(203 P.) DOYLE, P. J. O. L. Lacy filed in this court on January 24, 1922, a petition wherein he alleges that he is illegally and unlawfully restrained of his liberty and imprisoned in the county jail of Seminole county by C. H. Brown, sheriff of said county, and that his illegal confinement and detention consists in this to wit: That, by information filed in the district court of said county, he is charged with the murder of one Richard Romine; that, under the evidence introduced on his preliminary examination, the proof of his guilt is not evident nor the presumption thereof great; that petitioner is not guilty of the crime of murder; that he filed an application for bail before Hon. John L. Coffman, district judge, and that said district judge refuses to deny or grant bail. A transcript of the testimony taken upon the preliminary examination is annexed to and made a part of his petition. "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great." Const. art. 2, § 8. The right to furnish bail by sufficient sureties arises in favor of any person accused of crime, and before conviction, absolutely, and without exception, in cases of all crimes not punishable with death, and in capital cases when the proof of guilt is not evident or the presumption thereof not great. It will be observed that this constitutional provision is silent as to the status of the prosecution. Had the framers of the Constitution intended to provide that the return of an indictment or the filing of an information in the trial court should be conclusive in capital cases, they would, in all probability, have said so. [1, 2] It follows that a person charged with a capital offense may be admitted to J. T. Rose, a witness for the state, testi- bail after the information has been filed and fied in substance as follows: "I live at Seminole; am a deputy sheriff; I was called to O. L. Lacy's house on January 2d; I found the body of Richard Romine about 200 yards from Lacy's house; I noticed bullet wounds in his back, in his side, and in his arm; O. L. Lacy said he fired the shots; I didn't find any weapon on him; I found a pocket knife in his pocket." Dr. M. M. Turlington testified: "I am a practicing physician at Seminole; on the 2d day of January O. L. Lacy called me over the phone and said he had shot a man and asked me to come and see what I could do for him; I went to the home of O. L. Lacy and found Richard Romine's body lying about 300 yards from the house; in my judgment he had near the backbone; five bullets went into the body, and two in the arm; one had struck the arm in a flexed condition, had gone through the bone, and struck, but did not penetrate, the body; there was a pool of blood between the body and the defendant's home, about 10 feet from the body." been dead an hour or two. A bullet entered The defendant did not take the witness stand, nor offer any testimony on the preliminary examination, or on the hearing be fore the district judge. The constitutional right to bail is granted by section 8 of our Bill of Rights, which reads as follows: prior to the trial if the proof of guilt is not evident nor the presumption thereof great. The courts should, however, proceed with extreme caution in exercising the power to admit to bail in this class of offenses. The filing of an information charging a capital offense, where the defendant has not been admitted to bail, is prima facie evidence that the proof of guilt is evident and the presumption thereof great, and the burden of proof is upon the defendant to establish the contrary. The settled rule of this court is that, upon an application for bail by writ of habeas corpus, after commitment for a capital of fense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner's guilt of a capital offense, bail will be refused. Under this rule, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, bail will be refused where, as in this case, the commission of the homicide having been admitted, the defendant does not take the witness stand on the preliminary examination and does not elect to testify in support of his application for bail. [3] Upon a consideration of all the evidence presented in support of the application in this case, we are of opinion that the petitioner is not entitled as a matter of right to be admitted to bail. It is therefore considered and adjudged that the writ be denied and bail refused. MATSON and BESSEY, JJ., concur. Appeal from District Court, Hughes County; Geo. C. Crump, Judge. Sol Freeman was convicted of the larceny of domestic animals and sentenced to two years' imprisonment in the state penitenReversed and retiary, and he appeals. manded. Where the accused asked for a postponement of the trial on account of the absence of a material witness, and the facts stated in the application as to the diligence used in endeavoring to procure the attendance of the witness and the facts stated relative to the prob- E. Hall, of Oklahoma City, for plaintiff in ability of procuring his attendance later are indefinite and uncertain, under the circumstances here the court's refusal to grant a continuance is not error. 