Songer v. State

• Decision Date: 30 July 1969
• Docket Number: No. A--14813,A--14813
• Citation: 464 P.2d 763
• Parties: Charles SONGER, 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 763

464 P.2d 763

Charles SONGER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14813.

Court of Criminal Appeals of Oklahoma.

July 30, 1969.

Syllabus by the Court

1. If defendant's counsel is surprised by endorsement of an additional witness shortly before trial and such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for a postponement or a continuance in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case was continued. Where he fails to do this the error, if any, is waived.

2. Testimony is not inadmissible as immaterial because it tends to indicate an offense for which the defendant is not on trial if such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) common schemes or plan embracing commission of two or more crimes so related to each other that proof of one tends to establish the other and (5) identity of a person charged with commission of crime on trial.

3. A remark in the closing argument of prosecuting attorney that he is 'shackled and handcuffed' by courts in proving many things to the jury is improper and may be misleading to the jury as suggesting for consideration matters outside the evidence, but such error is cured by the admonition of the trial judge to the jury to disregard the remark, to consider only the evidence presented, and not to speculate whether there might be more or less evidence regarding the offense on trial.

Appeal from the Superior Court of Okmulgee County; Don Barnes, Judge.

Charles Songer was convicted of the crime of Larceny of Domestic Animals was sentenced to three years imprisonment, and appeals. Affirmed.

Herbert E. Elias, Henryetta, for plaintiff in error.

Austin O. Webb, Dist. Atty., for defendant in error.

BUSSEY, Judge.

Charles Songer, hereinafter referred to as defendant, was convicted in the Superior Court of Okmulgee County, Oklahoma, Case No. 2163, of Larceny of Domestic Animals and was sentenced to three years imprisonment on February 20, 1968, and has perfected and appeal from the judgment and sentence imposed therein.

Specifically, the defendant was convicted of stealing one white-faced Hereford heifer which was the property of Dale Rainey on or about the 2nd day of October, 1966, in Okmulgee County, Oklahoma. On appeal the defendant does not question the sufficiency of the evidence and it is therefore not necessary to summarize the evidence admitted at defendant's trial except to observe that the evidence was sufficient to sustain the verdict.

It is defendant's first assignment that it was error for the trial court to allow the endorsement of two witnesses, Harrison Noel and Elmo Childers, upon the information just before trial. On January 30, 1968, the trial court, on a motion of the State, allowed the endorsement of Noel and Childers. On February 1, 1968, just prior to the commencement of defendant's trial before the jury, the trial judge heard defense counsel's motion for a continuance of the trial to the next term of court on the grounds that the endorsement of these witnesses was a surprise to the defendant which did not allow sufficient time for interrogation and that the defendant himself had not given his attorneys a list of witnesses to be used in connection with his defense of alibi. This Motion was overruled and the case went to trial before the jury. The record thus shows that the defense had a brief time in which to contact the witness Noel prior to the commencement of the trial. Regarding witness Childers, the endorsement prior to trial was for the purpose of correcting his first name from 'Woodrow' Childers to 'Elmo' Childers, as originally endorsed. Witness Childers had testified at the preliminary hearing where he was subject to extensive cross-examination by defense counsel. We would also note that prior to allowing testimony of witness Noel before the jury, the trial judge first heard his testimony before ruling that it was admissible before the jury.

Title 22 O.S. 1961, § 303, provides that the prosecuting attorney shall endorse on the information 'the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe.' In Paschall v. State, 96 Okl.Cr. 198, 252 P.2d 175 (1952), this Court held:

'If defendant's counsel is surprised at such action and such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for a postponement or a continuance in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case was continued. Where he fails to do this the error, if any, is waived.' 252 P.2d, at 175.

Also, in Britt v. State, Okl.Cr., 285 P.2d 441 (1955), this Court cited as controlling the rule in the Paschall case in holding that a general objection to the endorsement by the State of names of two additional witnesses on the information at the time of trial without specification of reason showing surprise or possible prejudice on the motion for continuance, was insufficient to challenge the exercise of judicial discretion and that overruling such objection was not an abuse of discretion.

In the instant case we note that there was no specification of reasons showing surprise or possible prejudice by the defense in objecting to the endorsement of the witnesses. The defense did not, in his Motion for Continuance, set out facts...