Smithey v. State, A-13350

• Decision Date: 11 September 1963
• Docket Number: No. A-13350,A-13350
• Citation: 385 P.2d 920
• Parties: Ira Doyle SMITHEY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 920

385 P.2d 920

Ira Doyle SMITHEY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13350.

Court of Criminal Appeals of Oklahoma.

Sept. 11, 1963.

Rehearing Denied Oct. 23, 1963.

Syllabus by the Court

1. A defendant charged with a felony who waits until the day preceding the trial of his case to employ counsel, and then asks for postponement of the trial on the grounds of insufficient time to prepare for trial has not used due diligence, and denial of his motion for continuance is not error.

2. Where a defendant has been found guilty of evidence that amply supports the verdict, and the trial court, by overruling his motion for a new trial, has adjudged that he had a fair trial, it does not follow that this Court can reverse the judgment of conviction upon mere suspicion that he was not efficiently defended by his attorney, or because of what other counsel, who were not present at the trial, may say about the attorney.

3. Errors to which no exceptions are taken will not be considered on appeal unless they are jurisdictional or fundamental in character.

4. The constitutional guaranty of fair and impartial trial only excludes those jurors who have an opinion upon the merits of the case, based upon such testimony as may reasonably be expected to be presented upon the trial or an opinion founded on personal ill will toward accused, and does not mean the jurors shall never have heard of the case and shall not have any information concerning any of the facts and shall not be acquainted with the prosecuting witness.

5. Where the record fully supports the verdict, the instructions correctly and fairly submit the issues to the jury, and no error is affirmatively made to appear, the case will be affirmed.

An appeal from the District Court of Oklahoma County; Clarence Mills, Trial Judge.

Ira Doyle Smithey was convicted of the Crime of Burglary, Second Degree, after former conviction of a felony. From the judgment and sentence of 15 years, rendered by the District Court of Oklahoma County, he appeals. Affirmed.

Valdhe F. Pitman and Malcolm Baucum, Oklahoma City, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Hugh Collum, Asst. Atty. Gen., for defendant in error.

BUSSEY, Presiding Judge.

The defendant, Ira Doyle Smithey, was charged by information, filed in the District Court of Oklahoma County, with the offense of Burglary in the 2nd Degree, after former conviction of a felony. He was tried of said offense; found guilty; and, pursuant to the verdict of the jury, was sentenced to serve 15 years in the Oklahoma State Penitentiary.

The record of the trial proceedings reveals that on April 21, 1962, H. C. Ward, owner of Black's Drug Store, closed and locked the establishment, located at 7300 North Western, Oklahoma City, and that around four o'clock the following morning, he was called to the store by a burglary security alarm firm, who notified him that the alarm had been set off. Ward opened the establishment and found a hole had been cut in the ceiling and another in the side of the safe in his office.

Officer E. L. Bents, of the Nichols Hills Police Department, testified he had heard the alarm ringing, driven to the premises and found the store well-lighted with no sign of disturbance. However, upon checking the back door, he noticed a cigar box containing 'approximately 20 to 30 pieces of silver' and a blank receipt for Black's drug store. Searching the area, the officer found an envelope containing money; a drill bit, enclosed in a plastic pouch; and, a small flashlight, which was still lighted, in a vacant lot adjacent to the store.

The accused was apprehended immediately thereafter, lying face down in the grass of the same lot, placed under arrest and taken to police headquarters, where he was searched and found in possession of rolls of silver, identified as belonging to the drug store.

On appeal to this Court, defendant asserts only one general assignment of error: That he was denied his liberty without due process of law. However, for purpose of clarity, we shall deal separately with each contention urged under this single assignment.

Defendant contends that the trial court erred in failing to grant a continuance on the day of trial, forcing the defendant to trial with court appointed counsel rather than counsel of his own choice.

From the evidence, it appears that accused's employed counsel, withdrew from the case eleven days prior to the commencement of trial and that on the same day, the trial court appointed the public defender of Oklahoma County to represent accused. Thereafter, on the day before trial, defendant retained an attorney, who appeared with him in a hearing immediately preceding the beginning of the trial and requested a continuance. The trial court refused to grant same, the attorney withdrew from the case, and the accused went to trial with the previously appointed public defender as his counsel.

An analogous situation to the case at bar is found in Winegar v. State, 92 Okl.Cr. 139, 222 P.2d 170. In the Winegar Case, the defendant waited two days before trial to employ his attorney after counsel who had represented him for nine months withdrew from the case. Although, defendant's first counsel had withdrawn nine days from before the scheduled trial, the defendant waited until two days prior to trial to employ other counsel. Holding that the defendant had over a week in which to make arrangements for counsel and prepare his defense, the court affirmed the judgment and sentence, ruling as it did so, that the granting or denial of a continuance lies within the sound discretion of the trial court, and that under the circumstances there presented, the denial of a continuance was not an abuse of such discretion.

We are in accord with the decision rendered in Winegar v. State, supra, and find that decision to be controlling in the case before us. In our opinion, under the facts of the instant case, the trial court did not abuse its discretion in refusing to grant a continuance, and we cannot see that defendant was prejudiced by the representation of an attorney who had knowledge of the evidence and time within which to prepare for trial.

A defendant charged with a felony, who waits until the day preceding the trial of his cause to employ counsel, and then asks for postponement of the trial on the grounds of insufficient time to prepare for that trial has not used due diligence, and denial of his motion for continuance is not error. See Winegar v. State, supra.

Since defendant has raised the question of denial of due process of law, we would comment briefly on the actions of the trial court in procuring counsel. 'While it is unquestionably true that every person charged with a criminal offense is entitled to be represented by counsel at every stage of the proceedings, it is equally true that an accused does not have an absolute right to be represented by counsel at public expense. Such right exists only where the accused is a poor person unable to employ counsel.' Nipp v. State, Okl.Cr., 374 P.2d 624. (Italics ours)

There is nothing in the record to indicate that the accused was in fact a poor person, who under our laws is guaranteed the right to court appointed counsel. To the contrary, the hiring...