Maddox v. State
| Citation | 158 P. 883,12 Okla.Crim. 462,1916 OK CR 70 |
| Decision Date | 18 July 1916 |
| Docket Number | A-2193. |
| Parties | MADDOX v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The presumption of law is that a defendant can have a fair trial in the county in which the crime is committed, and to establish his right to a change of venue the burden is upon the defendant to overcome such presumption.
The grant of a change of venue in a criminal case is made by statute discretionary with the trial court, and this court will not reverse the ruling of the trial court denying a change of venue, unless it is made to clearly appear that there has been such an abuse of discretion as to amount practically to a denial of justice.
A substantial compliance with the forms provided for by law for drawing and serving jurors is sufficient.
A challenge to the panel of jurors can be founded only on a material departure from the forms of law providing for drawing and summoning jurors, or the intentional omission of the sheriff to summon one or more of the jurors drawn; and to entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice.
Where in a criminal case, the instructions given the jury by the court are not properly excepted to, such instruction, even though erroneous, will not be considered, except as to fundamental errors embraced therein.
The refusal of requested instructions, which are practically covered by the instructions given by the court, to the jury are properly refused, and requested instructions refused and not properly excepted to will not be reviewed.
Refusal of the court to grant a change of venue, and the overruling of the challenge to the array of jurors, carefully examined and held to be free from error.
Evidence in a homicide case considered, and held sufficient to sustain a conviction of manslaughter in the first degree.
When the record discloses that substantial justice requires it this court may modify the judgment rendered by reducing the sentence imposed.
Error from District Court, Washita County; G. A. Brown, Judge.
C. W. Maddox was convicted of manslaughter in the first degree, and brings error. Modified and affirmed.
Burnette, Austin & Holden and Brett & Billups, all of Cordell, and Bond & Melton, of Chickasha, for plaintiff in error.
A. R. Ash, of Cordell, and Chas. West and C.J. Davenport, both of Oklahoma City, for the State.
The plaintiff in error, hereafter styled defendant, was charged upon information with the murder of H. Tempt Elam, on the 22d day of August, 1913. Upon his trial he was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for 40 years at hard labor. A motion for new trial was duly filed, which was overruled, and on the 24th day of October, 1914, judgment was rendered in pursuance of the verdict. To reverse the said judgment, this appeal was taken by filing in this court on February 20, 1914, a petition in error with case-made. The defendant was duly arraigned and entered a plea of not guilty, and thereupon made a motion for a change of venue upon the ground that he had been informed against in numerous cases in the county of Washita; that numerous parties were interested in the prosecution and, as complaining witnesses in said cause, that they persistently sought to arouse prejudice against the defendant and had succeeded in doing so to such an extent that the defendant cannot have a fair and impartial trial in Washita county; that it had been sought to convict him in this and other charges for the purpose of gratifying the ill will of the prosecutors, and that great publicity had been given all of the accusations against the defendant, by publications in the newspapers of wide circulation in the county, and that by wide publicity and biased statements in said newspaper, and that by the bias and prejudice thereby engendered and general ill-feeling against the defendant, the defendant cannot have a fair and impartial trial in Washita county. To said motion a copy of the respective issues of August 23, September 4, and September 11, and September 26, 1913, of the Cordell Beacon was attached to and made a part of the said petition. Said motion was duly sworn to by the defendant.
In support of the motion for change of venue, the affidavits of C. P. Beckwith, John H. Bennett, and C. L. Ferguson were attached in each of which affidavits it was averred that the defendant could not have a fair and impartial trial in Washita county on account of bias and prejudice existing against him, and that the facts stated in said petition were true. Thereafter the state filed counter affidavits of A. R. Sayre, Doc Hutchinson, and W. T. Hamic, residents of said county, in each of which said affidavits it was averred that affiants believe that said defendant can obtain a fair and impartial trial in Washita county, and that a fair and impartial jury can be obtained to try the defendant in said county.
