Wininegar v. State

• Decision Date: 13 May 1953
• Docket Number: No. A-11759,A-11759
• Citation: 257 P.2d 526,97 Okla.Crim. 64
• Parties: WININEGAR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 526

257 P.2d 526

97 Okla.Crim. 64

WININEGAR v. STATE.

No. A-11759.

Criminal Court of Appeals of Oklahoma.

May 13, 1953.

Rehearing Denied June 3, 1953.

Syllabus by the Court.

1. In order to disqualify a trial judge and to compel him to certify his disqualification on account of bias and prejudice, the applicant must show a clear, legal right to the writ; otherwise such application should be denied.

2. The constitutional provision guaranteeing every person charged with crime a trial 'without prejudice' does not mean that trial judge may not have an opinion as to defendant's guilt or innocence, or may not be prejudiced against crime charged, but means that he shall not entertain a personal prejudice against defendant. Okl. Const., Art. II, § 6.

3. Where the affidavit for change of judge sets forth conclusions but no facts showing the disqualification of the trial judge, and where the application is not supported by affidavits and the evidence heard by the trial court is not preserved in the record presented to this court, the action of the court in refusing to certify his disqualification will not be disturbed.

4. The presumption is that a defendant can have a fair trial in the county in which the offense was committed, and the burden is on the defendant seeking a change of venue to establish his right thereto.

5. On application for a change of venue the affidavit of the defendant in support thereof must not only aver 'that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein', but it must also set forth the facts rendering a fair and impartial trial there improbable.

6. Where the affiant although alleging considerable acquaintance throughout the county, does not state whether he has discussed or heard discussed by citizens throughout the county, or even in a particular part of the county, the case involving the defendant, such affidavit cannot be of aid to the court in determining the question raised by the motion, and is insufficient.

7. The fact that inhabitants of a county have read and heard of the commission of a crime does not disqualify them, and to warrant a change of venue, it must be made to appear that the inhabitants have a fixed opinion as to the guilt of the accused to the extent that the accused cannot have a fair trial by an impartial jury. Tit. 22 O.S.1951 § 561.

8. On motion for change of venue, trial court sits in judgment on the question just as on any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or has committed error in his judgment, his finding will not be disturbed.

9. In reviewing the action of trial court in refusing to grant a change of venue, this court will assume that no difficulty was encountered in securing a fair and impartial jury in absence of any contention to the contrary.

10. On appeal from conviction of murder, defendant had the burden of showing that he sustained prejudice by reason of trial court's refusal to grant a change of venue.

11. Where the record did not contain the voir dire examination of jurors or show the number of challenges for cause made or how many peremptory challenges were exercised, prejudice to defendant from refusal to grant a change of venue was not shown and overruling motion for change of venue based on alleged inability to obtain a fair and impartial trial in county because of prejudice against defendant due to adverse newspaper and radio publicity was not abuse of discretion.

12. A conviction may be had on circumstantial evidence when all circumstances proven are consistent with each other and with hypothesis that defendant is guilty, and inconsistent with every other rational hypothesis

13. The fact that defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which would otherwise be competent.

14. Where alleged improper argument is set up as a basis for a new trial, the argument will be construed in connection with the record, and, unless said alleged statements were such that they aroused the passion and prejudice of the jury to the extent that they would be swayed from arriving at a fair and just sentence, the objection to such argument will be overruled.

W. L. Steger, Durant, James H. Mathers and James C. Mathers, Coalgate, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Ass't. Atty. Gen., and R. H. Mills, County Atty., Bryan County, Durant, for defendant in error.

POWELL, Presiding Judge.

Jasper Lee Wininegar, alias Jack Jackson, hereinafter referred to as defendant, was charged by information in the district court of Bryan County with the crime of murder, and conjointly with Grady Sargent and Hiram Robinson. On February 21, 1952 the court granted a severance, and the State elected to first try Jasper Lee Wininegar. He was tried before a jury, found guilty and his punishment assessed by the jury at imprisonment at hard labor in the state penitentiary for the remaining period of his natural life. Appeal has been duly perfected to this court.

For reversal some twenty assignments of error are set out in the petition in error, but in brief no separate specifications of error are stated as required by the rules of this court, and the errors alleged are argued without division. The Attorney General's brief consists of but a fraction over two pages, without a citation of authority.

The principal complaint has to do with, (1) the refusal of the trial judge to disqualify; (2) his refusal to continue the case until the defendant could apply to this court for a writ of mandamus to compel disqualification; (3) the denial of application for a change of venue; (4) the action of the court in overruling the demurrer of the defendant to the evidence introduced by the State; and (5) prejudicial, inflammatory and unfair remarks alleged to have been made by the attorneys for the State, which prevented defendant from having a fair trial.

The information was filed in the district court on January 17, 1952. It charged the crime of murder to have been committed in Bryan County on December 13, 1951, particularized as follows:

'That is to say, the defendant did in said county and state, at the date above named, unlaufully, wrongfully, knowingly, wilfully, maliciously, intentionally and feloniously, without authority of law and with a premeditated design upon the part of the said Jasper Lee Wininegar, alias Jack Jackson, Grady Sargent and Hiram Robinson, acting conjointly and together, did effect the death of one Morgan Haddock by shooting and discharging certain metal and leaden shot into the body of the said Morgan Haddock from a shot gun then and there held in the hands of the said defendants, and did then and there and thereby inflict upon the body of the said Morgan Haddock certain mortal wounds, from which wounds the said Morgan Haddock did then and there languish and die, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.'

Considering first the refusal of the trial judge to disqualify, the record discloses that the defendant was arrested within two to four hours after the shooting with which he was charged. The date of the docket setting the case for trial after said filing is not shown by the record, but it is shown that the case was set for trial for February 24, 1952, and that the defendant was arraigned on February 21, 1952. On February 23, 1952 he filed an application before the trial judge seeking a change of judge, and also an application seeking a change of venue. On February 25, 1952, the date of trial as originally set, an amended application for change of judge was filed and the court thereupon reset the case for trial for February 27, 1952. On February 25, 1952 there was also filed in the Criminal Court of Appeals by the defendant an application for writ of mandamus, seeking an order directing the trial court to disqualify. This application was never heard by this court in that the county attorney did not agree on a hearing instanter and there was insufficient time for response and a hearing prior to February 27. The county attorney and the district judge were engaged in the trial or other cases. After the trial, the petition was by this court dismissed as moot.

In the application for change of judge reflected in the case-made, in explanation of the absence of supporting affidavits attached to the application, it is set out that witnesses could be called into court. If there was any evidence introduced in support of the allegations of prejudice on the part of the trial judge, the same is not reflected in the record presented to this court. The allegations are mostly in the nature of conclusion; no incidents are particularized or detailed to show prejudice of the court. And as stated, no proof at all is before us. Applicant cites no case in support of the proposition, and apparently does not attach much importance to it. This court, however, has carefully considered the entire record as presented by the case-made to discover any evidence of prejudice, not only in the proceedings prior to trial, but in the cumulative remarks and rulings of the court during the progress of the trial.

The record reflects that the court a majority of times sustained the objections interposed by counsel for the defendant to evidence attempted to be introduced, form of questions by the prosecution, etc., and it is very noticeable in reading the record of the trial proper that the court made every effort to prevent error and to see that the accused was accorded a fair and impartial trial.

The chief complaint against the trial judge is that it is alleged that he fixed the bond of one codefendant at $10,000, and one at...