Cochran v State

Cochran v State
1910 OK CR 218
111 P. 978
4 Okl.Cr. 390
Decided: 11/23/1910
Oklahoma Court of Criminal Appeals

COLON COCHRAN
v.
STATE.

Appeal from District Court, Adair County; John H. Pitchford, Judge.

Colon Cochran was convicted of an assault with intent to kill, and he appeals. Affirmed, with directions.

Syllabus

¶0 1. APPEAL--Reservation of Grounds of Review--Duty of Judge to Remain Present During Trial. (a) If, during a trial of a criminal case, the judge absents himself from the courtroom and relinquishes control of the trial, and the attorneys for the defendant desire to assign this matter as error, when the judge returns into the courtroom they should request him to make a record of his absence, or when they prepare their case-made they should incorporate in it a statement of the facts as they occurred.
(b) Matters occurring in open court during the progrss of the trial can be shown only by proper recitals in the case-made duly certified to by the trial judge.\
(c) Trial courts are admonished that during the trial of a criminal case it is their duty to remain in control of the trial during every moment that court is open.
2. EVIDENCE--Competency--Appeal--Review--Remarks of Judge. (a) When the reason why a person has gone to a certain place becomes material upon a trial, it is proper to allow such person to explain why he went there.
(b) Where, upon a trial of a cause, objection being made to allowing an officer to explain why he went to the scene of difficulty, the trial court said: "In this connection I will say that it is the duty of an officer, when he is informed of a disturbance, to go and investigate it." This is a correct statement of the law, and we cannot see how it could have injured the defendant in any manner.
(c) In ruling upon the admissibility of evidence, trial courts should carefully abstain from commenting upon the weight or effect of testimony; but where such remarks are made, and it is clear that they could not have injured the defendant, they will not constitute ground for new trial.
3. APPEAL--Instructions--Necessity for Exceptions in Lower Court. (a) Errors committed in the instructions of the court to the jury, where no exceptions are reserved to such instructions and no special instructions were requested, will not be considered upon appeal unless they are fundamental or necessarily injured the defendant

Williams & Williams, for appellant.

Smith C. Matson, Assistant Attorney General, for the State.

FURMAN, PRESIDING JUDGE.

¶1 First. The third ground set up in the motion for new trial is as follows:

"Because the court left the bench and relinquished control of the trial during its progress for the space of several minutes while R. Y. Nance, one of the attorneys for the state, was arguing the case to the jury."

¶2 The defendant filed affidavits in support of this ground for a new trial. If, as a matter of fact, the judge should absent himself from the courtroom and thereby relinquish control over the trial, it is entirely proper that this fact should be incorporated in the motion for new trial; but we cannot consider the affidavits which are filed in support of this ground. If counsel for the defendant were desirous of bringing this question before this court upon appeal, when the judge returned to the courtroom they should have requested him to make a record of his absence, or they should have incorporated in the case-made a statement of the facts as they occurred. We can only consider matters occurring in open court during the progress of a trial when the facts are certified to us in the case-made by the trial judge. For a discussion of this question, see the companion case of Colon Cochran v. State (No. A-268) infra, 4 Okla. Crim. 379, 111 P. 974, and also the case of Saunders v. State, infra, 4 Okla. Crim. 264, 111 P. 965, both of which cases were decided at the present sitting of this court. We desire to renew our admonition to trial courts that in criminal cases it is their duty to remain in control of the trial during every moment that court is open.

¶3 Second. When the state's witness, Jonas Holt, was on the stand, he was testifying as to why he went to the place where the difficulty occurred. To this counsel for the defendant objected. Whereupon the court said:

"I will let this officer explain why he went down there. In this connection, I will say that it is the duty of an officer, when he is informed of a disturbance, to go and investigate it."

¶4 The defendant excepted to the remarks of the court upon the ground that such language was prejudicial to the rights of the defendant. As to why the officer went to the scene of the difficulty was material in this case. It was therefore entirely proper to allow him to state what caused him to go there. The remarks of the court to the effect that, when an officer is informed of a disturbance, it is his duty to go there and investigate it, was a correct statement of law and could not have in any manner injured the defendant. It would have been better to have incorporated this in the instructions to the jury. The court should be careful in ruling upon the admissibility of evidence and refrain from commenting upon the weight and effect of testimony; but we cannot see how the defendant was injured by this statement. Counsel for defendant do not cite a single authority in their brief in support of their contention.

¶5 Third. The brief of defendant complains of a number of alleged errors in the charge of the court. We have examined the record and find that no exception was reserved to the instructions given to the jury, neither were any instructions requested by the defendant. We also find that, while the instructions are not above criticism, yet they do not contain any fundamental errors. If counsel for the defendant desires this court to consider an alleged error in the instructions of the court, they must except to such instructions when given, and thereby give the trial court an opportunity to correct any errors that may exist in the instructions. If counsel fail to except to the instructions of the court or to request any special instructions on behalf of the defendant, they thereby waive all objections to the instructions, save those that are fundamental or which necessarily injured the defendant. We find no such errors in the instructions given. The evidence amply sustains the verdict of the jury and would have justified the infliction of the extreme limit of the law.

¶6 The judgment of the lower court is affirmed, with directions to the court to reform the sentence imposed and make the term of imprisonment therein provided begin upon the reception of defendant in the penitentiary.

DOYLE and RICHARDSON, JUDGES, concur.