Frazee v. State
| Decision Date | 11 November 1915 |
| Docket Number | A-2356. |
| Citation | 152 P. 462,12 Okla.Crim. 134,1915 OK CR 216 |
| Parties | FRAZEE ET AL. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
When two or more persons are placed upon trial charged jointly with an affray, and any of them asks a severance in due time and according to law, the diversity of interests, hostility between the parties, and common fairness are sufficient warrant for a fair and impartial trial judge to award separate trials to the belligerents. Only when the public welfare demands should a joint trial be required.
A codefendant who is hostile to another codefendant, who does not call him as a witness, has the same right to impeach such codefendant if he becomes a witness and gives adverse testimony as he would any other witness testifying in the case.
Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.
Claud Frazee and William Frazee were convicted of an affray, and appeal. Reversed.
Pruiett & Sniggs, of Oklahoma City, for plaintiffs in error.
R McMillan, Asst. Atty. Gen., for the State.
The plaintiffs in error, Claud Frazee and William Frazee, were convicted at the August, 1914, term of the county court of Pawnee county on a charge of participating in an affray upon the streets of Terlton, in said county. The punishment of William Frazee was fixed at a fine of $5, and costs. Claud Frazee was sentenced to pay a fine of $10, and costs. It appears that the Frazees and Moores engaged in a town fight upon the thoroughfares of the town of Terlton, and that an information was filed charging the Frazees and Moores jointly with an affray. When the case was called for trial, the Moores asked a severance. The Frazees joined in the request. The court denied the severance, and placed the parties on trial jointly. All were convicted. The Frazees, only, appeal.
The first assignment of error argued is based upon the proposition that the court erred in denying the severance as requested. Without going into a discussion of the merits of the particular question in this case, it may be observed that ordinarily persons who are jointly charged with an affray should be tried separately; that is, when two or three persons on a side are jointly charged, and have asked for a severance in due time, the diversity of interest and hostility between them should prompt an impartial judge to exercise the judicial discretion vested in him in favor of a separate trial to opposing factions. Only when the public welfare demands should a joint trial be required in such cases. The only material error urged in this case will disclose more effectively the reason why this should be the practice.
The only assignment of error we find it necessary to discuss at length is based upon the proposition that the court erred in refusing to permit plaintiffs in error to show by testimony the general reputation of P. C. Moore for truthfulness or the lack of truthfulness in the community in which he resided. P C. Moore was jointly charged with this offense, and was on trial before the same jury. He took the stand and testified against the Frazees. When the Frazees put on their testimony they offered evidence to impeach Moore for truthfulness in the community in which he lived. The county attorney objected upon the ground that Moore, being a joint defendant, could not be attacked or impeached by codefendants until he had put his character in issue himself. The Moores through their counsel also objected, for the reason that they were codefendants, and for the further reason that they had not placed their reputation or character in issue. The court sustained the objection upon this ground. It appears that the county attorney, counsel for the Moores, and the court fell into the error of assuming the law to be that a codefendant had no right to impeach another codefendant who assumed to take the witness stand and testify against him applying thereto the doctrine which universally protects persons charged with crime in this jurisdiction from being forced to give testimony against themselves, and which also prohibits the state from attacking the character of any defendant until the same is placed in issue by him. That question does not arise in this connection. If a person charged with crime takes the stand voluntarily, and becomes a witness either for himself or against a codefendant, he becomes a witness, and, in so far as his reputation for truthfulness may affect the general issue, he may be impeached just as any other...
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