Weems v State

Weems v State
1919 OK CR 222
182 P. 264
16 Okl.Cr. 198
Decided: 07/16/1919
Oklahoma Court of Criminal Appeals

1. APPEAL AND ERROR Denial of Continuance Abuse of Discretion.

2. APPEAL AND ERROR Admission of Evidence Brief.

3. APPEAL AND ERROR Conviction on Accomplice's Testimony Reversal.

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4. APPEAL AND ERROR Accomplice's Testimony Corroboration.

5. APPEAL AND ERROR Grant of Separate Trial Presumption of Regularity.

6. LARCENY Larceny of Stock Sufficiency of Evidence.

Appeal from District Court, Caddo County; Will Linn, Judge.

John Weems was convicted of stealing domestic animals, and he appeals. Affirmed.

J.W. Osmond, for plaintiff in error.

S.P. Freeling, Atty. Gen., and W.C. Hall, Asst. Atty. Gen., for the State.

ARMSTRONG, J. The plaintiff in error, John Weems, hereinafter called defendant, was with others jointly informed against for stealing domestic animals, tried separately, convicted and sentenced to imprisonment in the penitentiary at McAlester for a term of two and one-half years, the service of said sentence to commence upon the expiration of the sentence now being served by him in said penitentiary. To reverse the judgment rendered, he prosecutes this appeal.

The defendant has not abstracted the evidence in this case, as required by the rules of this court, but invites the court "to examine the entire record as to the evidence without the same being set out in the brief." The evidence is very voluminous, covering hundreds of pages of typewritten

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matter; and, as to do so would serve no useful purpose, we will not undertake a recital thereof.

It is first insisted by defendant that he did not have a fair trial, because the court overruled his motion for a continuance, based upon the ground that the court had only four days previous to the trial appointed counsel to defend him, and that the counsel so appointed, by reason of being engaged for one and one-half days of the said four days in the trial of the defendant for another offense, had not had time properly to prepare the case for trial. In support of said contention defendant cites Frank v. State, 8 Okla. Cr. 71, 126 P. 582, and Brewer v. State, 13 Okla. Cr. 514, 165 P. 634, neither of which said cases we think in point. In the former case there was a distinct statutory ground for a continuance for the term, against which the state made no showing, while in the latter case the statement therein relied upon by the defendant in support of error in denying his motion for continuance is mere dictum based upon a hypothetical case not in accord with the instant case, and the evidence shows that the defendant had been out on bail for several months, and had ample opportunity to prepare for trial, and that he availed himself of that opportunity is shown by the fact that in the trial of his case, in addition to himself, he produced 19 witnesses who testified in his behalf, and after the trial had been entered upon the court adjourned to give him and his counsel further time to prepare his defense. The able defense interposed by the very competent attorney appointed by the court is shown by the record, and it shows that the defendant was not injuriously affected by being placed on trial at the time he was tried.

It is a well-established rule of this court, which will always be enforced, that the trial court must treat the defendant

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with fairness and allow reasonable opportunity to defend, and this court will not hesitate to reverse a conviction where said rule has been violated. Harris v. State, 9 Okla. Cr. 658, 132 P. 1121. But we are unable to see that the court in this case did not treat the defendant with fairness and give him reasonable opportunity to defend.

The defendant had a fair and impartial trial. Every safeguard under the Constitution and laws of this state was thrown around him, by the court appointing a most competent attorney to defend him, and after the trial had been entered upon, by suspending the trial to give defendant and his counsel additional time to prepare to meet the evidence that had been introduced by the state, and by granting this appeal at the expense of the county.

We are of the opinion that the court did not abuse its discretion in overruling the motion for a continuance.

The defendant further complains because he was tried separately from his co-defendants, without severance having been properly granted, and insists that the severance was erroneously granted by the court on its own motion. The record is silent as to how said severance was brought about, and in this state of the record it was brought about, and in this state of the record it must be presumed that the severance was properly granted, either on the motion of the defendant or on the motion of the state. We are unable to see how the defendant was prejudicially affected by being tried alone, or how he could have been beneficially affected by being jointly tried with his codefendants.

"There is no presumption against the regularity of the proceedings in a court of record. Such proceedings are presumed to be regular, unless the contrary is affirmatively made to appear." Beatty v. State, 5 Okla. Cr. 105, 113 P. 237.

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"We never presume error in the proceedings of a court of record, but, on the contrary, the presumption is that the trial court was regular and fair; and the burden is upon the party complaining of any ruling of the trial court to show that it was erroneous, and that he suffered injury thereby." Thornsberry v. State, 8 Okla. Cr. 88, 126 P. 590.

It is further contended by the defendant that prejudicial error was committed "in permitting the introduction and in the rejection of evidence prejudicial to his rights," but he failed to point out in his brief the evidence improperly admitted, or the evidence improperly excluded.

If the defendant is unable to point out the evidence erroneously admitted, or erroneously rejected, he certainly cannot expect this court to find it, where the number of witnesses examined is as great and the evidence as voluminous as in the instant case.

Finally, the defendant complains that the court committed prejudicial error in failing to instruct, without being requested by the defendant so to do, that the evidence of Milt Boydston, his codefendant and accomplice, must be corroborated to authorize the jury to convict the defendant upon his testimony, and that the verdict is contrary to the law and the evidence. If the record disclosed that the defendant was convicted upon the evidence alone of Milt Boydston, and that he was an accomplice of the defendant, this court, regardless of whether or not an instruction was asked or given that a conviction could not be legally had upon the uncorroborated testimony of an accomplice, would hold the defendant's conviction erroneous and reverse the judgment rendered. Section 5884, Rev. Laws 1910; Jones v. State, 14 Okla. Cr. 217, 169 P. 1133.

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A careful reading of the entire testimony in the case shows that, not only was the evidence of Milt Boydston amply corroborated, but that if the evidence of Milt Boydston be eliminated, there remains evidence sufficient, though the evidence is in conflict, to reasonably support the verdict of the jury.

"Where there is any legal evidence to reasonably support the verdict rendered, this court will not disturb such verdict, notwithstanding the evidence is in conflict." Rosco Arnold v. State, 15 Okla. Cr. 519, 178 P. 897.

The evidence of Milt Boydston clearly showing the guilt of the defendant, and his evidence being corroborated, and there being evidence, other than that of Milt Boydston, tending to show the guilt of the defendant, the jury was justified in finding the defendant guilty of larceny of domestic animals as charged in the information. A different verdict than that of guilty could not have been reasonably expected.

Finding no reversible error in the record, the judgment of the trial court is affirmed.