Calloway v State

Calloway v State
1930 OK CR 432
292 P. 383
48 Okl.Cr. 426
Decided: 10/18/1930
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error Discretion of Court as to Denial of Change of Venue. The granting of a change of venue is by the statutes made discretionary with the court, and the appellate court will not reverse the ruling of the lower court denying the application for a change of venue unless it is made to clearly appear that there has been such an abuse of discretion as to practically amount to a denial of justice.

2. Reversal not Warranted. There are no errors in the record of sufficient merit to warrant a reversal.

3. Robbery Evidence Held to Sustain Conviction. Evidence examined, and held sufficient to sustain the verdict.

4. Same Life Sentence Reduced to 40 Years. For reasons for modifying the sentence, see body of the opinion.

Appeal from District Court, Garvin County; W.G. Long, Judge.

W.R. Calloway was convicted of robbery with firearms, and he appeals. Modified and affirmed.

Mathers & Mathers, Goodwin & Freeman, and Hamilton, Gross & Howard, for plaintiff in error.

J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.

Page 427

DAVENPORT, J. The plaintiff in error, hereinafter referred to as the defendant, was charged by information jointly with Lawrence Calloway, Vivian Calloway, and Raymond Wilson. A severance was granted, and the defendant was tried, convicted, and sentenced to the penitentiary for life. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

The testimony of the state tends to show that on November 3, 1927, three persons entered the First National Bank of Wynnewood, Garvin county, Okla., and with firearms held up the officers and employees and robbed the bank of more than $7,000 in cash and $26,000 in government bonds. Evidence tends to show that this defendant, Everett McColloch, and Raymond Wilson entered the bank, and that L.L. Calloway waited in a car outside in which the parties escaped after the robbery. The defendant is positively identified by the officers of the bank as being one of the parties who entered the bank and robbed it. A few days after the robbery was committed, the defendant and Everett McColloch were found together at Tulsa and were apprehended. The defendant in this case was the first one tried. His defense was an alibi.

The testimony of the defendant is in direct conflict with the state's testimony. The defendant denies he had ever been in the town of Wynnewood, Garvin county, Okla., or had anything whatever to do with the robbery of the bank.

This is a companion case to McColloch v. State, 45 Okla. Cr. 442, 283 P. 1026, which was tried subsequent to the case at bar. It is not deemed necessary to go into the facts presented in this record or to discuss all the assignments of error, as they were practically all considered in McColloch, supra.

Page 428

Many errors are assigned and argued by the defendant. The first, second, and third assignments are as follows:

"1. The verdict of the jury is the result of passion and prejudice.

"2. That the verdict is contrary to law.

"3. That the purported verdict so returned is not the verdict found by the jury."

There is nothing in the record to show that the verdict of the jury was the result of passion or prejudice, or that the action of the trial court or county attorney and special prosecutor was such as to arouse passion or prejudice in the minds of the jurors. So far nothing has been found to show that the verdict is contrary to law, or that the verdict returned, filed, and recorded, and upon which the defendant was sentenced, was not the verdict returned by the jury.

It is contended by the defendant that another and different verdict was written, delivered, and presented to the court by the foreman of the jury other than the one voted and found by the jury. This contention of the defendant is unfounded, as we find nothing in the record to show where a verdict other than the one received and recorded by the court was returned by the jury.

It is next urged by the defendant that the trial court erred in overruling the motion of the plaintiff in error for a new trial. His motion for a new trial practically covers all assignments of error not specifically mentioned and discussed herein. Under this assignment will be considered many questions that arose in the trial of his case. This testimony clearly shows the defendant guilty, and the testimony further shows that the robbery of this bank occurred in Wynnewood. This court will take judicial

Page 429

notice that Wynnewood is in Garvin county, Okla., and that this offense was committed in Garvin county, Okla.

Upon the question of the application for change of venue and continuance of the case, the granting of a change of venue or a motion for continuance is by the statute made discretionary with the court, and the appellate court will not reverse the ruling of the lower court in denying a change of venue or a motion for continuance unless it is made clearly to appear that there has been an abuse of discretion to amount practically to a denial of justice. Davis v. State, 10 Okla. Cr. 169, 135 P. 438; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Maddox v. State, 12 Okla. Cr. 462, 158 P. 883; Pulsey v. State, 22 Okla. Cr. 192, 210 P. 306; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A.L.R. 1212; Leard v. State, 30 Okla. Cr. 191, 235 P. 243.