Philips v. State

Counsel for appellant has filed a brief in this cause in which he attacks the finding of the trial court as to the date on which the case-made was served on the county attorney.

First. The first contention is that appellant was not present when the investigation, upon which this finding was based, was held, although the appellant was represented by counsel. Counsel assumes the position that, as testimony was heard affecting a substantial right of appellant, his presence was absolutely necessary in such hearing. In support of this position he cites section 5761, Rev. Laws 1910, which is as follows:

"If the indictment or information is for a felony the defendant must be personally present, but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel."

It will be seen that this section is the second paragraph of article 8 of the Revised Laws under the heading of, "Pleadings and Proceedings before the Commencement of Trial." It only requires the presence of a defendant in a felony case at the trial upon which the question of his guilt or innocence of the crime charged is determined by the jury. It does not require the presence of a defendant at any hearing in which the question of guilt is not directly passed upon. See Ward v. Territory,8 Okla. 12, 56 P. 704; Saunders v. State, 4 Okla. Cr. 264,111 P. 965, Ann. Cas. 1912B, 766; Starr v. State, 5 Okla. Cr. 440,115 P. 356; Newton Henry v. State, post, 136 P. 982, decided at present term. If it be true that appellant should be present when such matters are under investigation, then if he were confined in the penitentiary, it would be necessary to take him out and carry him to the place where the investigation was being conducted, although his presence there would not subserve any good and lawful purpose. Appellant might just as well contend that it was necessary that he should be present when the case-made was settled and signed by the trial judge.

Second. Counsel for appellant contends that after the case made had been signed and settled by the trial judge it was conclusive, and could not be amended, and that this court was without jurisdiction to refer the case-made back to the trial judge for correction, in order that the case-made might speak the truth. In support of this contention he cites the case of Day v.Ter., 2 Okla. 409, 37 P. 806. It is not necessary for us to determine as to whether or not the law is correctly stated in Day's case; it is enough for us to know that this is not the law of the state of Oklahoma. Section 1771, Rev. Laws 1910, is as follows:

"Said court shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction."

This statute is similar to one in force in Texas, relating to the matter now under consideration. In the case of Thompson v.Hawkins (Tex. Civ. App.) 38 S.W. 236, the Civil Court of Appeals of that state said that it had the jurisdiction to inquire as to the truth of a record transmitted to it from the trial court, and with reference to the statute said: "The discretion given could scarcely be broader and more extensive." Under the statute above cited this court could determine the question upon affidavits, or in any manner it deemed proper. The best and safest policy was to refer the matter to the trial court, which, without unnecessary expense, could have all of the witnesses before it. This was fair alike to the state and appellant and his counsel. Section 5248, Rev. Laws 1910, is as follows:

"The certificate of the judge who settles and certifies the case-made shall be prima facie evidence of the facts therein recited, unless the case-made on its face shows affirmatively that such certificate is in some material respect incorrect, or the said certificate be proven incorrect by affidavits or other competent evidence introduced in the appellate court in connection with a motion to correct the record or case-made, under such rules and regulations as the court may prescribe."

Third. It has always been the law of Oklahoma that an appeal in a criminal case may be taken as a matter of right, but that the manner of taking and perfecting such appeal is a proper subject for legislative control, and that the legislative direction must be observed. Bailey v. Ter., 9 Okla. 461,60 P. 117; Arispi v. Ter., 2 Okla. Cr. 79, 99 P. 1099; Boneparte v.U.S., 3 Okla. Cr. 345, 106 P. 347; Chesney v. State, 3 Okla. Cr. 454,106 P. 651; Dobbs v. State, 5 Okla. Cr. 475, 114 P. 358,115 P. 370; Lyons v. State, 6 Okla. Cr. 581, 120 P. 665.

It has also been repeatedly held that a case-made will not be considered on appeal if it was not served on the county attorney at the time fixed for that purpose by the trial court. Cohn v.State, 4 Okla. Cr. 498, 113 P. 216; Hawkins v. State,5 Okla. Cr. 276, 114 P. 356; Talley v. State, 5 Okla. Cr. 528,115 P. 603; Billus v. State, 7 Okla. Cr. 37, 121 P. 790.

This being the settled law of this state, and as no case-made in this cause was served upon the county attorney until after the expiration of the time directed by the trial court, and as this is an attempted appeal upon a case-made alone, we have no discretion except to dismiss the appeal, and it is therefore so ordered.

ARMSTRONG, P.J., and DOYLE, J., concur.