Vance v. Territory

• Decision Date: 27 November 1909
• Citation: 105 P. 307,3 Okla.Crim. 208,1909 OK CR 150
• Parties: VANCE v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 307

3 Okla.Crim. 208, 1909 OK CR 150

VANCE v. TERRITORY.

Court of Criminal Appeals of Oklahoma

November 27, 1909

Error from District Court, Canadian County; John H. Burford, Judge.

George Elmo Vance was convicted of murder, and brings error. Affirmed.

Under Wilson's Rev. & Ann.St.1903, § 5352, 22 Okl.St.Ann. § 384, the court may permit the names of additional witnesses to be indorsed on the indictment after the jury is impaneled.

The plaintiff in error (hereafter referred to as the "defendant") was indicted in Roger Mills county territory of Oklahoma, at the April term, 1906, charged with the murder of Walter Sheehan. At the September term, 1906, a change of venue was granted to Canadian county, Okl. T. At the November term, 1906, of the Canadian county district court, the case was continued on application of the defendant. At the March term, 1907, the defendant was tried and convicted and sentenced to confinement in the territorial prison at hard labor for life. The facts as disclosed by the record are, substantially, as follows: The defendant was a barkeeper in the Williams saloon in the town of Sayre. The deceased, Walter Sheehan, and Henry Mattox became engaged in a quarrel. The defendant forbade them to fight in the saloon and stated that if there were any fighting to be done he would do it himself. Mattox left the saloon, but in a short time returned and renewed the controversy with the deceased. They became engaged in a fight, and, while thus engaged, the defendant, using a shotgun, killed the deceased, firing three other shots at a brother of deceased, who was in the room. The defendant claims that, at the time he fired the fatal shot, the deceased was pointing a pistol at him. The case was appealed, and by proper order transferred to this court.

John B Harrison, D. B. Welty, and S. B. Garrett, for plaintiff in error.

Chas West, Atty. Gen., and E. C. Spilman, Asst. Atty. Gen., for the Territory.

OWEN J. (after stating the facts as above).

There are 45 assignments of error in this case. The first assignment is expressly waived in the brief filed by counsel for the defendant. The second and third are to the court's overruling a motion for continuance. The fourth, fifth, and sixth are to the action of the court in overruling motions for new trial and in arrest of judgment, and are not insisted on in the brief filed. The seventh to the twenty-fifth, inclusive, are to the instructions given by the court. The twenty-sixth to the thirtieth, inclusive, are to the refusal of the court to give instructions requested by the defendant. The thirty-first is to the action of the court in allowing counsel for the territory to indorse additional names on the indictment after the jury had been impaneled. The thirty-second to the fourty-fifth, inclusive, are to the action of the court in ruling on the admissibility of evidence.

We have carefully considered each of these assignments, but do not deem it necessary to copy them all in this opinion. In the brief filed by counsel for the defendant appears this statement: "It is true that many of the errors of which we complain, taken singly, or standing alone, are seemingly harmless, perhaps are harmless; but we contend there are but few, if any, assignments to which we call the court's attention, but what in a measure, though in some instances perhaps very slightly, affect the substantial rights of the accused, and but for which the case would not have been brought here." We agree with counsel in that statement. We have not only considered the assignments separately, but have considered them together, and are driven to the conclusion that the defendant in this case had a fair trial and was not denied any substantial right. We shall first consider the assignments which go to the action of the court in overruling motion for continuance.

