Weeks v. State
| Citation | 183 P. 932,16 Okla.Crim. 443 |
| Decision Date | 04 October 1919 |
| Docket Number | A-3324. |
| Parties | WEEKS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial, or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial, is not entitled to a discharge under the constitutional provision (article 2 § 20) and the statutory provision (section 5547, Rev. Laws).
Additional Syllabus by Editorial Staff.
An application for a continuance for the absence of a witness was insufficient, where it did not aver that defendant was unable to prove by other witnesses the facts to which it was alleged such absent witness would testify.
An absent witness would be incompetent to testify that he was county attorney when information was filed, that it was agreed that if defendant relinquished all interest in an automobile his case would be dismissed, and that he told defendant that county judge approved agreement, as the only competent evidence as to dismissal was the trial court's record.
Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
C. D Weeks, convicted of a violation of the prohibitory liquor law, appeals. Affirmed.
Bridges & Vertrees, of Waurika, for plaintiff in error.
S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted in the county court of Jefferson county upon an information filed in said court on May 4, 1915, which charges the unlawful conveyance of intoxicating liquors. On the 12th day of February, 1918, in accordance with the verdict of the jury he was sentenced to be confined for 30 days in the county jail and to pay a fine of $100. From the judgment he appeals.
The undisputed facts, as shown by the testimony of the sheriff of Jefferson county and a deputy sheriff, are that these officers, about 2 o'clock in the morning of the date alleged, stopped the defendant on the highway, about three miles west of Waurika. He was driving a Ford car loaded with 12 cases of whisky.
The refusal to grant a continuance is assigned as error. The continuance was asked on the ground of the absence of P. T. Hamilton, who, if present, would testify that he was county attorney of Jefferson county when the information was filed, and that it was afterwards agreed that, if the defendant would relinquish all right, title, and interest in the Ford car this case would be dismissed, and that he told this defendant that the county judge approved the agreement, and that the defendant thereupon withdrew any claim to said car, and the same was sold by the county.
The application was insufficient, in that it was not averred that the defendant is unable to prove such facts by any other witness. We also think that the absent witness was incompetent to testify to the facts proposed to be proven by him. The only competent evidence as to whether or not the case was dismissed was the record of the trial court. It follows that the continuance was properly denied.
When the case was called for trial, counsel for the defendant made the following motion:
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