Smith v. State , 14 Okla. Crim. 348 ( 1918 )

The plaintiff in error has assigned a large number of errors on the record, but the view we are constrained to take of this case will render it unnecessary for us to pass upon all the questions presented.

The first contention is that the court erred in refusing to grant a change of venue.

The petition was verified by the defendant. It is alleged in the petition that the minds of the inhabitants of Washita county are so prejudiced against the defendant that he cannot obtain a fair and impartial trial in said county; that John Samples, the principal witness for the state, was convicted in Washita county in 1910, and that on his trial this defendant was a witness for John Samples, and the people of the county have become greatly biased against this defendant on that account; that the Anti-Horse Thief Association of Washita county took an active part in the prosecution of John Samples; that its members at the time formed a great dislike to this defendant, and said organization has employed J.W. Smith, of Cordell, ex-county attorney of Washita county, to prosecute him and has paid a large fee to him in the case; that the organization has 175 members scattered over the county; that they are men of high standing and the case has been widely discussed, and it has had the effect of prejudicing the minds of the inhabitants to such a degree that he cannot obtain a fair and impartial trial in said county, and in support of the petition he filed the affidavits of 27 other citizens of the county. The state called ten witnesses in resisting the application.

It has been the uniform holding of this court that the granting of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for a failure of the trial court to grant a change of venue. Considering all of the facts and circumstances disclosed by the record in the present case, we cannot say that the court erred in refusing to grant the change.

The next assignment is that the court erred in overruling the defendant's motion for a continuance.

The case was called for trial October 13, 1913. Thereupon the defendant filed his motion for a continuance upon the ground of the absence of Ted Bailey, a material witness, and in support thereof relied upon his affidavit setting forth that on the 6th day of October, the time the case was set for trial, he caused a subpoena to issue, which subpoena was therewith exhibited; that said witness lived at Weatherford, and the judge of the district court ordered a subpoena to issue for said witness, with others, directed to the sheriff of Custer county; that the return of the officer showed that Ted Bailey had not been served; that the defendant had exercised all due diligence to find said witness, who was temporarily absent from Weatherford, as affiant verily believed; that the defendant expected to prove by said witness "that Carl Samples, a witness for the state, told him six or seven weeks ago, while he (Carl Samples) was in jail at Arapaho, that he (Carl Samples) and George Lama were the ones who stole the Colony Mercantile Company's mules, and that it was not John Samples and James Smith who stole them, and that this case is a put up job on James Smith, and affiant further says that the said witness, Carl Samples, will deny that he so stated to Ted Bailey, as he verily believes."

It has been the uniform holding of this court that the granting or the refusal of a continuance is largely a matter within the discretion of the trial court, and no rule is more firmly established than that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it.

The evidence upon the trial shows that said absent witness was at the time in the adjoining county of Caddo. The defendant's affidavit does not disclose such diligence on his part to procure the attendance of this witness as the law required, or such as made it the duty of the court to grant a continuance. It follows that the motion was properly overruled.

Numerous errors are assigned on the rulings of the court in the admission of certain testimony over the defendant's objections. The court permitted the witness John Samples to testify as follows:

"Q. Was Jim Smith on your bond? A. Yes, sir. Q. Now, John, in the trial of that case, you may state whether or not there was any testimony produced by you and Jim Smith in your defense that was perjury testimony, and known to be so by you and Jim? A. Yes, sir. Q. You may state to the jury just how you and Mr. Smith arranged the defense of your case; state all about it. A. Well, he come and told me what all he could prove and who he could prove all this by. He told me he would get Mr. __________, an attorney of Oklahoma City, to beat the case; Mr. __________ drew a draft for $50 on Mr. Smith, and he turned it down. Smith said that he would get George Lama and Eddie Keyes as witnesses for me, and we got George Lama and Eddie Keyes, and we took turn about drilling and coaching them what to swear to."

Eddie Keyes, over the defendant's objections, was permitted to testify to conversations with the defendant Smith and John Samples about what his testimony would be by way of establishing an alibi for Samples in his case.

George Lama, over the defendant's objections, was permitted to testify that John Samples and the defendant Smith wanted him to swear that he was at El Reno with Samples so as to establish an alibi for Samples.

Carl Samples, over the defendant's objections, was permitted to testify that the defendant Smith tried to hire him to testify as a witness for his brother, John Samples. The testimony of this character and kind takes up many pages of the record.

Counsel for the defendant moved the court "to withdraw from the consideration of the jury all of the testimony of John Samples, Eddie Keyes, George Lama, and Carl Samples with reference to the matter of framing up a defense for John Samples in his case, for the reason that the same is incompetent, irrelevant, and immaterial, not a part of the res gestae, and tending in no way to corroborate the witness John Samples as an accomplice." Which motion was overruled, and exceptions allowed.

We are of the opinion that this testimony was inadmissible, because, if true, it had reference to a separate and distinct crime, that of subornation of perjury on the trial of John Samples, and its admission could not have been otherwise than prejudicial to the defendant.

Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged. The case was tried by the state upon the theory that the defendant Smith had personally assisted John Samples in taking the mules. That is the testimony of John Samples. The defendant made his defense against that theory. John Samples, a confessed accomplice, had to be corroborated. Apparently, this testimony was admitted by the court under the theory that it tended to corroborate John Samples. Under the state's theory, the defendant Smith was either in Colony on the night of the theft assisting John Samples, or he was not guilty. The efforts of the defendant to help John Samples make his defense about a year after the theft in no way tend to prove that he was with Samples at Colony when the mules were stolen. The testimony of John Samples, Eddie Keyes, and George Lama in this regard raised a collateral issue for the jury. Before the jury could consider this testimony even in corroboration of John Samples, they in effect had to find the defendant Smith guilty of subornation of perjury; but, if the defendant had been on trial for this grave offense, it would have been the duty of the court to instruct the jury that they could not convict the defendant upon the uncorroborated evidence of said witnesses, for by their own testimony they were accomplices of Smith in the commission of the crime of subornation of perjury. We are also of the opinion that the letters written by the defendant to John Samples were inadmissible; they contained no admission against interest, nor any statement that could in any way be construed as an admission of guilt.

The next assignment is misconduct of the attorney for the state in asking certain questions upon the cross-examination of the defendant, and error of the court in permitting the same.

It appears from the record that upon his cross-examination he was asked the following questions and was forced to answer them over his objections:

"Q. State whether or not you stopped at Parsons, with a woman whose reputation for chastity was bad and not related to you? A. No, sir. Q. Did you take with you any woman of unchaste character when you went to Kansas City? A. No, sir. Q. Did you sleep with any woman while you were there other than your wife? A. I did. Q. At that time you had a wife and two or three children. A. I had a wife and two babies; yes, sir. Q. Now, I will ask you if it is not true that these boys and you and others kept women there at your livery stable and in the hotels at Weatherford and slept with them various and sundry nights? A. No, sir. Q. Did you and these boys ever keep girls around your livery stable and in the hotels? A. No, sir; I didn't. Q. Did you know anything about having performed an operation on any of these girls? The Court: Objection sustained. Gentlemen of the jury, with reference to the operation you will disregard that question."

The general rule is that, when the defendant in a criminal case voluntarily takes the stand as a witness in his own behalf, he has all the rights of other witnesses and is subject to the same rules of cross-examination and impeachment as other witnesses. People v. Dupounce, 133 Mich. 1, 94 N.W. 388, 103 Am. St. Rep. 435, 2 Ann. Cas. 246; Harrold v. Territory,18 Okla. 395, 11 Ann. Cas. 818; Buxton v. State, 11 Okla. Cr. 85,143 P. 58.

In the case of Hopkins v. State, 9 Okla. Cr. 104,130 P. 1101, Ann. Cas. 1915B, 736, this court said:

"As to what is the proper practice on cross-examination of witnesses, the general rule is that the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.

"When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the trial court will not be reviewed on appeal."

And see Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132.

Discussing the scope of cross-examination, Mr. Greenleaf says:

"There may, secondly, be a limitation based on the general impropriety of allowing an unrestrained raking-up of the witness' misdeeds and of thus making the witness box a source of annoyance and terror both to reputable and disreputable persons alike. The utility of such exposures is comparatively so small, and the abuse of such cross-examination by unscrupulous counsel is so common, that some measures of restriction are highly desirable, and this attitude of the courts may well be emphasized as the only proper one. The object is attained in most jurisdictions by declaring the trial court to have discretion to set limits to such an examination (irrespective of its relevancy), and to forbid it whenever it seems to be unnecessary or profitless or undesirable; and such is the rule now in vogue in the majority of jurisdictions. A few courts, with courage and wisdom, have taken the step of forbidding entirely such cross-examination as to character." (Greenleaf on Ev. vol. 1 [16th Ed.] par. 461b.)

Our statute permits the proof of a prior conviction of a defendant in a criminal case for the purpose of affecting his credibility. Section 5046, Rev. Laws 1910. This proof may be made either by the record or by the cross-examination of the defendant, and cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.

We are of the opinion that the cross-examination objected to was improper and highly prejudicial to the defendant, and the action of the special prosecutor in asking such questions constituted misconduct on his part. The obvious purpose and the undoubted effect of such course of cross-examination was to degrade the defendant and prejudice the minds of the jury against him, and the rulings of the trial court in permitting the same and compelling the defendant to answer such questions constitute prejudicial error.

Several errors are based upon the exceptions taken to the instructions given and the refusal of the court to give certain requested instructions. Among others, the defendant requested four instructions based upon the law applicable to the impeachment of witnesses, including an instruction approved by this court in the case of Nelson v. State, 3 Okla. Cr. 468,106 P. 647. The charge of the court did not include any instruction covering the law of impeachment.

In view of the fact that two of the state's witnesses were convicts, serving their terms, and that several of the state's witnesses were confessed perjurers, and were impeached by testimony showing that their general reputation for truth and veracity was bad, and that no attempt was made to contradict these character witnesses in any way, we think the court should have instructed the jury on the law applicable to the impeachment of witnesses, especially in a case of this kind, where the testimony relied upon to secure a conviction was, at most, only technically sufficient to support a verdict of guilty.

For the reasons stated, we think the defendant has not had a fair and impartial trial.

The judgment of the lower court is therefore reversed.

ARMSTRONG and MATSON, JJ., concur.