Queen v. State
| Decision Date | 18 November 1922 |
| Docket Number | A-3752. |
| Parties | QUEEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied March 12, 1923.
Syllabus by the Court.
It is no abuse of discretion to overrule an application for continuance on the ground of absence of witnesses who are out of the state, where it is not shown that any one of them would or could be procured within any reasonable time, and where no diligence is shown to procure their attendance or to take their depositions, and where their alleged testimony considered in connection with other facts proven on the trial, appears to be probably untrue.
Every defendant has a right to have a reasonable time to make his defense, but neither a defendant nor his counsel will be justified in waiting until the day of the trial to procure witnesses.
Where counsel for defendant had been busy in other cases, and where one of his counsel was sick, but able to participate in the greater portion of the trial, it was within the discretion of the court to grant or refuse a continuance.
An application for a continuance, predicated upon hearsay statements of third persons or mere rumor, is insufficient.
The rule is well established in this state that, where a defendant takes the stand in his own behalf, he becomes a witness on cross-examination subject to all the rules applying to other witnesses.
A witness may be asked, for the purpose of affecting his credibility, if he has been convicted of a felony, or of any crime which involves a want of moral character; a conviction of violating the prohibitory law involves moral turpitude.
The limiting of cross-examination of a witness concerning matters purely collateral and not germane to the issue, for the purpose of impeaching the witness, held not error.
As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked and, on objection thereto, an offer must be made at the time showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.
Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
Emerson W. Queen was convicted of grand larceny, and he appeals. Affirmed.
A. J. Stevens, of Alva, and W. A. Briggs, of Oklahoma City, for plaintiff in error.
George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the state.
Emerson W. Queen, plaintiff in error, herein referred to as the defendant, was on the 15th day of October, 1919, convicted of the larceny of an automobile, and the court, on October 18, 1919, fixed his punishment at confinement in the state penitentiary for a term of five years.
The proof in this case shows that Grant Van Bibber, the prosecuting witness, lived at Alva, Okl., where he was engaged in the real estate business; that he was the owner of a green Hudson Speedster automobile, on which there was one Royal Cord tire and three Firestone tires, with treads of three different designs; that this car, which was nearly new, was stolen from the owner's garage at Alva on the night of June 19, 1919; that one of the fenders had been broken and repaired with a line of rivets; and that the rear curtain of the top had been altered by placing therein a large plate glass. Immediately upon discovery of the theft, the morning of June 20th, witness notified the sheriff of Woods county, and with the sheriff tracked and followed the car for some distance leading toward Wichita, Kan. The sheriff also sent a description of the stolen car to police officers in adjacent towns in Kansas and Oklahoma.
The defendant, Emerson W. Queen, and his father, Dr. Queen, lived in Wichita, Kan. Reports came to the sheriff's office that the stolen car had been seen and identified in Hutchinson, Kan., in the possession of the defendant. A deputy sheriff went to Wichita and inspected the premises of Dr. Queen, where there was a barn used as a kind of garage, in which there were two large acetylene or oxygen tanks, some mud chains, and possibly other automobile equipment. Tracks corresponding to the tread of the tires on the stolen automobile were found on the floor and approaches of this barn. Dr. Queen at that time was said to own a Chandler car, but no car of any kind was in this garage at the time the inspection was made. The deputy sheriff then interviewed Dr. Queen, and informed him that his son and one Jay Elliott were suspected of having stolen the missing car, and, according to the testimony of this deputy sheriff, Dr. Queen remarked to the officer that these boys had been causing him lots of trouble, and promised to procure the delivery of the car to the deputy sheriff that evening, at a designated hour and place on the streets of Wichita. Dr. Queen failed to make good his promise, giving as a reason that he was unable to find his son and Elliott, but again promising that he would do so presently and procure the car for the officer. In one of these conversations he protested that he had had nothing to do with the taking of the car. After making three promises of this character, he finally reported that he had located his son, but that he claimed to have had nothing to do with the car, and knew nothing of its whereabouts. This was on the Saturday following the theft of the car.
It was the theory of the state that Dr. Queen made these promises to the deputy sheriff in bad faith, for the purpose of detaining the officer, and in the meantime aiding his son and Jay Elliott to escape. The defendant did escape, and became a fugitive from justice under the assumed name of Ed. Sherman. Some months later he was apprehended in Memphis, Tenn., and brought back to Woods county, Okl. Two or three days after defendant's return to Oklahoma the stolen car was found, partially concealed between two straw stacks near Kingman, Kan. The engine number had been changed, apparently by the use of an acetylene torch; the plate glass in the rear curtain had been removed; the tread on the tires was much worn, indicating that the car had been run several thousand miles.
Pete Grandon, a witness for the state, was in the automobile and garage business at Hutchinson, Kan., and incidentally was authorized to help the sheriff at that place to locate and recover stolen cars. He had a description of this stolen Hudson, and on the first or second day following the theft this witness saw defendant driving a green Hudson roadster in Hutchinson, noticing at the time the fender, which had been repaired with rivets. As the defendant was driving north across Main street, at about 12 or 15 miles an hour, the witness was stopped by a jam of cars, and before he could get out of this traffic jam defendant was out of his sight, and he was unable to follow him. Witness notified the sheriff, who in turn notified the officers of Woods county, and the deputy was sent to search for the car as above stated.
It was further shown in evidence that at the time this car was stolen it had a defective or weak battery, which caused the lights to flicker, and that two persons residing along the road leading from Alva to Wichita saw, in the early morning of the 20th of June, a fast-moving roadster having lights of this description.
Defendant's defense was an alibi. He claimed that at the time the car was stolen he was with two men named Buford and Metz on a fishing trip on Rock creek, about 40 miles southeast of Wichita and about an equal distance from Alva; that the fishing party was at this point from the morning of the 19th until the evening of the 24th of June. Defendant claims that he returned to Wichita on Sunday, June 22d, and learned from his father that he was accused of having taken this car; that he then returned to Rock creek, remaining there until Tuesday evening, when he again returned to Wichita, and immediately departed for the Kansas harvest fields; that his health was poor, and he did little work; that he assumed the name of Ed. Sherman. After remaining in the harvest camps for some time, he went to Memphis, where he was also known as Ed. Sherman. At the time of his arrest in Memphis he had two automobiles, one of which he claimed was his and the other his father's; he also had on his person $3,800 in currency at the time of his arrest.
On rebuttal the officer who brought the defendant back from Memphis testified that the defendant told him, on the way home, that he was in Omaha at the time the car was stolen. There is other unimportant testimony in the record tending to throw some light upon the transactions above related, which need not be here recited.
The first assignment of error urged by defendant is that the court abused his discretion in overruling the motion for a continuance. It was alleged in the application for a continuance that one Clyde Smith, of Hutchinson, Kan., was a material witness for the defendant, setting out somewhat in detail the testimony expected to be given by this witness. Without going into the question of the relevancy of the testimony sought through this witness, there was no showing that the witness could be procured later or where he was except that he was referred to as Clyde Smith of Hutchinson, Kansas. No showing was made that he was in Hutchinson at that time, and no showing or declaration was made that his evidence could probably be obtained. It appears further that the defendant did not learn of the facts expected to be proved by this witness until Saturday, October 11th, three days before the trial. During a part of the intervening time the defendant's attorneys had been engaged in another trial. The court, in the absence of the jury, interrogated the defendant, and found that the...
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