The motion in this case was made on account of the absence of witnesses and the inability of the defendant's leading counsel to attend the trial. The granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this court will not reverse the trial court on a decision of a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion. It appears from the record in this case that the defendant asked for a continuance to secure the testimony of Tom Hughes, William Hardesty, Horace Gaither, William Caruth, Ed Farris, and Frank Autrey. Before passing on the motion, the trial court heard the testimony of the deputy sheriff of Roger Mills county and the city marshal of the town of Sayre, where the crime was alleged to have been committed. Their testimony was to the effect that William Hardesty and Frank Autrey were unknown. Neither of the witnesses had ever heard of any one by that name, after making a diligent search for them. The witness Ed Farris had removed to the state of Texas more than a year previous to the date on which the motion was filed. The witness Tom Hughes was known by the officers as an "all-around rounder," and "was at home wherever his hat is." The court ordered an attachment for the witnesses Caruth, Gaither, and Hughes. Caruth and Gaither were brought in and their testimony heard. It appears from the motion for continuance that the testimony of Hughes, though material to the defendant's defense, was cumulative. The motion for continuance states substantially that Hughes was an eyewitness, as was Gaither. Unless it was made to appear to the trial court that the testimony of Hughes could, in all probability, be secured within a reasonable time, and that without his testimony the defendant would be materially injured or deprived of a substantial right, there could be no error in refusing continuance. There is no statement in the motion, neither was there any testimony offered by defendant, to convince the court there was a probability of securing the testimony of this witness. One of the provisions of the statute with reference to motions for continuance is that the affidavit must give the residence of the witness, if his residence is known, and the probability of procuring his testimony within a reasonable time.

As to that portion of the motion for continuance which refers to the absence of the principal counsel for defendant, we are of the opinion that the court did not abuse its discretion in refusing the continuance. It appears from the record that this case was continued at the November term, 1906, on account of the absence of John B. Harrison and J. J. Carney, attorneys for the defendant at that time, and, as that motion alleges, who had been elected members of the constitutional convention. Mr. Harrison resides in the county where the murder was alleged to have been committed. Mr. Carney resided in the county in which the case had been moved on change of venue. At that time D. B. Welty and S. B. Garrett were also attorneys in the case. When the case came on for trial at the March term, 1907, the motion under consideration was filed, in which the defendant alleges that Mr. Harrison had prepared himself to conduct the trial of the case, and that he had suddenly become ill and was unable to attend the trial. Mr. Carney, one of the attorneys, on account of whose absence the case had been continued at the November term, was present. He was a resident of the county in which the case was to be tried, and the court was personally acquainted with the other two attorneys in the case. If Mr. Harrison had been sole counsel in the case, or if he had been the resident counsel of the county in which the case was to be tried, and had been employed to assist in selecting the jury on account of his acquaintance with the citizens of the county, another condition would be presented, and we can easily understand how the defendant, in that instance, would be deprived of a substantial right; but no such condition exists here. His three associate counsel had been in the case from the beginning. Mr. Carney was a resident of the county in which the case was to be tried, had recently been elected a member of the constitutional convention from that county, and was presumably acquainted with the citizens of the county from whom the jury was to be selected. The case of Leslie v. Com. (Ky.) 42 S.W. 1095, and the case of Cornelius v. Com. (Ky.) reported in 64 S.W. 412, cited by counsel for defendant in their brief and relied on as authority for their contention, are not in conflict with our holding here. In the case of Leslie v. Com. the Court of Appeals of Kentucky held it was reversible error to permit the commonwealth, against objection, to ask the defendant if he had not been arrested for carrying concealed weapons, and if he had not been arrested for discharging firearms, and, in concluding the opinion reversing the case, uses this language: "Moreover, the unexpected absence of the appellant's local counsel on the morning of the trial, without any notice to him, would appear to afford ample reason why a continuance should have been granted. For the reasons given, the judgment is reversed."

The local counsel for the defendant in this case was not absent. He was present, and, as the record shows, conducted the defense in the most able manner possible. In the case of Cornelius v. Com. (Ky.) (64 S.W. 412, the court said: "It further appears that this local attorney, who was absent, was the only one of the three employed who had seen and talked with appellant's witnesses, and he alone knew the facts that could be proven in the defense. It further appears that neither of the two present was acquainted with the citizens of Lee county, from whom a jury must be selected to try the case." No such condition appears in the case at bar. If Mr. Carney...