Williams v. State

• Decision Date: 13 November 1968
• Docket Number: No. A--14094,A--14094
• Citation: 447 P.2d 456
• Parties: James B. WILLIAMS, Plaintiff-in-Error, v. The STATE of Oklahoma, Defendant-in-Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 456

447 P.2d 456

James B. WILLIAMS, Plaintiff-in-Error, v. The STATE of Oklahoma, Defendant-in-Error.

No. A--14094.

Court of Criminal Appeals of Oklahoma.

Nov. 13, 1968.

Syllabus by the Court

1. The trial court in the exercise of judicial discretion may permit the name of a witness to be endorsed upon the information even after the trial has commenced. If the defendant's counsel is surprised at such action and such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial, and file a motion for a postponement or a continuance, in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case were continued. Where he fails to do this, the error, if any, is waived.

2. Defendant must timely object to the introduction of evidence otherwise the objection may be waived.

3. If a defendant is not satisfied with the trial court's instructions, it is his duty to request what he considers to be the proper instructions in writing; and unless the request is made, reviewing court will not deem the failure of the trial court to give an instruction reversible error, unless it is of such fundamental nature as to deny the defendant a fair and impartial trial.

4. A statement by the prosecutor of his personal opinion as to defendant's guilt, or a statement of facts not proved by evidence, or an attempt otherwise to get before the jury what amounts to his own testimony, is improper.

5. 21 O.S.Supp.1963, § 51 is intended to enhance the punishment possible on second or subsequent offenses and only amends statute under which information is laid, and in such respect does not interfere with proper imposition of fine.

6. The admission of exhibits is within the discretion of the trial judge, and such exhibits properly admitted into evidence may be taken to the jury room when the verdict is being considered.

An appeal from the District Court of Tillman County; Haskell A. Holloman, Judge.

James B. Williams was convicted of the crime of embezzlement of public funds and appeals. Judgment and Sentence as modified affirmed.

Miskovsky, Sullivan, Embry, Miskovsky & Turner, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiff in error, James B. Williams, hereafter referred to as defendant as he appeared in the trial court, has perfected his appeal from a conviction of the crime of embezzlement, after former conviction of a felony. Defendant was convicted in the District Court of Tillman County, Oklahoma after being tried by a jury which on March 15, 1966, the jury assessed his punishment at twenty (20) years confinement in the state penitentiary, and payment of a fine of $26,000.00.

Defendant's motion for new trial was overruled and judgment and sentence was imposed on April 1, 1966, after which defendant perfected his appeal to this Court. His motion for new trial lists seven errors, which he discusses under ten proposition in his brief. Insofar as the defendant was charged as 'after former conviction of a felony,' a two-stage trial was conducted. After the jury returned its verdict finding defendant guilty of the embezzlement charge, the second part of the information was read to the jury which thereafter assessed punishment.

Defendant had been the administrator of the Tillman County Memorial Hospital at Frederick, Oklahoma. The State Examiner and Inspector completed his audit of the hospital financial affairs for the period January 1, 1964 to September 30, 1965, and transmitted a copy of his report to the Governor, which included his letter of transmittal containing his findings and recommendations as to action to be taken in accordance with State Statutes. The letter was a part of the total audit report. The Examiner and Inspector's comments stated that the hospital collections unaccounted for amounted to a total of $40,604.74. The report thereafter summarized the audit by Exhibits contained in the report.

Preliminary complaint was filed against defendant on February 9, 1966, and on February 21st defendant waived his preliminary hearing and was bound over to stand trial in the District Court, and on March 9, an application to endorse additional witnesses was filed, which the trial court granted. Defendant's trial commenced on March 14, and the jury returned its verdict the following day. During the course of the trial, the State introduced fourteen witnesses and a total of twenty-eight exhibits. Defendant demurred to the State's evidence and rested his case.

Defendant's first proposition contends it was error for the trial court to deny his request for continuance, because the address of the first witness was not endorsed on the information. The record reveals, on page 21 of the casemade, that defendant objected to the testimony of the witness, Hoyt Mitchell, after the first question was put to him. Counsel for defendant said, 'I would like to object to the testimony of this witness because his address, town or residence, is not endorsed upon the information. The town of his residence, or his address, neither are endorsed on the information.' After the court overruled his objection, counsel stated further, 'Does the Court understand that I have asked for a continuance on that ground?' to which the court responded, 'Yes'. Beyond that exchange of remarks no specific request for continuance appears in the record. However, from the witness' testimony, it is ascertained that he was no stranger to defendant in that he had served on the Hospital Board for some ten years. Nowhere in the casemade does there appear a motion for continuance, filed on behalf of the defendant. Therefore we must conclude that defendant's objections were not well taken. This Court said in Evans v. State, Okl.Cr.App., 312 P.2d 908:

'The trial court in the exercise of judicial discretion may permit the name of a witness to be endorsed upon the information even after the trial has commenced. If defendant's counsel is surprised at such action and Such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial, and file a motion for a postponement or a continuance, in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case were continued. Where he fails to do this, the error, if any, is waived.' (Emphasis added.)

See also Crum v. State, Okl.Cr.App., 383 P.2d 45; Britt v. State, Okl.Cr.App., 285 P.2d 441; Paschall v. State, 96 Okl.Cr. 198 252 P.2d 175; and Shaw v. State, 53 Okl.Cr. 389, 12 P.2d 550.

Defendant's second proposition states: 'The court erred in allowing the audit of the examiner and Inspector to be taken to the jury room containing a letter from the State Examiner and Inspector which contained highly prejudicial conclusions which were never admitted or explained.'

The casemade reflects on page 96, during the direct examination of the State Examiner and Inspector, the prosecutor said with reference to the audit report, 'I would like to offer this exhibit in evidence.' Mr. Crane (defense counsel), 'I have no objection.' Thereafter the State Examiner and Inspector's audit report was admitted into evidence. Consequently, the jury was entitled to take the exhibit to the jury room.

Defendant's third proposition contends that the trial court should have instructed the jury that the defendant could be found guilty under the included offense of diversion of public funds under Title 21 O.S.1961, § 1463. We have examined the trial court's instructions given to the jury and find that defendant offered no objections to the court's instruction; we also find that defendant offered no suggested instruction to cover any special aspect of his defense. This Court has long held that it is the defendant's responsibility not only to settle the instructions to be given to the jury, but also that he should offer any objections to the trial court's instructions and if he has any suggested instructions they should be submitted to the court before the instructions are read to the jury. Failure to object to any of the court's instructions constitutes waiver of any defects, unless such be a fundamental defect. In this case, defendant's contended error is not fundamental.

This Court provided in the fourth paragraph of the syllabus to Meekins v. State, Okl.Cr.App., 420 P.2d 267:

'If a defendant is not satisfied with the trial court's instructions, it is his duty to request what he considers to be the proper instructions in writing; and...