Hobson v. State, A-12101

• Decision Date: 23 February 1955
• Docket Number: No. A-12101,A-12101
• Citation: 280 P.2d 735
• Parties: Max HOBSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 735

280 P.2d 735

Max HOBSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12101.

Criminal Court of Appeals of Oklahoma.

Feb. 23, 1955.

Syllabus by the Court

1. The illness of an accused which may prevent him from properly presenting his defense or rendering the assistance to counsel that he otherwise would do is generally a reasonable ground for a continuance.

2. A motion for a continuance on the ground of illness of an accused is addressed to discretion of trial court and where defendant was personally present and trial court could observe his physical condition and where record shows accused was not prejudiced in being forced to trial, the overruling of such motion for continuance did not constitute an abuse of discretion.

3. The entire preliminary proceedings may be waived in the trial court and are waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.

4. The statute, 21 O.S.1951 § 1441, prescribing punishment for the use of explosives in the commission of a burglary is a statute of classification and not of definition.

5. The filing of an amended information in the district court charging an offense which was an included offense under the allegations of the complaint filed before the committing magistrate did not constitute a material variance and was not prejudicial to accused.

6. Attorney employed specially by injured party to assist county attorney in the prosecution is at all times subservient to the county attorney and must work under the direction and supervision of the duly elected county attorney and is subject to all the rules which govern the conduct of the county attorney. Special prosecutor should not be allowed to supersede the duly elected county attorney in the prosecution of a criminal case.

7. It is proper on cross-examination for the purpose of affecting the credibility of a witness to inquire whether witness has been convicted of a felony and if the answer is in the affirmative, the nature of the crime for which the conviction was sustained; but the court should not allow a cross-examination into the minute details of the crime.

Appeal from the District Court of Cherokee County, Oklahoma; Honorable Francis Stewart, Judge.

Max Hobson was convicted in the District Court of Cherokee County for the crime of burglary in the second degree, and was sentenced to serve a term of 2 years in the penitentiary. Affirmed.

John W. Tillman, Fred A. Tillman, Pawhuska, for plaintiff in error.

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

JONES, Presiding Judge.

This is an appeal from a conviction sustained by Max Hobson in the District Court of Cherokee County wherein he was sentenced to serve a term of 2 years imprisonment in the penitentiary for the crime of burglary in the second degree. Hobson was jointly charged with one Herman Eugene Wing, but a severance for trial was granted.

Several assignments of error are presented in the brief of Hobson and we shall consider them in the order of their presentation.

It is contended the trial court erred in overruling the motion of defendant for a continuance because of the alleged illness of the accused. The defendant was personally present in court at the time this motion for a continuance was presented and testified that he had 'causalgia of the limb, a nerve condition.' Approximately 4 1/2 years prior to the commission of the alleged burglary, defendant was shot in the knee and his leg was amputated just above the knee and according to his testimony, it bothered him intermittently and had become so serious that he had been advised by his physician to have an operation. The accused wore an artificial leg.

The rule as to the right of an accused to a continuance because of his illness is stated in Cole v. State, 46 Okl.Cr. 365, 287 P. 782, as follows:

'The illness of an accused which may prevent him from properly presenting his defense or rendering the assistance to counsel that he otherwise would do is generally held a reasonable ground for a continuance.'

In the case of Nix v. State, 20 Okl.Cr. 373, 202 P. 1042, 26 A.L.R. 1053, the facts in support of the application for a continuance were much stronger than those in the instant case. But this court held that the motion for a continuance was a matter addressed to the discretion of the trial court and that in view of the fact defendant was personally present before the trial judge and the judge had an opportunity to observe his physical condition, that the overruling of the application for a continuance was not error. See also Murphy v. State, 72 Okl.Cr. 1, 112 P.2d 438. We have carefully examined the record with reference to this motion for continuance and we do not think that the defendant made a sufficient showing that proceeding with the trial would operate to his substantial prejudice or injure his health. In fact, the defendant was personally present all during the trial and testified at length as a witness in his own behalf and there is nothing in the record to indicate that he was prejudiced in the least by being forced to trial.

The second assignment of error is that the trial court erred in overruling the motion to quash the amended information or to remand the same for a preliminary hearing.

The record discloses that the accused was originally charged in a complaint filed before a magistrate with the crime of burglary by the use of explosives. 21 O.S.1951 § 1441. At the conclusion of the preliminary examination the accused was ordered held to await trial in the district court. Thereafter an information was filed in the district court in almost identical language with that used in the preliminary complaint. Subsequently the county attorney, after securing permission to file an amended information, filed such amended information on April 2, 1954. This amended information contained the same allegations as set forth in the first information concerning the breaking and entering of the building, but it eliminated the allegation with reference to the opening of the safe in the building by the use of explosives.

With the deletion of the reference to the use of explosives, the amended information charged only the crime of burglary in the second degree. On April 2, 1954, the defendant appeared for arraignment, was furnished a copy of the amended information and entered his plea of not guilty.

On April 13, 1954, which was the date set for trial, counsel for the accused filed a motion to quash the amended information on the ground that the amended information constituted a material variance from the preliminary complaint and that the accused had never had a preliminary hearing on the facts alleged in the amended information. At that time the court stated: 'The motion now comes too late,' and overruled the motion but allowed the accused an exception to his action.

We think the trial court's ruling was proper for two reasons. First, the entry of the plea of not guilty waived any defects in the preliminary proceedings. Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258, 259, wherein it was held:

'The entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.

'After a plea...