Slater v. U.S.

• Decision Date: 16 October 1908
• Citation: 98 P. 110,1 Okla.Crim. 227,1 Okla.Crim. 275,1908 OK CR 26
• Parties: SLATER v. UNITED STATES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

98 P. 110

1 Okla.Crim. 227, 1 Okla.Crim. 275, 1908 OK CR 26

SLATER v. UNITED STATES.

Court of Criminal Appeals of Oklahoma

October 16, 1908

Syllabus by the Court.

When an assignment of error, that the evidence does not support the verdict, is overruled, and the cause remanded upon errors of law, the court will not discuss the evidence.

[Ed Note.-For other cases, see Criminal Law, Dec. Dig. § 1181 ^[*]]

In a motion for a new trial, upon the ground of newly discovered evidence, the affidavit of the defendant should set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, and the diligence used must be stated in the affidavit. The affidavit of the witness should, if possible, accompany the motion.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2396-2406; Dec. Dig. § 958. ^[*]]

For the purpose of affecting the credibility of a witness he may be asked, on cross-examination, if he has been convicted of a felony or of any crime which involves a want of moral character; but it is improper to ask such witness if he has been indicted, arrested, or imprisoned, before conviction for any offense whatever.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350. ^[*]]

It is error to instruct a jury that the possession of property recently stolen raises a presumption against the party having such possession, which requires an explanation from him; this being a charge upon the weight of the evidence.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1731; Dec. Dig. § 763. ^[*]]

It is improper for a trial judge, either directly or indirectly, to let the jury know, or even to intimate to them, what his opinion is as to the credibility of any witness testifying in a case before him.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1772-1785; Dec. Dig. § 757. ^[*]]

Appeal from the United States Court for the Central District of the Indian Territory; T. C. Humphrey, Trial Judge.

Thomas Slater was convicted, in the United States Court for the Central District of the Indian Territory, of larceny. An appeal was prosecuted to the United States Court of Appeals for the Indian Territory and transferred to the Supreme Court of Oklahoma under the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267), and thereafter to the Criminal Court of Appeals. Reversed and remanded.

J. G. Ralls, for appellant.

T. B. Latham and W. C. Reeves, Asst. Atty. Gen., for the United States.

FURMAN P.J.

Appellant was convicted on the 28th day of January, 1905, in the United States Court for the Central District of the Indian Territory, upon an indictment charging him with the larceny of a horse, and his punishment was assessed at imprisonment in the United States penitentiary for the period of six years. An appeal was prosecuted to the United States Court of Appeals for the Indian Territory, and was pending in that court when the state of Oklahoma was admitted into the Union. Under the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution of Oklahoma, this cause was then transferred to the Supreme Court of Oklahoma. Upon the creation of this court, the Supreme Court, as directed by statute, transferred this case to the Criminal Court of Appeals. The evidence for the prosecution is circumstantial.

First. Appellant assigns, as error, and complains of the action of the trial court in not sustaining his motion for a new trial, upon the ground that the testimony does not support the verdict against him. As this case will be remanded for a new trial on account of errors of law hereinafter pointed out, we do not care to discuss the testimony further than to state that we approve the action of the trial court upon this question.

Second. Appellant assigns, as error, and complains of the action of the trial court in not sustaining his motion for a new trial upon the ground of newly discovered evidence. Touching this matter, the motion for a new trial is as follows: "Since the trial of this action, the defendant has discovered material evidence to his defense that he did not know of prior to the trial. That since said trial he has discovered that one Sim Jamison and J. J. Sparks, who lives near Oconee, Choctaw Nation, Indian Territory, and who is over 60 years of age, will testify that about 2 o'clock in the night that the horse was stolen a man came to Sparks' and Jamison's riding the horse, which was a white horse or an iron gray horse that would be called white, and not branded, and stated to said Jamison and Sparks that he was lost, and asked to stay with them the balance of the night. Jamison let him stay the balance of the night, and that the man left Jamison's camp shortly after daylight and started in the direction of Oconee. That the horse the man was riding was the horse that had been stolen from Birchfield, and that the defendant was not the man that had the horse and was not with him. That the man that was riding the horse was a stranger to Sparks and Jamison, but that Sparks and Jamison will testify that if they would see the man again they would know him. Defendant says that this is material and new evidence, and that he believes the same to be true, and that he is not guilty of the crime." The record does not contain any affidavit from the proposed witness, Sim Jamison. It contains an affidavit from J. J. Sparks, which is substantially the same as that of the appellant.

