Crump v. State
| Decision Date | 22 June 1912 |
| Citation | 124 P. 632,7 Okla.Crim. 535,1912 OK CR 214 |
| Parties | CRUMP et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) It is improper for the prosecuting attorney to make a demand upon the defendant or his attorneys in a criminal case, in the presence of the jury who are trying him, to produce a deed or any document referred to containing evidence tending to incriminate the defendant. Gillespie v. State, 5 Okl Cr. 547, 115 P. 620, 35 L. R. A. (N. S.) 1171 reaffirmed.
(b) to bring before this court on appeal errors of law occurring during the trial, unless they be jurisdictional, they must be objected In when made and incorporated in the motion for a new trial and thereby submitted to the determination of the trial court, and the action of the trial court thereon must be excepted to and brought before us by proper assignments in the petition in error.
(c) Except in cases of habeas corpus and other special proceedings authorized by statute, the jurisdiction of this court is appellate only.
Upon the trial of a criminal case, where it is shown that material evidence is within the control of or accessible to a defendant and which is not accessible to the state, and such defendant fails to produce such evidence or to account for its nonproduction, the presumption is that the evidence, if produced, would have incriminated the defendant, and this is a proper subject for argument on the part of the prosecution.
For evidence which fully sustains a conviction for forgery, see opinion.
Appeal from Superior Court, Pottawatomie County; Geo. C. Abernathy Judge.
George Crump and Thomas Wright were convicted of forgery, and appeal. Affirmed.
A. M Fowler, of Wewoka, and S. P. Freeling, of Shawnee, for appellants.
Smith C. Matson, Asst. Atty. Gen., C. P. Holt, Co. Atty., and Hunter Johnson, Asst. Co. Atty., for the State.
First. When the witness Rachel Barnett was upon the stand, and after she had testified that she had never sold the land in question or executed a deed of any kind to Claud Gallagher or any person to said land, the record then proceeds as follows:
It is insisted in the brief of counsel for appellants that this conduct of the county attorney was equivalent to demanding in the presence of the jury that the appellants should furnish the deed in question, and that it was an attempt on the part of the state to force the appellants to furnish testimony against themselves, and they rely upon the case of Gillespie v. State, 5 Okl. Cr. 546, 115 P. 620, 35 L. R. A. (N. S.) 1171, to sustain their contention. We still adhere to the views expressed in the Gillespie Case, and if counsel for appellants had objected to this demand at the time it was made and had incorporated this matter in their motion for a new trial, so as to give the trial court an opportunity to correct the error, we would feel compelled to set aside this verdict and grant appellants a new trial. But the record shows that counsel for appellants did not complain to the trial court or preserve this question in the record for presentation to this court. In Gillespie's Case the rights of the defendant were all preserved by proper objections and exceptions at the time and also in the motion for a new trial. Counsel for appellants at the trial of this case evidently did not regard this as a serious matter. They not only did not object and except to this demand, and thereby reserve it for review by this court, but they disclaimed having the deed in their possession, and the matter was passed as being of no importance. Errors which go to the jurisdiction of the court may be raised for the first time upon appeal, or in fact at any time by habeas corpus proceedings before the final completion of execution of the judgment and sentence of the trial court.
In the case of Ledgerwood v. State, 6 Okl. Cr. 105, 116 P. 202, this court said: '
In the case of Gritts v. State, 6 Okl. Cr. 534, 118 P. 673, 120 P. 669, this court held that, where evidence was admitted upon the trial without objection, it is too late upon appeal to complain of the introduction of such evidence.
We are therefore of the opinion that by failing to object and except at the proper time, and by failing to incorporate this matter in the motion for a new trial, and thereby submit it to the determination of the trial court, appellants have waived their rights in the premises, and it is now too late for them to invoke the aid of this court. Our jurisdiction is appellate only, except in cases of habeas corpus and other special proceedings authorized by law.
Second. It is made to appear in the record that, during the closing argument, the county attorney called attention to the fact that appellants did not introduce the original deed which was alleged to be forged, and claimed, in substance, that if the deed had been produced by the appellants, personal examination would have enabled the jury to determine as to whether or not it was genuine or was a forgery. We think that this argument on the part of the county attorney was proper. The deed had been traced to the possession of the appellants. It was proven upon the trial that the state's witness Rachel Barnett could write, and if this deed had been produced, the signature to the deed could have been compared with the signature of the said Rachel Barnett. If genuine, this controversy would have been settled there; but appellants did not see fit to produce this deed or make any explanation of its nonproduction. Where the record shows that a defendant upon trial has access to or control of testimony, which, if true, would be beneficial to him, and he fails to produce such testimony or to account for its nonproduction, such failure is a proper subject for argument on the part of the prosecution, and if inferences unfavorable to the defendant arise from such nonproduction, the defendant has no one but himself to blame. See Rhea v. Territory, 3 Okl. Cr. 230, 105 P. 314. See, also, Hampton v. State, 7 Okl. Cr. --, 123 P. 571.
Third. We have carefully examined all of the propositions submitted in the brief of counsel for appellants in connection with the record, and we fail to find where any material error was committed. A careful examination of all of the evidence in the case leaves no room to doubt the guilt of these appellants of the crime of forgery as charged. The offense occurred in the city of Shawnee, in Pottawatomie county, upon Saturday, June 26, 1909. The persons involved in the immediate occurrence were the two defendants, a notary public by the name of Walter Gray, a negro man named Sanders Sanko and an unknown negro woman. At about dusk of the day of the offense, the notary, Walter Gray, was stopped upon the corner of Main street and Union avenue in the city of Shawnee, and introduced by one Hutchinson, a pool hall man, to the appellants, and informed that the appellants wanted some notary work done. The notary crossed the street to his office, accompanied by the two appellants and the two negroes, none of whom he had ever seen before. At the office the lights were turned on, and the appellant Wright introduced the negro woman to the notary as Rachel Barnett, with the request that he take the acknowledgment of the woman to a deed. The woman then signed the name of Rachel Barnett to the deed alleged...
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