McCollough v. State

• Citation: 360 P.2d 727
• Decision Date: 07 December 1960
• Docket Number: No. A-12920,A-12920
• Parties: Don McCOLLOUGH, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 727

360 P.2d 727

Don McCOLLOUGH, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12920.

Court of Criminal Appeals of Oklahoma.

Dec. 7, 1960.

On Rehearing March 29, 1961.

SYLLABUS BY THE COURT

1. Title 22 OSA § 303 provides that county attorney shall subscribe his name to information filed in the county, superior or district courts and endorse thereon names of witnesses known to him at the time of filing the same. He shall also endorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rules prescribe.

2. Permitting the endorsement of additional witnesses at the time of trial or just prior thereto is within the sound discretion of the court but that discretion should be exercised with the utmost precaution and only after a showing by the state as to their good faith and that noncompliance with the statute was not intentional but by virtue of inadvertence or late discovery.

3. Where there is a request for the endorsement of additional witness at the time of trial or just prior thereto unless the state assumes the burden of proof and offers justification for noncompliance with the statute the trial judge has nothing upon which to exercise judicial discretion.

4. The materiality of the witness is an important element that must be taken into consideration in permitting late endorsement of a witness. If witness's testimony is of a material nature defendant is entitled to a continuance of sufficient time to properly prepare his case accordingly, to interview witness, and obtain rebuttal testimony if obtainable.

5. The state is not permitted to lay behind the log and spring new witnesses of a material nature on day of trial or shortly prior thereto over objection of defendant, and unless the record reveals a showing was made justifying the late endorsement it will constitute reversible error to deny defendant a continuance in order to prepare for meeting surprise testimony and obtain rebuttal if possible.

6. In this prosecution the name of material and important witness was endorsed when the case was called for trial by permission of the court over defendant's objection. The record does not reveal one symbol of evidence or showing to justify noncompliance with the statute. Defendant's request for a continuance was forthwith denied. He was put to trial and trial was completed the following day. Denying the continuance constituted error.

Appeal from the County Court of Ellis County; Samuel K. Barton, Judge.

Don McCollough was convicted of the crime of operating a motor vehicle while under the influence of intoxicating liquor and appeals. Reversed and remanded.

Klem & Thomas, Shattuck, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Don McCollough, hereinafter referred to as the defendant, was charged by information in the county court of Ellis County with the crime of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. He was tried before a jury who found the defendant guilty of the crime as charged but were unable to arrive at a verdict as to the punishment and left the same to be assessed by the court. The trial court sentenced defendant to ten days in the county jail and to pay a fine of $100 and the cost tax at $160.75.

Defendant appeals to this Court advancing numerous assignments of error upon which he relies for reversal. However, this opinion shall be confined to the discussion of proposition No. 1 which in the opinion of this Court presents sufficient grounds for reversal. The question herein presented is one that has had the attention of the court for some time as one that is long overdue for clarification and proper construction. Proposition No. 1 claimed by defendant is as follows:

'The Court erred in allowing the county attorney to endorse additional witnesses on the information after the case had been called for trial over the objection of the defendant without the county attorney first making a showing that would justify the endorsement of additional witnesses and in the face of defendant showing that he would be able to call rebuttal witnesses but for the late hour. That the endorsement of additional witnesses was prejudicial to defendant's right and that the court abused its discretion in granting the endorsement.'

Defendant's contention no doubt arises by virtue of Title 22 O.S.A. § 303 which reads as follows:

'The county attorney shall subscribe his name to informations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe. * * *'

This section of the Oklahoma Statutes unquestionably implements an important part of the Bill of Rights of our state Constitution, Art. 2, Sec. 20, which among other things states:

'In all criminal prosecutions the accused shall * * * be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. * * *'

In reading Tit. 22 § 303, supra, it is obvious that the authors intended that at the time a person is accused with the commission of a crime by information, the county attorney is charged with the responsibility of revealing to the accused the names of witnesses to be used in substantiating the charge. The reasoning behind this Act is sound as it was never intended that the accused should be prosecuted without knowledge of his accusers or those who were to testify against him. Under the Constitution he has the inherent right of being confronted with those witnesses. He has the right to interview them so that he may know what evidence he may reasonably expect to be offered against him and to enable him to properly prepare his defense. The legislature in its wisdom and to prevent an injustice to the enforcement of the law provided that names of witnesses that were not known at the time of filing the information could afterwards be endorsed at such time as the court may by rule prescribe. As a result of the later provision the court has consistently held that the granting of permission to endorse additional witnesses is within the discretion of the trial court and that this court will not disturb the ruling of the trial court unless there appears to be an abuse of that discretion.

This ruling has been heretofore adopted in such cases as Daniels v. State, 68 Okl.Cr. 324, 98 P.2d 68, wherein the court said:

'A court may, in its discretion, permit the indorsement of the name of a witness on an information when a case is called for trial, and, in absence of abuse of discretion, the court's action will not be interfered with on appeal.'

Also see Glenn v. State, 72 Okl.Cr. 165, 114 P.2d 192, 158 A.L.R. 1146; Eveland v. State, 87 Okl.Cr. 161, 195 P.2d 771; Harding v. State, 95 Okl.Cr. 8, 238 P.2d 376.

It is to be observed that the appellate court in construing the statute has heretofore given the trial court great latitude in exercising this discretion. In recent months it has become conspicuously apparent that this discretion is being used loosely and in a manner that renders Title 22, § 303 meaningless and virtually ineffective. The practice of permitting endorsements of material witnesses on the day of trial without a showing of good faith is gradually creating a judicial Frankenstein that has definite tendencies to devour the above statute and the constitutional guarantee whereby defendant is entitled to be confronted with witnesses to appear against him. Being conscious of this ever growing tendency, the Court in a recent decision by your author attempted to caution the trial courts to guard carefully defendant's rights in this regard. In the case of Wood v. State, Okl.Cr., 321 P.2d 391, 394, the Court said:

'We feel that the trial court should exercise this discretion with the utmost precaution and to ascertain within reasonable means that the county attorney is acting in good faith. This rule has not been adapted to permit the county attorney to lay behind the log and spring new witnesses on the day of trial, but to place a liberal construction upon the statutes as to meet the ends of justice. The failure to endorse witnesses before trial must be by virtue of inadvertance and in good faith, and in any event, permitted only where the defendant's rights are not prejudiced by said endorsement.'

The influx of cases to this court involving such a question has generated the belief that the precaution above related has gone unheeded and regarded with inattentiveness. Therefore, the need arises to state the rule with such clarity as to prohibit its reoccurrence.

Title 22 O.S.A. § 303, supra, is without ambiguity, clear and concise. It proclaims in clarion manner that the county attorney is...