Milton v. State , 7 Okla. Crim. 407 ( 1912 )

Upon a careful consideration of the evidence, our conclusion is that the verdict and judgment must stand, unless the court, in the course of the trial, committed error prejudicial to the substantial rights of the defendant.

It is claimed by the learned counsel for the plaintiff in error that the court erred in refusing to grant a continuance on account of the absence of the witness H.H. Rogers and the witness Mrs. Myrtle Milton, and the consequent absence of material and necessary evidence for the defendant, and on account of the denial of a continuance upon the indorsement of the names of additional witnesses upon the indictment at the commencement of the trial.

The affidavit for continuance sets forth that if witness H.H. Rogers was present he would testify that Felix Saxon told him (Rogers) that he (Saxon) signed Dinah Walker's name to the deed; that Milton witnessed it; that Milton was not acquainted with Dinah Walker; that after Dinah Walker said that she did not execute the deed Milton came to him (Saxon) and wanted him to reconvey, but that he (Saxon) said that he would not reconvey until Norton paid him; that he (Saxon) had paid all the money, and that he (Milton) was out nothing; that if Myrtle Milton was present she would testify that Felix Saxon had said to her that he (Saxon), with Milton, went to Shawnee, where they met Dinah Walker; that Dinah Walker there made her mark to the deed, and that he (Saxon) guided her hand as she did so; that he knew it was Dinah Walker, and that Milton was not acquainted with Dinah Walker; that the deed was executed properly in the presence of Eugene Walker and R.D. Milton, and acknowledged before E.D. Reasor, county judge.

The record shows that the defendant Milton took the stand as a witness in his own behalf and corroborated Saxon in every particular mentioned in the affidavit for a continuance; and the defendant admitted as a witness that it was not Dinah Walker who signed the deed at Shawnee. He also testified that he saw Saxon put the money in the bank to pay for the land; and that it was Norton's money. He further testified that on Tuesday, August 6, 1909, he went with Norton, with $600 in money that they had borrowed, and tried to get another deed from Dinah Walker.

The only possible competency or materiality of the testimony of these absent witnesses would have been to impeach Saxon's evidence; and the defendant not only did not cross-examine Saxon on these points, but in his own personal testimony corroborated Saxon.

The names of five witnesses were indorsed on the indictment when the case was called for trial, leave of court having been first obtained, as follows: Alexander Crane, Carry Cyrus, Blanche Miller, Henryetta Brooks, and J.G. Dodson. The first two, Alexander Crane and Carry Cyrus, did not testify at all. Henryetta Brooks and Blanche Miller testified that Dinah Walker did not leave home the night of August 6th, and consequently could not have been in Shawnee to sign the deed in question. As this was an admitted fact by the testimony of the defendant, he could not have been prejudiced by their testimony.

J.G. Dodson (T.D. Dodson), the fifth witness indorsed thereon, testified that upon the afternoon of the night of the forgery he (witness, who was then sheriff of Seminole county) was at Seminole, Okla., and saw the defendant Milton and Saxon driving away from that place, and heard the defendant Milton, referring to the team he and Saxon were driving, remark, "This is a hell of a poor team to start a man out to steal a piece of land with." After Dodson had testified, the defendant, testifying in his own behalf, did not deny making the statement that Dodson had testified to. Dodson testified that there were fourteen or fifteen men who heard the defendant make the remark.

The record shows that the trial lasted three days after Dodson testified; and no effort is shown to have been made to secure the attendance of any of these persons from the town of Seminole, just a few miles from Shawnee, where the trial occurred. No attempt was made on the motion for a new trial to show that the testimony of Dodson could possibly have been rebutted. We do not think that the defendant could have been prejudiced by the ruling of the court, when he did not deny this evidence when testifying in his own behalf.

It is further contended that the defendant was not in a mental condition to go to trial on account of the illness of his wife; and in support of the application for continuance evidence was introduced upon this point. The brief of the plaintiff in error, under this assignment, does not argue this question, and we suppose it is abandoned. Suffice it to say that at the time of the trial of this case it had been pending nearly two years, and during all that time the defendant had been represented by his present large array of counsel. During that time, the case was passed over at various terms for various reasons. The case was set for trial and prepared for trial by the defendant and his attorneys, and the witnesses subpoenaed at least twice before called for trial, to wit, in June, 1910, and in January, 1911. The record discloses that the case had been set down for trial once before at the same term of court at which it was tried, and was passed by the court, without motion, on account of the illness of the wife of the defendant.

