Garrison v. Territory

• Decision Date: 04 March 1904
• Citation: 76 P. 182,13 Okla. 690,1904 OK 29
• Parties: GARRISON v. TERRITORY.
• Court: Oklahoma Supreme Court

76 P. 182

13 Okla. 690, 1904 OK 29

GARRISON v. TERRITORY.

Supreme Court of Oklahoma

March 4, 1904

Syllabus by the Court.

1. The granting or refusal of a continuance in a criminal case is largely a matter of discretion with the trial court, and this court will not reverse the trial court on the decision of a matter which rests entirely in the sound discretion of the court, unless it is shown that there has been an abuse of discretion.

2. Under chapter 25, art. 1, § 1, p. 220, Laws 1903, when the records show that at the time of taking up the motion for change of venue the county attorney was present in open court, and did not raise the question of notice, and when the record shows that the motion was taken up without objection on his part, and where no demand was made by him for time to file counter affidavits, and no request on his part for leave to examine, under oath, the signers of the petition, the trial court should, and this court will, treat the notice required by this statute as waived; and where the affidavits presented in support of the motion reasonably established the fact that the minds of the inhabitants of the county in which the case is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein, the court should grant the application.

Error from District Court, Oklahoma County; Burford, Judge.

George G. Garrison was convicted of crime, and brings error. Reversed.

At the November term, 1902, of the district court held in and for Oklahoma county an indictment was returned by the grand jury of that county charging the defendant, one George G Garrison, with the crime of rape, committed upon the person of one Lucy Patt on the 26th day of February, 1903. In said indictment one Ann Wynn was therein charged jointly with the said George Garrison with the crime of rape, by being feloniously present and aiding, abetting, and protecting the said George Garrison in the felony and rape aforesaid. Said indictment was regularly returned and presented in open court by the foreman of the grand jury in the presence of the grand jurors, and filed by the clerk of the said district court February 23, 1903. To this indictment the defendants filed a demurrer, which was by the court overruled, and exceptions saved by the defendants. The defendants then each for themselves in open court entered a plea of not guilty to the indictment. On the 13th day of April, 1903, being one of the regular days of the April term, 1903, of said court, the defendants present to the court their motion for a change of venue, which motion is overruled by the court, and exceptions allowed to the defendants. Said defendants then present to the court their motion for a change of judge, which, after being considered by the court, is granted. At 7 o'clock p. m. of April 13, 1903, the district court of Oklahoma county convened, pursuant to adjournment, the Honorable John H. Burford, judge, presiding; whereupon the defendants present their motion for a continuance, which is argued by counsel, and the court overruled said motion, to which the defendants except. Thereupon said defendants ask for a severance, which request is granted by the court, and the trial of the case against the defendant George G. Garrison is first ordered. And on the said 13th day of April, 1903, in the district court of Oklahoma county, Okl. T., a jury was duly impaneled and sworn, and proceeded to the trial of said cause. Evidence was heard, the jury instructed as to the law and arguments of counsel heard, and on the 15th day of April 1903, the jury returned into said court a verdict finding the defendant George G. Garrison guilty, as charged in the indictment, of rape in the first degree. The defendant thereupon filed his motion for a new trial, which motion was by the court overruled, and exceptions saved by the defendant. Judgment and sentence were pronounced by the court upon the verdict on the 1st day of May, 1903, being one of the judicial days of the April term, 1903, of the district court in and for Oklahoma county, sentencing the defendant to the penitentiary at Lansing, in the state of Kansas, for a term of 10 years, to which judgment and sentence the defendant excepted, and brings the case here for review.

Chambers & Weaver and Howard & Ames, for plaintiff in error.

Ralph J. Ramer, Co. Atty., J. L. Brown, and Selwyn Douglas, for the Territory.

IRWIN J. (after stating the facts).

