Williams v. State
| Decision Date | 01 November 1919 |
| Docket Number | A-3018. |
| Parties | WILLIAMS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied May 29, 1920.
Syllabus by the Court.
Applications for a continuance on the ground of the absence of material witnesses are addressed to the discretion of the trial court and, unless there appears to be a manifest abuse of such discretion, the judgment of conviction will not be reversed because a continuance was denied.
For reasons showing no abuse of discretion in overruling the application for a continuance in this case, see body of opinion.
Section 2415, Rev. Laws 1910, providing, "Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of 18 years at the time of such act," construed, and held, that proof that the defendant was over the age of 18 years at the time of the commission of the alleged act is not indispensable to a conviction; the age of the defendant being a matter of defense, and not a material element of the crime.
On appeal, all presumptions favor the regularity of the proceedings in the trial court. Where judgment was pronounced against the defendant less than two days after the rendition of the verdict, without objection on his part, the presumption will be entertained in this court that the trial court did not intend to remain in session for two full days after the rendition of the verdict, and that the judgment was pronounced at as remote a time as could reasonably be allowed; the record being silent as to the length of time the court remained in session after the rendition of the verdict.
Appeal from District Court, Tillman County; Frank Matthews, Judge.
Odie Williams was convicted of the crime of rape in the second degree, and sentenced to serve a term of four years in the state reformatory, and he appeals. Affirmed.
Mounts & Davis, of Frederick, for plaintiff in error.
S. P Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
A statement of the facts is not necessary in this case. It is sufficient to say that after an examination of the transcript of the testimony of the witnesses the court finds that there is ample evidence to support the judgment of conviction.
It is first contended that the trial court erred in overruling defendant's motion for continuance, based upon the absence of three witnesses, who were alleged to be residents of Tillman county, young men who it is averred in the application would testify, if present, that they had each had sexual intercourse with the prosecuting witness after she had reached the age of 16 years and prior to the commission of the act of sexual intercourse upon which this conviction is based. As this is a conviction for statutory rape in the second degree upon a female between the ages of 16 and 18 years, of previous chaste and virtuous character, the evidence of prior sexual intercourse by the prosecuting witness with other male persons than the defendant after she had attained the age of 16 years, and prior to the commission of the alleged act upon which the conviction in this case is based, was competent evidence in behalf of the defendant.
This court has repeatedly held that applications for a continuance, based upon the absence of material witnesses, is a matter addressed to the discretion of the trial court, and unless there appears to be a manifest abuse of such discretion, the judgment of conviction will not be reversed on this ground alone. Reed v. State, 14 Okl. Cr 651, 174 P. 800.
There was no abuse of discretion in this case. The defendant had notice for some months prior to the trial that he was being prosecuted for this alleged offense. The evidence shows that at least two of the alleged absent witnesses lived in the vicinity of the defendant in Tillman county. No effort was made to procure the attendance of these two witnesses until a day or two before the case was called for trial, when the defendant caused a subp na for them to be issued and placed in the hands of the sheriff. At that time, the witnesses were not found, but the sheriff left a copy of the subp na at their usual place of residence. The third witness it appears had not been seen in Tillman county for some time, having apparently left there shortly after the defendant was arrested. There is no showing of any probability of ever procuring the attendance of this third witness, or of taking his deposition for use on a subsequent trial of this case. The application does not show that the defendant, or anybody else, knew his whereabouts at the time the application was made. On the hearing of the motion for a new trial, the state produced the other two alleged absent witnesses, who swore positively that they had never had intercourse with the prosecuting witness at any time.
It is apparent, therefore, that as to two of these witnesses the defendant would not be able to prove the facts set out in his application for a continuance should another trial be granted him. As to the third, no probability of obtaining his attendance at the trial or of securing his deposition is shown, even if it be admitted that he would testify to the facts set forth in the application.
Unless there is a reasonable probability that upon a subsequent trial of the cause a different result...
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