Golden v. State
| Citation | 214 P. 946,23 Okla.Crim. 243 |
| Decision Date | 28 April 1923 |
| Docket Number | A-3963. |
| Parties | GOLDEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the showing, and the only showing, made by the state as a condition precedent to the introduction of the testimony of a witness taken at the examining trial, was that the subp na issued for the witness was indorsed, "not found," and where there was no showing that the witness was dead or beyond the reach of the court's process, or that he was sick and unable to be present at the trial, and no proper diligence was shown to procure his attendance, the admission of the testimony of such witness taken at the preliminary trial, over the objection of the accused, was error.
a. If such witness can be produced at the final trial, the defendant has the right to be confronted by the witness.
It is improper for a county attorney, in his argument to a jury, to go outside the record and misquote the Scriptures in a manner calculated to inflame and prejudice the minds of the jurors against a defendant because he is a Jew.
a. The verdict of a jury should be predicated upon the evidence produced at the trial, free from racial or religious prejudices, in so far as the courts are able to accord such trial.
Appeal from District Court, Payne County; Arthur R. Swank, Judge.
Joe Golden was convicted of grand larceny, and he appeals. Reversed and remanded.
J. M Springer and E. G. Wilson, both of Tulsa, for plaintiff in error.
The Attorney General and N.W. Gore, Asst. Atty. Gen., for the State.
Joe Golden, plaintiff in error, hereafter referred to as the defendant, was by information filed in the district court of Payne county on January 2, 1920, charged, together with other codefendants, with the larceny of a large quantity of oil well pipe or casing. At the trial, on October 13, 1920, the jury rendered a verdict finding the defendant guilty and fixing his punishment at a term of five years in the penitentiary. From a judgment on the verdict he appeals.
The facts shown in evidence leading up to the commission of the alleged offense and attending its consummation have been stated in sufficient detail in a companion case just decided by this court, Filler v. State, 214 P. 568, not yet [officially] reported.
In this case the Attorney General has confessed error for three reasons, to wit:
First. Because a transcript of the testimony of the witness J. B Turner taken at the preliminary hearing was improperly received as evidence.
Second. Improper and prejudicial remarks made by the county attorney in the course of his argument to the jury.
Third. The reception of alleged hearsay, self-serving declarations of the witness Turner made to the sheriff and others advising them that the theft was about to be committed, and that preparations were then in progress to commit it.
The reason last given by the Attorney General was decided adversely to his contention in the Filler Case, supra, in which the reasons for so holding are fully discussed and need not be repeated here.
The showing, and the only showing, made by the state as a condition precedent to the introduction of the testimony of Turner taken at the examining trial was that this case was set for trial on the 11th day of October, 1920; that on the 4th day of October the county attorney caused the clerk to issue a...
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