Mitchell v. State , 7 Okla. Crim. 563 ( 1912 )

The first proposition submitted in the brief of counsel for appellant is that the oath administered to the special judge who presided at the trial of this cause is not in compliance with the Constitution and laws of the United States, which requires all state judges to be sworn to support the Constitution of the United States. Our Constitution is to the same effect. See Williams' Const. sec. 315.

The record upon this subject is as follows:

"State of Oklahoma v. J. Orlando Mitchell. No. 649.

"Now on this day comes the state by its attorney, and comes also the defendant in person and by his attorney, and said defendant being arraigned is served with a copy of the information and list of witnesses indorsed thereon, and says his correct name is J. Orlando Mitchell, and now said defendant waives time to plead and for his plea herein says that he is not guilty, as charged in the information, and the presiding judge being disqualified, by agreement of parties W.J. Sullivan, Esq., an attorney at this bar, is selected to preside as judge at the trial of this case. And now said W.J. Sullivan is now duly sworn in open court. Said oath, together with the indorsement therein, is in words and figures as follows, to wit:

"In the District Court for the Third Judicial District of Oklahoma, Muskogee County.

"State of Oklahoma, Plaintiff, v. J. Orlando Mitchell, Defendant. No. 649.

"I, W.J. Sullivan, do solemnly swear that I will well and faithfully perform the duties of special judge in the above entitled and numbered cause to the best of my ability, so help me God. W.J. SULLIVAN.

"Subscribed and sworn to before me this 23rd day of May, 1910.

[Seal] W.P. MILLER, "Clerk District Court. "By ROSS HOUCK, Deputy.

"Endorsed: No. 649. State of Oklahoma v. Orlando Mitchell. Oath of Special Judge. State of Oklahoma, County of Muskogee. Filed May 23, 1910. W.P. Miller, District Clerk.

"Said oath having been taken in the presence of the defendant.

"And this cause being now called for trial, and both sides having announced ready for trial, a jury is called to try this case and comes as follows; the defendant being present in person."

A further examination of the record discloses the fact that appellant did not attempt to raise this question in the court below. He was present in open court and was represented by able and experienced counsel who were also present when the oath was administered, and they knew exactly what it contained and did not interpose any objection to it at any time during the trial. An elaborate motion for a new trial was filed in which 22 grounds were urged upon which the judgment of the court should be set aside. This motion for a new trial does not contain any reference to the question now presented. In their brief, counsel have not cited a single authority holding that the omission of which they now complain constitutes reversible error. Knowing as we do the industry, learning, zeal and ability of counsel for appellant, we would be disposed to regard this failure on their part to cite authority in support of their contention as an admission that no such authority exists. But we will not act upon this assumption. The question now presented raises the issue of the sufficiency of the oath administered. We do not deem it necessary at this time to discuss this question, because the record affirmatively shows that the trial judge was both selected and sworn. We do not think that the form of the oath administered to a special judge is a jurisdictional question and can therefore be raised for the first time upon appeal. Whatever objections appellant may have been able to offer to the form of this oath were waived by his failure to present them at the proper time. Except in matters specially provided for by statute, our jurisdiction is appellate only, and we cannot pass upon irregularities which are not jurisdictional unless they were first presented in the trial court. Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court. It would be fatal to the administration of justice if we were to permit counsel for a defendant to acquiesce in an irregularity occurring during the trial when a timely objection would have cured the irregularity and prevented the possibility of injury, and raise such question for the first time in this court.

Second. Appellant's counsel have displayed great learning and industry in the brief which they have filed in this court, covering as it does 61 pages. In this brief they discuss a number of questions and cite innumerable authorities to sustain their contention. It is unfortunate for appellant that a purely technical defense is not available in this state. From the day of its creation, this court has refused to recognize and follow the common-law doctrines that error presumes injury and that penal statutes are to be strictly construed. On the contrary, it is now settled in this state that, where the record shows that an appellant has been fairly tried and his guilt is clearly made out by the testimony, a verdict of conviction will not be set aside upon any technicality or exception which did not deprive the appellant of a substantial right to his injury, and that such injury will not be presumed but must reasonably appear from the record. It is also equally well established that penal statutes should be liberally construed in the furtherance of justice and for the purpose of enabling them to reach and destroy the evils at which they are aimed. It is therefore a waste of time for counsel to cite authorities from states which differ so radically from the fundamental principles upon which our system of criminal jurisprudence is based. This court has not undertaken any radical innovation upon the law, but is simply carrying out in good faith the statute law of this state, which we are sworn to enforce. We have quoted these statutes so often that it should be unnecessary to refer to them again, but as attorneys for appellants persist in filing briefs in this court which directly ignore the law of the state, we will call the attention of the bar to these statutes again.

Section 6487, Comp. Laws 1909, is as follows:

"The rule of common law that penal statutes are to be strictly construed, has no application to this chapter. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice."

Section 6957 is as follows:

"On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties."

If attorneys, in preparing their cases for appeal, would keep these two statutes constantly in mind, they would save themselves a great deal of unnecessary labor, and their services would be more valuable to their clients. It is simply a waste of time and labor to discuss questions on appeal which do not go to the substantial merits of a case, and the overcrowded condition of our docket prohibits us from taking part in such discussions. Nothing can be gained thereby. We already have more work on our hands than we can possibly do in deciding questions which involve substantial merit. In the case at bar the state's testimony made out a plain and direct case of perjury, to which no meritorious defense has been made. The jury accepted the testimony of the state as true. This was their exclusive prerogative. So far as the merits of the case are concerned, appellant might just as well have pleaded guilty. Even if we were to sustain all of the contentions of counsel for appellant, it could do him no possible good, because there are no fundamental errors in this record.

As the verdict rendered is the only one which could have been rendered by the jury, we cannot say that the appellant has been deprived of any substantial right to his injury. Our views on the subject of perjury are fully expressed in the case of Coleman v.State, 6 Okla. Cr. 252, 118 P. 594, and it is not necessary that we should repeat here what we said there, as we have no desire to recall or modify the views then expressed. We again call upon county attorneys and all other officers of the state to exercise the utmost diligence in prosecuting persons for perjury, in order that it may become as dangerous to criminals as it is odious to reason and ruinous to justice.

We find no material error in the record, and, as the testimony clearly established the guilt of appellant, the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.