Killough v. State
| Decision Date | 04 November 1911 |
| Citation | 118 P. 620,6 Okla.Crim. 311,1911 OK CR 299 |
| Parties | KILLOUGH v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The power and authority of trial courts to allow bail pending appeal can only be exercised in the manner provided by statute, and, where the trial court fixes the amount of defendant's bail bond to be given as a supersedeas on appeal, it must fix the time within which such bond shall be given, and the time within which the petition in error shall be filed in the Criminal Court of Appeals; otherwise such an appeal bond shall not be effective as a supersedeas.
Where a dependant fails to make and serve a case-made or transcript within the time allowed by the statute or within such extended time as may allowed by the trial court or judge thereof, or where he fails to file his petition in error in the Criminal Court of Appeals within the time fixed by the court, he thereby waives his right to have the execution of the judgment stayed pending the perfection of his appeal, and any bail bond given ceases to be effective as a supersedeas upon such failure to comply with the orders of the court. It is the duty of the trial court to have its judgment carried into execution.
In the absence from the record of all the evidence taken upon the trial, a general exception to all the instructions of the court, specifying no particular error or errors, will not be considered on appeal unless fundamental error is apparent.
In the absence of all the evidence taken upon the trial from the record filed in this court, the presumption will be that the evidence was amply sufficient as to the guilt of the defendant of the offense charged.
It is the duty of a court of last resort to see to it that a person convicted of crime was accorded a fair and impartial trial and the enjoyment of every legal right. However, in order to secure this determination, the appeal must be taken in the manner prescribed by law, and the record before the appellate court must be sufficient to enable it to properly pass upon the errors assigned in the petition.
Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed.
When the instructions as a whole, taken and considered together embrace the law of the case, though one of them may be erroneous, still for such error a judgment of conviction will not be reversed unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant, or by reason thereof it seems probable that injustice may have been done.
Appeal from District Court, Beaver County; R. H. Loofbourrow, Judge.
J. M Killough was convicted of burglary in the first degree and sentenced to imprisonment for 12 years, and appeals. Affirmed.
Dickson & Dickson (Harris & Nowlin and Kenneth C. Crain, of counsel) for plaintiff in error.
Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error was indicted in the district court of Beaver county for the crime of burglary in the first degree. The charging part of the indictment is as follows: "That J. M. Killough, late of the county and state aforesaid, on or about the 30th day of June in the year one thousand nine hundred eight in the said county of Beaver, and state of Oklahoma, did then and there unlawfully, willfully, burglariously and feloniously break into and enter, in the nighttime of said day by opening a window, the dwelling house, of another, to wit, the dwelling house of J. A. Barker, in which there was then and there at the time some human being, to wit, one Lucy Wilson, with the unlawful, willful and felonious intent then and there to commit some crime therein, to wit, with the unlawful, willful and felonious intent then and there to have unlawful carnal sexual intercourse with her, the said Lucy Wilson, she the said Lucy Wilson then and there being a female under the age of sixteen years and not the wife of him, the said J. M. Killough, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma." Upon his trial the jury returned a verdict of guilty and fixed his punishment at imprisonment for 12 years in the penitentiary. In accordance therewith judgment and sentence were rendered and entered on March 20, 1909. The court also made an order giving 30 days in which to make and serve a case-made, and 20 days in which to suggest amendments. On March 19, 1910, a petition in error with a transcript of the pleadings, the instructions of the court, and the judgment and sentence were filed in this court.
It appears from the transcript that at the time of entering judgment the court fixed the amount of the defendant's appeal bond in the sum of $2,500. The fixing of this amount, so obviously insufficient considering the judgment and sentence, is inexplicable. The transcript does not show that the trial court fixed a time within which such appeal bond should be given, nor the time for filing the petition in error in the Criminal Court of Appeals. It further appears that on April 12, 1909, an appeal bond in said sum was given, and approved by the clerk of said district court.
If the crime of which the defendant is convicted be a bailable one and the trial court fixes the amount of the defendant's bail bond to be given as a supersedeas on appeal, it must fix the time within which such bond shall be given, and the time in which the petition in error shall be filed in the Criminal Court of Appeals; otherwise such an appeal bond shall not be effective us a supersedeas.
The power and authority of trial courts to allow bail and to fix the amount of the bail bond pending appeal can only be exercised in the manner provided by statute (section 6951, Snyder's St.), otherwise a plaintiff in error, when he has perfected his appeal, must apply to this court for a supersedeas order and fixing the amount of his bail bond.
Where the defendant fails to make and serve a case-made or transcript within the time allowed by the statute, or within such extended time as may be...
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