Crutchfield v. State

• Decision Date: 05 August 1976
• Docket Number: No. F--76--165,F--76--165
• Parties: Everett CRUTCHFIELD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 504

553 P.2d 504

Everett CRUTCHFIELD, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--165.

Court of Criminal Appeals of Oklahoma.

Aug. 5, 1976.

Rehearing Denied Aug. 23, 1976.

J. Leo Troy, Jr., McAlester, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Everett Crutchfield, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Pittsburg County, Case No. F--75--148, for the offense of Injuring a Public Building, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 349. His punishment was fixed at ten (10) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

Briefly stated, the evidence at the trial revealed that on March 21, 1975, defendant was confined in the cell of the maximum security area of the Oklahoma State Penitentiary at McAlester, Oklahoma. He was the sole occupant of the cell located in an area wherein a disturbance occurred at approximately 12:45 p.m. Correctional Officers Bolling and Mayrhofen observed the defendant and the condition of his cell prior to the noon meal. The cell appeared to be in proper condition. They observed the cell aftere the disturbance and found that the sink and commode had been torn from their mountings and were found broken on the floor.

The defendant did not testify, nor was any evidence offered in his behalf.

The first assignment of error is that 'the defendant was denied his right to production of witnesses to testify in his behalf in spite of the fact that defendant had subpoenaed witnesses in accordance with the statutes of Oklahoma.'

The record reflects that the defendant issued subpoenas for twelve witnesses, all of whom were inmates within the Oklahoma State Penitentiary. The trial court, thereafter, ordered the court clerk not to issue these subpoenas until a hearing could be had. The defendant thereupon filed an application for an order requiring the warden to produce witnesses. The hearing was had on defendant's application and defendant was given the opportunity to show the materiality of his witnesses. The defendant respectively declined to make such a showing. The trial court then gave the defendant a second opportunity to show materiality and stated:

'Defendant has filed what is called an Application for Order Requiring the Warden to produce witnesses, which is in effect Habeas Corpus. On that basis or on the basis of the inherent power of the Court it would seem to me the defendant has the obligation of setting out some reason for his Application. If he can subpoena twelve witnesses, he can subpoena twelve hundred. Whenever you get into a situation like that you are creating a dilemma for the Court but this man is entitled to have witnesses that are necessary and material to his defense. On the other hand, all other litigants are entitled to a speedy trial. If we permitted, for example, defendant to subpoena twelve hundred witnesses then obviously we are going to be here the rest of the year trying this case. So I am going to ask the defendant at this time whether he wants to go ahead with what I determine is his burden to show the materiality and necessity of these witnesses.' (Tr. 22 and 23)

The trial court thereupon overruled defendant's Motion to produce witnesses.

We are of the opinion that the trial court's ruling was proper. To hold otherwise would totally destroy the orderly administration of justice. In 97 C.J.S. Witnesses § 30, it is stated:

'In order to procure the issuance of a writ of habeas corpus ad testificandum, it is necessary to make an application therefor to the court or judge, and strict proof of the materiality of the testimony, and of the necessity of the attendance of the prisoner as a witness, is required, before the court may order issuance of the writ. It is within the discretion of the court to grant or refuse the writ, and abuse of the process should not be permitted; but if it appears that the application is in good faith and the testimony is material and important, the application for the writ should be granted.' (footnotes omitted)

In his second assignment of error defendant contends that the trial court erred in denying his request for change of venue. We have previously held that the granting of a change of venue is discretionary with the trial court and this Court will not reverse a ruling of the trial court unless it is clearly made to appear that there has been an abuse of discretion. See, Fesmire v. State, Okl.Cr., 456 P.2d 573 (1969).

We have carefully examined the voir dire examination and find there is not one scintilla of evidence showing...