132 P. 824 | Okla. Crim. App. | 1913
This case was appealed upon a transcript alone and does nor contain any statement of the evidence. Therefore we know nothing of the testimony and must decide it alone upon the record.
Counsel for appellant in their brief say:
"We maintain that it is mandatory that the record of the case show the presence of the plaintiff in error, who was the defendant below, at all stages of the trial."
The transcript of the record shows that appellant was present in court and announced ready for trial, and that he was present when the verdict was received. It also shows that appellant filed a motion for a new trial complaining of 10 grounds *578
of error. No complaint is made in this motion that any part of the trial took place in the absence of appellant. The record also shows that appellant was present when the judgment was pronounced against him. He was then asked by the trial court what, if any, reason he had why judgment and sentence should not be passed upon him. To this he made no reply. If, as a matter of fact, any part of the trial took place in the absence of appellant, he should have complained of this matter either in his motion for a new trial or when sentence was pronounced against him, and should have taken some steps to make such absence appear in the record, and, having failed to do this, he cannot now be heard to complain. This question has been repeatedly passed upon by this court. The last utterance of this court on this question will be found in the case of Burns v. State,
"Fourth. Counsel for appellant contend in their brief and oral argument that the judgment should be set aside because the records of the court do not affirmatively show the presence of the defendant during the trial. The record does show that the defendant entered a plea of not guilty; that he was present when the state's witnesses were examined; that he testified in his own behalf, and was present when the sentence of the court was pronounced. It affirmatively appears from the motion for a new trial that appellant was present during the trial of this case, and that he requested the court to send the jury to inspect the place where the shooting occurred, and that he took numerous exceptions to the introduction of evidence and the instructions of the court as given to the jury. Upon the authority of Sam Woodv. State,
This is the only question presented in the brief of counsel. We could not grant a new trial upon this ground without reversing a number of our former rulings and establishing a dangerous precedent.
The judgment of the lower court is affirmed.
ARMSTRONG, P.J., and DOYLE, J., concur. *580