Robbins v. State , 12 Okla. Crim. 294 ( 1916 )

Plaintiff in error, E.W. Robbins, was convicted in the District Court of Payne county of rape in the first degree, and his punishment assessed at fifteen years' imprisonment in the penitentiary. The information in this case was filed in the District Court on the 15th day of September, 1914, and alleges that the crime charged therein was committed on the 27th day of July, 1914, upon the person of Viola Gallagher, a female child under the age of fourteen years, and of the age of thirteen years.

From the judgment rendered on the verdict an appeal was taken by filing in this court on March 12, 1915, a petition in error with case-made.

The errors assigned will be noticed in their order of presentation. It is claimed that:

"This being a capital case no list of the witnesses together with their post office addresses was ever served on defendant and no copy of the information was ever served on him prior to the trial as required by section 20 of article 2 of the constitution."

It appears from the record that upon his arraignment defendant entered his plea of not guilty and the case was assigned for trial on December 2nd, on which day the trial commenced, and after the state and defendant had each announced ready for trial, and after the jury had been impaneled and sworn for the trial of the case, Wilberfore Jones, counsel for defendant made the following objection:

"Comes now the defendant and excepts to the order of the court requiring the defendant to go upon his trial at this time, for the reason that the bar docket did not reach the hands of attorneys for defendant until the 29th day of November, and for the further reason that the defendant was not present so that counsel could get the names of the witnesses for the defendant, and did not get them until Monday, November 30th, and the praecipe did not reach the office of the clerk by mail until the first day of this term and the subpoena for witnesses were not issued until this date, December 2nd, and defendant is wholly unprepared for trial at this time.

By the Court: Overruled.

By Mr. Jones: Exception."

The only ruling of the court which presents this question is an exception to the overruling of the motion in arrest of judgment.

In the case of Blair v. The State, 4th Okla. Cr. 359,111 P. 1003, this court held:

"Under the Constitution of Oklahoma, the defendant is entitled to a copy of the indictment or information filed against him; but if he be at large so that he can go to the clerk's office, call for and examine the original accusation, and copy it if he desires, the state is under no obligation to make and serve a copy upon him."

In the case of State v. Frisbee, 8th Okla. Cr. 406,127 P. 1091, it is held:

"Any person prosecuted in Oklahoma for a capital offense has the constitutional right to have furnished to him, at least two days before the trial begins, a list of the witnesses to be produced against him in chief by the state, and it would be error to force him into trial and allow such witnesses to testify against him whose names have not been so furnished, if he seasonably asserts his right. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection, and the constitutional right given him by this provision will be waived."

And see Stouse v. State, 6th Okla. Cr. 415, 119 P. 271;

Addington v. State, 8th Okla. Cr. 703, 130 P. 311;

Franklin v. The State, 9th Okla. Cr. 178, 131 P. 183.

In this case upon the record presented we have nothing before us tending to show that defendant was denied his constitutional right to be furnished with a list of the witnesses together with their post-office addresses. In the absence of proof to the contrary all essential preliminary proceedings must be presumed. Every presumption favors the regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record, it is never presumed.

It is next urged that the information was defective because it was not verified and it does not allege that defendant had a preliminary examination.

No objection was made or question raised before or during the trial as to the information, and the only ruling of the court which presents this question is the overruling of the motion in arrest of judgment. The fact that defendant has had a preliminary examination need not be alleged in the information or shown affirmatively by the state, the law presumes that he has had a preliminary examination or has waived it.

Wines v. The State, 7th Okla. Cr. 450, 124 P. 466.

When a defendant relies upon the want of a preliminary examination, the proper practice is to raise the question by a motion to quash or set aside the information, or by plea in abatement before pleading to the merits. The state can then take issue on the motion or plea and the fact can be determined by the proofs and the burden of proof is on the defendant. In this case the testimony on the trial showed that defendant had a preliminary examination. One of his character witnesses testified that he was the committing magistrate in the case. An objection first made in a motion in arrest of judgment in a felony case upon the ground that the information was not verified is too late as the defect was waived by the defendant pleading and going to trial upon the merits without objection.

Under our statute no information is insufficient by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. (Section 5747 Rev. Laws.)

"The verification is not part of an information charging a felony, and is therefore not an indispensable requisite. The object of such verification is not, as in misdemeanors, for a showing of probable cause supported by oath or affirmation to authorize the arrest of the accused, and is not for the purpose of evidence, which is to be weighed and passed upon, but only, as we believe, to secure good faith and as a matter of good form in pleading."

Henson v. The State, 5th Okla. Cr. 201, 114 P. 630;

Hughes v. The State, 7th Okla. Cr. 117, 122 P. 554.

Next, it is contended that, "The record fails wholly to affirmatively show that defendant was present in court during the argument of counsel before the jury, or that defendant was present in court at the time the jury returned its verdict."

The question presented is raised for the first time in this court by defendant's counsel, who it appears took no part in the trial. The case-made does not show that any objection was made or exception taken to any of the proceedings had upon the trial other than the one already noted, and the case-made does not include a certified copy of the record proper, although it appears that the trial court ordered that the same should be made by the court clerk without cost to the defendant.

Our Procedure Criminal provides, section 5960 Rev. Laws:

"When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action.

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."

This provision of the statute specifically defines what constitutes, in a criminal case, the record proper, and a transcript of such record proper should be authenticated by the certificate of the clerk of the trial court as prescribed by rule 4, paragraph 2, of the rules of this court. When it appears from the properly certified transcript of the record that the trial court was without jurisdiction, or had lost jurisdiction in the case, such jurisdictional question may be raised for the first time in the Appellate Court. In the absence from the case-made in this case of a certified transcript of the record, the question argued is not presented for review, and cannot be raised for the first time in this court. This court cannot consider questions, other than jurisdictional, which were not raised by objection made or exception taken upon the trial, or which were not grounds in the motion for a new trial, or in the motion in arrest of judgment.

Having considered every argument or proposition propounded by counsel for defendant, and having carefully examined the case-made with a purpose to discover whether defendant has been deprived of that fair and impartial trial to which he is entitled under the law, and having carefully considered the evidence, we have been unable to find that he has been deprived of any constitutional or legal right, and have reached the conclusion that the evidence in the case fully warranted the verdict of the jury. The judgment of the District Court of Payne county is affirmed.

FURMAN and ARMSTRONG, JJ., concur.