The rule is well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court; and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment. We think the application for a continuance was properly overruled.

Several assignments of error are based upon the fact that the judge of the court administered the oath to the bailiff in charge of the jury. It is contended that:

"The court, by the judge, had no authority personally to administer the necessary oaths to the jury bailiff, but should have required the clerk to administer the oaths."

Our statute is silent as to designating what particular officer of the court shall administer the oath to the bailiff in charge of the jury. It is fundamental that every court has inherent power to do all things which are reasonably necessary for the administration of justice within the scope of its jurisdiction. Therefore it is not necessary that there should be a statute empowering the courts to administer oaths in the trial of cases; the judge himself may administer the oath, or he may direct the clerk or deputy clerk to administer it.

"A court has inherent authority to administer an oath or affirmation; and an oath administered by an officer in open court, under the direction of the court, is administered by the court." (29 Cyc. 1300, subpar. B.)

"The authority to administer oaths is, however, an incident to all courts. It belongs to all courts. Whenever a court is created, that power is also necessarily created as being a necessary incident to the court." (Ferguson v. Smith,10 Kan. 396.)

"We must know judicially that the court had authority to administer the oath, either by the judge, the clerk, or deputy."(Keator v. People, 32 Mich. 484, 487.)

It was held in United States v. Ambrose (C.C.) 2 F. 556, that a judge of a district court of the United States had the power to administer oaths in matters arising in the court; and that such power is incident to his judicial office, although it appears from the opinion that such powers had not been vested by statute in such judge. Counsel's contention is destitute of merit. All that is necessary is that the oath was administered by the judge or the clerk of the court in the presence of the court.

To the instructions given by the court, no serious objection is made; but it is insisted by the learned counsel that these instructions did not fully define the crime of forgery. The court gave fifteen instructions; the seventh and eighth being given on the request of the defendant.

Instruction No. 1, as given, reads as follows:

"Gentlemen of the jury, the court instructs you that in this case the defendant, R.D. Milton, is prosecuted by the state of Oklahoma upon an indictment, duly and legally filed and presented in this court, charging that he did, on the 7th day of August, 1909, and within the county of Pottawatomie, state of Oklahoma, and within the jurisdiction of this court, commit the crime of forgery in the manner and form as follows, to wit: That on said date R.D. Milton, Felix Saxon, and Eugene Walker then and there unlawfully, willfully, and feloniously did falsely and fraudulently make and forge a certain warranty deed, in words and figures describing certain lands, the property of Dinah Walker; that said warranty deed purports to be the act of Dinah Walker; that said warranty deed purports to convey the interest of said Dinah Walker in and to the lands therein described; that Dinah Walker did not sign said deed, and did not authorize any person to sign said deed for her; that said deed was by said persons made and forged with the unlawful, willful, and felonious intent of said persons then and there to defraud the said Dinah Walker of her interest in and to said lands described in said deed, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma. You are instructed that to the indictment herein the defendant has pleaded not guilty, and you are instructed that the state must prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of the indictment charging the offense against the defendant on trial."

Instruction No. 4 reads as follows:

"You are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant, R.D. Milton, entered into an agreement with one Eugene Walker that said Walker should procure some person, not Dinah Walker, to sign and acknowledge a deed conveying the lands described in the indictment herein, and if you further find from the evidence, beyond a reasonable doubt, that, pursuant to said agreement, the said Walker, acting alone or in conjunction with the said R.D. Milton, procured and caused some person, on or about the 7th day of August, 1909, in the city of Shawnee, Pottawatomie county, Oklahoma, at the rooming house of one Sylvia Tutley, to sign and acknowledge the deed to such lands, as alleged in the indictment, and if you further find from the evidence, beyond a reasonable doubt, that such person so signing and acknowledging such deed was not Dinah Walker, and if you further find from the evidence, beyond a reasonable doubt, that the defendant, R.D. Milton, caused or procured such person, or aided and abetted in the causing or procuring such person, to sign such deed, with the intent to defraud Dinah Walker of her land, or of her interest therein, your verdict should be that the defendant is guilty. But, unless you find from the evidence, beyond a reasonable doubt, each and every matter mentioned in this instruction, your verdict should be that the defendant is not guilty."

We believe the instructions given by the court fairly and correctly state the law of the case. From the whole record before us, it is apparent that justice has been done by this defendant; and the judgment of conviction ought not to be set aside, except for such plain errors in the proceedings which were or might be prejudicial to the defendant.

Finding no such prejudicial error in the record, the judgment of the superior court of Pottawatomie county is affirmed.

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