The first assignment of error presented by counsel for plaintiff in error is that the coming of Chief Justice BURFORD to try the case was irregular. Now, it does not make so much difference whether his coming was regular or irregular, if it was legal, and in accordance with the provisions of law. The law provides that the Supreme Court, if in session, shall assign a judge to try the cause when the presiding judge is disqualified; and when said Supreme Court is not in session, this duty shall be performed by the chief justice. Now, if this duty was performed in accordance with the provisions of the law, it will make no difference whether it was done rapidly or slowly. When the defendant made the necessary application for a change of judge on the grounds of bias and prejudice of the presiding judge, all that he had the right to expect was that a trial judge should be provided who was free from the objection urged for a change. It is the purpose of the law to remove the charge of bias and prejudice, and not to occasion unnecessary delay. This is the intention of the law, notwithstanding the intention of the person moving for a change may be otherwise.

So the complaint in the counsel's brief that the coming of the chief justice was too rapid, and that "almost without interruption the chief justice took the bench," comes from them with very bad grace. But it is complained that no order was made assigning the chief justice to try the case. Now, that contention would have great weight if it was borne out by the facts. It is true that the case-made as originally prepared, served, signed, and filed in this court, omits this order, but we take the true rule to be that in matters of this kind, affecting the jurisdiction of the trial judge, when the law is actually complied with, and the order assigning a judge to try the case, either by the Supreme Court while in session or by the chief justice when not in session, is properly filed in the office of the clerk of the Supreme Court and in the office of the clerk of the district court where the case is pending, then this court will take judicial notice of its own orders, whether the same are incorporated in the case-made or not. The records of the Supreme Court of this territory, and the certificate of the clerk thereof, show that on January 6, 1904, the following motion was made, and sustained by the Supreme Court:

"In the Supreme Court of Oklahoma:

"George G. Garrison, Plaintiff in Error, vs. The Territory of Oklahoma, Defendant in Error."

"Motion Suggesting Diminution of the Record."

"Now comes the defendant in error, the territory of Oklahoma, and suggests a diminution of the record in the above-entitled cause, and a correction thereof, by adding thereto a copy of the order of the Supreme Court made on the 13th day of April 1903, and which was on file in the Oklahoma county district court at the commencement of the trial, assigning Chief Justice John H. Burford to try causes in the district court of Oklahoma county, in which B. F. Burwell, the regular presiding judge in said county, had been and was disqualified. A certified copy of said order is hereto attached, marked 'Exhibit A,' and is hereby made a part of this motion and suggestion.

"Ralph J. Ramer,

"County Attorney.

"Selwyn Douglas,

"Attorney for Deft. in Error."

"In the Supreme Court of the Territory of Oklahoma. In Vacation. Whereas, It has been made to appear that a change of judge has been ordered in a number of causes now pending in the district court of Oklahoma county, in the Third Judicial District, and that the Honorable B. F. Burwell, presiding judge of said court, is disqualified from trying said causes; and it further appearing that the said presiding judge will be absent from his district on official business during the present term of the district court of said county:

"It is now hereby ordered that Honorable John H. Burford, Chief Justice of the Supreme Court of the Territory of Oklahoma, be, and he is hereby, designated to try, hear, and determine any of said causes now pending in the district court of Oklahoma county, and wherein a change of judge has been ordered, and he is further designated to hold the district courts of the said Third Judicial District during the absence of the regular presiding judge from his said district, and to try, hear, and determine all matters which may properly come before said court or judge. It is further ordered, that the clerk transmit a duly certified copy of this order, attested by his official signature and the seal of said Supreme Court, to said Chief Justice Burford, the clerk of the First Judicial District of said territory, and the district courts of said Third District.

"In witness whereof I have hereunto set my hand this 13th day of April, 1903.

"John H. Burford, Chief Justice."

"Attest: Benj. F. Hegler,

"Clerk Supreme Court. [Seal.]"

"Territory of Oklahoma, Oklahoma County--ss. I, B. D. Shear, clerk of the district court in and for Oklahoma county, and territory of Oklahoma, do hereby certify the within to be a true copy of a certified copy of an order made in vacation by the Honorable John H. Burford, Chief Justice of the Supreme Court of said territory, on the 13th day, certified to by Benj. F Hegler, clerk of the Supreme Court, and filed in this office on the 15th...