Harding v. State

• Decision Date: 21 November 1951
• Docket Number: No. A-11493,A-11493
• Citation: 95 Okla.Crim. 8,238 P.2d 376
• Parties: HARDING v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 376

238 P.2d 376

95 Okla.Crim. 8

HARDING v. STATE.

No. A-11493.

Criminal Court of Appeals of Oklahoma.

Nov. 21, 1951.

Syllabus by the Court.

1. It is reversible error in a misdemeanor case for the trial court, over the objection of the defendant, to permit a witness whose name has not been indorsed on the information, to testify in chief for the state. But the court in exercise of its discretion may permit the indorsement of the name of the witness by the state upon the information where it appears that, without plan or design on the part of the state, the name was accidentally omitted, or that the state had not learned the name of the witness until after the trial was begun, or in any case where it appears that the state has used due diligence in procuring the name of the witness and having it indorsed upon the information.

W. A. Barnett, Okmulgee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defenant in error.

BRETT, Presiding Judge.

Plaintiff in error Lowell Russell Harding, defendant below, was charged by information in the county court of Okmulgee county with the crime of driving an automobile while under the influence of intoxicating liquor. Title 47, § 93, O.S.1941. The offense was alleged to have been committed on November 2, 1949 in the city of Okmulgee, Okmulgee county. The defendant was tried by a jury, convicted, his punishment fixed at 6 months in the county jail and a $300 fine, and judgment and sentence entered accordingly. It is not necessary to give a detailed discussion of the facts. It is sufficient to say that the facts relative to drunken driving were provided by Officer Hayden Hendrickson. He was the sole witness for the state as to the charge and testified to the drunken driving of the defendant and his condition at the time he was arrested and taken from the automobile and placed in jail. Hendrickson, a city policeman in Okmulgee, was driving in a city automobile together with another officer by the name of Kirk Lawhead, who though endorsed on the information as a witness was not available at the trial. The record discloses that after both parties announced ready for trial and a jury had been empaneled and sworn to try the issues in the case, the county attorney asked leave of the court to endorse the name of Hayden Hendrickson upon the information. He gave no reason as to why his name had not been theretofore endorsed on the information, and he made no factual statement upon which the court might have excused the failure so to do. These conclusions are borne out by the record, the pertinent part of which reads as follows towit:

'Mr. Bailey: Comes now the County Attorney and requests permission of the Court to amend the Information by including Hayden Hendrickson as a witness, and asks leave of the Court to endorse the name of Hayden Hendrickson as a witness on the information.

'Mr. Barnett: If your Honor please, the defendant objects for the reason that he has had no prior notice whatever that this party would be called upon to testify as a witness in the case pending against him, and he has therefore been unable to procure any information or make any investigation or attempt to prepare for trial against the information to which this witness might testify and for the further reason that he had no previous intimation that such witness would be called to testify in this case, and therefore asks for continuance.

'The Court: As I understand it, this witness is going to testify to the same information that Mr. Lawhead would have testified, had he been here.

'Mr. Barnett: If your Honor please, I don't know what he is going to testify.

'The Court: The motion is granted.

'Mr. Barnett: Note the defendant's exception, please.'

As hereinbefore indicated the trial court overruled the objection and required the defendant to stand trial with the result as hereinbefore set forth. Upon these conditions the defendant predicates his only valid objection to the conviction. This contention is to the effect that the trial court erred in permitting the county attorney after the jury was empaneled to endorse on the information the name of witness Hayden Hendrickson over the defendant's objection and exception. The defendant relies for support of this contention upon the provisions of Title 22, § 303, O.S.1941, which reads as follows towit: 'The county attorney shall subscribe his name to informations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.' In construing the foregoing section of the statutes this court has held in Eveland v. State, 87 Okl.Cr. 161, 195 P.2d 771, in syllabus 2: 'The endorsement of witnesses on the information may be permitted at any time within the sound discretion of the court.' In Hochderffer v. State, 49 Okl.Cr. 420, at page 422, 295 P. 236, 237, in the body of the opinion the rule is stated as follows:

'It is reversible error in a misdemeanor case for the trial court, over the objection of the defendant, to permit a witness whose name has not been indorsed on the information, to testify in chief for the state. But the court in the exercise of its discretion may permit the indorsement of the name of the witness by the state upon the information where it appears that, without plan or design on the part of the state, the name was accidentally omitted, or that the state had not learned the name of the witness until after the trial was begun, or in any case where it appears that ...