Goben v. State

• Decision Date: 10 October 1921
• Docket Number: A-4002.
• Citation: 201 P. 812,20 Okla.Crim. 220
• Parties: GOBEN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

201 P. 812

20 Okla.Crim. 220

GOBEN v. STATE.

No. A-4002.

Court of Criminal Appeals of Oklahoma

October 10, 1921

Rehearing Denied Nov. 30, 1921.

Syllabus by the Court.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial conferred by the laws upon every citizen, shall be upheld and sustained.

The Bill of Rights (Const. art. 2, § 20) provides that "in capital cases, at least two days before the case is called for trial, he [the accused] shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses." Held, that under this provision of the Constitution the defendant in a capital case does not have to demand a list of the witnesses to be called in chief, because the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with unless the defendant has waived this right.

Under the constitutional guaranty that a person accused of crime shall have the right to the assistance of counsel, counsel appointed to defend the accused must be given a reasonable time within which to prepare for trial, to investigate the facts, and examine the law applicable to the case.

In this case the information was filed, and on the same day defendant was brought from another county, where he had been held in custody from the time of his arrest, and counsel appointed to defend him, then arraigned, a demurrer filed and overruled and then a plea of not guilty entered. Thereupon the case was called for trial, and defendant filed his affidavit for a continuance, on the ground of want of time to prepare for trial, which was overruled, and on the same day the case proceeded to trial. Held, that the denial of a continuance to another day of the term was a manifest abuse of judicial discretion.

Additional Syllabus by Editorial Staff.

The court will look at the substance rather than the form, with a view to promote justice, in considering an affidavit for continuance.

The court's discretion in granting or refusing an application for continuance for want of time for counsel to prepare for a defense to a murder charge must be judicial, not arbitrary, and be exercised in conformity with law.

In a murder trial, a letter found in the bottom of a trunk containing clothes bearing initials the same as defendant's, read to the jury over defendant's objection, and not dated nor addressed to defendant or any other person, and not signed, except by the name "Jack," and not a statement in writing by defendant or his codefendant, and not shown whether written before or after the homicide, held improperly admitted.

The courts take judicial notice of the boundaries of the state and counties therein and the geographical location of cities and towns within the state.

Appeal from District Court, Comanche County; A. S. Wells, Judge.

C. W. Goben was convicted of murder, and he appeals. Reversed and remanded for new trial.

Every person charged with a crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.

Lewis R. Morris, of Oklahoma City, for plaintiff in error.

S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.

DOYLE P.J.

Plaintiff in error, C. W. Goben, was convicted in the district court of Comanche county of murder, and the death penalty assessed, upon an information charging him and one William Tait with the murder of Russell Sprague in said county on the 25th day of March, 1921. To reverse the judgment and sentence of death rendered in pursuance of the verdict, an appeal was duly perfected.

One of the grounds of the motion for new trial, and assigned as error, is that the court erred in refusing to grant a continuance. On the 31st day of March, 1921, said defendants were arrested at Perryton, Tex.; from there they were taken by the sheriff of Comanche county to Oklahoma City and placed in the county jail. On the 8th day of April, they were taken from Oklahoma City to the town of Fletcher, in Comanche county, for their preliminary examination, and on the same day they were taken back to the county jail at Oklahoma City. On the 12th day of April, 1921, the information was filed in the district court of Comanche county, and on the same day the defendants were taken to Lawton and arraigned. The court, being then advised by the defendant Goben that he had not secured counsel and was without means to employ counsel, appointed A. J. Burton, a member of the bar presents, to represent him.

The defendant Tait entered a plea of guilty, and the court fixed the 14th day of April as the time at which judgment should be pronounced upon his plea of guilty, at which time the court pronounced judgment and sentenced the defendant Tait to suffer death by electrocution. See Opinion of the Judges, 17 Okl. Cr. ___, 197 P. 546. Upon his arraignment on the 12th day of April, the defendant Goben filed a demurrer to the information, which was overruled and exception allowed. He then entered his plea of not guilty and the case was called for trial. Thereupon the defendant Goben filed a motion for continuance, supported by his affidavit, which was overruled, and the jury was impaneled to try the case, which trial resulted in a verdict as above stated, rendered on the 14th day of April. Motions for new trial and in arrest of judgment were duly filed and overruled. On April 18th the court rendered judgment, and the defendant was sentenced to suffer death by electrocution, appointing June 18, 1921, as the day of execution.

It is contended that the court violated the defendant's rights in compelling him to go to trial without sufficient time for him or his counsel to prepare for his defense. The defendant's affidavit for continuance, duly verified, among others, contained the following statements:

"That he was arrested on the night of the 31st day of March, 1921, at Perryton, Tex., and was taken by the sheriff of Comanche county directly to Oklahoma City, and was never brought to the county seat of Comanche county until brought here by the sheriff of Comanche county on the day set for his trial, namely, April 12, 1921. That he was wholly unable to secure any attorney in Oklahoma City, for the reason that he was not acquainted with any one at that place, and that affiant is informed and believes, and therefore states as a fact, that his wife and parents did not know and could not find out where he was placed by the said sheriff of Comanche county after his arrest, and for that reason they were not able to assist him in securing counsel. That on the 5th day of April, at the efforts of his father at Lawton, affiant secured audience with an attorney. That from that time to the present, to wit, the 12th day of April, 1921, the day for trial, affiant has not seen nor had any counsel whatever with any attorney, except about 15 minutes on the day of his preliminary at Fletcher, which preliminary was on Friday, the 8th day of April, 1921.

Affiant further states that the fact of his not being prepared and ready for trial at this time is not due to any fault or neglect on his part, but due to his being unable to see and to consult with an attorney, because of his absence out of Comanche county, until the day of trial. Affiant further states that he can get ready for trial by the first day of the next term of this court, and therefore affiant prays for a continuance of this cause of action as relates to himself in order that justice and right may prevail."

In resisting the motion, Fletcher S. Riley, county attorney, as a witness on behalf of the state, testified as follows:

"A. J. Burton, counsel for the defendant, stated to me five or six days ago that he thought he would represent C. W. Goben. I told him I would give him access to his client, and then gave him a letter of introduction, stating that Mr. Burton informed me that he represented C. W. Goben, and that it was my desire that Mr. Burton be permitted to consult with these defendants. C. W. Goben and William Tait, and I advised him to go to the sheriff to ascertain where they were held. Since that time he stated that he had consulted with Goben at Oklahoma City, and Mr. Burton was present at the preliminary at Fletcher."

To the ruling of the court in refusing the continuance the defendant duly excepted, and the trial proceeded, with the result previously indicated.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial--that is, a trial in accordance with the rules of law, and the principles of justice; and it is a duty resting upon the courts to see that this guaranty conferred by the Constitution upon every citizen is upheld and sustained. It is evident from the record that the defendant C. W. Goben was not accorded a trial in conformity to the laws of the state.

The Bill of Rights (Const. art. 2, § 20) provides:

"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: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be

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