Keeney v. State
| Decision Date | 02 January 1932 |
| Docket Number | A-8245. |
| Citation | 6 P.2d 833,53 Okla.Crim. 1 |
| Parties | KEENEY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Before testifying, witnesses shall be sworn to testify the truth, the whole truth, and nothing but the truth, the mode of administering the oath to be in such form as is most binding on the conscience of the witness.
2. The right to have a witness sworn before testifying may be waived by a defendant and is waived where a defendant, having knowledge that the witness has not been sworn, makes no objection until after verdict.
3. A contention that accused is entitled to a new trial for the reason that the accused himself and some of his witnesses were not sworn before testifying is without merit. If defendant and any of his witnesses did in fact testify without being sworn, knowledge of the failure to swear the witnesses or the accused, is necessarily imputable to the accused.
4. It is not error for the trial court, at the request of the jury to send to the jury during their deliberations papers and documents introduced in evidence.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Martin A. Keeney was convicted of murder, and he appeals.
Affirmed and date fixed for execution of sentence.
Clarence W. Myers and Gordon Johnston, both of Oklahoma City, for plaintiff in error.
J Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
The plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Oklahoma county, and his punishment fixed at death.
The record discloses that on September 14, 1930, Homer Folwell, a farmer 70 years of age, living about 12 miles northwest of Oklahoma City, was beaten to death with a blunt instrument, and his pockets rifled. Defendant, about 40 years old, had known Folwell a number of years and formerly had lived in the Folwell farm. He had been convicted of grand larceny and Folwell was a witness against him, and the inference of ill will because of this circumstance arises. After his discharge from the penitentiary, defendant returned to Oklahoma City, where he worked at various jobs. On the afternoon before the day of the homicide several witnesses saw a man dressed in light khaki unionalls, wearing a black cap, carrying a bundle two or three feet long under his arm, going in the general direction of the Folwell farm. Some of the witnesses recognized this person as the defendant. About 6:30 p. m. of the day of the homicide Folwell went to the farm to do the evening chores. Soon his wife came outside and, looking toward the barn, saw a man dressed in light khaki clothing standing over and beating her husband with some kind of club. She was not able to identify this person as the defendant, though the general description coincided. After having been beaten, the body of Folwell was dragged behind the barn, the pockets emptied and belongings taken. At the scene a piece of 410 shotgun was picked up. About a mile away Folwell's hat was found, and near it the stock of a 410 shotgun. Some thirty days later the bent barrel of a 410 gun was found in another field. These pieces were assembled and each fitted exactly, demonstrating that deceased had been beaten to death with this gun. A chemical analysis showed the barrel to have human blood on it. About two hours after the crime defendant was seen about four miles from the Folwell farm dressed as heretofore described, walking from the direction of the farm toward the El Reno interurban line. Later he was seen to have boarded an interurban car toward Oklahoma City. An alarm having gone out, four farmers in an automobile followed this car to the Seventeenth Street Station, where defendant left it, and, at the request of these farmers, was arrested by a policeman. Upon searching defendant, the officer found a number of 410 shotgun shells in his pocket and two knives, one of which was identified as belonging to Folwell and carried by him at the time of his death. A spectacle case was also found on defendant, but it was replaced in his pocket by the officer, and as the officer was putting in a call for the police department defendant was seen to back up to a trash box and drop the spectacle case into it. When he did this, Coach Green, of Oklahoma City University, got off the bus which he had just taken, reached in and picked up the spectacle case. In this case were some clippings and a memoranda in the handwriting of Mrs. Folwell, all positively identified and shown to have been in the possession of Folwell at the time he was killed. Tracks near the body and leading away were found. In one track there was a raised place made by a hole in the shoe and one showed a nick or break in the heel of the shoe. Defendant's shoes were compared with the tracks and found to be the same size. In one shoe there was a hole in the sole which corresponded with the raised place in the track, and in one heel there was a nick or break which corresponded with the heel track. When arrested, defendant was dressed in light khaki unionalls and was wearing a black cap. His shoes appeared to have been freshly washed, and a bandanna handkerchief in his pocket was thoroughly wet. His clothes disclosed spots which a chemist testified were blood spots, but he was unable to get a sufficient quantity to determine if human blood.
Defendant claimed he had been hunting doves with one Myers who furnished him with the 410 shotgun. That he killed three doves and gave them to Myers, but when they separated Myers took the gun. He denied the pocket knife belonged to Folwell, and that he knew anything of the spectacle case and contents. Denied he was near the Folwell farm on the Saturday before the killing, or that he was north of the El Reno interurban line on either date. The evidence of guilt is conclusive. No contention is made that it is insufficient to support the judgment and sentence.
The first contention made is that certain witnesses, Tucker, Gillespie, Charbeneau, Smith, and Jones, called by defendant, and also the defendant, were not sworn. This contention is first made in the motion for a new trial. Attached to the motion is the affidavit of Tucker, Gillespie, and the defendant setting out, in substance, that they were not sworn nor affirmed at the time they testified, and that no oath or affirmation was administered to them. Charbeneau, Gillespie, Smith, and Jones testified orally in support of the motion that they were not sworn. The court reporter made a statement, in substance, that where a witness takes the stand and is not sworn in his presence, in transcribing the testimony he follows the form of showing the witness first duly sworn. Where the witness is sworn in his presence, he usually, but not always, shows the witness sworn by the clerk or court, as the case may be. He appends a list of witnesses. After the name of some appears the words "Was sworn" and after others the word "Silent." In those where the words "Was sworn" appears, it means the witness was then sworn or stated he had been sworn. Where the word "Silent" follows the name it simply means that no record or notation as to the swearing of the witness was made. The word "Silent" appeared after the names of the witnesses Smith, Jones, Charbeneau, Tucker, and the defendant. To meet this showing, the state proved that some fifty or more witnesses were sworn at one time at the beginning of the trial. The state then called Lewis R. Morris, the county attorney, who testified the witnesses Tucker and Charbeneau were sworn, and that defendant stood up with the state's witnesses at the time the oath was administered. Yokley, a juror, testified the witnesses Tucker and Charbeneau were sworn by the court, but is doubtful as to the witness Smith. Harper, a newspaper reporter, testified that, of his own independent recollection, he remembers the swearing of the witnesses Smith and Gillespie by the trial judge.
There is no direct contradiction of the testimony of the witness Jones that he was not sworn. However, the record at the time he was called and at the beginning of his testimony is:
"Hugh Jones, called as a witness by the defendant and having been first duly sworn, testified as follows. * * *"
The witness Harper testified:
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