In Runnels v. State, 28 Ark. 121, it is said: "Applications for new trials on the ground of newly discovered evidence are to be received with caution, and this in proportion to the magnitude of the offense. The application should be corroborated by the affidavits of other persons than the accused, and, if possible, those of the newly discovered witnesses themselves, and it is not sufficient for the applicant to state that he did not know of the existence of the testimony in time to have brought it forward on the trial; but it must appear that he could not have ascertained it by reasonable diligence. Pleasant v. The State, 13 Ark. 362; Graham & Waterman, New Trials, vol. 1, pp. 462, 485, and cases cited." In Twine, Saddler & Sawner v. Alice Kilgore, 3 Okl. 643, 39 P. 389, Judge Burford said: "An application for a new trial on the ground of newly discovered evidence must show that the applicant used diligence to procure and present the evidence upon the trial, and the facts showing due diligence must be shown, so that the court may determine whether the diligence used was sufficient. Allen v. Bond, 112 Ind. 523, 14 N.E. 492; Hamm v. Romine, 98 Ind. 77. There is no showing in the case at bar that the defendants used any diligence whatever to procure the testimony upon which their motion for a new trial is based, nor is there any allegation to the effect that they had no knowledge of such evidence prior to the trial of said cause." In Flersheim Mercantile Co. v. Gillespie, 14 Okl. 143, 77 P. 183, Judge Irwin said: "The next assignment of error is that the court erred in refusing to grant to plaintiff a new trial on the ground of newly discovered evidence. It is a well-recognized rule of this court that a new trial on the ground of newly discovered evidence will not be sustained, unless it affirmatively appears from the affidavit in support of such motion that diligence has been used to discover such testimony, and that the same could not have been discovered at a time prior to the trial by the use of reasonable diligence. In the affidavit in support of the motion for a new trial in this case, the general statement is made that the plaintiff and its attorneys have used every possible effort to ascertain the names of these witnesses, and the facts whereof they would testify; but it does not appear by the affidavit what these efforts were, or in what manner or how they investigated or made inquiry to ascertain the facts." The above cases present our view of the law upon this question clearly and fully. In this case the affidavit is silent upon the question of diligence. It is therefore fatally defective, and the trial court did not err in refusing to grant a new trial upon this ground. An affidavit for a new trial upon the ground of newly discovered evidence must set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, which fact should appear in the affidavit. If possible, it should be accompanied by the affidavit of the newly discovered witnesses.

Third. Appellant seeks to secure a reversal of the judgment in this case upon the ground that one of his witnesses, Tom Guinn, on cross-examination, was asked by the prosecution: "Have you ever been arrested?" To which the witness replied that he had. The prosecution then asked the witness what he had been arrested for. The witness replied that he had been arrested for stealing bois d'arc posts, and also for disposing of mortgaged property. These questions were asked and answered over the objections and exceptions of counsel for appellant. Previous to being asked the above questions, the witness had stated that he had never been convicted of any crime.

Prior to statehood, the citizens of the United States living in what then was Indian Territory had no form of government of their own outside of incorporated towns and cities. They were governed exclusively by the United States courts, under laws put in force in that country by acts of Congress. Chapter 46 of Mansfield's Digest of the Laws of Arkansas, entitled "Criminal Procedure," was put in force in Indian Territory by acts of Congress, both by Act May 2, 1890, c 182, § 33, 26 Stat. 96...