Payne v. State

• Decision Date: 13 October 1954
• Docket Number: No. A-12032,A-12032
• Citation: 276 P.2d 784
• Parties: Guy PAYNE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 784

276 P.2d 784

Guy PAYNE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12032.

Criminal Court of Appeals of Oklahoma.

Oct. 13, 1954.

Rehearing Denied Dec. 8, 1954.

Syllabus by the Court.

1. Where an oral motion for continuance is asked on account of an absent witness, whose name is not disclosed, whose residence is apparently unknown, and there is no showing of reasonable probability that such witness would be located and available at the time or term to which a continuance might have been granted, there is no abuse of discretion by the trial court in overruling the motion for continuance.

2. The trial judge did not err in refusing to certify his disqualification.

3. Under the provisions of Title 22, § 404, O.S.1951, an indictment or information must charge but one offense, that is, but one transaction.

4. An indictment or information which charges two or more separate offenses, not based upon the same transaction, is bad for duplicity, and should be quashed.

5. Title 22, § 404, O.S.1951, provides: 'The indictment or information must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, * * *.'

6. An indictment or information is not duplicitous when it charges only one offense or transaction but alleges different acts which were committed by the defendant in committing the offense charged.

7. Where an indictment or information charges first degree manslaughter and second degree manslaughter without setting them forth in separate counts as provided in Title 22, § 404, O.S.1951, second degree manslaughter being an included offense, and the defendant is found guilty, under proper instruction of second degree manslaughter, such failure to separately state and number is harmless error.

8. The provisions of Title 22, § 404, O.S.1951, as to separate counts should be followed in every case involving only one transaction where the matter charged may constitute different violations of law under separate sections of the statute.

9. Questions to jurors on voir dire examination must be propounded in good faith, and counsel should not be allowed to make any improper statements calculated to prejudice or intimidate the jury.

10. The form of questions put to jurors on voir dire examination is a matter within the discretion of the trial court, and his ruling will not be interfered with where no prejudice is shown.

11. The purpose of the examination of a juror on his voir dire is to ascertain if there are grounds for challenge for either actual or implied bias; also, to enable the defendant to exercise intelligently his peremptory challenges. A liberal latitude should be given the defendant in the examination of the jurors on their voir dire.

12. Only those allegations in an indictment or information which involve the guilt of a defendant are to be proved beyond a reasonable doubt. The venue of an offense does not come within this class, but there must be some proof of venue.

13. Venue may be proved by circumstantial evidence.

14. Where there is circumstantial evidence on venue to establish the crime was committed in a certain county, in the absence of proof to the contrary such evidence is sufficient.

15. In the trial of a felony case less than a capital one it is within the trial court's discretion to permit the endorsement of an additional witness, where there is no showing of surprise, no objection to proceeding with the trial, no request for time in which to prepare a motion showing what evidence he would offer to rebut the witness' testimony.

16. Where a witness' name is erroneously endorsed on the information as Lamon Limboro but whose true name was Lamon Limbird and whose correct address was indicated thereon as the Muskogee Police Department, in the absence of any showing that an effort was made to locate said witness before trial and that the defendant was prejudiced by reason of said misspelling, such erroneous endorsement will not constitute grounds for reversal.

17. Where in the trial of a criminal case the evidence of guilt is clear, convincing and uncontradicted, and it appears a conviction would have resulted even if no argument had been made, and where the trial judge sustained objections and properly admonished the jury, inflammatory remarks of the prosecutor may not constitute grounds for reversal.

Harold R. Shoemake, Garrett & Garrett, Muskogee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

The plaintiff in error Guy Payne, defendant below, was charged by information in the district court of Muskogee county, Oklahoma, with the crime of first degree manslaughter, allegedly committed in said county and state on April 11, 1953. More specifically it was alleged that while operating a motor vehicle, to wit, 'a 1951 Mercury Fordor Sedan on and along Gibson Street in the City of Muskogee, Oklahoma, while under the influence of intoxicating liquor, and did then and there drive said automobile at a speed greater than was reasonable and proper, having due regard for the traffic, surface and width of the highway and at a speed greater than would permit him to bring said automobile to a stop upon said Street within the assured clear distance ahead; and while so unlawfully driving said automobile as aforesaid, he, the said Guy Payne, had riding with him in said automobile certain persons, to wit: Red Rowe, Milton Pruitt and Allene Rowe Tucker, and the said Guy Payne did then and there wilfully, wrongfully, negligently and feloniously drive and propel said automobile into and over the curbing along said Gibson Street in an unlawful, negligent, culpable and reckless manner, thereby causing said automobile to be wrecked and damaged and said wreck and a concussion of said automobile caused the person of said Allene Rowe Tucker to be thrown from the automobile and thereby did mangle, bruise and break the body of said Allene Rowe Tucker, thereby inflicting wounds upon her, the said Allene Rowe Tucker, of which wound and injuries she, the said Allene Rowe Tucker, then and there died; * * *.' The foregoing information was attacked by demurrer for duplicity, wherein it was alleged said information was duplicitous in that it alleged first degree manslaughter, Title 21, § 711, O.S.1951, predicated upon two separate and distinct misdemeanors, to wit, (1) driving while under the influence of intoxicating liquor, and (2) reckless driving; and further that it charged manslaughter in the second degree by reason of culpable negligence. The demurrer was overruled. The overruling of the demurrer is one of the assignments of error herein.

Thereafter there were delays of the trial and requests for continuances. Among the requests for a continuance is an oral motion on the ground of an unidentified witness who was supposed to have been in the Flamingo Club when the defendant was there and who followed in her car, the route of the defendant, and who, if available, would testify that the defendant was not intoxicated and driving in a reckless manner and at an excessive rate of speed. The trial court did not abuse its discretion in overruling the said motion for the reason it could only conclude the existence of a witness such as claimed by the defendant was speculative, her name being unknown and her whereabouts as misty. The motion for new trial does not remove the cloak of speculation as to her identity, her whereabouts or her availability. There was nothing from which the trial court could determine any probability of her presence being secured if the cause were to be continued to another term. Hence the motion did not comply with the rules established by this court pertaining to continuances on the ground of the absence of a material witness. Jackson v. State, 72 Okl.Cr. 226, 114 P.2d 953; Lane v. State, 65 Okl.Cr. 192, 84 P.2d 807; Stacey v. State, 79 Okl.Cr. 417, 155 P.2d 736. An application of this kind being addressed to the sound discretion of the trial court, it is apparent there was no abuse of discretion in overruling this motion for continuance. Stacey v. State, supra; Gillaspy v. State, Okl.Cr., 255 P.2d 302.

Thereafter further attempts at delay were had by way of attempts to disqualify the trial judge on the ground of prejudice. No adequate grounds for disqualification are shown. We are of the opinion that the record discloses a fair and impartial trial on the merits of the case. This fact is an important factor in determining the contention that the trial judge should have disqualified. The first date set for the trial of this case was delayed because one of defendant's counsel was a member of the legislature and the trial was postponed until after the adjournment of the legislature.

Probably the most serious point urged by the defendant is that the trial court erred in not sustaining his demurrer to the information on the ground of duplicity, and in overruling his motion for new trial, that the information alleged first degree manslaughter as well as second degree manslaughter. He urges, Title 21, § 711, O.S.1951, provides:

'Homicide is manslaughter in the first degree in the following cases:

'1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.'

Title 21, § 716, O.S.1951, provides:

'Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.'

The defendant argues that the first part of the information charged first degree manslaughter by reason...