Rice v. State

• Decision Date: 26 February 1947
• Docket Number: A-10754.
• Parties: RICE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

177 P.2d 849

83 Okla.Crim. 409

RICE v. STATE.

No. A-10754.

Court of Criminal Appeals of Oklahoma

February 26, 1947

Appeal from District Court, Tulsa County; Leslie Webb, Judge.

Frank Emmett Rice was convicted of robbery with fire arms and his punishment fixed at twenty-five years in the State Penitentiary, and he appeals.

Modified and affirmed.

Syllabus by the Court.

1. It is a well settled and established rule in this State that an application for continuance in a felony case is addressed to the sound discretion of the trial court, and unless an abuse of such discretion clearly appears, the Criminal Court of Appeals will not reverse the judgment and sentence for a refusal to grant a continuance.

2. Defendant in a criminal case is entitled to a reasonable time to prepare for trial. The time allowed for trial after plea is largely discretionary. What is a reasonable time depends on the facts and circumstances in each case. What may be a reasonable time to prepare for trial in one case, might be wholly inadequate in another.

3. Where a defendant is charged with a crime he must use all reasonable diligence, not only to find out what witnesses he will need, but also to secure the attendance of such witnesses at the trial. Courts should not permit a defendant to so conduct himself that he may voluntarily delay the hand of justice.

4. From an examination of the record, it is found that justice demands a reduction of the judgment and sentence entered in this case of twenty-five years in the State Penitentiary, to a term of ten years in the State Penitentiary.

F. E Riddle, of Tulsa, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty Gen., Dixie Gilmer, Co. Atty., and M. S. Simms, Asst. Co. Atty., both of Tulsa, for defendant in error.

BAREFOOT Presiding Judge.

Defendant Frank Emmett Rice was charged in the District Court of Tulsa County with the crime of robbery with fire arms; was tried, convicted and sentenced to serve a term of twenty-five years in the State Penitentiary, and has appealed.

This defendant was previously convicted under this same charge, his case appealed to this court and reversed and remanded. Rice v. State, Okl.Cr., 158 P.2d 912. He was again convicted, and has appealed to this court.

Subsequent to his present conviction, and on June 8, 1946, defendant filed in this court a petition for writ of habeas corpus, seeking his release from the State Penitentiary, where he is now confined. Both cases have been briefed and submitted on oral argument. As the same issue is presented in both cases, and by agreement, they are considered together.

A detailed statement of the facts surrounding this charge is set out in the former opinion of this court. We shall not repeat the facts, but only refer to them when necessary to decide the issue here involved.

The assignments of error here presented are:

'1. Where defendant is charged in a state court with a serious offense, and is unable to employ counsel, a refusal or failure to assign counsel to represent the defendant, whether requested or not, is a violation of the State Constitution, and likewise a violation of the 14th Amendment to the Federal Constitution, making any judgment rendered absolutely void.

'2. Where a defendant is forced by the state court to trial with undue haste, is equivalent to a denial of the use of counsel in his defense, and voids any judgment which may be rendered therein.

'3. That under all the facts and circumstances of this case, the punishment of twenty-five years in the State Penitentiary is excessive.'

With reference to the first and second assignments of error, the record reveals that when the former case was reversed and remanded, defendant remained in the State Penitentiary and in the Tulsa County jail until he was tried the second time, for the reason that he was unable to make bond. While defendant was in the Tulsa County jail, having been returned there from the State Penitentiary, the court on January 17, 1946, entered an order setting his case for trial on the jury docket for January 31, 1946. The record reveals that this order was made at the personal request of defendant, who stated that he desired that his case be set and tried.

On the date the case was called for trial, the following proceedings are noted in the record: 'Case called for trial. Both sides ready. Defendant present in open court with counsel, Walter Henneberry. Walter Henneberry given leave to withdraw as counsel for the defendant. The court appoints public defenders, Harry Dyer and W. C. Peters as counsel for the defendant. Jury called and sworn on voir dire.'

Preceding the trial, the record discloses the following proceedings:

'The Court: All right, proceed.

