Johnson v. State
| Decision Date | 16 October 1926 |
| Docket Number | A-6231. |
| Citation | 249 P. 971,35 Okla.Crim. 212 |
| Parties | JOHNSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An application for a change of venue is addressed to the sound discretion of the trial court, and, unless it is clearly made to appear that there is an abuse of such discretion, this court will not reverse the judgment for a failure of the trial court to grant a change of venue.
It is not an abuse of discretion to deny a petition for change of venue in a capital case which is based on the alleged prejudice in the minds of the people of the county caused by the publication of prejudicial accounts of the crime charged in the newspapers and by current rumors, where the prima facie case made by the application and affidavits is fully answered and clearly overcome by counter evidence and affidavits filed by the state.
Evidence that tends directly to prove the defendant guilty of the offense for which he is on trial or to show motive or intent is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.
Special counsel may properly assist in the prosecution of one accused of crime, but, when so assisting, they are subordinate to the county attorney, who should never lose control of the case (Comp. St. 1921, § 5741).
Where justice requires, the sentence of death will be modified and reduced to imprisonment for life, and, as so modified, the sentence affirmed.
Appeal from District Court, Grant County; Charles Swindall, Judge.
Ray A Johnson was convicted of murder, and he appeals. Modified and affirmed.
J. E Falkenberg, of Medford, for plaintiff in error.
Geo. F Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grant county on a charge of murder, and his punishment fixed at death.
From the record it appears that defendant, at the time of the offense charged, was just under the age of 21 years, and he and one Albert E. Greer, an older man, stole an automobile in the state of Kansas and drove it into the state of Oklahoma. Near the town of Medford they entered a farmhouse and stole some firearms, and then went to the town of Medford where they intended to break into a store. They drove the car into the alley near the rear of the store and Greer with a shotgun stood on watch, while defendant attempted to take the glass out of the rear window. While so engaged, Stephen Mann, night policeman, came into the alley. The approach of Mann was discovered by Greer, who communicated the fact to defendant. Greer left the shotgun, got into the automobile, and started the engine. Defendant got possession of the shotgun, and a shooting affray between him and Mann took place, in which Mann was killed. Defendant fired two shots with a shotgun, and Mann fired four shots with a pistol. Defendant claims deceased fired first. The evidence of other witnesses is that the report of the shotgun was heard first. The shots from the pistol of deceased cut the ignition wires, and the car could not be operated. Defendant and Greer then fled on foot. They were arrested some 20 miles away. A severance was taken. Defendant was tried, and the verdict finding defendant guilty and fixing the punishment at death was returned January 21, 1926. It is out of the record but stated in the briefs, and was also stated to the court in the oral argument, that, on the day following the return of the verdict, the codefendant Greer was by agreement permitted to plead guilty to manslaughter in the first degree and was sentenced to 40 years in the state penitentiary.
It is first argued that the court erred in refusing defendant's application for a change of venue. In the application for a change, it was set out defendant could not have a fair and impartial trial in Grant county because of the prejudice of the citizens of that county against defendant, due to the wide publicity given the case by prejudicial accounts through the press and otherwise. A strong showing upon this application was presented, which was contested by the state by numerous counter affidavits, in effect, stating that there was no widespread prejudice against the defendant in Grant county, and that defendant could have a fair trial by eligible, unprejudiced jurors. Under the rule frequently announced by this court that an application for a change of venue is addressed to the sound discretion of the trial court, and, unless an abuse of discretion is shown, this court will not reverse a judgment on account of the refusal of the trial court to grant a change, this contention cannot be sustained. Gentry v. State, 11 Okl. Cr. 355, 146 P. 719; Smith v. State, 14 Okl. Cr. 348, 171 P. 341; Allen v. State, 16 Okl. Cr. 136, 180 P. 564.
Complaint is next made that the court...
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