Spencer v. State
| Decision Date | 06 February 1911 |
| Citation | 113 P. 224,5 Okla.Crim. 7,1911 OK CR 19 |
| Parties | SPENCER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the record shows that the defendant was present at the trial and was represented by counsel, that he pleaded not guilty that he offered testimony in his own behalf, and the issues in the case were properly submitted to the jury, the fact that the record failed to show that the defendant was duly arraigned is immaterial.
(a) Proof of any kind of rightful possession of the house burglarized as against the burglar is sufficient to sustain the allegation of ownership of such house.
(b) Courts taken judicial notice of the boundaries of counties and county lines and of the location of towns and cities therein.
The instructions must be considered as a whole, and, when considered altogether, if they fairly and correctly state the law applicable to the case, they will be sufficient.
It is not error for the court to decline to give instructions requested by counsel for the defendant, even when such instructions correctly state the law, if the court has already in the general instructions correctly given the law applicable to the case.
(a) Affidavits in support of a motion for a new trial will not be considered on appeal unless such affidavits are properly incorporated in the record and duly certified to by the trial judge.
(b) Jurors will not be permitted to impeach or contradict their verdict by affidavits or otherwise after they have been discharged from the jury and mingled with the public.
Appeal from District Court, Atoka County; A. T. West, Judge.
Tom Spencer was convicted of burglary in the second degree, and his punishment was assessed at two years' confinement in the state penitentiary. Defendant appealed. Affirmed.
J. M Humphreys, for appellant.
Smith C. Matson, Asst. Atty. Gen., for the State.
First. Appellant complains that he was forced into trial by the court without arraignment and that he was not permitted to plead to the indictment. The record discloses the fact that the defendant was first indicted for this offense on the 23d day of November, 1908, and that said indictment upon motion of the defendant was set aside on the 12th day of April 1909, and that the defendant was held to await the action of the grand jury. On the 17th day of April, 1909, the grand jury returned into open court the indictment upon which the defendant was convicted. The defendant demurred to the indictment on the 19th day of April, 1909, which demurrer was by the court overruled. It therefore appears affirmatively from the record that defendant had knowledge of the contents of the instrument. The case was called for trial on the 22d day of April, 1909, when counsel for the defendant requested an attachment for an absent witness. This was refused by the court upon the ground that said witness had never been served with a subp na. It also appears that the case went to trial without announcement of ready for trial or application for a continuance by either party. Defendant was present and was represented by able counsel and assisted in the selection of the jury and in the examination of the witnesses. It also appears that the defendant introduced a number of witnesses in his own behalf, and that he testified in his own behalf. The instructions of the court which, under our statutes, constitute a part of the record, informed the jury that the defendant had pleaded not guilty. Under these conditions, it is immaterial that the record fails to show that the defendant was formally arraigned. This question was fully discussed and considered in the case of Sam Wood v. State, 4 Okl. Cr. 436, 112 P. 11.
Second. Defendant complains that the ownership of the building and the allegation in the indictment with reference to the location of the burglarized building were not proven. This contention is not sustained by the record. On the trial of this case, E. H. Warren, a witness for the state, testified that the house burglarized belonged to J. B. Wyrick. This testimony was sufficient to sustain the allegation of ownership contained in the indictment. In cases of this kind possession which is rightful as against the burglar constitutes ownership. Markham v. State, 25 Ga. 52; State v. Jaynes, 78 N.C. 504; Webb v. State, 52 Ala. 422; White v. State, 49 Ala. 344. The indictment alleged that the building burglarized was the property of J. B. Wyrick, and that it was located about 6 miles east of Wapanucka, Okl., in Atoka county. The state's witness Warren further testified that the store burglarized was situated about 14 miles west of Atoka in the western part of the county. The courts of this state take judicial notice of the boundaries of counties and of county lines and the location of towns and cities therein. See Riley Johnson v. State (decided at the present term) 112 P. 760. Therefore this court will take judicial notice of the fact that a point 14 miles west of Atoka is about 6 miles east of Wapanucka, and is in Atoka county. So the contention of counsel for the appellant falls to the ground. But, even if this were not the law, the allegation that the building burglarized was about 6 miles east of Wapanucka was purely surplusage, and it was not necessary to prove it at all. The material allegation was that the building was the property of J. B. Wyrick and was situated in Atoka county. This was fully proven by the testimony. That is all that the law requires. See Reed v. State, 66 Ark. 110, 49 S.W. 350; Hamilton v. People, 24 Colo. 301, 51 P. 425; State v. Reid, 20 Iowa, 413; State v. Burdett, 145 Mo. 674, 47 S.W. 895.
Third. We have carefully examined the instructions of the court in connection with the objections thereto and criticisms contained in the brief of counsel for appellant. It is a fundamental principle of law that instructions must be considered as a whole, and, even if some paragraph in the instructions may not be as full as it should...
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