Upon the hearing of the petition for change of venue, the defendant did not offer as witnesses J. H. Bennett, C. L. Ferguson, and C. P. Beckwith, who signed the supporting affidavits attached to the motion for a change of venue, but the defendant introduced as witnesses in his behalf on said hearing a Mr. Burks, J. J. Jackson, Walter Askew, J. S. Hatchett, John Lambert, Quincy Bates, Mr. Montgomery, Mr. Glasscock, Mr. Ashworth, and Mr. Mitchell, which said witnesses resided in different parts of Washita county and who testified as to the material questions involved, as follows:
Mr. Burks, Mr. Jackson, Mr. Askew, Mr. Glasscock, and Mr. Mitchell, each testified that he could not say that the defendant could not get a fair trial in Washita county. Mr. Hatchell and Mr. Lambert each testified that he thought the defendant could have a fair and impartial trial before the jurors of Washita county. Mr. Askew testified that it looked to him that defendant would get a fair trial in Washita county. Mr. Montgomery did not testify as to whether or not the defendant could have a fair and impartial trial in Washita county; that he did not know what the sentiment was. Mr. Bates testified that he was a brother-in-law of Roy Maddox, who is a brother to Charley Maddox, and he would not say from what he knew of the sentiment in the community that a man could not get a jury for any case, so far as that is concerned, if he goes out over the whole county; that it is too much for him; that he supposed there are men in the community that had read the Cordell Beacon, and talked over the 'phone to him and would be safe men; that there are some men that have it in for Charley Maddox, and there are some men that don't know it and don't say much about it. John Ashworth testified that as far as he knew it looked like the defendant ought to get a fair and impartial trial in Washita county.
The state introduced as witnesses on said hearing J. H. Bennett, C. L. Ferguson, C. P. Beckwith, W. H. Griffin, J. W. Blanton, H. G. Walterstedt, L. L. Reeves, Stewart Humbarger, H. K. Thomas, W. D. Killon, J. G. Cone, Charles Hoober, Perry Harrison, A. Sponholtz, and John Hailey, which said witnesses resided in different parts of Washita county and each of whom, except J. H. Bennett, and L. L. Reeves, testified that in his opinion the defendant could secure a fair and impartial trial in Washita county. Mr. Reeves testified that there was no bias or prejudice in his community against the defendant, and that there was sympathy and friendship for defendant's father. Mr. Bennett, the father-in-law of defendant, testified that he did not believe that defendant could have a fair and impartial trial in Washita county.
The foregoing being all the evidence offered for and against the motion for a change of venue, the court overruled the motion, to which the defendant duly excepted. Whereupon the defendant filed his duly verified, original, and amended challenge to the array of the jurors to serve in said court during the year 1913 upon the following grounds: That the names of the persons selected by the jury commission of Washita county for the year 1913, were selected and drawn from the poll lists as returned from the election officers and not from the tax roll as required by law; that the proceedings of said jury commission at their meeting in January, 1913, was not made a part of the records of this court and certified to by said jury commission as prescribed by law; the unlawful and unauthorized acts of the clerk of this court in opening the box containing the list of the jurors and not recording the names of those in the jury box at the time said box was opened; that the clerk of this court drew the names of the jurors to serve in this term of court without having said sheriff or one of his deputies present and certifying to said proceedings according to law; that the clerk of this court delegated authority to summons jurors to the sheriff of this court without authority of law; that there was no meeting of the jury commission in the month of July, 1913, as prescribed by law, at which a list of jurors was prepared for the October, 1913, term of said court; that by reason of the facts herein stated the defendant has suffered material prejudice, and that the list returned as aforesaid consists of a large number of prejudiced jurors on said list and are drawn from districts where there is great animosity to this defendant, said prejudice and bias arising from an organized effort to convict this defendant without regard to his legal rights.
To the said challenge of the array of jurors, the county...
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