Wood v. State
| Decision Date | 07 December 1910 |
| Parties | WOOD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) Where the record is silent as to whether or not the defendant has been arraigned, but shows that the defendant appeared by counsel and announced ready for trial, participated in the selection of the jury and the examination of the witnesses and further shows that the issues in the case were properly made up and submitted to the jury, it is too late after conviction for the defendant to object upond the ground that he was not arraigned. (b) Where the record is silent as to whether the defendant had been arraigned, but affirmatively shows that the defendant was accorded all the rights and privileges which the statute secures him by arraignment, this court will presume that the defendant was either arraigned or that he waived arraignment.
Objections to testimony made in the lower court will only be considered by this court where the precise error complained of is clearly pointed out in the brief of counsel, with a statement of the testimony objected to, so as to enable this court to understand the questions presented. The brief must also contain a statement of the page of the record on which the matter complained of can be found, and it must also clearly state the argument of counsel and contain the authorities relied upon to sustain the objections made in the lower court.
For evidence held to be sufficient to sustain a conviction for manslaughter in the first degree, see opinion.
Exceptions reserved to the instructions of the trial court will not be considered by this court, unless the brief clearly points out the alleged defect in said instructions, or unless said instructions are fundamentally wrong.
Where the record is silent as to the presence of the defendant upon one day of his trial, but shows affirmatively that he was present and announced ready for trial when the trial began and also that he was present when the verdict of the jury was returned, the entire record may be considered and may be sufficient to justify the presumption that the defendant was present on the day on which the record was silent as to his presence. See facts and conclusions in the opinion justifying this presumption.
Where improper remarks made by a prosecuting attorney to a jury have been provoked by and are in reply to remarks made by defendant's counsel, such remarks of the county attorney are not ordinarily ground for new trial.
(a) All judgments and sentences of the court must follow and be based upon the verdict of the jury. (b) Where there is a variance between the verdict of the jury and the sentence of the court, it must appear from the record that such variance cannot be corrected without depriving the defendant of a substantial right, before the conviction will be set aside but the cause will be remanded to the lower court for resentence. (c) It is the duty of the county attorneys of the state to prepare all orders and judgments in criminal cases and when an appeal is taken it is also their duty to carefully read over the case-made and transcript of the record and see that the orders and judgments of the court are correctly copied therein.
Appeal from District Court, Pittsburg County; Malcom E. Rosser, Judge.
Sam Wood was convicted of manslaughter on a charge of murder, and he appeals. Affirmed, with directions.
Lester & Hammond and Arnote & Monk, for appellant.
Smith C. Matson, Asst. Atty. Gen., for the State.
First. Counsel for appellant insist that this conviction should be reversed because the record fails to show that the defendant had been arraigned. In the early days of the common law, when the defendant had no right to be represented by counsel or to testify in his own behalf, and when the punishment for felonies was extremely severe, if not cruel, great weight was accorded to the forms and modes of criminal procedure, which were looked upon as a bulwark of defense against improper convictions. An arraignment was a matter of great form and ceremony. The prisoner was placed in a box or dock and the indictment was read to him by an officer designated for that purpose. He was required to hold up his right hand to identify himself as the person being arraigned. The judge before whom a trial took place was regarded as counsel for the defendant. The indictment was read to the defendant to inform him of the particular offense with which he was charged and to obtain his plea thereto, and thereby enable the court to determine whether it was necessary to have witnesses summoned for the prosecution. If he pleaded not guilty, the clerk of the court would then demand how he would be tried. The common answer was, "By God and the country." The clerk then entered on the record, "The defendant pleads not guilty, and demands to be tried by God and the country." The clerk then said, "I pray Thee, O, God, to send to this defendant a good deliverance." The defendant was given an opportunity to state to the court what witnesses he desired to have summoned in his defense. The conditions surrounding an arraignment in olden times have long since passed away, but in many states there is a strong disposition to regard the old forms of the common law as sacred things, when, as a matter of fact, many of them are as lifeless as the mummies of Egypt. As late as 1806, in the state of Massachusetts, the defendant was required to be arraigned in the presence of three judges, and a capital conviction was reversed because it appeared from the record that, without objection on the part of the defendant, only one judge was present when the defendant was arraigned. See Commonwealth v. Hardy, 2 Mass. 303. We must confess to a want of sympathy with precedents of this character. They have no more application to the law and to conditions existing in Oklahoma than would the provisions of the Code of Hammurabi, the first King of Babylon, said to have been a contemporary of Abraham, which code was discovered in 1901 at Susa in Persia by a party of French excavationists. This code is claimed to be the oldest known code of laws. Therefore if there is to be no progress and development in the law, the code of Hammurabi, by all means, should be cited and followed by courts of modern times.
Our statutes provide for an arraignment, and specifically direct what should be done upon arraignment, and thereby show why an arraignment is required. They provide that if the defendant be without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and he must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court is required to assign counsel to defend him. He must also be asked when he is arraigned if the name by which he is indicted is his true name. He must then declare his true name, or be proceeded against in the name of the indictment. If, on arraignment, the defendant requires it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the arraignment. In answering the arraignment the defendant may either move the court to set aside the indictment or may demur or plead thereto. See Snyder's Comp. Laws of Oklahoma 1909, §§ 6731, 6733, 6736, 6737. It is seen from this that the object and purpose of an arraignment is to obtain issues either of fact or of law for trial and to inform the defendant of his right to be represented by counsel, either of his own choice or under appointment from the court; and also to inform him of the precise offense charged against him, in order that he may be able to prepare for trial, and to enable the defendant to obtain such time as will be necessary to make such preparation. These are the purposes for which a defendant is arraigned and are the substantial rights which an arraignment is intended to secure to a defendant.
The record in this case shows that the defendant was not deprived of any of these rights, but that he exercised each of them. Therefore, under our statute, which requires this court to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of a defendant, this conviction cannot be set aside because the record fails to show that the defendant was arraigned, when it does show that all of the rights secured by an arraignment were exercised by him. Where there is no injury the law allows no remedy. While the record in this case is silent as to whether or not the defendant was actually arraigned, yet it does appear from the record that upon his trial the defendant was represented by counsel and that he announced ready for trial and participated in the selection of the jury, and that testimony was offered in his behalf and the instructions of the court to the jury, which are made a part of the record by our statutes, state that the defendant had pleaded, "not guilty." The record also shows that a motion for a new trial and a motion in arrest of judgment were made and no objection was presented upon the ground that the defendant had not been arraigned. When called to the bar of the court to have the sentence of the law pronounced against him, he was asked what he had to say, why sentence should not be pronounced, and he interposed no objection whatsoever. He presents the alleged want of arraignment for the first time in this court.
We are of the opinion that when the record shows that a defendant appeared in court, represented by counsel, and voluntarily announced ready for trial and participated in the selection of the jury, and offered evidence in his behalf, and that the issues were made up and properly submitted to the jury, it is too late for...
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