Bennett v. State

It is first contended that the trial court erred in overruling the defendant's motion and application for a continuance based on the absence of the witness A.R. Anderson. The motion for a continuance discloses that this alleged person, whether fictitious or not, was a person whom the defendant claims he rode with from the town of Quay to the town of Jennings on the day Mr. Rowe's automobile was stolen. The application shows that several days before the cause was called for trial the defendant had a subpoena issued for the witness Anderson and placed in the hands of the sheriff of Pawnee county, and the same was returned unserved, and the application also shows that the whereabouts of the said witness was unknown to the defendant; but defendant states that he believes the witness could be found if the case was continued for trial until the next term of court. In resisting this motion the state proved by the sheriff that he had made a diligent search for the said witness; that he inquired of numerous persons in the town of Keystone where the witness was supposed to have lived, and where he had been informed by the defendant that the witness lived, but that nobody in said town knew of anybody by that name; that the postmaster there said there was nobody there by that name, and long-time residents of the town also stated that there was nobody by that name living there. So far as the application on its face shows, there is no greater likelihood that the alleged witness Anderson would be available for attendance upon a trial of this case at any later term of the court. The application does not state any fact by which the court could be led to believe that the witness could be found at a later term of court. In his affidavit in support of the application the defendant merely states his conclusions or opinions and not the facts upon which those opinions are based. From the face of the application it does not appear what the present residence of the absent witness was. So far as the defendant knew, he could only inform the court that the witness was not where he thought he would be, and, further, in the opinion of the defendant, he thought he might be able to find him before the next term of the court. This was merely a surmise on the part of the defendant that did not entitle him to delay the trial. Under such circumstances there was no abuse of discretion in overruling the motion. Pugh v. State, 6 Okla. Crim. 578,120 P. 296; Cantrell v. State, 15 Okla. Crim. 280, 176 P. 91.

The verdict is based upon circumstantial evidence, and the conviction was approved by the trial judge. A fair statement of the facts of the case appears as a preface to this opinion. We deem it unnecessary to enter into a lengthy discussion of the circumstances which were, in the opinion of the jury and of the trial judge, and also of this court, amply sufficient to sustain this conviction. It was the province of the jury to determine whether the circumstances were incompatible with any reasonable hypothesis except the guilt of the defendant. The function of this court is limited to ascertaining whether there was a reasonable basis in the evidence upon which the jury could conclude, as reasonable men, that the defendant was guilty of the crime charged. In our opinion the circumstances were such as to permit of no other reasonable inference than that of the guilt of the defendant. The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.