Ward v State

Ward v State
1934 OK CR 148
38 P.2d 582
56 Okl.Cr. 316
Decided: 12/07/1934
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error - Questions not Properly Presented for Review by Transcript of Record Alone. Mixed questions of law and fact involving rulings of the trial court on the admissibility of evidence, and failure of the trial court to fully instruct on the law applicable to the evidence can only be presented for review on appeal by incorporating the same into a bill of exceptions or case-made; such questions are not presented for review on appeal by transcript of the record alone.

2. Same - Motion for Continuance and Rulings Thereon not Part of Record Proper. A motion for continuance and the rulings thereon do not constitute a part of the record proper which can be brought to this court for review by transcript.

3. Same - Scope of Review When Felony Case Appealed by Transcript. Where an appeal in felony cases is by transcript of the record alone, this court will carefully review such transcript for any reversible error properly raised by such an appeal.

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

Arley Ward and A.C. McArthur were convicted of the crime of robbery with firearms, and they appeal. Affirmed.

Homer H. Bishop and H.H. Edwards, for plaintiffs in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

Page 317

DAVENPORT, J. The plaintiffs in error, hereinafter referred to as the defendants, were informed against in the district court of Murray county, were tried and convicted of robbery with firearms, and sentenced to serve 25 years each in the state penitentiary.

From this judgment of conviction, the defendants have appealed to this court, and the appeal is brought to this court on a transcript of the record alone. No case-made is attached or made a part of the record in this court.

Under section 3146, O.S. 1931, a transcript of the record is composed only of the following papers: First, the indictment and a copy of the minutes of the plea or demurrer; second, a copy of the minutes of the trial; third, the charges given or refused, and the indorsements, if any, thereon; and fourth, a copy of the judgment.

The second assignment urged by the defendants is, that the court erred in overruling their demurrer to the information. This assignment is the only question presented by the petition in error in this case which this court can properly review on the transcript of the record, as the action of the court in the overruling or sustaining of the demurrer is made a part of the record by the statute. The defendants in their brief have not presented any argument on the question that the court erred in overruling their demurrer to the information. This court has carefully examined the information and finds that it states facts clearly and sufficiently to advise the defendants of the charge against them, and to enable them to properly prepare their defense. The court did not err in overruling the demurrer of the defendants.

The defendants in their brief have presented an argument in support of their contention that the court erred in overruling their motion for a continuance. The minutes

Page 318

of the clerk incorporated in the transcript of the record show that a motion for a continuance was presented by the defendants and overruled by the court. The motion for a continuance is not a part of the record on appeal by transcript, and therefore is not before this court for consideration. Stueble v. State, 7 Okla. Cr. 728, 123 P. 1134; Hembree v. State, 15 Okla. Cr. 422, 177 P. 385; Likes v. State, 54 Okla. Cr. 444, 23 P.2d 394.