Driver v. State, A--16861

• Decision Date: 26 October 1971
• Docket Number: No. A--16861,A--16861
• Citation: 490 P.2d 1109
• Parties: Bobby Lee DRIVER, 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 1109

490 P.2d 1109

Bobby Lee DRIVER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--16861.

Court of Criminal Appeals of Oklahoma.

Oct. 26, 1971.

G. Wendell Cathey, Durant, for plaintiff in error.

Larry Derryberry, Atty. Gen., for defendant in error.

BUSSEY, Preesiding Judge:

Bobby Lee Driver, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Bryan County, Oklahoma for the offense of Robbery with Firearms. His punishment was fixed at five (5) years in the state penitentiary, and from said judgment and sentence, a timely appeal has been perfected to this Court.

Briefly stated, the evidence at the trial adduced that James Stone was the operator of a small grocery store and motel in Cartwright, Oklahoma. He testified that approximately 10:30 o'clock p.m. on March 11, 1970, two men, one of whom he identified in court as the defendant, entered his store. The defendant displayed an automatic pistol, pointed it at Stone, and told him to open the cash register and to hand him the money. Stone opened the cash register and gave the defendant between $25.00 and $30.00. Defendant told Stone to turn around, which he did, and was subsequently struck on the head. Stone crawled to his show case and observed a white Ford pickup leaving his place of business, and driving over the Denison Dam.

Officer Sossamon, Denison, Texas Police Department, testified that he received a radio report of an armed robbery involving two white males driving a white 1952 or 1953 Ford pickup, and that at approximately 10:50 o'clock p.m. on the day in question, he observed the pickup coming south on Highway 75A into Denison, Texas. He stopped the pickup, which was driven by the defendant's brother, Lonnie Driver; defendant was a passenger. They were placed under arrest and taken to the Denison Police Station, wherein $29.20 was found upon the person of the defendant. On cross-examination, he testified, 'They were arrested on a traffic charge, and placed in jail on this, and also for a minor in possession, and carrying a prohibited weapon.' (Tr. 54)

Officer Leach of the Denison Police Department testified substantially to the same facts as related by Officer Sossamon.

The defendant recalled James Stone, who testified that he could not identify the co-defendant, Lonnie Driver, as being with the defendant when he was robbed.

Ellen Whitten, the defendant's mother-in-law, testified that the defendant's reputation for being truthful was good, and that he had a reputation in the community for being a peaceful, law-abiding citizen.

J. R. Ellis, the defendant's brother-in-law, testified that the defendant was employed by him, and that he paid the defendant on May 6, and again on May 10. The party stipulated that if Reverend James Jackson were present, he would testify that he was the pastor of the Assembly of God Church in Snyder, Texas, that he has known the defendant since 1968, and that the defendant's reputation for telling the truth has been good, as well as the fact that his reputation for being a peaceful, law-abiding citizen has been good.

Defendant did not testify, nor was any further evidence introduced in his behalf.

The first proposition asserts that the trial court erred in failing to sustain the defendant's motion for a continuance. Prior to the trial, defendant filed a Motion for Continuance, with supporting affidavits to the effect that Reverend James R. Jackson was unable to be in Durant, Oklahoma on the day of the trial, as he was conducting a training school, and that he could be available the following week to testify as to the defendant's reputation for being a truthful, peaceful, and law-abiding person.

The Assistant District Attorney stated that he would stipulate it that Reverend James R. Jackson would so testify, wherein the trial court overruled the Motion for Continuance, and permitted the stipulation to be read to the jury. We have previously held that a Motion for Continuance is addressed to the sound discretion of the trial court, and that it is not error to refuse continuance sought so that the witness may be produced when evidence sought to be admitted would be merely cumulative. White v. State, Okl.Cr., 458 P.2d 322 (1969). Certiorari denied, 397 U.S. 917, 90 S.Ct. 922, 25 L.Ed.2d 98. We are of the opinion that the trial court did not abuse its discretion, denying the Motion for Continuance for the reason that the evidence of Reverend Jackson was cumulative, and, further, that the State agreed to stipulate to the witness's testimony.

The next proposition contends that the trial court erred in not allowing each defendant to have nine pre-emptory challenges. We need only to observe that 22 O.S. § 622 and § 655 provide that when several defendants are tried together, they cannot sever their challenge, but must join therein.

We further observe that defendant now argues that he was deprived of his right to a fair trial, and that each defendant did not receive nine pre-emptory challenges. Defendant did, in fact, waive his sixth, seventh, eighth, and ninth challenges.

The next proposition asserts that the arrest was unlawful. The arresting officers testified that they were on the lookout for two men that allegedly robbed the store in Oklahoma, and that the defendant was placed under arrest for committing a traffic violation in their presence. In Harrison v. State, Okl.Cr., 461 P.2d 1007, we stated:

'The fact that an original arrest may have been unlawful does not affect the jurisdiction of the court, nor is it a ground for quashing the information. And it does not preclude trial of the accused for the offense.'

The next proposition asserts that the trial court erred in refusing to grant a mistrial because of prejudicial cross-examination by the Assistant District Attorney. The prosecution attorney, on cross-examination of the character...