Thomas v. State
| Decision Date | 06 July 1920 |
| Docket Number | A-3484. |
| Citation | 190 P. 711,17 Okla.Crim. 550 |
| Parties | THOMAS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where on a second appeal from a murder conviction the question of the sufficiency of the evidence is raised, and the evidence is substantially the same as adduced at a former trial, which evidence was held sufficient to sustain the conviction on the first appeal, no new question is raised on the second appeal.
All presumptions on appeal favor the regularity of the proceedings in the trial court. Where the record on a former appeal shows that the cause was tried in all respects as if a plea of "not guilty" had been entered by the defendant, and no contention was made either in the trial court or on appeal that there had been no arraignment of, and plea entered by, the defendant prior to that trial, the question of the arraignment and plea was waived by failure to raise it by timely objection, and the presumption will be indulged in a subsequent appeal that the defendant was either arraigned and pleaded "not guilty" or else waived arraignment and pleaded "not guilty" at some time prior to the first trial. Under such circumstances another arraignment and plea of "not guilty" were unnecessary, and it was not error for the trial court to deny defendant's motion for a formal arraignment prior to the retrial of the cause.
Appeal from District Court, Seminole County; J. W. Bolen, Judge.
Tom Thomas was convicted of murder, and he appeals. Affirmed.
Orwig & Moore, of Wewoka, for plaintiff in error.
S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
This is an appeal from the district court of Seminole county, wherein the defendant was convicted of the crime of the murder of one George Gammill, and his punishment fixed at imprisonment in the state penitentiary for life.
This is the second appeal taken to this court in this action; a former conviction having been reversed on the 19th day of May, 1917, and the cause remanded to the trial court for a new trial.
The facts are fully stated in the former opinion, reported in 13 Okl. Cr. 414, 164 P. 995. We therefore deem it unnecessary to made a restatement of the case at this time, as the evidence is substantially the same as that adduced at the former trial.
As in the former appeal, it is again contended that the evidence is insufficient to sustain the conviction.
This question was decided adversely to the contention of appellant's counsel in the first appeal, and it is only necessary to reiterate what was said in that opinion:
"There is evidence in the record fully sufficient to authorize the jury to conclude that the appellant was guilty."
The only other question now urged as ground for reversal is the refusal of the trial court to arraign and permit the defendant to plead to the information on the retrial of the case.
The record of the minutes of the trial on a former appeal is silent as to whether or not the defendant was formally arraigned and entered a plea at any time prior to the trial. But that record disclosed, however, that the defendant was furnished with a copy of the information, together with a list of the witnesses to be used by the state in chief together with their post office addresses, as required by section 20, art. 2, Const., and that defendant therefore had knowledge of the contents of the information, and knew who would be called as witnesses in chief against him; that defendant was present in person at the trial, and announced ready for trial, and was ably represented by counsel who assisted in the selection of the jury, and in the examination of the witnesses; that defendant not only introduced a number of witnesses in his own behalf, but also himself testified; that the county attorney, Mr. Hill, after the jury was sworn to try the cause, read the information and stated the plea of the defendant to be "not guilty," that Mr. Orwig then stated the case for the defendant; that evidence both for the state and the defendant was then introduced to the jury in proper order. The instructions of the court also stated the plea of the defendant to be "not guilty"; in fact that the former trial proceeded to a conclusion on the theory that the defendant had pleaded "not guilty" to the charge, without any objection having been urged that there had been no arraignment or plea, and further it was not contended on appeal in the former hearing of this case in this court that there had been no arraignment of, and plea entered by, the defendant, and the judgment of conviction was reversed entirely on other grounds. The question of the arraignment and plea was waived by failure to raise it by timely objection in the former appeal.
The record on the former appeal clearly showing that the cause was tried in all respects as if a plea of "not guilty" had been entered by the defendant, it was immaterial that the record failed to show that he was formally arraigned.
In Sam Wood v. State, 4 Okl. Cr. 436, 112 P. 11, 45 L. R A. (N. S.) 673, this court held:
The foregoing decision met approval in the following cases: Spencer v. State, 5 Okl. Cr. 7, 113 P. 224; Ryan v. State, 8 Okl. Cr. 623, 129 P. 685. The latter case contains a lengthy and able discussion of the necessity of the record showing an arraignment and plea where the trial was conducted in all respects as if a plea of "not guilty" had been entered, and contains the citation of numerous authorities to the effect that the failure of the record to show an arraignment and plea under such circumstances does not constitute a fatal defect, but is a mere irregularity not involving a substantial right of the defendant.
Had this question, therefore, been presented in the former appeal, the decision would have been adverse to the appellant. Simpson v. State, 16...
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