6 P.2d 833 | Okla. Crim. App. | 1932
The plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Oklahoma county, and his punishment fixed at death.
The record discloses that on September 14, 1930, Homer Folwell, a farmer 70 years of age, living about 12 miles northwest of Oklahoma City, was beaten to death with a blunt instrument, and his pockets rifled. Defendant, about 40 years old, had known Folwell a number of years and formerly had lived in the Folwell farm. He had been convicted of grand larceny and Folwell was a witness against him, and the inference of ill will because of this circumstance arises. After his discharge from the penitentiary, defendant returned to Oklahoma City, where he worked at various jobs. On the afternoon before the day of the homicide several witnesses saw a man dressed in light khaki unionalls, wearing a black cap, carrying a bundle two or three feet long under his arm, going, in the general direction of the Folwell farm. Some of the witnesses recognized this person as the defendant. About 6:30 p. m. of the day of the homicide Folwell went to the farm to do the evening chores. Soon his wife came outside and, looking toward the barn, saw a man dressed in light khaki clothing standing over and beating her husband with some kind of club. She was not able to identify this person as the defendant, though the general description coincided. After having been beaten, the body of Folwell was dragged behind the barn, the pockets emptied and belongings taken. At the scene a piece of a 410 shot
Defendant claimed he had been hunting doves with one Myers who furnished him with the 410 shotgun. That he killed three doves and gave them to Myers, but when they separated Myers took the gun. He denied the pocket knife belonged to Folwell, and that he knew anything of the spectacle case and contents. Denied he was near the Folwell farm on the Saturday before the killing, or that he was north of the El Reno interurban line on either date. The evidence of guilt is conclusive. No contention is made that it is insufficient to support the judgment and sentence.
The first contention made is that certain witnesses, Tucker, Gillespie, Charbeneau, Smith, and Jones, called by defendant, and also the defendant, were not sworn. This contention is first made in the motion for a new trial. Attached to the motion is the affidavit of Tucker, Gillespie, and the defendant setting out, in substance, that they were not sworn nor affirmed at the time they testified, and that no oath or affirmation was administered to them. Charbeneau, Gillespie, Smith, and Jones testified orally in support of the motion that they were not sworn. The court reporter made a statement, in substance, that where
There is no direct contradiction of tbe testimony of tbe witness Jones that be was not sworn. However, tbe record at tbe time be was called and at tbe beginning of bis testimony is:
“Hugh Jones, called as a. witness by tbe defendant and having been first duly sworn, testified as follows. * * *”
Tbe witness Harper testified:
*6 “Q. Did you attend practically all of that trial? A. Yes, sir. Q. I will ask you to state just what the procedure of the court was when the witnesses took the stand? A. Judge Hooker asked every one of them that got on the stand whether they had been sworn or not and if they said they hadn’t, several when I was in there, if the court clerk was there the clerk administered the oath, and the rest of the time he did. * * *”
At the time defendant was called, the record shows the following:
“Martin A. Keeney, defendant, having been first duly sworn, testified as a witness in his own behalf, as follows. * * *”
At the conclusion of the testimony in support of and in opposition to the motion for a new trial, the trial judge said :
“I remember distinctly of administering the oath to some of the parties who have testified here this morning that they were not sworn.”
Section 605, Comp. St. 1921, is in the chapter of Procedure Civil, but as there is no special provision for procedure in criminal cases the section is general in its application; it provides:
“Before testifying, the witness shall be sworn to testify to the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as is most binding on the conscience of the witness. An interpreter may be sworn to interpret truly, whenever necessary.”
This section should be construed in connection with section 2822, Comp. St. 1921 (the harmless error statute), and also section 2943, Comp. St. 1921, which is:
“Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or pro*7 ceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”
Our attention has been directed to various decisions wherein it has been held, in substance, that, where a witness for the state has testified without having been sworn, and where the accused and his counsel had no knowledge of such an irregularity until after the verdict, a new trial should be granted, although the error was inadvertent or accidental. Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129; Langford v. U. S., 4 Ind. T. 567, 76 S. W. 111, 4 Ann. Cas. 1021; State v. Taylor, 57 W. Va. 228, 50 S. E. 247; Rhodes v. State, 122 Ga. 568, 50 S. E. 361; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 887; Smith v. State, 81 Ga. 479, 8 S. E. 187; State v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608; Moore v. State, 96 Tenn. 209, 33 S. W. 1046. Decisions in civil cases we do not deem applicable, but see Mayberry v. Sivey, 18 Kan. 291.
The settled rule of this court is that error is never presumed, but every presumption favors the regularity of the proceeding had upon the trial and, to be available, error must be affirmatively shown. We are convinced defendant has not sustained this burden and has wholly failed to establish the fact that any of the witnesses were not sworn. The record recites that the witnesses were duly sworn. This record is made and brought here by defendant. The solemn recitals therein and the finding of the trial judge must prevail in this court over the affidavits or testimony of the witnesses. Nor would the contention avail under the facts in this case if it had been shown. The cases in which a judgment has been reversed because witnesses were not sworn are all cases in which the witnesses testified for the state. No case has been called to our attention, and we have been unable to find one, where
Next it is urged that, after the jury retired to- deliberate, certain documents and other evidence were delivered to the jury in the jury room out of the presence of the court, and without the knowledge or consent of defendant or his attorneys. It is made to appear that while the jury were deliberating they asked for certain documents and pictures used in the trial. At their request, the bailiff went to the county attorney’s office, procured some documents and pictures, and took them to the trial judge and returned to the jury room. That the court clerk also took to the trial judge certain documents and pictures. After an inspection, the trial judge sent by the court clerk to the bailiff to be delivered to the jury certain documents and papers. Defendant contends that these exhibits contained some affidavit which had not been admitted in evidence. On the hearing of the motion for a new trial considerable evidence was taken in support or in opposition
“The Court: It becomes necessary for the court to mate findings of fact in reference to the exhibits that were sent to the jury room. The jury sent down and requested such exhibits — the photographs introduced in evidence and the statement at the police station which had been identified by the defendant in this case. An effort was madé to locate the counsel for the defendant and, after we waited about thirty minutes and couldn’t find or locate either one of them, I sent to the-county attorney’s office and caused to be broug'ht to the court the photographs and the statement, and sent them to the jury room. Those were the only exhibits sent to the jury room. Mr. Morris: We would like to have the court find whether those were introduced. The Court: They had already been introduced in evidence and exhibited before the jury, and repeatedly referred to in the arguments to the jury by counsel for the state and for the defendant.”
It is not shown that the jury received any extraneous evidence or any exhibit which had not been properly identified and admitted in evidence. The sending of proper exhibits to the jury room instead of having the jury return into court and there delivering the exhibits to them in person is not error. Brown v. State, 52 Okla. Cr. 307, 4 Pac. (2d) 129; Powell v. State, 61 Miss. 319. See, also, White v. State, 20 Okla. Cr. 183, 201 Pac. 522.
Upon a consideration of the entire case, we are fully convinced defendant had a fair and impartial trial. His guilt is proven beyond any reasonable doubt, and the verdict and judgment are fully warranted by the facts and the law.
The case is affirmed.