Welty v. United States
| Decision Date | 04 March 1904 |
| Citation | 14 Okla. 7,76 P. 121,1904 OK 48 |
| Parties | BERT WELTY v. THE UNITED STATES. |
| Court | Oklahoma Supreme Court |
¶0 1. PRACTICE AND PROCEDURE IN UNITED STATES CASES. In matters of practice and procedure in the trial of federal cases the district courts of the Territory, when sitting with the powers of the circuit and district courts of the United States, are governed by the territorial procedure, so far as the same is applicable and not in conflict with some federal statutes upon the same subject.
2. COURTS--Jurisdiction--Indian Reservation--Exceptions. The district courts of the Territory of Oklahoma, when sitting with and exercising the powers and jurisdiction of a United States court, have exclusive jurisdiction of all crimes punishable by the laws of the United States, when committed by persons other than Indians upon an Indian Reservation occupied by Indian tribes and to which reservation the Indian title has not been extinguished; also, of all such crimes when committed by an Indian on such reservation except the specific crimes of murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny.
3. CONSTRUCTION OF STATUTE. In construing a statute containing words which have a fixed meaning at common law, and the statute nowhere defines such words, they will be given the same meaning they have at common law.
4. MATTERS OF DISCRETION. A continuance of the cause rests largely within the sound discretion of the trial court, and will not be held as reversible error by this court unless there is a clear abuse of discretion.
4. CONTINUANCE--Overruled, When. It is not error to overrule an application for a continuance in a trial for murder, when it appears the defendant had sufficient time to prepare for trial, and to procure the attendance of resident witnesses, and to take the depositions of non-resident witnesses, had he exercised reasonable diligence.
6. EXCEPTIONS NOT SAVED. This court will not consider errors occurring during the trial which are not jurisdictional, and which are not saved by being presented to the court in a motion for a new trial.
STATEMENT OF FACTS.
In this case, Bert Welty, the plaintiff in error, was indicted in the district court of Noble county for the crime of murder, alleged to have been committed in the Otoe and Missouri Indian Reservation, on the 16th day of May, 1901. Upon the motion of the plaintiff in error the venue was changed to Logan county. A trial was had which resulted in a conviction of the defendant for murder, fixing the punishment at life imprisonment. Motion for a new trial was regularly made, overruled and exception saved. Sentence of the court was pronounced, sentencing the defendant, Bert Welty to the federal prison, at Leavenworth, in the State of Kansas, for the period of his natural life, which was duly excepted to, and the case brought here for review.
Error from District Court of Logan County; before Jno. H. Burford, Trial Judge.
Buckner & Sons, for plaintiff in error.
Horace Speed, U. S. Attorney, John W. Scothorn and Frank Hall, Assistant U. S. Attorneys, for defendant in error.
¶1 The first assignment of error is that the district court of the United States, for Logan county, Oklahoma, had no jurisdiction to try and determine this case. We think this assignment of error is fully and completely answered in the case of Jemima Goodson v. The United States, reported in the 7th Oklahoma, at page 117, where this court says:
"The district courts of the Territory of Oklahoma, when sitting with and exercising the powers and jurisdiction of a United States court, have exclusive jurisdiction of all crimes punishable by the laws of the United States, when committed by persons other than Indians, upon an Indian reservation occupied by Indian tribes, and to which reservation the Indian title has not been extinguished; also of all such crimes when committed by an Indian, on such reservation, except the specific crimes of murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny;" and this doctrine was again re-affirmed by this court in the case of Herd v. The United States, decided at the present term of this court.
¶2 The second assignment of error is:
"The court erred in overruling the plaintiff in error's motion for a continuance."
¶3 This was an application which was addressed entirely to the discretion of the trial court, and the rule in this court is well established, and it has become a settled rule of practice, that unless the party making the motion for a continuance shows conclusively that he has used due diligence in attempting to have the absent witnesses present at the trial, and that their testimony would be material to his defense, that the appellate court will not reverse the case unless a clear abuse of discretion is shown.
