Womble v State

Womble v State
1931 OK CR 84
296 P. 515
50 Okl.Cr. 108
Decided: 02/28/1931
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Evidence Proof of Venue by Circumstantial Evidence. The venue does not have to be proven beyond a reasonable doubt and it may be proven by circumstantial evidence. There must be proof of venue, but where facts and circumstances are proven from which reasonable inferences arise that the offense was committed in the county charged, the proof of venue will be sufficient.

2. Trial Permitting Witness to Testify in Rebuttal Though Name not Indorsed on Information not Error. Since the law does not require that the names of witnesses used in rebuttal shall be indorsed on the indictment or information, it is not error in a felony case to permit a witness to testify in rebuttal although his name is not indorsed on the indictment or information, as the case may be.

3. Trial Discretion of Court as to Admitting Testimony of Witness After Violating Order of Exclusion. Where the court orders witnesses to be sworn and excluded from the courtroom during the taking of testimony, and a witness willfully violates such rule, it is within the discretion of the court to allow or to exclude the testimony of such witness.

4. Appeal and Error Burden Upon Appellant to Show Prejudice From Separation of Jury. In the trial of a criminal case, at any time before the submission of the cause to the jury, the jurors, in the discretion of the court, may be permitted to separate, and in such case the burden is on the accused to show that he was prejudiced thereby.

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Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Roy Womble was convicted of murder, and he appeals. Affirmed.

Ellmore Pinnick, for plaintiff in error.

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

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of murder and sentenced to life imprisonment.

The record discloses a state of facts about as follows: Defendant, with George Lampos and Pete Amos, two Greeks, drove from Miami, Fla., to Oklahoma in a Rickenbacken car which belonged to Pete Amos with a load of whisky. They arrived at Tulsa October 18, 1926, where they remained that week, except that defendant came to Oklahoma City one day and returned the next. On October 25, defendant and the two Greeks left Tulsa in the Rickenbacker car for Oklahoma City. There is no testimony of any one who saw the Greeks alive after that time. Defendant was at Oklahoma City with a quantity of whisky for sale about the time the parties drove from Tulsa to Oklahoma City. The car was found burning a short distance from the North Canadian river near El Reno in the latter part of October. A quarter of a mile from the place the dead body of Pete Amos was found, and two or three months later the dead body of George Lampos was found in the North Canadian river in Oklahoma county near the town of Choctaw, with several wounds in the head sufficient to have caused death. There are some other circumstances not detailed. Defendant

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admits he made the trip from Florida with Amos and Lampos in the Rickenbacker car; that they were at Tulsa several days; that he came to Oklahoma City one day and returned the next; that on his return he found one Baker with them; but denies that he came to Oklahoma City with them. He admits he saw Baker with the car in Oklahoma City and that he assisted Baker to dispose of the whisky; that he then went to Amarillo and from there to Los Angeles. Baker was a witness for the state and testified he bought three cases of whisky from defendant at that time.

It is contended that there is no proof of venue. That is, that there is no evidence the crime was committed in Oklahoma county. There is no proof of venue other than the circumstances recited. It is well settled that venue may be proven by circumstantial evidence and need not be proven beyond a reasonable doubt. The circumstances proven are sufficient. Ward v. State, 13 Okla. Cr. 81, 162 P. 232; Jentho et al. v. State, 19 Okla. Cr. 434, 200 P. 251; Edwards v. State, 25 Okla. Cr. 167, 219 P. 427; Groh v. State, 30 Okla. Cr. 396, 236 P. 435; McColloch v. State, 45 Okla. Cr. 442, 283 P. 1026; Hatfield v. State, 49 Okla. Cr. 41, 292 P. 1058.

Complaint is also made that the court permitted to testify a witness whose name was not indorsed on the information and who remained in the courtroom during the trial after the rule had been invoked. This refers to the testimony of Mrs. Charles G. Athens, a witness who testified in rebuttal and without objection at the time and without any notice that she remained in the courtroom. The names of rebuttal witnesses need not be indorsed. Bigfeather v. State, 7 Okla. Cr. 364, 123 P. 1026; Pollock v. State, 26 Okla. Cr. 196, 223 P. 210. Even where a witness willfully violates the rule, it is discretionary with

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the court to allow or to exclude the testimony of such witness. Kilgore v. State, 10 Okla. Cr. 446, 137 P. 364; McCarty v. State, 21 Okla. Cr. 365, 207 P. 1069. The error, if any, cannot avail defendant under this state of facts.

It is also urged the court erred in permitting the jury to separate after the close of the testimony and before the case was finally submitted. This was done by agreement of the state and the defendant. It is within the discretion of the trial judge to permit the separation of the jury before the case is finally submitted. Section 2716, Comp. Stat. 1921; Horn v. State, 13 Okla. Cr. 354, 164 P. 683; Chappell v. State, 44 Okla. Cr. 268, 280 P. 639.

Upon an examination of the entire record, we are satisfied defendant had a fair and impartial trial.