2. Criminal law 317-Where party fails to introduce important testimony within his reach, it is presumed unfavorable to him. The correct rule as to the presumption arising where a party fails to introduce important testimony relating to facts within his knowledge and control and peculiarly within his reach is that such failure raises the presumption, open to explanation, of course, that the testimony, if produced, would be unfavorable to him. 3. Attorney and client 92-Defendant's attorney has no implied power to suppress evidence. Anglin & Stevenson, of Holdenville, and C. error. S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State. BESSEY, J. Sol Freeman, plaintiff in error, in this opinion designated the defendant, was, by information filed in the district court of Hughes county, on March 8, 1919, charged with the theft of a steer on August 1, 1918. By verdict of the jury at the trial he was found guilty as charged September 9, 1919, and his punishment fixed at two years' imprisonment in the state penitentiary, and from the judgment on this verdict he appeals to this court. The testimony on the part of the state tends to show that the animal in controversy was the property of Andy Sellars, branded with a distinct "forked lightning" brand, and that there were other distin An attorney for a defendant in a criminal case, like other agents, binds his principal only within the scope of his authority, express or implied. There can be no implied power lodged with an attorney trying a case to suppress evi-guishing marks on the animal; that some dence in violation of the penal laws of the state. 4. Attorney and client 92-Defendant should not be prejudiced by his attorney inducing a witness to absent himself without defendant's consent or approval. If the defendant's attorney, in the absence of the defendant during a recess of the trial and without his procurement, consent, or approval, induced a witness to absent himself from court, such action should not prejudice the rights of the defendant. 5. Criminal law 671-It is better practice to have jury retire while competency of prejudicial evidence is discussed. Where proffered testimony indicates that it may be incompetent, and if incompetent probably prejudicial, it is the better practice for the court, on his own initiative, or at the request of the objecting party, to have the jury retire while the competency of the proffered testimony is being discussed. 6. Criminal law 671 Discussion in jury's presence as to statement of defendant's son that his father was guilty held improper. Damaging and clearly incompetent statements of fact, to the effect that the son of the defendant, who had not been called as a witness, had confessed that his father was guilty, time prior to the alleged offense this animal escaped from the owner's premises and was afterwards seen at a dipping vat where the defendant was engaged in dipping cattle, and afterwards seen with some live stock that were being sold and shipped by the defendant. Two witnesses testified that they saw the animal in question in the stock pens at Dustin just before being loaded for shipment. The defendant and other witnesses testified that the animal in question was not among the live stock shipped by the defendant; that there were only two steers in this shipment; and identified the brands and other marks as being different from the brands and marks of the animal owned by Sellars. There was a sharp conflict in the testimony touching upon the identifying marks. There are but three assignments of error seriously urged in defendant's brief, namely: (1) That the court erred in overruling defendant's motion for a continuance; (2) the reception of incompetent and prejudicial testimony; (3) that the testimony as a whole is insufficient to support the verdict. The motion for a continuance was based upon the absence of R. A. Strain, a witness For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) for the defendant. The motion set out that this witness had left the jurisdiction of the court to visit in the state of Idaho and had not yet returned; that he left the state about three weeks prior to the trial, before the defendant knew that the cause was set for trial; that because of his absence from the state, although a subpoena had been issued, it could not be served on the witness; that his absence from the state was only temporary, and if the cause were continued the defendant would be able to procure his attendance at the next term of court; that the witness, if present, would testify that he was engaged in farming in the neighborhood where the defendant kept his cattle, and that upon learning that the defendant was about to ship a load of cattle to market he went to the defendant to get him to include two cows belonging to the witness; that he brought these two head of cattle to the dipping