¶4 In the case of Taylor Kirk v. The Territory of Oklahoma, reported in the 10th Oklahoma at page 16, this court said:
"It is no abuse of discretion to overrule an application for continuance where no diligence is shown to procure the attendance of resident witnesses, or to take the depositions of non-resident witnesses."
¶5 In the case of Hyde v. The Territory of Oklahoma, 8 Okla. 69 to 72, 56 P. 851, it is said:
"A continuance of the cause rests largely within the sound discretion of the trial court, and will not be held as reversible error by this court, unless there is a clear abuse of discretion."
¶6 And in the case of Crumpton v. The United States, reported in the 138 U.S. at page 361, it is said:
"Whether in a criminal case, the court will grant an application by the prisoner, made during the trial, for process for witnesses, and will delay the trial during the execution of the process, is a matter of discretion with the trial court, not reviewable here."
¶7 And this court again in the case of Smith v. The Territory, 11 Okla. 669, 69 P. 805, says:
"It is not error to overrule an application for a continuance, in a trial for murder, when it appears the party had sufficient time to prepare for trial, and to procure the attendance of resident witnesses, and to take the depositions of non-resident witnesses, had he exercised reasonable diligence."
¶8 The record in this case shows that the indictment was returned May 16th, 1901, and this application for a continuance was not made until November 25th, 1901, a period of over six months. It fails to show that any attempt was made to procure either the attendance of the witnesses or their depositions until some time in the week prior to the commencement of this trial, and the time of making this application for a continuance. The record also shows that these witnesses, with the exception of one, were all living in an adjoining county, and this one was at the time of the application in Canada. We do not think this is the exercise of due diligence; and the granting or refusing of the continuance, being a matter largely in the discretion of the trial court, the decision of which will not be reversed by this court, unless it is clearly shown that there has been an abuse of such discretion, we are not prepared to say that the discretion in this case has been abused to the detriment of the defendant; nor do we think the overruling of this motion for a continuance was reversible error.
¶9 The third assignment of error is:
"The court erred in forcing the plaintiff in error into trial before he had been served with a list of the jury and the witnesses, as by the laws of the United States provided for."
¶10 This assignment of error raises the question as to the procedure in force in cases where federal criminal cases are on trial, in a territorial court, sitting with the powers of a United States court. We think the true rule is that the district court, when trying such cases, and sitting with the powers of a United States court, is governed by the procedure prescribed by the territorial legislature, subject to a few express or implied conditions in the Organic Act, or in some law of congress passed especially for this Territory, and that the federal procedure only applies, and was only intended by congress to apply and to be followed in the trial of cases in the circuit and district courts of the United States, and has no application, and never was intended to be followed in the trial of a federal criminal case in the Territory. Our district courts are congressional courts, upon which have been conferred jurisdiction to try, with a few exceptions, any case that could be tried in an United States circuit or district court, and when a litigant comes into court, either upon his own motion, or is brought in by process, he is governed by the procedure, both civil and criminal prescribed by the territorial legislature.
¶11 In the case of Grant Stanley v. The United States, 1 Okla. 336, 33 P. 1025, this court says:
"We have repeatedly held that in matters of practice, in the trial of federal cases, our courts are governed by the territorial procedure so far as the same is applicable and not in conflict with some federal statute upon the same subject."
¶12 The federal criminal procedure was intended by congress to govern the trial of cases in United States circuit and district courts, and was not intended for the district courts in territories, upon which had been conferred jurisdiction to try cases which in states would be tried in a circuit or district court of the United States; therefore we think it necessarily follows that the territorial criminal procedure act is not in conflict with a federal statute upon the same subject.
¶13 In the case of Hornbuckle v. Toombs, 18 Wall. 648, 21 L. Ed. 966, it is held:
"That the practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject, as before said, to a few express or implied conditions in the Organic Act itself, were intended to be left to the legislative action of the territorial assemblies, and to the...
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