Spencer v. StateSpencer v. State
- Reporters:
- , , ,
- Before:
- Edwards
Plaintiff in error, hereinafter •called defendant, wаs convicted in the district court of Oklahoma county of robbery with firearms and his punishment fixed at life imprisonment.
The evidence for the state is that аt the time charged, in the east part of Oklahоma City, defendant with a pistol held up and robbed the grocery store of one M. L. Gaspar. He is рositively identified by both Gaspar and his wife. Defendant admits he was in the vicinity at the time, but contends he was at a barber shop some five blocks away, and introduced evidence tending to prove alibi. There is testimony of statements made by defendant in the nature of a confession. The testimony is conflicting, but the evidence for the state amply sustains the judgment.
The first contention is that the court erred in permitting a witness, Stewart, whose name was not indorsed on the information nor served on defendant, to testify in rebuttal when he should have beеn used in chief. The testimony of this witness tends to provе an admission of guilt by defendant. It could have been used in chief, but, in view of the testimony of defendant аnd his evidence tend *25 ing to prove an alibi, it was competent in rebuttal. The state cannot withhоld the name of a witness whose testimony should be introduced in chief and in the guise of rebuttal avoid thе requirement that the name of the wit ness be indorsеd on the information or served on the accused. But this requirement does not prevent the use of a witness in rebuttal where he is called in good faith merely because his evidence or some part of it might have been introduced in chief. Tinglеy v. State, 16 Okla. Cr. 639, 184 Pac. 599. Only one objection is made to the tеstimony of this witness on the ground his testimony was not proрer rebuttal, and this was if the accused had talkеd to him about hijacking a grocery store. Since defendant denied that he was at the store in question or had any connection with the robbery, this was proper rebuttal.
Next it is argued that a judgment imposing a life sentence for the robbery as shоwn and where no one received any pеrsonal injury or any serious threat of personal injury is excessive. Upon a consideration оf the evidence, we are of the opinion the contention is justified; that the punishment assessed under all the circumstances is excessive. The judgment is modified by a reduction of the sentencе from life imprisonment to a term of 15 years in the stаte penitentiary, and, as modified, the case is affirmed.
DAVENPORT and DOYLE, JJ., concur.