vat where the defendant had assembled his cattle to drive to the shipping point, and that there were but two steers in the bunch, one branded I JH and the other H, and that neither of these brands resembled the "forked lightning" brand on the steer belonging to Sellars; that one of these two steers had been cut out of the herd and afterwards broke through the fence and again joined the herd, and for that reason witness' attention was particularly called to the two steers and the marks and brands of each; that witness assisted in driving the herd a portion of the way to the loading pens. The county attorney resisted this motion for a continuance, and introduced testimony tending to show that the witness had gone to the state of Idaho to remain permanently. The defendant introduced counter testimony to the effect that the witness was in Idaho only temporarily and expected soon to return. Upon the showing the court announced that, if the county attorney would consent that the affidavit for continuance could be read as the testimony of the absent witness, the motion for a continuance would be overruled. To this ruling of the court the defendant objected and excepted. Thereupon the motion for a continuance was overruled and an exception allowed. ness, the defendant will not be heard to complain. The trial of criminal cases should not be delayed, except in cases where it is shown that due diligence has been used to procure the attendance of the witness; that the testimony is important and not merely cumulative; and that the witness can be procured at a subsequent term of court. Otherwise, it would lie within the power of defendants accused of crime to interminably delay and harass trial courts by repeated applications for postponement of trials. [2] On the question of the reception of incompetent and prejudicial testimony, with reference to declarations made by Doyle Freeman, a son of the defendant, who had not testified in the case, the record discloses the following, being a part of the testimony of the last witness called by the state: Q. What is your name? A. Ernest Hill. Q. Are you the same Ernest Hill who took the stand and testified for the state this afternoon? A. Yes, sir. Q. Did the defendant, through his attorney, Mr. Anglin, make any statement to you as to whether or not he intended to use Doyle Freeman as a witness? A. Yes, sir. By Mr. Hall: We object as incompetent, irrelevant, and immaterial. By the Court: He may answer. Q. What did he say about it? By Mr. Anglin: We object as incompetent, irrelevant, and immaterial. By the Court: He may answer. By Mr. Anglin: Exception. A. Well, he told me to go to the prosecuting attorney and see if he was going to use me again this evening, and if not By the Court: How is that? A. He told me to go to the prosecuting attorney and see if he was going to use me again this evening, and, if not, to get out of town, because he wanted to use that boy (Doyle Freeman). Q. Because he wanted to use this boy? By Mr. Hall: We object as incompetent, irrelevant, and immaterial. By the Court: He may answer. By Mr. Hall: Exception. A. Because he wanted to use this boy, Doyle Freeman, as a witness. Q. Now, Mr. Hill, I will ask you if at your place shortly after the defendant, Sol Freeman, was arrested last fall, you were present at and heard a conversation in which McAllen asked Doyle Freeman, "What do you suppose they will do with your pa about the Andy Sellars steer?" A. Yes, sir. By Mr. Hall: We object as incompetent, irrelevant, and immaterial. By the Court: Let him finish the question now. [1] It has been often held by this court that the granting of a continuance is a matter that lies largely within the sound discretion of the trial judge. There is no affirmative showing in the record that the defendant had exercised proper diligence to procure the attendance of this witness, nor that, as a matter of law, the witness could be compelled to attend trial at the next term of court. It would not, under these circumstances, have been an abuse of discretion for the trial judge to refuse a continuance, and son that the county attorney is attempting to By Mr. Hall: We object for the further reasince the trial court permitted the affidavit get some matters before this jury here that the in support of the motion to be introduced in county attorney knows as well as I do is inevidence as the testimony of the absent wit-competent; and we now further object to ques By Mr. Hall: The witness answered the question before we had an opportunity to object. Q. And if Doyle Freeman tioning along this line which he is attempting ing his high office as an attorney by illeto question. By the Court: Overruled. Q. And if Doyle Freeman didn't reply to that question, "They will sure stick him-" By Mr. Hall: Now wait. We wish to object again to the question for the reason it is incompetent, irrelevant, and immaterial, and we ask that the jury be instructed not to consider the question, and we further ask the court