Stilwell v. State, F--76--723
| Decision Date | 31 January 1977 |
| Docket Number | No. F--76--723,F--76--723 |
| Citation | 559 P.2d 1263 |
| Parties | Jimmy Dale STILWELL, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The Appellant, Jimmy Dale Stilwell, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Cleveland County, Case No. CRF--75--641, for the offense of Escape from the Penitentiary, in violation of 21 O.S.1971, § 443. In accordance with a jury verdict, he was sentenced to serve a term of four (4) years' imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.
Since this appeal contains no assignments of error which concern the facts in this case, a very brief recitation of the evidence is in order. The State called three witnesses who essentially testified that the defendant was in the custody of the Department of Corrections of the State of Oklahoma stemming from a judgment and sentence on plea of guilty from Woodward County, dated September 29, 1975, and sentencing this defendant to four (4) years under the direction and control of the Department of Corrections of the State of Oklahoma. On October 24, 1975, the defendant was transported from the Oklahoma State Penitentiary at McAlester to the Regional Treatment Center at Lexington, Oklahoma. On December 3, 1975, the defendant was reported missing by the duty officer at the treatment center. On December 10, 1975, at approximately 1:00 a.m., the defendant was recaptured by Officer Richard Spurgeon of the Oklahoma City Police Department in Oklahoma City.
For his first assignment of error, the defendant alleges that the trial court erred by allowing the prosecution to call Officer Spurgeon, since he had not been properly endorsed on the original Information on file herein. Defendant also complains that he should have been granted a continuance at the time of trial when the State called the above witness to the stand.
After a careful examination of the record in this case we find no merit to this argument. The record indicates that the defendant was charged by Information with the offense of 'Escape from Penitentiary' on the 5th day of December, 1975. On the 23rd day of January, 1976, the Cleveland County District Court appointed an attorney to represent the defendant. On that same day the defendant appeared with his court-appointed counsel, moved for and received a continuance of his preliminary hearing until the 28th day of January, 1976. On January 26, 1976, the District Attorney's Office made formal application, in writing, and received an Order, in writing, allowing them to endorse two additional witnesses, one of whom is the witness whose testimony is the source of this alleged error. This application and order were filed of record in the Cleveland County District Court on January 27, 1976. On January 28, 1976, the preliminary hearing was held and the defendant was bound over for trial. On the 18th day of February, 1976, the defendant, accompanied by counsel, was formally arraigned in the Cleveland County District Court.
The record clearly indicates that the defendant himself received notice in writing that the State had endorsed an additional witness, Officer Spurgeon, to testify prior to the preliminary hearing. This endorsement was served on the defendant in the Cleveland County Jail and the original was filed in the case. Counsel for defense argues that the defendant, a lay person, did not realize the significance of the endorsement and, therefore, failed to inform his counsel. We find no merit in this argument. While the defendant may, or may not, have negligently failed to inform his counsel of papers he had received while incarcerated, the fact remains that the original of said application and order were on file in the case both at the time of preliminary hearing and the subsequent formal arraignment. Both defendant and counsel for defense would now have us say that their failure to take notice of that which is in the record is grounds for reversal. With this concept we certainly cannot agree.
We find that the State complied with 22 O.S.1971, § 384, when it formally endorsed the additional witness some one month prior to the jury trial and served a copy of same on the defendant in the county jail. Furthermore, the defendant acknowledged the receipt of his copy of said endorsement. (Tr. 35)
Secondly, even for the sake of argument, if defendant had not acknowledged a receipt of the endorsement, nor had it been filed of...
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