Davis v. State , 10 Okla. Crim. 169 ( 1913 )

Three assignments of error are relied on for a reversal of the judgment: First, that the court erred in overruling the motion of the defendant for a continuance on account of the absence of a material witness; second, that the evidence is insufficient to support the verdict; third, that the court erred in its instructions to the jury. We shall determine these questions in the order named.

The application for continuance is supported by two affidavits. The first sets forth:

"That he is unable to proceed to trial at this time for want of material evidence, to wit, the evidence of one Jim Isam, who is a material witness in this case, and defendant has used due diligence to obtain the evidence. That this defendant only learned on November 7th that Jim Isam is at present a resident of Oklahoma, and is somewhere in the eastern part of the state, but his exact whereabouts is to this defendant unknown. That this witness has not been subpoenaed to be present at the trial of this case in this court for the reason, as above stated, this affiant was not apprised and did not know what this witness would testify, but that defendant expects to have the evidence of said Jim Isam by the next term of this court. Defendant expects to prove the following facts by said witness, to wit: That Jim Norman told him, Jim Isam, that he sold Bud Davis the meat that was taken away from Bud's house, and further that Jim Norman came to Jim Isam's house, on Bud Farris' place, and asked him to go look at a hog hide, and that he went and saw the hide. That affiant believes the same to be true, and that said evidence, so far as the defendant knows, cannot be furnished by any other witness."

The second states:

"That he is unable to proceed to trial at this time for the want of material evidence, to wit, the witness John Patterson, who is a material witness in this case; that defendant has used due diligence to procure this witness, that a subpoena was issued for said witness, but said witness has not been served, and defendant is informed that this witness resides in Stephens county, Okla. That the defendant expects to prove the following facts by said witness: That Jim Norman told him that he sold Bud Davis the meat that was taken away from Bud's house, and after that Jim Norman came to him and asked him to go and look at a hog hide. That he went and saw the hide, and that affiant believes the same to be true. That said evidence, so far as the defendant knows, cannot be furnished by any other witness. This application is not made for delay, but that justice may be done, and asks that this cause be continued until the next term of this court."

The mere statement of a defendant that he has used due diligence to secure the attendance of an absent witness is not sufficient to show diligence. He must set out fully in his application for continuance the facts which constitute such diligence. The delay of the defendant, as shown by the record, in procuring process for his witnesses amounts almost to indifference. A defendant should not wait until just before his trial before he begins to get ready for trial, but must exercise diligence in procuring process for his witnesses.

The rule is well settled that the granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this court will not reverse a trial court on a decision of a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion.

We think the application for a continuance was properly denied.

Looking at the case upon the merits, it is impossible to find any ground for the interference of this court. The questions in the case were for the jury, and the verdict is well supported by the evidence. It is the province of the jury to determine questions of fact depending upon conflicting evidence, and to declare by their verdict what the truth is. It is no more the province of this court than of the trial court to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate functions of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse and opposing inferences.

"Where the evidence is circumstantial, and the circumstances are such as to reasonably justify an inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence obviously does not warrant the inference of guilt that the court will interfere. Otherwise the weight of circumstantial evidence, and the inference to be drawn from it in almost every case, would finally be determined by the appellate court. We think a verdict of a jury based upon circumstantial evidence comes to us as any other verdict; and, unless we can say that the inference of guilt drawn from the evidence was wholly unwarranted, we cannot interfere." (Wainscottv. State, 8 Okla. Cr. 590, 129 P. 655.)

We do not think there is any serious ground for the contention that this is a case which would justify this court in interfering with the facts as determined by the jury.

The record in this case fails to show that any objections were made or exceptions taken to the instructions given by the trial court. And no instructions were requested by the defendant to be given. The objections argued in the brief are without merit. The charge of the court was exceedingly fair, and every right of the defendant was carefully guarded.

Having considered all objections to the judgment presented in argument by counsel, we discover no ground for disturbing the judgment. It is therefore affirmed.

ARMSTRONG, P.J., and FURMAN, J., concur.