Hux v. State

• Decision Date: 27 August 1976
• Docket Number: No. F--76--269,F--76--269
• Citation: 554 P.2d 82
• Parties: Ruel HUX, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 82

554 P.2d 82

Ruel HUX, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--269.

Court of Criminal Appeals of Oklahoma.

Aug. 27, 1976.

Rehearing Denied Sept. 14, 1976.

Reid K. Mayfield, Atoka, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Ruel Hux, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Atoka County, Case No. CRF--75--52, for the offense of Escape From a State Penitentiary, in violation of 21 O.S.1971, § 443. The jury fixed his punishment at five (5) years' imprisonment in the State penitentiary, and from said judgment and sentence a timely appeal has been presented to this Court.

The first witness for the State was Lowell Reasor. Mr. Reasor testified he was employed as the classification and records supervisor at the McLeod Honor Farm, located within Atoka County. He further identified the defendant as Ruel Hux, Jr., and stated that the defendant was incarcerated at McLeod Honor Farm beginning on June 23, 1975. The witness stated that the defendant was incarcerated under judgment and sentence in Case No. CRF--75--95, Oklahoma County, for operating a motor vehicle while under the influence of intoxicating liquor, after former conviction of operating a motor vehicle while under the influence of intoxicating liquor. This judgment and sentence was admitted into evidence as State's Exhibit No. 1.

The State's next witness was James Armstrong who stated that he was employed as a security guard at the McLeod Honor Farm on the day of June 28, 1975. Mr. Armstrong testified that on that day he took a line count and discovered that there were two inmates missing. The witness then identified the defendant as one of the inmates missing on June 28, 1975. Upon discovering that the defendant was missing, Mr. Armstrong stated that he informed his superior officer of the defendant's absence and conducted a search of the immediate area of the compound. Neither of the missing inmates was found on that search.

The next witness for the State was Leland Bartlett. Mr. Bartlett testified that on June 28, 1975, he was employed as a correctional officer at the McLeod Honor Farm. He further testified that on that day the line count revealed that two inmates were missing, and he identified the defendant as one of the missing inmates. The witness stated that he supervised a search of the immediate area with negative results. He then testified that a search outside the compound area resulted in the apprehension of the defendant by another officer. He further testified that according to his knowledge, the defendant did not have any authority from anyone to leave the McLeod Honor Farm on June 28, 1975.

The State then called W. H. Reynolds, who testified he was employed at the McLeod Honor Farm and worked on the escape team. He further testified that he worked on the escape team in a search for the defendant on June 28, 1975. The witness identified the defendant and stated that he apprehended him four miles north and one and a half miles west of the compound. This was outside the premises of the McLeod Honor Farm. Mr. Reynolds testified that the defendant was not armed and offered no resistance. He stated that the defendant said he was going home.

The State then rested.

The defendant demurred to the evidence, and said motion was overuled.

The first witness for the defense was Mrs. Ruel Hux, Sr. She stated that she was the mother of the defendant. She further testified that the defendant had a history of severe headaches, black outs and emotional outbursts. According to the witness, the 'spells' would sometimes last three to four days.

The defense next called the defendant to testify in his own behalf. The defendant testified that he had been incarcerated on several previous convictions. He further testified that he had had migraine headaches throughout his life, that he would black out, and that these episodes would sometimes last for three or four days. The defendant stated that he had been told that a man was going to kill him and that he was frightened for his life. He stated that he only wanted to 'get away from it all.' (Tr. 46) The defendant stated he was suffering from a headache when he left the compound and that he had seen a doctor at Stringtown the day before about this problem. According to the defendant, the doctor did not dispense any medication to him. He also stated that he had been apprehended three or four miles from the McLeod Honor Farm.

At this time the defense rested, and the State offered no rebuttal witnesses.

In his first assignment of error defendant contends that the trial court erred in denying his motion for a continuance of trial when the subpoenas for the defendant's witnesses and his prison medical records in Pittsburg County, Oklahoma, were not served. The record shows that the defendant's motion for continuance of trial was presented and heard as follows:

'BY MR. MAYFIELD: Your Honor, the Defendant respectfully moves the Court to continue this cause for the reason the subpoenaes of certain witnesses at McAlester, Oklahoma have not been delivered, or served, according to the Sheriff's Office of Pittsburg County, Oklahoma. I hand-carried the subpoenaes to the Sheriff's Office on December 24 to Pittsburg County and was promised by Sheriff Orr they would be delivered, but I checked his office this morning and he advised me the subpoenaes I delivered there were not delivered, or served.

'BY MR. MILLSPAUGH: Your Honor, the State is ready to try this case; we have witnesses and we are ready to go.

'BY THE COURT: Let the record show that on the 13th day of November, 1975, this Court entered an Order setting said cause for trial on Monday, December 15, 1975 at 9:00 o'clock A.M.; that thereafter, on November 17, 1975, that an arraignment docket was held and said cause on said date was set for trial on the 18th day of December, 1975; that thereafter said cause was continued until December 29, 1975, and that due diligence has not been used or exercised by the Defendant in subpoenaing said witnesses upon which he premises his Motion for Continuance. Accordingly, Motion for Continuance Overruled; exceptions allowed.' (Tr. 1--2)

In ruling upon defendant's motion for continuance, we observe initially that the defendant did not meet the statutory requirements as set forth in 12 O.S.1971, § 668, as follows:

'A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts, alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence.'

This Court dealt with 12 O.S.1971, § 668, in Crosswhite v. State, Okl.Cr., 317 P.2d 781 (1957), wherein we stated:

'Under this statute, the motion for continuance on account of absent witness can be made only on affidavit. . . .'

Although the aforementioned statute applies to civil cases, this Court has held it applicable to criminal cases as well. See, Crosswhite v. State, supra, and Snow v. State, Okl.Cr., 453 P.2d 274 (1969).

Under the law of this State defendant was required to file an affidavit with the trial court in order for the motion for continuance to be proper. The record reveals that no affidavit was filed. In addition, no oral evidence was introduced by the defendant as to the facts to be proved from the expected testimony, the probability of obtaining a witness within a reasonable time, nor the materiality of the testimony. In view of the fact that the defendant failed to meet the statutory requirements for making the motion for a continuance of trial, we find that the trial court acted properly in denying the motion.

Defendant concedes that the statutory affidavit in support of his motion for continuance of trial was not submitted as required by 12 O.S.1971, § 668, but he argues that an application for a continuance of trial should not be denied for failure to comply with technical formalities, for to do so would deprive the accused of a fair trial. Defendant cites Goben v. State, 20 Okl.Cr. 220, 201 P. 812 (1921), to support his contention. However, said case is distinguishable from the instant case for in Goben v. State, supra, the defendant's motion for a continuance was supported by an affidavit. See, Goben v. State, supra, 813. Further, we can find no evidence in the record which would indicate that the defendant did not receive a fair trial.

Defendant also cites Banker v. State, 59 Okl.Cr. 213, 56 P.2d 1205 (1936), in which this Court said:

'Ordinarily, the granting or refusing of a continuance is in the discretion of the court, and its decision will not be disturbed on appeal, unless it appears that there has been an abuse of such discretion. However, a continuance ought always to be granted when, from the showing, justice requires it to be done, and to enable a defendant to procure all competent evidence necessary for his defense, if he has used due diligence to obtain the same. . . .' (at 1207)

Defendant contends that he exercised due diligence in securing the presence of his witnesses. However, the record does not support that contention. The record reveals that on November 17, 1975, the trial court set the trial date for December...