Mahan v. State
| Decision Date | 28 March 1973 |
| Docket Number | No. A--16892,A--16892 |
| Citation | 508 P.2d 703 |
| Parties | Vernon Delmer MAHAN, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Vernon Delmer Mahan, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County, Case No. 70--3630, for the crime of Robbery with Firearms under 21 O.S.1971 § 801. He was sentenced to serve 20 years in the state penitentiary, in accordance with the verdict of the jury, and a timely appeal has been perfected to this Court.
Briefly stated the facts are that at approximately 8:15 p.m. on the evening of December 15, 1970, a man identified as the defendant entered the Humpty-Dumpty Grocery Store located at 4612 S. Bryant in Oklahoma City, Oklahoma. The defendant showed an employee the gun under his jacket, gave him a sack and told him to fill it up from the till and the safe. Having difficulty opening the safe, the defendant threatened the employee that he would shoot him if the employee didn't get the safe open. Two other employees saw and heard the defendant threaten the employee and saw the defendant leave the store with around four hundred dollars. These three employees described the robber as wearing a cap with ear flaps, dark sunglasses and a windbreaker type jacket. Mr. Ronnie Comer, an employee of a T.G.&Y., which is adjacent to the scene of the robbery, saw the defendant, clothed as the other witnesses said, walk out of the grocery store to a white 1963 Ford Fairlane, Oklahoma tag number XX--2403. Mr. Comer followed the defendant out to the car, where he wrote down the tag number on the back of his hand. The tag information was given to the investigating officer.
Officer Jim Blair received the tag number, checked the registration and in that manner traced the car to the defendant's home in Okarche, Oklahoma. Accompanied by several other officers, he went to the defendant's residence early on the morning of the 16th. He discovered the described 'get-away' vehicle in the defendant's driveway. As he walked by it, he saw a hat and some dark glasses which fit the description he had received from the radio report of the robbery. The officers approached the house, but as they did, someone from inside yelled: 'Cut those damn lights off or we'll blow your heads off.' They proceeded into the house to the defendant's bedroom where they arrested the defendant and where they seized over a hundred dollars from the defendant's person. They impounded the vehicle and subsequently, obtained a search warrant before the actual search of the vehicle was carried out. From the vehicle, the officer seized the cap described, the sunglasses and a weapon.
It is the defendant's first contention that he was held for trial in District Court without reasonable cause, alleging insufficiency of the evidence produced at the preliminary hearing. We are unable to consider the question because there was no compliance with the statute which governs such allegations, that being 22 O.S.1971 § 494. The law is well established that if a motion to quash does not allege that the defendant is in good faith or if such motion is not verified, the Court has no alternative but to hold that the unverified motion is not properly before the court. From the record before us we cannot find support for the proposition that all allegations were 'under oath, that he is acting in good faith;' therefore, we have no alternative but to hold the question as being not properly before this Court.
Next, defendant contends that the trial judge abused his discretion in not granting a continuance because the defense counsel was unable to prepare for his case. Counsel claims that he did not have time to get the defendant's file or to call any of the anticipated ten defense witnesses. This is the same counsel that represented the defendant at the preliminary hearing over three weeks prior to the trial date. It would seem to this Court that counsel had ample time to notify the witnesses and prepare a defense. Motion for a continuance in felony cases are directed to the sound discretion of the trial court, and unless abuse of such discretion clearly appears the trial court's refusal to grant a continuance will not be disturbed. Sasser v. State, Okl.Cr., 309 P.2d 1090 (1957); Brown v. State, Okl.Cr., 456 P.2d 604, 605 (1969). 'The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just . . .' 12 O.S.1971 § 667. From the record before us, we cannot hold that under these circumstances the trial court abused its discretion. The defendant, of course, is entitled to a reasonable time to prepare for trial but the question of unreasonableness is dependent upon the surrounding circumstances and thus is largely discretionary. Riddle v. State, Okl.Cr., 374 P.2d 634, 637 (1962); Borrelli v. State, Okl.Cr., 453 P.2d 312, 313 (1969). We are of the opinion that counsel had a reasonable time to prepare his case. Therefore, we hold this assignment of error is without merit.
As the third proposition of error, the defendant has proposed that the trial court abused its discretion because it failed to sequester the jury, but defendant's third proposition not being supported by authority should not be considered. This Court has said many times:
Sandefur v. State, Okl.Cr., 461 P.2d 954, 956 (1969); Collins v. State, Okl.Cr., 407 P.2d 609 (1965).
We hold that the trial court did not abuse its discretion pursuant to 22 O.S.1971 § 853. It is well established that prior to the submission of the case to the jury the trial judge is vested with the sound discretion as to whether to grant a request to sequester the jury and his ruling thereon will not be disturbed on appeal except for abuse of such discretion. In those cases where this Court has reversed the trial court, the record has clearly shown that failure to grant such a motion prejudiced the defendant. Reid v. State, Okl.Cr., 478 P.2d 988 (1970). A careful review of the record indicates that the issue was raised while the jury was retired from the courtroom in the custody of the court clerk (CM 12). The trial court in its discretion ruled: (CM 13). This request and ruling were made at 4:30 p.m. in the afternoon before the jury had ever heard the information read and...
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