'Mr. Dyer: Comes now the defendant, Frank Rice, through his counsel, public defender appointed at 1.50 p. m.----

'The Court: No, you were appointed this morning. All the records and information was ordered given you this morning.

'Mr. Dyer: I want to do this exactly right.

'The Court: Let's get it understood here, you are an officer of this court.

'Mr. Dyer: Yes sir.

'The Court: And the court is asking you to try this case, because the defendant himself personally has requested that his case be tried at this time, and there is no burden on you except as an officer of this court, to try this law suit. Do the best you can.

'Mr. Dyer: Well, the only thing I am thinking is that somebody else may come in this case later on----

'The Court: All right.

'Mr. Dyer: Comes now the defendant and moves the court to continue this case until such time as the court may deem fit, to give counsel time to prepare this case.

'The Court: All right. The request is granted to this extent, that this case will be passed until 2.30 to give counsel an opportunity to consult with his client and be ready for trial at that time.

'(2.30 p. m., January 31, 1946, parties present and presiding as before. Defendant present in open court.)

'Whereupon a jury was duly drawn, impaneled and sworn to try the issues in said cause, at 2.30 p. m., after which the following proceedings were had:

'The Court: You may make your opening statement.'

The case then proceeded to trial and a verdict of guilty was returned by the jury at 5.30 p. m. on the same date, and defendant's punishment was assessed at twenty-five years in the State penitentiary.

While it is not disclosed by the record, at the time of the hearing on the petition for habeas corpus, it was agreed by counsel for petitioner and the assistant county attorney appearing for the respondent that at the time the case was called for trial and counsel who had been appointed by the court to defend Rice asked for a continuance of the case to enable them to prepare for trial, the defendant Rice arose in the court room and objected to a continuance, and told the court that he was demanding that he be tried at once, and that he was ready for the trial to proceed.

It is revealed by the record that the prosecuting witnesses, Mr. and Mrs. W. B. Dossey, were not residing in Tulsa County at the time of the second trial, and the testimony given by them at the former trial was read to the jury. The only other witnesses who testified were two city police officers who testified to arresting defendant on the night of the robbery, and one of the officers stated that defendant admitted robbing Mr. and Mrs. Dossey that night.

The record also reveals that defendant was not placed upon the witness stand, nor was any evidence produced in his behalf. The testimony of the doctors and defendant's mother, who testified in his behalf at the former trial as to his mental incapacity was never presented to the jury.

There is attached to the petition for habeas corpus, filed in this court on June 8, 1946, an affidavit of Harry Dyer, one of the public defenders of Tulsa County who was appointed by the court to represent defendant on the date his case was called for trial and after the attorney he had employed was permitted to withdraw from the case. This affidavit is as follows:

'Personally appeared before me the undersigned authority Harry Dyer, who on oath states that on the 31st day of January, 1946 and between the hours of 10.30 and 11 o'clock, the case of State of Oklahoma vs. Frank Rice was called for trial in Division No. 1 of the District Court.

'Affiant states that Walter Henneberry had been employed to represent Frank Rice, and after the case was called for trial the said Walter Henneberry asked leave of the court to withdraw as attorney for Frank Rice; that the court entered an order permitting the said Walter Henneberry to withdraw as such attorney.

'Affiant further states that he was informed some time during the morning that R. R. Linker had been employed to assist the said Walter Henneberry in representing the said Frank Rice in his trial; that it was reported by some one at the court room that Mr. Linker was home ill and was not able to be present in Court and to participate in the trial of Frank Rice; that some inquiry and investigation was made as to the condition of Mr. Linker, and that it was ascertained that he was home confined to his bed on account of illness. That at this time it was getting up toward the noon hour. That affiant and one W. C. Peters, were the two public defenders in Tulsa County; that the court suggested their services were needed to defend Frank Rice, who was charged with robbery with fire arms, wherein the death penalty could be inflicted; that after the court reconvened at 1.30 affiant and the said W. C. Peters appeared in court, having been requested by the trial judge to defend the said Frank Rice; that after the said Walter Henneberry had withdrawn from the case and until

...