Fitzgerald v. State
| Decision Date | 26 August 1938 |
| Docket Number | A-9347. |
| Citation | 83 P.2d 581,65 Okla.Crim. 1 |
| Parties | FITZGERALD et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The immunity guaranteed by the Constitution, Okl.St.Ann.Const art. 2, § 30, against unreasonable searches is personal. An accused will not be heard to object that a search of the premises of some third person is a violation of the constitutional inhibition.
2. Under Sec. 396, St. 1931, as amended, 12 Okl.St.Ann. § 667, a member of the Legislature is entitled to a continuance of cases in which he is attorney of record as a matter of right during the time the Legislature is in session.
3. Under Ch. 2, Art. 1, Session Laws 1935, 12 Okl.St.Ann. § 667 where the defendant or his attorney of record is a member of the Senate of House of Representatives and the Legislature is in session at the time a judgment of conviction is rendered, the defendant or his attorney shall have such time after the adjournment of the session to perfect his appeal as he had when the judgment was rendered.
4. Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
5. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime, need not be direct, but may be circumstantial only.
6. If there is evidence corroborating an accomplice which tends to connect the accused with the commission of the crime, its sufficiency is for the jury. Held, that in this case there is sufficient corroborating evidence of the testimony of the accomplice to require the submission of the case to the jury.
7. In a prosecution for unlawful possession of a still, evidence held sufficient to sustain a conviction.
Appeal from County Court, Beckham County; J. R. Cornelison, Judge.
Bill Fitzgerald and Clarence Fitzgerald were convicted of unlawful possession of a still, and they appeal.
Modified and affirmed.
H. C. Ivester, of Sayre, for plaintiffs in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
The original information in this case charged that in Beckham county, on or about the 25th day of September, 1936, one Case Cox did unlawfully have the possession of a still. An amended information was filed, charging that Case Cox, Bill Fitzgerald and Clarence Fitzgerald on or about the 25th day of September, 1936, did unlawfully have possession of a still.
The name of the defendant, Case Cox, was indorsed thereon.
The jury by their verdict found the plaintiffs in error guilty as charged and fixed the punishment of each at a fine of $100 and 60 days imprisonment in the county jail.
Motion for new trial was filed and overruled on November 28th, 1936.
From the judgment rendered on the verdict an appeal was perfected by filing in this court on June 9th, 1937, a petition in error with case-made attached.
The attorney general has filed a motion to dismiss the appeal "for the reason that said appeal was not perfected within the time allowed by statute, that said defendants were sentenced on November 28th, 1936, that no extension of time was given by the court for perfecting the appeal, that the purported case-made was signed and settled by the county judge on January 30th, 1937, which was more than 60 days after the date of said judgment and sentence, and was not filed in this court until June 9th, 1937."
In the response to the motion to dismiss, it is stated that:
The Constitution of this state, Okl.St.Ann.Const. art. 7, § 2, gives to every defendant in a criminal case the right to appeal from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter of legislative control, and the appeal must be taken in the manner prescribed by law. 20 Okl.St.Ann. § 40; Noel v. State, 17 Okl.Cr. 308, 188 P. 688. See Eubanks v. Cole, 4 Okl.Cr. 25, 109 P. 736; Flathers v. State, 7 Okl.Cr. 668, 125 P. 902; Burnett et al. v. State, 8 Okl.Cr. 639, 129 P. 1110, 47 L.R.A.,N.S., 1175.
Sec. 3189, Sts.1931, 22 Okl.St.Ann. § 1051, provides: "An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed."
Sec. 1, Art. 1, ch. 2, Session Laws 1935, 12 Okl.St.Ann. § 667, reads in part as follows:
And see Sec. 1, Art. 1, Ch. 2, p. 1, Session Laws 1937, 12 Okl.St.Ann. § 667 entitled: "An Act amending Section 1, Article 1, Chapter 2, of the Session Laws of 1935, relating to continuances; repealing all acts in conflict herewith; and declaring an emergency."
The journal entry of Judgment in this case concludes as follows: "And for good cause shown it is further ordered by this court that the time be extended for a period of 30 days from this date within which to make and serve case-made; state to have 10 days thereafter within which to suggest amendments thereto, and that the case-made be settled and signed by five days notice to either side to the other."
It appears from the record that notices of appeal in writing, together with proof of service of the same as required by the statute were duly served on the county attorney and the clerk of the court on December 7, and appeal bonds given and approved on the same date.
The uniform holding of this court is that under Sec. 396, St.1931, as amended, 12 Okl.St.Ann. § 667, a member of the legislature is entitled to a continuance of cases in which he is attorney of record as a matter of right during the time he is serving as a member of the legislature in actual session. Irvine v. State, Okl.Cr., 80 P.2d 599; Gilroy v. State, Okl.Cr., 80 P.2d 602.
It follows from the foregoing review that the appeal in this case was properly perfected under the statutory provision, extending the time within which the appeal could be filed in this court when during the session of the legislature, the defendant's attorney of record is a member of the Senate or House of Representatives.
The motion to dismiss the appeal is therefore overruled.
The assignments are that the court erred in overruling the motion to suppress the evidence, and that the verdict of the jury is contrary to law and to the evidence.
The evidence upon which the conviction was had was obtained by a search warrant which was issued upon the affidavit of S. F. Flynn.
When the case was called for trial the...
To continue reading
Request your trial
-
Duncan v. State
...thereon, the defendant is entitled to a continuance as a matter of right. Greer v. State, 73 Okl.Cr. 345, 121 P.2d 329; Fitzgerald v. State, 65 Okl.Cr. 1, 83 P.2d 581; Gilroy v. State, supra; Bell v. State, 63 Okl.Cr. 424, 75 P.2d 1157; Johnson v. State, 45 Okl.Cr. 384, 283 P. 590; Otey v. ......
-
Wilkins v. State
...each individual case rests upon its own facts to determine that question. Hufford v. State, 61 Okl.Cr. 141, 66 P.2d 529; Fitzgerald v. State, Okl.Cr.App., 83 P.2d 581; Howerton v. State, Okl.Cr.App., 88 P.2d In addition to the evidence heretofore cited there was introduced by the state the ......
-
Nelson v. State
...was taken from a Mrs. Wesley, which is not an available defense to the defendant, since such right is a personal one. Fitzgerald v. State, 65 Okl.Cr. 1, 83 P.2d 581. This defense could only be raised by Mrs. Wesley under this The defendant's next contention is that the state was permitted t......
-
McSpadden v. Mahoney
...appeals shall be as valid as if done within the time provided.' The Court of Criminal Appeals of Oklahoma in the case of Fitzgerald v. State, 65 Okl.Cr. 1, 83 P.2d 581, had occasion to consider an appeal in which an attorney for the defendant was a member of the Legislature and in which cas......