, snapped his pistol three times at Pannell and then hit Pannell in the forehead with the barrel. Pannell's affidavit related he pushed Crosswhite down in the road and Crosswhite got to his feet and said: 'I am going to kill you,' and started reloading the pistol. Pannell's car was still running, he said, and he ran to it and drove on home with Pennington on the floor. At the house, the affidavit revealed, Crosswhite threatened to finish off Pennington and his wife, and threatened Pannell's mother saying: 'Don't stand in my way, I...