Warren v. State

• Citation: 115 P. 812,6 Okla.Crim. 1,1911 OK CR 247
• Parties: WARREN v. STATE.
• Decision Date: 23 May 1911
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 812

6 Okla.Crim. 1, 1911 OK CR 247

WARREN v. STATE.

Court of Criminal Appeals of Oklahoma

May 23, 1911

Syllabus by the Court.

Even though the trial court may improperly overrule a challenge for cause to a juror, yet if the defendant peremptorily challenges said juror, and if it appears that the defendant did not exhaust all of his peremptory challenges, and that no objectionable juror was forced on the defendant, the error of the court in improperly overruling such challenge will be harmless, and will not be ground for the reversal of a conviction.

(a) The constitutional requirement that in homicide cases the defendant shall be furnished at least two days before the case is called for trial with a list of the witnesses who will be called in chief to prove the allegations of the indictment or information, together with their post office addresses, does not apply to witnesses who are called to testify as to the residence of absent witnesses whose names have been furnished to the defendant, and to the further fact that such witnesses testified in the preliminary examination of the defendant, and that the defendant was present, and that an opportunity was afforded him for cross-examining such witnesses.

(b) It is the duty of counsel for appellant in their briefs to clearly set forth the ground upon which they rely for a reversal, and to give the reasons for and the authorities relied upon to support the objections which they make to any matter which occurred in the trial of the cause in the lower court.

(c) The constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is fully complied with when the defendant has had the opportunity to cross-examine the said witnesses in a preliminary trial before a justice of the peace. When this has been done, and upon a subsequent trial of the said cause, if it is satisfactorily proven that such witnesses have, since the former trial, died, become insane, left the state, or that their whereabouts cannot with due diligence be ascertained or are sick and unable to testify, the testimony of such witnesses given upon said former trial may be proven upon the subsequent trial.

When a defendant seeks a reversal in this court on account of an alleged error on the part of the trial court in refusing to admit evidence offered, the record must show what this offered evidence was, so that this court can determine as to whether or not it was material and proper testimony, and as to whether or not the defendant was injured by its exclusion.

(a) When a defendant is on trial for murder, and the jury under proper instructions find him guilty of manslaughter, this court will not grant a new trial upon the ground that the defendant should have been either convicted of murder or acquitted.

(b) The jury have the absolute right to fix the degree of a crime of which a defendant is convicted when the court submits to them the different degrees, and this court will not disturb their verdict upon the ground that they have found the defendant guilty of a less degree of offense than that which the evidence establishes.

Appeal from District Court, McCurtain County; D. A. Richardson Judge.

W. W Warren was convicted of the offense of manslaughter in the first degree, and his punishment was assessed by the jury at imprisonment in the state penitentiary at McAlester for a period of 10 years, and he appeals. Affirmed.

Spaulding & Carr and Armstrong & Etheridge, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

First. Appellant complains that the court erred in overruling his challenge to the juror Monteith. It is not necessary to discuss the merits of this challenge because the record shows that Monteith did not sit on the jury, and the record fails to show that appellant had exhausted his peremptory challenges, or was forced to accept any objectionable jurymen on account of his having been forced to use a peremptory challenge on Monteith. Therefore, even if the court had erred in overruling appellant's objections to the juror Monteith, appellant did not suffer any injury thereby, and therefore cannot now be heard to complain.

Second. Appellant's second assignment of error is as follows "The court erred in admitting the testimony of Tom Graham, Joseph Barnes, J. J. McLain, and the purported testimony of George Sullivan and Ida Sullivan, purported to have been taken at the preliminary trial of plaintiff in error."

Appellant in his brief does not state the grounds upon which his objections were based to the testimony of Tom Graham, Joseph Barnes, and J. J. McLain. Therefore his objections to the testimony of these witnesses has been waived. This court has often stated that it will not search the record trying to discover errors which are not clearly set out in the brief of counsel for an appellant. The brief for an appellant should not only show that objections were made to the testimony of a witness, but must go further, and state specifically what these objections were, and give the reasons for and the authority supporting the objections made. See rule 4 of the Criminal Court of Appeals (1 Okl. Cr. x, 101 P. vii). When this is not done, the objections will be held to be waived, and the court will not hunt for reasons why the objections should have been sustained.

We cannot act in the double capacity of counsel for either side and as a court.

In examining the record, we find that the objection was made in the lower court to the testimony of these witnesses upon the ground that appellant had not been served with their names and post office addresses two days before the case was called to trial. As this is a question that is liable to arise in the trial of any homicide case, we will waive the failure of appellant to present this matter in the brief, and will pass upon it as though it were properly presented in the brief. The latter part of section 20, art. 2, of the Constitution, is as follows: "At least two days before the case is called for trial he [defendant] shall be furnished with a list of witnesses who will be called in chief to prove the allegations of the indictment or information, together with their post office addresses." It is seen upon its very face that this provision of the Constitution only applies to witnesses who are called in chief to prove the allegations of the indictment or information. This does not apply to either of the witnesses above named. Neither of them testified to a single substantive fact in the most remote degree tending to prove the allegations contained in the indictment. In fact, so far as this record goes, neither of said witnesses knew anything about the merits of this cause. Their testimony was simply introductory for the purpose of showing that George Sullivan and Ida Sullivan could not with due diligence be found in McCurtain county, and, when last heard from, they were in the state of Arkansas, and therefore beyond the jurisdiction of the court, and could not be reached by its process, and the further fact that there was a preliminary trial of this defendant before a justice of the peace of McCurtain county wherein he was charged with the murder of the deceased, and that appellant was present at said preliminary trial and was represented by counsel, and was offered full opportunity to cross-examine, and did cross-examine, said witnesses. Their testimony was simply preliminary to the introduction of the evidence of the witnesses so examined at said preliminary examination, and therefore said witnesses did not come within the case described in the Constitution.

In their brief, counsel for appellant contends that the testimony of George Sullivan and Ida Sullivan, taken before J. J. McLain, justice of the peace, at the preliminary examination of plaintiff in error, and which was read to the jury, was inadmissible because it was in violation of section 20 of article 2 of the Constitution, which provides that in all criminal prosecutions the accused shall be confronted by the witnesses against him, and was also in contravention to section 6489 of Snyder's Compiled Laws of Oklahoma of 1909, which provides that in a criminal case the defendant is entitled to be confronted by the witnesses against him, in the presence of the court. This is the only objection which counsel for appellant presented in their brief to the testimony of George Sullivan and Ida Sullivan given upon the preliminary trial of appellant, and therefore it is the only objection which will be considered by this court.

We have no direct statute in this state with reference to the introduction of the testimony of a witness given upon a former trial of the case, when such witness has since died or left the state, or for any reason is beyond the jurisdiction of the court, and therefore cannot be placed upon the witness stand. Section 6494 of Snyder's Compiled Laws of Oklahoma of 1909 is as follows: "The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, practice and pleadings of the United States or federal side of said court." The common law in force in the United States can only be found in text-books and in the decisions of various courts of this country. We must therefore look to these sources to see as to whether or not the objections offered by counsel for appellant in this case are well founded.

There is no higher or safer authority on the subject of evidence than Mr. Wigmore. In our judgment he has made the clearest and most satisfactory...