Rea v. State

• Decision Date: 07 December 1909
• Parties: REA v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 386

3 Okla.Crim. 281, 1909 OK CR 161

REA v. STATE.

Court of Criminal Appeals of Oklahoma

December 7, 1909

Syllabus by the Court.

(a) The statute of limitations does not negative a single element of the crime with which a defendant may be charged. It does not put in issue the guilt of the defendant. It therefore is not necessary for the prosecution to prove beyond a reasonable doubt that the offense committed is not barred by the statute of limitations.

(b) A trial court and jury can take judicial notice of the fact that statehood for Oklahoma began on the 16th day of November, 1907, and that prior to that date there was no such county as Pontotoc county in Oklahoma, and that an offense committed in said county was committed after the incoming of statehood.

(a) When a defendant in a misdemeanor case is present in court and is represented by counsel, who are also present, and the jury are orally instructed, and no objection is made or exceptions are reserved, at the time, to such instructions and the matter is not brought to the attention of the trial court in the motion for a new trial, it is too late to raise this question for the first time in the appellate court.

(b) Only those questions raised and preserved in the motion for a new trial will be considered on appeal, unless they are of a fundamental character. When the justice of the case requires it, fundamental errors will be considered, whether assigned as errors or not.

(c) "Fundamental errors" are those which go to the foundation of the case, or which take from the defendant a right which was essential to his defense.

(d) It is best in all cases for the court to give written instructions to the jury, and when they are waived it is best that this fact should appear in the record.

(a) When there is any evidence in the record from which the jury could logically draw the conclusion of the defendant's guilt, and the record shows that the defendant has been properly indicted and fairly tried, this court will affirm the judgment of the lower court.

Appeal from Pontotoc County Court; Joel Terrell, Judge.

W. C Rea was convicted of unlawfully selling intoxicating liquor and he appeals. Affirmed.

Bullock & Kerr and Galbraith & McKeown, for appellant.

FURMAN P.J. (after stating the facts as above).

First. The first contention of counsel for the defendant is as follows: "Because the state did not prove the alleged sale to have been made within the period of the statute of limitations." This contention presents the defense of the statute of limitations. This question has been passed upon by the Supreme Court of Oklahoma Territory in the case of Coleman v. Territory, 5 Okl. 201, 47 P. 1079. After a lengthy and able opinion by Judge Tarsney, in which he cites and discusses all of the leading American cases and text-writers on this subject, he says: "The defense of the statute of limitations traverses no element of the crime charged. It is essentially an extrinsic defense. It does not put in issue either of the essential elements constituting his guilt of the offense charged. He simply asserts that by virtue of an extrinsic condition, not relating to the commission of the offense, but recognizing its commission, namely, a statute of repose or limitation, he is not now subject to punishment for the crime, which he admits having committed. We can see no reason why the rule relating to the defense of license, authorization by the state, autrefois acquit, autrefois convict, pardon, provocation, or compulsion should not be the rule as to his defense. In fact, we think the rule applies with more reason and justice to this defense than to the others. It is not inequitable, oppressive, or substantially prejudicial to the safeguards which should surround the defense of one accused of crime, that if his defense does not deny the commission of the acts charged, or traverse any of the material elements of the offense, but is based upon facts wholly extrinsic and peculiarly within his knowledge, and more readily susceptible of proof by him than by the prosecution, that he should be held to establish such defense to the reasonable satisfaction of the jury."

But even if the burden of proof was on the state to establish the commission of the offense within the statute of limitations beyond a reasonable doubt, we think that it was done in this case. The evidence is as follows: "Q. Your name is Wes Hattox? A. Yes, sir. Q. Where do you live? A. At Fitzhugh. Q. You know Will Rea? A. Yes, sir. Q. What business is he in? A. Drug business. Q. Where? A. Roff. Q. Were you in his drug store in...