to instruct the county attorney not to persist in questions of that kind, because he knows that it is incompetent. The dialogue then continues at length, without any ruling. Later on the examination continues as follows: gally suppressing testimony without the consent of his client, for that the defendant should not be held accountable. An attorney, like other agents, binds his principal only within the scope of his authority. There can be no implied power given to an attorney by his client to violate the penal laws of the state. Section 2258, R. L. 1910, makes the suppressing of evidence a misdemeanor. [5, 6] The most serious objection to this testimony is that the jury were permitted to hear a statement that the son of the defendant had made a declaration to a third person that his father was guilty; that this third person asked him the question, "What Q. And if McAllen didn't ask the boy, "What do you suppose they will do with your pa do you suppose they will do?" to which the boy about that Andy Sellars steer?" and that the replied, "Yes; because he sure got the steer." boy replied, "They will sure stick him, for By Mr. Hall: Wait a minute. To which the he sure got the steer." Where the competent defendant objects for the reason it is incompe- evidence before the jury was nearly baltent, irrelevant, and immaterial, and the ques-anced, as in this case, it may be that the tion being asked by the county attorney only for the purpose of prejudicing the jury against the defendant in this case. By the Court: The rule of law is that, if a witness repeats or knows anything about a party and refuses to tell it, the presumption is that he would not testify to anything favorable. Most courts instruct that when a case is up before a jury. Concerning the admissibility of this testimony, the three-cornered dialogue continues at great length. The correct rule as to the presumption arising where a party fails to introduce important testimony relating to facts within his knowledge and control, and peculiarly within his reach, is that such failure raises the presumption, open to explanation, of course, that the testimony, if produced, would be unfavorable to him. 10 R. C. L. "Evidence," §§ 32 and 53; Crump v. State, 7 Okl. Cr. 535, 124 Pac. 632. It will be seen that the record here does not bring the evidence sought to be elicited from the witness Hill within the rule as stated above. The testimony sought to be elicited was wholly incompetent. knowledge gleaned from this dialogue turned the scales against the defendant. Indeed, the jury may have based this verdict solely on the alleged statement of this boy to the effect that the father was guilty. The fact that the jury were engaged in deliberation upon the evidence about 60 hours before agreeing upon a verdict confirms this view. Where the proffered testimony indicates that it may be incompetent, and, if incompetent, probably prejudicial, it is the better practice for the court, on his own initiative or at the request of the objecting party, to have the jury retire while the competency of the proffered testimony is being discussed. Roddie v. State, 198 Pac. 345; Beason v. State (Okl. Cr.) 195 Pac. 792; Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561; notes to 100 Am. St. Rep. 689. True, in the course of the long and heated argument the court admonished the jury as follows: "Gentlemen of the jury, that is not for your consideration. You can see that the attorneys and the court are arguing the rule on a proposition, and the attorneys are a little forcible to the court, and you will not consider any remarks of the court, unless addressed to you, and if it is competent." And at another time the court addressed the jury as follows: "I will tell you again, gentlemen, that the remarks of the court are not intended for your consideration, but intended for the attorneys, to show my rule of law upon that proposition." [3, 4] If it was within the power of the state to show that the defendant himself had attempted to suppress competent testimony, or that the defendant corruptly induced a witness to absent himself from court to avoid danger of impeaching testimony later in the trial, such fact might be shown as affecting the interest and credibility of the defendant. If, on the other hand, the defendant's attorney, in the absence of the defendant and without his knowledge or consent, induced a But this prolonged discussion, including witness to absent himself from court, we these admonitions of the court, operated to think such action should not prejudice the emphasize rather than minimize the impresrights of the defendant. The defendant him- sion conveyed to the jury that the son had self might want all the facts bearing on the confessed that his father was guilty, and case fairly presented. If he should be so that therefore he doubtless was guilty. This unfortunate as to have an attorney who, to deduction is almost irresistible, and such damwin his case, committed a crime by