Snow v. State

• Decision Date: 09 April 1969
• Docket Number: No. A--14788,A--14788
• Citation: 453 P.2d 274
• Parties: Kermit SNOW, 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 274

453 P.2d 274

Kermit SNOW, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14788.

Court of Criminal Appeals of Oklahoma.

April 9, 1969.

Syllabus by the Court

1. When an affidavit is filed for continuance, by reason of the absence of a witness, and the affidavit does not contain the necessary averment that the affiant believes that the facts the absent witness, as averred in said affidavit, would testify to are true, the same is fatally defective under the requirements of 12 O.S.1951, § 668.

2. A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts, alleged in the affidavit, shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence. 12 O.S. § 668.

An appeal from the District Court of Lincoln County: Donald E. Powers, Judge.

Kermit Snow was convicted of the crime of shooting with intent to kill, was sentenced to serve an indeterminate sentence of from 10 to 30 years imprisonment in the State Penitentiary, and appeals. Affirmed.

Gotcher & Gotcher, McAlester, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Robert D. McDonald, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Kermit Snow, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Lincoln County for the offense of Shooting With Intent to Kill, and from the judgment and sentence rendered against him, fixing his punishment at an indeterminate sentence of from 10 to 30 years imprisonment in the State Penitentiary, he appeals.

On appeal we will treat his first and second assignments of error (1) 'That the defendant was denied due process of law guaranteed by the Bill of Rights and the Constitution of the State of Oklahoma and the United States of America by a refusal to grant process for production of State's witnesses at preliminary hearing,' and (2) 'That it was error for the lower court to refuse to grant a continuance of the preliminary hearing until such time as the production of witnesses could be successfully implemented,' under a single proposition.

We believe the State's brief amply answers these first two assignments of error, and the same is hereby adopted.

'Defendant's preliminary hearing began on September 25, 1967, at which time the State called seven witnesses and rested. The defendant then called two witnesses, and the court granted defendant a continuance until October 9, 1967, to call further witnesses. As of September 25, 1967, defendant had not subpoenaed any witnesses. On September 27, 1967, defendant filed a praecipe for subpoena for one Jack Adams, the complaining witness who had not been called by the State, and who was residing in California at that time. On October 9, 1967, the preliminary hearing reconvened. The defendant called one additional witness, refused to rest, and filed another motion for continuance based on Adams' absence. The court overruled defendant's second motion for continuance and bound the defendant over for trial in District Court. The witness, Jack Adams, later testified at defendant's trial in District Court (CM 337--376).

The court cannot grant a motion for continuance, on account of the absence of evidence, where the affidavit thereon is insufficient. In the first and third paragraphs of the syllabus of Crosswhite v. State, Okl.Cr., 317 P.2d 781 (1957), this Court held:

1. When an affidavit is filed for continuance, by reason of the absence of a witness, and the affidavit does not contain the necessary averment that the affiant believes that the facts the absent witness, as averred in said affidavit, would testify to are true, the same is fatally defective under the requirements of 12 O.S.1951, § 668.

3. Under the provisions of 22 O.S. 1951, § 584, reading: 'When an indictment or information is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, as in civil cases, direct the trial to be postponed to another day in the same or next term,' the phrase, 'as in civil cases,' makes the provisions of 12 O.S.1951, § 668 clearly applicable in criminal cases.'

Title 12 O.S.1961, § 668, states:

'A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has bee used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and The probability of procuring his testimony within a reasonable time, and What facts he believes the witness will prove, and That he believes them to be true * * *' (Emphasis added)

See Sanders v. State, 46 Okl.Cr. 296, 287 P. 846 (1930).

Defendant's affidavit for continuance (CM 31--33) is insufficient in that it does not state the probability of procuring the witnesses' testimony within a reasonable time, nor does it state what facts he believes the witnesses will prove. Also, the defendant did not use due diligence in attempting to...