Patswald v. U.S.

• Decision Date: 12 February 1897
• Citation: 49 P. 57,5 Okla. 351,1897 OK 33
• Parties: PATSWALD v. UNITED STATES.
• Court: Oklahoma Supreme Court

49 P. 57

5 Okla. 351, 1897 OK 33

PATSWALD v. UNITED STATES.

Supreme Court of Oklahoma

February 12, 1897

Syllabus by the Court.

1. A demurrer to an indictment goes only to the sufficiency thereof and of the averments therein, and not to questions affecting the regularity or legality of the organization of the grand jury that returns it.

2. By section 5110, St. 1893, as amended by Sess. Laws 1895, p 196, after an indictment has been returned, questions affecting the regularity of the drawing, summoning, or impaneling of the grand jury must be raised and presented by a motion to set aside the indictment; but by section 5111 St. 1893, as amended by Sess. Laws 1895, p. 197, such questions may be raised and presented upon a motion for new trial, where it is shown that the facts upon which objections are based were not known to the defendant or his counsel until after the jury was sworn for the trial of the cause.

3. By section 5138, St. 1893, as amended by Sess. Laws 1895, p 187, where the offense charged in the indictment is punishable with confinement in and for a term less than life in the territorial prison, and an application is made for a change of venue, supported by the affidavit of the accused and corroborated by five disinterested persons, that a fair and impartial trial cannot be had in the county where the indictment was returned, the awarding or refusing of such change of venue is within the discretion of the court, and the action of the court in awarding or refusing such change will not be reversed unless where an abuse of such discretion is shown by the record.

4. Where facts dehors the proceedings in the trial of a criminal cause, and which may affect the regularity of such proceedings, occur, such facts must be presented to the court by motion, and must be supported by competent evidence, and the evidence as well as the motion must be incorporated in the record, or the action of the trial court in relation thereto cannot be reviewed on appeal.

Error from district court, Oklahoma county.

Albert W. Patswald was convicted of perjury, and brings error. Affirmed.

John H. Pitzer and T. G. Chambers (Dille & Burford with them on briefs), for plaintiff in error.

C. R. Brooks, U.S. Atty., and Thos. F. McMechan, Asst. U.S. Atty.

TARSNEY J.

The defendant, Albert W. Patswald, was indicted, tried, and convicted in the district court for Oklahoma county, sitting with the powers and jurisdiction of a United States district and circuit court, for the crime of perjury, and sentenced to the penitentiary for a term of three years, and to pay a fine of $1 and the costs of prosecution, taxed at $2,416.15. From this judgment he appeals, assigning as error the action of the trial court in overruling his demurrer to the indictment, in overruling a motion for change of venue, in overruling a motion to discharge the jury after they had been sworn and pending the trial, and in overruling his motions for a new trial and in arrest of judgment.

The demurrer to the indictment was properly overruled. It set forth at length, and with sufficient clearness and certainty, all the matters and facts necessary to be alleged to fully meet the requirements of the statute, and with the necessary averments to charge the crime of perjury. It alleged with great clearness and with proper averments as to date the pendency of a certain contest and cause in the United States land office at Oklahoma City; that the register and receiver of said land office had jurisdiction to hear and determine said cause; that in the trial of said cause it became and was material to establish and prove certain facts; that said Patswald was a party to said cause; that he was duly sworn as a witness to testify the truth in said cause; that the oath was administered by one D. D. Leach, who was register of said land office, before whom said cause was being tried; that said Leach was an officer then and there being authorized to administer said oath. The indictment further sets forth with clearness the testimony given by said witness in said cause, states clearly the materiality to the issue, and by proper averments negatives the truth of such testimony, and alleges its falsity. The indictment was not subject to objection as being indefinite, uncertain, or misleading, nor as charging several offenses. The third ground of the demurrer, "that the organization of the grand jury returning the indictment was irregular and void," cannot be raised by or considered upon a demurrer. The demurrer goes to the indictment, and the sufficiency of its averments, and not to the organization of the grand jury that presented it. Such question must first be raised by a motion to set aside the indictment. Section 5110, St. 1893, as amended by Sess. Laws 1895, p. 196. If a motion to set aside the indictment be not made, the defendant may present objections to the drawing or impaneling of the grand jury, and such objections may be shown as grounds for a new trial, and upon a motion for a new trial when a showing is made that those facts were not known to the defendant or his counsel until after the jury was sworn for the trial of the cause. Section 5111, St. 1893, as amended by Sess. Laws 1895, p. 197. There is nothing in this record to show how the grand jury was drawn and impaneled, and no motion to set aside the indictment was made, and nothing relating to the organization of the grand jury was made a ground in the motion for a new trial. The indictment must, therefore, be held to be good.

2. The objection to the action of the court in overruling a motion for change of venue in the cause cannot be sustained. The application for a change of venue, based upon the grounds that the defendant could not have a fair and impartial trial in the county where the cause was pending because of the bias and prejudice of the people of said county against him, was supported by his own affidavit and the affidavits of five others, residents of said county, who upon belief swore that defendant could not have a fair trial in said county because of the bias and the prejudice of the people thereof against said defendant and his defense in said action. Affidavits were filed in opposition to the application for a change of venue, made by 26 citizens of said county, who swore that they knew of no reason why said defendant could not have and obtain a fair and impartial trial in said county, and who knew of no prejudice against him on the part of the people of said county. Section 5138, St. 1893, as amended by Sess. Laws 1895, p. 197, provides: "Second. If the offense charged in the indictment, be punishable with confinement in and for a term less than life, in the territorial prison, and it be shown to the court, by affidavit of the accused corroborated by five disinterested persons, that a fair and impartial trial cannot be had in such county, the court may, in its discretion, award or refuse the same; the order shall be reviewable on appeal." This statute leaves the granting of changes of venue in the cases embraced in it to the discretion of the court, and the court would have the right in the exercise of that discretion, to refuse a change of venue where no counter affidavits had been filed, and where no...