prostitut-aging statements should not be offered by (203 P.) either party under the guise of making proof DOYLE, P. J. Plaintiff in error, B. M. of some collateral issue of doubtful compe- Wilmoth, was tried in the court below upon tency, or by any other method. This method an information for the murder of Henry of conveying incompetent and prejudicial Simpson, but the jury, by their verdict, found facts to a jury is sometimes appropriately him guilty of manslaughter in the first determ "badgering in" testimony. In our opin- gree, and assessed his punishment at imion, this part of the proceedings amounted to prisonment in the penitentiary for a term of prejudicial error. Porter v. State, 8 Okl. Cr. four years and six months. He has appealed 64, 126 Pac. 699; notes and annotations, 100 from the judgment rendered upon such conAm. St. Rep. 689. As before stated, the testimony for and against the defendant appears about evenly divided, but this court has often held that where there is substantial evidence supporting the verdict it will be upheld. Ordinarily, this court will not substitute its judgment as to the weight of the testimony for the judgment and findings of fact of the jury. For the reasons stated under the second assignment of error, as herein treated, this cause is reversed and remanded. DOYLE, P. J., concurs. MATSON, J., not participating, WILMOTH v. STATE. (No. A-3741.) (Criminal Court of Appeals of Oklahoma. Feb. 3, 1922.) (Syllabus by the Court.) 1. Homicide 342-Defendant may not complain of conviction of manslaughter where facts make the crime murder. In a prosecution for murder, when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant's favor, of which he has no cause to complain. (Additional Syllabus by Editorial Staff.) 2. Homicide 156(1), 172-Evidence of occurrences prior to shooting held admissible to show defendant's state of mind and that he was carrying a pistol in violation of law. In a prosecution for murder, testimony regarding the conduct and conversation of the defendant at the place before the shooting held properly admitted to show defendant's state of mind and that as a police officer was carrying a pistol while under the influence of intoxicating drinks, in violation of Rev. Laws 1910, § 2548. Appeal from Superior Court, Okmulgee County; R. S. Simpson, Judge. B. M. Wilmoth was convicted of manslaughter in the first degree, and appeals. Affirmed. Morgan, Pinkston & Hepburn, of Henryetta, for plaintiff in error. S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State. viction. The following brief statement of the facts and the evidence will be sufficient to make clear the contentions made: children. Henry Simpson, the deceased, 34 years old, a coal miner, at the time of his death was living at Henryetta with his wife and three March 23, he was shot by the defendant and About 3 o'clock Sunday morning, dropped dead. Saturday evening, March 22, Gardner Croy, went out to Colletti's in Henry 1919, deceased in company with Will and Baker's car. While there the defendant, Wilmoth, Tom Blevins, and Jim Johnson came in, the defendant told Colletti he was off the police force and was not going to bother him and asked for something to drink. Will Croy, Henry Baker, and deceased left Colletti's and went to dance at Mrs. Henderson's, arriving there about half past 10. About half an hour later the defendant, Tom Blevins, and Johnson came there. Gardner Croy was with them and was very drunk. His brother Will and deceased took him home in Henry Baker's car; then returned to the dance. About 12 o'clock the dance broke up, and Will Croy, Henry Baker, and deceased started home and stopped the car at Rook's place, and all three went in the house; then they went out in the yard, and the defendant, Tom Blevins, Johnson, and others were there. Will Croy testified: "Tom Blevins hit Henry Simpson, and the fight started. It was a fair fist fight. I heard somebody say, "Take him off; I have got enough,' and the last I saw of Blevins he was running towards town. The defendant and Johnson started towards the house; then the defendant came back and said to Henry Simpson, 'You done my friend damn dirty,' and Henry said, 'I don't know Slim; just a fair fist fight.' The defendant said, 'What do you fellows want to be fighting for?' and pulled his pistol out of his pocket and shot Henry Simpson and shot me. A minute or two before he was shot Henry Simpson said to the defendant, 'I ain't afraid of any God damn car thief.' Henry Simpson did not have a weapon of any kind. At Henderson's place I saw the defendant take a revolver out of his pocket and say, 'I have a notion to shoot that hat off the bed.' When he said that a woman took her baby off the bed and said, 'Don't do that, Slim; you will shoot my baby.' He laughed and said, 'I didn't aim to shoot your baby.'" Henry Baker testified: "I am a coal miner. I drove my car up in front of the Central Drug store that evening. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |