Sledge v. State

Decision Date12 June 1928
Docket NumberA-5966.
Citation269 P. 385,40 Okla.Crim. 421
PartiesSLEDGE v. STATE
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Rehearing Denied Aug. 22, 1928.

Syllabus by the Court.

The object in construing statutes is to ascertain the legislative intent. If the language be clear, it is conclusive. There can be no construction where there is nothing to construe.

When a change of venue is granted on the ground of local prejudice and the cause is transferred to the district court of another county, our Code (Comp. St. 1921, § 2638), specifically provides: "The court to which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court."

The Criminal Code provides that, on the change of venue being granted, "the cause must be docketed and stand for trial at the first term of court after the cause has been transferred." Comp. St. 1921, § 2634.

Held, that the words "first term of court" mean the immediate term when the cause was transferred otherwise stated, the words "first term" mean the present term.

Motion for a continuance, based on the absence of a witness who has not been served with process, and who has left the jurisdiction of the court, should be overruled.

Affidavit for continuance should state that witness is not absent by the procurement or consent of the defendant.

In a criminal prosecution, evidence which is relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of a crime other than the one charged in the information.

Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestæ.

In a criminal trial, it is permissible to exhibit to the jury and to formally introduce in evidence physical objects which form a part of or serve to illustrate the transaction or occurrence upon which the accusation is based.

On a trial for rape, it was not error to exhibit to the jury the blood-stained undergarment worn by the prosecutrix at the time the alleged crime was committed.

Where there is testimony of a conspiracy to commit a crime, and of its subsequent commission, the state may, in support and corroboration thereof, show any act, declaration, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy or reasonably indicates preparation or motive to commit the crime.

Evidence considered, and held sufficient to support conviction of rape in the first degree.

Judgment and sentence of 35 years' imprisonment held excessive, and reduced to 25 years.

Appeal from District Court, Jefferson County; M. W. Pugh, Judge.

Harry Sledge was convicted of rape in the first degree, and he appeals. Modified and affirmed.

See, also, 234 P. 1117.

Womack, Brown & Cund, of Duncan, for plaintiff in error.

The Attorney General and Leverett Edwards, Asst. Atty. Gen., for the State.

DOYLE P.J.

Appellant, Harry Sledge, was convicted in the district court of Jefferson county, on a change of venue from Stephens county, of the crime of rape in the first degree, and his punishment assessed at imprisonment in the state penitentiary for a term of 35 years. Upon this appeal from the judgment rendered in pursuance of the verdict, various errors are assigned, among which is the overruling of appellant's motion to have the case set for trial at the September, 1925, term of court.

It appears from the record that the preliminary examination was held March 13, 1925; that on March 23 an information was filed in the district court of Stephens county jointly charging appellant, Harry Sledge, together with Bill Brown and Ted Elliott, with the crime of rape in the first degree, alleged to have been committed on the person of one Ethel Sreywas February 12, 1925.

A motion for change of venue on the ground of prejudice was made and granted, and on the 10th day of April, 1925, the papers in said cause were transmitted by the court clerk of Stephens county to the court clerk of Jefferson county. On May 4th, appellant asked for and was granted a severance. On the granting of the severance, appellant made a motion to have the case set for trial at the September term of the court, beginning September 7, 1925. On May 15th, the motion was by the court overruled, and the case set for trial June 15, 1925.

The refusal to continue the cause on application of appellant and set it for trial at the September term on the ground that under the statute the court had no jurisdiction to try the cause at the regular March, 1925, term of the district court of Jefferson county is assigned as error.

Our Code (section 2634, C. O. S. 1921) provides that, on a change of venue-

"the order of removal from the county must be entered upon the minutes and the clerk must thereupon make out, and within ten days transmit to the county to which the action is removed, a certified copy of the order of removal, and the record, and shall transmit the pleadings, including the undertaking for the appearance of the defendant, and of the witnesses, and the cause must be docketed and stand for trial at the first term of court after the cause has been transferred."

It is contended by counsel for appellant that the last clause of the above section, "and the cause must be docketed and stand for trial at the first term of court after the cause has been transferred," means that a term of court must intervene between the transfer and the trial of the cause, and that the district court of Jefferson City was without jurisdiction to try the cause before the next term after the cause has been transferred.

We think this contention is without merit. The object in construing statutes is to ascertain the legislative intent. That constitutes the law. If the language be clear, it is conclusive. There can be no construction where there is nothing to construe.

It is clear that, by the words, "first term of court," used in the statute, was meant the term at which the cause was transferred and docketed on the change of venue. Otherwise stated, the words, the "first term," means the immediate term, the present term, as contrasted with the phrase, "next term," meaning a succeeding term.

A change of venue is never allowed as a means of delaying the trial of a cause, and the application should be denied if it appears that it was merely for the purpose of delay. To construe the words of the statute above quoted as meaning the succeeding term would be in derogation of the constitutional right of the accused to a speedy trial. Const. Art. 2, § 20.

Our Code (section 2638) specifically provides:

"The court to which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court."

The transfer of the cause by change of venue took with it the whole cause and every incident belonging thereto to the district court of Jefferson county. Holcomb v. State, 16 Okl. Cr. 1, 166 P. 755.

It is our opinion that the defendant's application to docket the cause for the September term of court was properly overruled.

When the case was called for trial, the defendant moved for a continuance because of the absence of Bill Anderson, one of his witnesses for whom a subp na had issued and returned not found, and stating, in substance, that this witness, if present, would testify that he roomed with an old lady by the name of Leahy, on West Seventh street, in Duncan; that Ethel and Lillian Sreywas were rooming there at the time it is alleged that the defendant raped Ethel; that he saw her there the next morning and passed a few words with her, and she appeared to be all right except that she had a bruised place under one eye; "that he had opportunity to observe the conduct of Ethel Sreywas, and had heard her curse and use vile, vulgar and obscene language, and that she had made indecent and improper advancements to him; that the above facts are relevant because they tend to corroborate the defendant's statement and evidence that the act of sexual intercourse charged in the information was had with the prosecuting witness with her consent, and tends to discredit the testimony of the prosecuting witness that the act charged was by force and without consent."

It is contended that the court erred in overruling the defendants' application for a continuance. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of such discretion, this court will not reverse the judgment for refusal to grant the continuance. The rule is so well established that citation of authorities in its support are unnecessary.

In this case the application shows a want of diligence to have the witness in attendance upon the trial. The mere issuance of a subp na is not due diligence in procuring the attendance of a witness, and the application does not state the witness is not absent with the consent or by the procurement of the defendant. It follows that the ruling of the court was not only within its discretion, but was proper by reason of the insufficiency of the application.

The following brief statement of the facts which we gather from the evidence will answer the purpose of our consideration of the remaining assignments:

Appellant Harry Sledge, a single man, 20 years of age, lived on the Sledge place, north and within half a mile of the city of Duncan. The prosecutrix, Ethel Sreywas, 18 years of age, lived with her two sisters in the city of Duncan. On the evening of February 22, 1925, the prosecutrix and her sister Lillian, 20 years...

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