Wright v. State
| Decision Date | 17 June 1916 |
| Docket Number | A-2523. |
| Citation | 158 P. 290,12 Okla.Crim. 443,1916 OK CR 63 |
| Parties | WRIGHT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The affidavits in support of an application for a change of venue and the counter affidavits, together with the examination of the witnesses in support of the application, in open court presents only a question of fact for the court to pass upon and, unless it is clear that he has abused his discretion or committed error in his judgment, his finding and judgment will not be disturbed by this court.
Where a jury was permitted to separate in order that one of its members might attend the funeral of a member of his family and the defendant made no objection and took no exceptions to this action at the time the separation was allowed, he cannot be heard to complain in this court.
Where a party makes an affidavit charging misconduct on the part of certain jurors, and afterwards upon examination, in open court, repudiates his affidavit, such affidavit will not receive consideration in this court.
It is not error to refuse requested instructions that are upon propositions which are fully covered by the instructions given by the court; and it is not error for the court to give the usual instruction on larceny, where the evidence raises a question of the defendant's guilt.
Error from District Court, McCurtain County; C. E. Dudley, Judge.
Ollie Wright was convicted of larceny of a domestic animal, and brings error. Affirmed.
Spriggs & Spriggs, of Idabel, and O. R. Young, of Oklahoma City, for plaintiff in error.
R. McMillan, Asst. Atty. Gen., for the State.
This is an appeal from the district court of McCurtain county sentencing Ollie Wright, the defendant in that court and appellant here, to two years in the penitentiary for the larceny of a cow.
The evidence justifies the verdict, but the appellant insists that the court committed certain errors.
1. He complains first because the court overruled his application for a change of venue, and seems to insist that, when he filed the statutory application, the Constitution made it mandatory that the court grant the change. This, however, is not the law. The Constitution provides:
"That the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law." Const. art. 2, § 20.
And section 5810, Revised Laws 1910, prescribes the procedure for a change of venue, and, among other things, provides that after the necessary steps to obtain a change of venue have been taken by the defendant, the county attorney may file counter affidavits and examine "the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court." This contemplates the exercise of a judicial discretion on the part of the trial court, and if upon the examination of the affidavits and counter affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot be had in the county, then, and under those conditions, it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not...
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