Ostendorf v. State
| Decision Date | 30 November 1912 |
| Citation | 128 P. 143,8 Okla.Crim. 360,1912 OK CR 411 |
| Parties | OSTENDORF v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) When an appeal is taken to this court, it is the duty of counsel for appellant in his brief to point out the specific alleged error upon which he relies, and to make the best argument he can to show that the trial court erred in the matter complained of, and that by this error his client was deprived of a substantial right, to his injury.
(b) When a defendant is clearly proven to be guilty, this court will not reverse a conviction upon any technicality or exception which did not affect the substantial rights of the defendant.
(c) This court is not required to prepare written opinions in misdemeanor cases, unless in its judgment this should be done. See Session Laws 1910, c. 13. It is our custom in misdemeanor cases, when we find that no substantial error has been committed in the trial of a cause and that the evidence clearly shows that the appellant is guilty, to affirm a conviction in an oral opinion.
(d) This court has never made any distinction as to circumstantial evidence, or in its application of the principles of law, between misdemeanor and felony cases, or between classes of misdemeanor cases.
(e) Except in cases where time is of the essence of an offense it may be alleged in the information or indictment, and proven upon the trial, at any time prior to the institution of the prosecution, and the state is not bound by the date alleged in the information or indictment.
(f) When time is not of the essence of an offense, the state is not confined in its proof to any specific date; but it may be proven at any time within the statute of limitations, and in such cases a conviction or acquittal will operate as a bar to a subsequent prosecution for this offense at any time prior to the filing of the information or indictment.
(g) Where a crime constitutes a continuing offense, each day during which it is continued constitutes a separate offense and will support a separate prosecution, provided the information or indictment alleges such specific day, and the state confines its proof to the date alleged.
(h) In an information or indictment for maintaining a place at which intoxicating liquors are illegally sold, it is not necessary to go into immaterial details in describing such place. It is enough to state the offense in such language as will enable a person of ordinary understanding to know what is intended to be charged against him. If the indictment or information contained unnecessary descriptive allegations, such averments will constitute surplusage, and a failure to prove those as alleged will not amount to a fatal variance.
(i) Descriptive averments only become material when they involve the merits of the case. The common-law rule with reference to descriptive averments as to immaterial matters is not in force in this state.
(a) Where the record shows that the defendant announced ready for trial, and that after the jury had been impaneled and sworn and jeopardy had attached, the defendant made a motion to strike the names of certain witnesses from the back of the indictment or information, which were there when he announced ready for trial, upon the alleged ground that they were placed there after the indictment or information was filed in court, and without permission of the court, such motion comes too late and should be overruled.
(b) Where a witness has been improperly allowed to testify in a case, and the defendant is surprised thereat, he should promptly withdraw his announcement of ready for trial and file a motion for a continuance, in which he should set up the facts which constitute such surprise, and also state how he would be injured by the reception of such testimony, and why he should have additional time for preparation for trial on account of such testimony, and what evidence, if any, he could produce, if given such time, to rebut the testimony of such witness. A failure to do this constitutes a waiver of objection to the testimony of such witness.
(c) It is the duty of lawyers to do everything that is fair and legal to protect the substantial rights of their clients, and in so doing they should be upheld by the courts; but it is a very low estimate, and one which greatly dishonors the profession of law, to assume that courts are established merely for the convenience of lawyers, and to enable them to make money by the practice of law. Courts are established solely for the purpose of enforcing justice, and thereby protecting society, and they should be conducted with an eye single to the interest of the entire people.
(d) As long as lawyers disregard the oftrepeated requirement of this court that they must try their cases upon their actual merits, and persist in quibbling over mere trifles, which are only shadows, cobwebs, and flyspecks on the law, and present questions to this court which are purely technical, we will continue to condemn such practice, it matters not who the attorneys may be; for we are determined, if possible, to break it up in Oklahoma. Our purpose is to elevate the practice of law in Oklahoma, and make lawyers, and not quibblers, out of those who try such cases. The only questions which this court desires to have submitted to it are those which involve the actual merits of a case. This does not include the presentation of jurisdictional questions, which cannot be waived, and which are always in order, and which may be raised at any time.
(a) Where a defendant is charged with keeping and maintaining a place at which intoxicating liquors are sold or illegally disposed of, it is competent for the state to prove the general reputation of such place in such community touching this matter, and that it was a place where persons who were in the habit of drinking intoxicating liquors congregated during the week and on Sundays.
(b) If prosecuting attorneys would enforce the oft-repeated declarations of this court on this question, it would be an easy and inexpensive matter for them to close every known boot-legging joint in Oklahoma.
(c) Where a defendant is charged with maintaining a place at which intoxicating liquors are illegally disposed of, he cannot complain because evidence is admitted that prior to his occupancy of such place it had the general reputation in that community of being a notorious boot-legging joint, where the testimony also shows that he moved into this place with knowledge of such reputation, and that he took no action to counteract this previous reputation, but availed himself of it as a means of advertising his business and securing customers.
(a) Before this court will reverse a conviction upon the ground that the verdict of the jury is contrary to the evidence, we must find that there is no testimony in the record from which the jury could rationally conclude that the appellant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict. This has always been the rule of this court.
(b) For circumstantial evidence which fully sustains a verdict of guilty, where the defendant was charged with maintaining a place where intoxicating liquors were illegally disposed of see opinion.
(a) It is a settled rule of law that leading questions should not be asked a witness by the party placing him upon the stand. It is equally well settled that the trial judge should carefully abstain from expressing any opinion as to the truthfulness of the witness, and from in any manner reflecting upon his testimony.
(b) Where a witness proves hostile to the party placing him upon the stand and friendly to his adversary, the trial court may in its discretion relax the general rule of law and permit leading questions to be asked such witness.
(c) Where the trial court permits leading questions to be asked a hostile witness, and such witness persists in attempting to evade answering such questions, it is the duty of the trial court to reprimand such witness, and, if necessary, to punish him for contempt of court.
(d) Where a witness is sworn to testify in a case, and he willfully suppresses the truth, such conduct is just as criminal in morals and in law as the affirmative statement of a falsehood, and renders such witness liable to prosecution for perjury. County attorneys of Oklahoma are instructed to prosecute all such persons vigorously, without regard to the character of the case in which the perjury is committed.
For remarks made by the prosecuting attorney in his closing speech, which were justified and sustained by the record, see opinion.
Instructions must always be considered in connection with the evidence in the case, and where they contain no fundamental error or any misstatement of law which in the light of the evidence was calculated to mislead the jury to the injury of the defendant, and where the evidence clearly shows that the defendant is guilty, a conviction will not be reversed because the charge of the court may not be technically correct.
Appeal from Garfield County Court; Winfield Scott, Judge.
John Ostendorf was convicted of violating the liquor law, and he appeals. Affirmed.
F. E. Chappell, of Enid, for appellant.
C. J. Davenport, Asst. Atty. Gen., for the State.
Counsel for appellant has displayed great ingenuity and industry in the presentation of his case, and has evidently spent a great deal of time and expended much labor in preparing his brief. It appears that upon the trial of this case counsel relied alone upon a technical defense, without regard to the guilt or innocence of his client. He interposed objections to everything that was done in the trial court. He demurred to the...
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