Gilbert v. StateGilbert v. State
- Reporters:
- , , ,
- Before:
- Matson
This is аn appeal from the district court of Logan county, wherein, on the- 12th day of November, 1920, рlaintiff in error, hereinafter referred to as defendant, was adjudged guilty of the larceny of an automobile, the property of G. W. Hirzel, and punishment assessed as above stated. Petition in error and case-made were filed in this court on *353 April 7, 1921, ‘and the appeal is proрerly before the court for review.
Only two propositions are advanced as ground for reversal of this judgment. The first is error of the trial court in permitting the county attorney to propound to defendant on cross-examination the following question:
“Q. And further, don’t you know as a mattеr of fact that you went to Oklahoma City on Saturday after you stole that ear on Thursday, and don’t you know you made application on Saturday for a tag for this very Hirzel car, giving a fictitiоus engine number, and that you already had the engine dismantled with the idea of changing the number to сorrespond with the application blank?
“By Mr. Remy: Object; to the statement ‘On Saturday after yоu had stolen the car’ by the county attorney, and move for venire de novo.
“By the Court: Overruled, exception allowed.”
It is contendеd that the asking of such question of defendant constituted grave misconduct on the part of the county attorney, and that the refusal of the trial court to sustain the objection of defеndant’s counsel thereto, and to declare a mistrial because thereof, entitles defendant to a reversal of this judgment and to a new trial.
After a careful examination of bоth the direct and cross-examination of the defendant, we fail to see wherein the asking of the foregoing question alone should be held reversible error in this ease. Defendant’s admissiоns as a witness, his attempted explanation of his connection with the stolen automobilе, and his conduct immediately subsequent to the theft of the car, can hardly be explained оn any theory consistent with innocence. These facts, admissions, and circumstances Averе all before the jury (elicited both by the direct and cross examination), at the time the foregoing alleged incompetent question was asked.
*354 It does not appear from’ the rеcord that the county attorney propounded the question for the purpose of рrejudicing the jury against the defendant, nor to take an unfair advantage of the defendant by intimаting something that was not true or incapable of being proved.
The truth of the assumption “aftеr you stole that car on Thursday,” contained in the question objected to, had been prеtty thoroughly established by competent evidence before the question was asked. Such аssumption therefore was not wholly unjustifiable; neither was the asking of the question manifestly improper.
With the overwhelming evidence of guilt contained in this record, it would be an unwarranted interfеrence with the enforcement of the law and a’ prostitution of justice to remand this cаuse for a seeond trial, when an honest and intelligent jury could arrive at no other reasonable conclusion than that of the guilt of defendant.
If judgments of conviction, rightfully obtained under the law and the evidence, were to be set aside merely because the county attorney, in the heat of the trial, apparently without any malicious purpose, asked of defendant on cross-examination a question or two containing erroneous matter, an apparent miscarriage of justice would result, to the utter dis-cOmforture and discouragement of all law-abiding citizens and with it resultant and unnecessary additional burden to the taxpayer.
Wе do not understand that questions thus asked constitute such official misconduct that entitles a defеndant (to a new trial; onl the contrary there must clearly appear an evident purрose on the part of the county attorney to take an unfair advantage of defendant by asking questions containing matter which he knew to be either not true or incapable of proof. *355 Such was evidently not the purpose of this question, and the alleged misconduct was not such as’ should result in a reversal of the judgment.
Further, it’ is! contended that the trial court erred in instruсting the jury that the minimum punishment for the larceny of an automobile was “by confinement in the state penitentiary for not less than five years.” The information is based on section 2120, Comp. Stats. 1921 (Sess. Laws 1919, p. 155, § 1), ‘and it is contended that, as the title to. the act makes no reference to punishment, thei act is void as in contravention of section 57, art. 5, Const. This contention has been decided adversely to counsel’s position in) two recent cases: Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.
Judgment affirmed.
DOYLE and BESSEY, JJ., concur.