Sweet v. State

• Decision Date: 27 November 1940
• Docket Number: A-9711.
• Citation: 107 P.2d 817,70 Okla.Crim. 443
• Parties: SWEET v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

107 P.2d 817

70 Okla.Crim. 443

SWEET v. STATE.

No. A-9711.

Court of Criminal Appeals of Oklahoma

November 27, 1940

Syllabus by the Court.

1. The burden is upon the defendant who seeks a change of venue to establish his right thereto; and if upon a motion for a change of venue the court is convinced that a fair and impartial trial cannot be had in the county, then it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this court.

2. A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered by this court.

3. Ordinarily, error cannot be predicated on mere unexplained excerpts from remarks of counsel to the jury, but enough must appear to advise the appellate court of what preceded alleged objectionable statements and their meaning to be deduced from the context, and whether they were invited or provoked by opposing counsel's remarks.

4. Where in a homicide case self-defense is pleaded, specific acts of violence on the part of the deceased towards others than the defendant may, if known to the defendant prior to the homicide, be shown in evidence.

5. The purpose in furnishing the defendant with the names and addresses of the witnesses to be used by the State is to apprise him whom the witnesses are and where they may be found. If the defendant is unable to locate the witnesses because of incorrect addresses, he should make his trouble known to the court before announcing ready for trial. When he raises such objection only when the witnesses are called, he has waived any right he might have had to require the State to furnish more definite information as to the addresses of the witnesses.

6. The law does not require that the names of witnesses used in rebuttal shall be indorsed on an indictment or information.

7. Where the State subpoenas a witness to be used solely as rebuttal to proof which will be offered by the defendant, and the court after a hearing finds that said witness is sick and unable to wait in attendance upon the court until the defendant has presented his case, it is not error to allow the testimony of such witness to be presented as part of the State's case in chief, where the testimony of such witness is on an immaterial matter and did not under the record influence the verdict.

8. Where the accused at a former trial or at a preliminary hearing once enjoyed his right to be confronted by a witness against him and had the privilege of cross-examining the witness, if at a subsequent trial, involving the same issues it satisfactorily appears that the witness is sick and unable to testify, a transcript of the testimony of such witness may be introduced as the evidence of such absent witness; and it is not necessary that the transcript should be filed in the trial court as is required for a deposition.

9. From a careful examination of the whole record, the Criminal Court of Appeals is of the opinion that there are no errors of sufficient importance to require a reversal of case.

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Cleve Sweet was convicted of manslaughter in the first degree, and he appeals.

Judgment affirmed.

Evidence held sufficient to sustain conviction for manslaughter in first degree.

M. O Counts and Robert J. Bell, both of McAlester, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of McAlester, for defendant in error.

JONES Judge.

The defendant Cleve Sweet was charged by information in the District Court of Pittsburg County, Oklahoma, on November 27, 1934, with the crime of murder, was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of four years' imprisonment in the State Penitentiary, and has appealed to this court.

This case has been called for trial three times. The first trial, which was begun October 11, 1935, resulted in a hung jury. The second time this case was called for trial, March 9, 1937, a mistrial was declared and the jury discharged because one Gene Sweet, a brother of the defendant and a witness for the defendant, was charged with the murder of one Jim Davis, another witness for defendant, on the evening of October 11, 1935. This case came on for trial the third time on February 13, 1939.

For a reversal of the judgment and sentence imposed on the defendant as a result of his conviction on this third trial, the defendant has made many assignments of error.

The defendant shot and killed one Bill Akins on November 2, 1934, and has interposed a plea of self-defense. No question as to the sufficiency of the evidence to support the conviction is raised, and it would only unnecessarily lengthen this opinion to detail the evidence.

The first assignment of error is the complaint of the defendant that the trial judge erred in overruling his application for a change of venue.

The defendant contended that he could not receive a fair and impartial trial in Pittsburg County, and that the residents of that county are prejudiced against him for the reason that "while this case was pending, and before it was finally disposed of, the defendant's brother was charged with the crime of murder, and was tried and convicted of manslaughter in the second degree. Also, a nephew by the name of Steve Alexander killed a man by the name of Estol Barnes, and was charged with the crime of murder, tried and convicted of manslaughter in the first degree, and sentenced to four years in the State Penitentiary. These incidents all occurred and the cases were all tried in Pittsburg County, Oklahoma, between the date the defendant was charged with killing Bill Akins and the date of his trial." That newspapers in Pittsburg County published long articles relating to each of said cases; and that the said cases had attracted unusual attention and notice, and had created a strong bias and prejudice against the defendant, to such an extent that it was impossible for him to have a fair and impartial trial in Pittsburg County.

In support of his application for change of venue, defendant filed 235 affidavits. The State filed some one hundred counter-affidavits in answer to the defendant's showing and, in addition, called and examined several of defendant's affiants.

The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed; and if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto. Davis v. State, 53 Okl.Cr. 411, 12 P.2d 555; Goss v. State, 24 Okl.Cr. 383, 218 P. 339; Maddox v. State, 12 Okl.Cr. 462, 158 P. 883.

On a motion for a change of venue, if upon the examination of the affidavits and counter-affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot be had in the county, then and under those conditions it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this court. Warren v. State, 24 Okl.Cr. 6, 215 P. 635; Wright v. State, 12 Okl.Cr. 443, 158 P. 290; Gentry v. State, 11 Okl.Cr. 355, 146 P. 719; Sayers v. State, 10 Okl.Cr. 233, 135 P. 1073; Edwards v. State, 9 Okl.Cr. 306, 131 P. 956, 44 L.R.A., N.S., 701; Watson v. State, 9 Okl.Cr. 1, 130 P. 816.

By an abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application. Johnson v. State, 1 Okl.Cr. 321, 97 P. 1059, 18 Ann.Cas. 300; Black v. State, 3 Okl.Cr. 547, 107 P. 524; Turner v. State, 4 Okl.Cr.

164, 111 P. 988; Starr v. State, 5 Okl.Cr. 440, 115 P. 356; Tegeler v. State, 9 Okl.Cr. 138, 130 P. 1164.

It is not an abuse of discretion to deny a change of venue where the subsequent proceedings show that there was no difficulty in securing a fair and impartial trial. Huffman v. State, 28 Okl.Cr. 296, 230 P. 272; Dodson v. State, 33 Okl.Cr. 85, 242 P. 578.

The mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the guilt or innocence of an accused to the extent that an accused cannot have a fair trial by an impartial jury. Johnson v. State, 35 Okl.Cr. 212, 249 P. 971; Newton v. State, 56 Okl.Cr. 391, 40 P.2d 688.

The court was very lenient with the attorneys for the defendant in the extent to which he allowed them to go into the jurors' qualifications on their voir dire examination; and in this respect, we call attention to the fact that the defendant only used four of his peremptory challenges.

Under the showing made, and particularly in view of the facts as developed upon the trial and the verdict which was rendered, which will be hereinafter discussed, it does not appear to this court that the trial judge abused his discretion in denying the application for a change of venue.

The defendant alleges that error was committed by the court in stating at the beginning of the trial, "All witnesses in the case of the State of Oklahoma versus Gene Sweet will now be sworn;" error of the court in giving...