White v. State, F-78-547
| Decision Date | 28 February 1980 |
| Docket Number | No. F-78-547,F-78-547 |
| Citation | 607 P.2d 713,1980 OK CR 10 |
| Parties | Michael Gene WHITE, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Michael Gene White, was convicted of the crime of Injury to a Minor Child, in the District Court, Craig County, Case No. CRF-76-437. Pursuant to the jury's verdict, he was sentenced to ten (10) years' imprisonment.
The errors urged upon appeal include the refusal by the trial court to do the following: To grant a motion for continuance, to allow the appellant to withdraw his plea of not guilty, to suppress certain evidence, and to give the appellant's requested instructions on circumstantial evidence.
On November 21, 1976, at approximately 7:45 p. m., Trinity White, aged 14 months, was treated at Craig General Hospital by Dr. O. W. Dehart. The infant was semi-comatose with multiple abrasions, burns, and bruises, which according to the State's physicians appeared to have occurred at different times. The child had difficulty breathing and his body temperature of 92 degrees Fahrenheit was below normal. The child was transferred to St. Francis Hospital in Tulsa, where physicians detected a severe abdominal injury requiring immediate surgery.
According to the appellant, the child's injuries occurred during normal unattended out-of-doors play when a pile of logs fell upon him. Then, in the process of reviving the child, the appellant placed him under running hot water. On the trip into town, the appellant explains, the baby was accidentally thrown to the floor when their pickup hit a ditch. In an attempt to revive the child, the appellant held him out the window.
The appellant first contends that it was an abuse of discretion for the court to deny his motion for a continuance. By statute, "the court may, upon sufficient cause shown by either party, . . . direct the trial to be postponed to another day in the same or next term." Title 22 O.S.1971, § 584. The denial of a motion for continuance will not be set aside on appeal without a showing either that the trial court abused its discretion or that the defendant was entitled to a continuance as a matter of law. Taylor v. State, 79 Okl.Cr. 115, 152 P.2d 123 (1944).
The appellant argues that he did not have sufficient time to read and review the transcript of a vital State witness and further that he had not been afforded compulsory process of witnesses. The copy of the doctor's testimony was available before trial, and it has not been shown that the judge abused his discretion nor that the appellant was prejudiced as a result of the testimony being made available just one day before the State's case. See Wright v. State, Okl.Cr., 559 P.2d 852 (1977). Insufficiency of preparation time falls within the parameters of sound judicial discretion. As stated in Mott v. State, 94 Okl.Cr. 145, 232 P.2d 166, 176 (1951), "(A)n application for continuance on the ground of want of time to prepare for trial is addressed to the sound discretion of the trial court, . . . ." As to the service of the subpoenas, there is no showing that the appellant was prejudiced. Further, it was the judge's opinion that the witnesses would be served in time. Whether, in fact, this was done has not been made a part of the record.
Next, the appellant alleges that the trial court erred in refusing to allow him to withdraw his plea of not guilty for the purpose of presenting a motion to quash and a demurrer to the information. When a defendant enters a plea of not guilty, that plea waives all defects except subject matter jurisdiction, or a failure of the indictment to state a public offense. Jackson v. State, 71 Okl.Cr. 258, 110 P.2d 929, 930 (1941). Once a plea of not guilty has been entered, the court is granted the discretion to allow the plea to be withdrawn, but it need not do so. Jenkins v. State, 11 Okl.Cr. 168, 145 P. 500 (1914). This argument is without merit.
In his third assignment of error, the appellant alleges that it was error for the trial court to admit certain evidence, specifically photographic slides and certain rebuttal testimony. According to the appellant, the slides of the body of the injured child were improper for two reasons: An improper foundation and their lack of relevance. In establishing a...
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