Francis v. State
| Decision Date | 22 December 1923 |
| Docket Number | A-4276. |
| Citation | 221 P. 785,26 Okla.Crim. 82 |
| Parties | FRANCIS ET AL. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Jan. 22, 1924.
Syllabus by the Court.
In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision (article 2 § 20) and the statutory provisions (sections 2913 and 2914 Comp. St. 1921).
Officers who saw the defendants operating moonshine stills had the authority to arrest them and seize the stills and appliances without a warrant.
Seizure without a search warrant of two moonshine stills, operated in the open, held not to violate Bill of Rights, § 30 which prohibits "unreasonable searches or seizures," and the stills and utensils seized and the testimony of the officers in relation thereto were admissible.
Where the possession of intoxicating liquor is open and obvious, no search warrant is necessary, and the liquor seized and the testimony of the officers in relation thereto were admissible.
In a prosecution for manufacturing intoxicating liquor, evidence held sufficient to sustain the verdict and judgment of conviction.
Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
Sam Francis and another were convicted of the unlawful manufacture of whisky, and they appeal. Affirmed.
C. H Madden, of Hollis, for plaintiffs in error.
George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.
In the information in this case filed in the county court of Harmon county December 24, 1921, Sam Francis and Emery Felty were charged with manufacturing corn whisky. Upon their trial on the 27th day of January, 1923, they were found guilty, and their punishment fixed at confinement in the county jail for 30 days and a fine of $350 each. From the judgment rendered on the verdict they appeal.
When the case was called for trial the defendants filed a motion to dismiss on the ground that they were not brought to trial at the next term of court after the information was filed; that the continuances from term to term were not procured by them, and their trial has been arbitrarily delayed without consideration of the substantial rights of the defendants under the Constitution of the state and the statutes in such cases made and provided; which motion was by the court overruled and exception allowed.
Bill of Rights, § 20, of the Constitution, declares that:
"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed."
The Code of Criminal Procedure provides as follows:
It has been repeatedly held by this court that the constitutional guaranty of a speedy trial may be waived by consenting to continuances, and by the failure of a defendant enlarged on bail to present himself as required by the conditions of his bond and demand a trial.
In Parker v. State, 7 Okl. Cr. 238, 122 P. 1116, 124 P. 80, it is said:
In Weeks v. State, 16 Okl. Cr. 443, 183 P. 932, it was held:
"In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial, or resist the continuance of the case from term to term. A defendant, who has never demanded or been refused trial, is not entitled to a discharge under the constitutional provision (article 2, § 20) and the statutory provisions (sections 2913 and 2914, Rev. Laws 1921).
See Ex rel. Eubanks v. Cole, District Judge, 4 Okl. Cr. 25, 109 P. 736; Ex rel. Bailey v. Holden, County Judge (Okl. Cr. App.) 219 P. 961, not yet [officially] reported; Bowes v. State, 7 Okl. Cr. 316, 126 P. 580; Head v. State, 9 Okl. Cr. 356, 131 P. 937, 44 L. R. A. (N. S.) 871.
The evidence shows that the sheriff, two deputies, and another man, while searching for moonshine stills in a pasture near the north line of Harmon county, found two copper stills in a ravine; the stills were running with a fire under each,...
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