Brown v. State

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of embezzlement, and his punishment fixed by the court at imprisonment in the state penitentiary for 18 months.

Defendant contends, first, that the court erred in overruling his motion to quash and set aside the information, for the reason that no legal preliminary had been held.

The complaint was filed with the magistrate on the 13th day of April, 1929, and on the same day a warrant was issued and the defendant arrested and brought before the court, at which time he made bond and was enlarged pending preliminary examination. On the 20th day of April, the state had its subpoenas issued for its witnesses. The cause came on for hearing on the 25th day of April, on which day, and just a few minutes before the case was called for hearing, the defendant filed his application for a change, of venue, alleging "that said defendant has reason to believe and does believe that he cannot have a fair and impartial examination before Charles Wheeler, judge of the city court herein," and prayed therein that said cause be transferred to the next nearest justice of the peace of Muskogee county, or to the county judge for further proceedings. This application for change of venue was denied, and the magistrate before whom the complaint was filed proceeded to hold a preliminary hearing. After the information was filed in the district court, the defendant filed his motion to quash the same for the reason that he had not been given a preliminary hearing before any officer authorized by law to hold the same. This motion was overruled by the trial court.

Section 2485, C. O. S. 1921, provides:

"He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena: Provided, however, that at any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace."

To decide the case, it will be necessary to determine what the Legislature meant by the clause:

"At any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace."

The causes for a change of venue at the time of the adoption of this statute were:

(1) That the justice was a material witness.

(2) That he could not have a fair and impartial trial on account of the bias and prejudice of the justice against affiant.

(3) If a jury be demanded, that he could not have a fair and impartial trial by jury on account of the bias and prejudice of the people of the district.

This court has always held that the defendant is entitled to a change of venue at any time before the trial is begun, where he files an affidavit alleging that he cannot have a fair and impartial trial or preliminary examination on account of the bias and prejudice of the magistrate. Rea v. State,3 Okla. Cr. 276, 105 P. 384, 139 Am. St. Rep. 954; Neff v. State,39 Okla. Cr. 133, 264 P. 649, 650; Murray v. State,43 Okla. Cr. 286, 278 P. 407.

In Rea v. State, supra, in paragraph 2 of the syllabus, this court said:

"Section 15, Bunn's Const., provides that right and justice shall be administered without prejudice. Under this provision, when a motion, properly verified, is made before the trial begins for a change of judge upon the ground of the bias or prejudice of the trial judge, it is the constitutional right of the party making it that it shall be granted."

Thus early this court recognized the right of a defendant to a change of venue on account of the bias or prejudice of the judge, and held that such right was grounded in section 6, art. 2, of the Constitution, and defendant could not be deprived of the same.

In the case at bar the affidavit of defendant was insufficient to entitle him to a change of venue under section 2485, supra, and the holdings of this court, for the reason that it failed to allege as a ground for such change the bias and prejudice of the magistrate against the affiant.

Section 2966, C. O. S. 1921, provides:

"In criminal proceedings a change of place of trial may be had in a cause triable before a justice under the provisions of this article, or upon which a preliminary examination may be held, at any time after the defendant appears, and before any subpoenas are issued, when he or some one for him files an affidavit that he has reasons to believe and does believe that he cannot have a fair and impartial examination or trial, as the case may be, before the justice or county judge, whereupon the county attorney, or some one for him, may file an affidavit alleging the same disqualification against any one justice to whom it is proposed to send the cause for further proceedings, and thereupon the cause shall be sent to the next nearest justice, who is in no way related to the defendant or prosecuting witness or party injured who is not a witness and has been an attorney in the cause, and who may not be absent or physically be unable to act. The parties may agree upon a justice, whereupon the cause shall be sent to that justice. But one such charge shall be allowed. No witnesses shall be subpoenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to change the venue or has changed it, if he elects to change, and the date for the hearing has been fixed."

Under this section, defendant is entitled to a change of venue only where his affidavit is filed before subpoenas are issued for the witnesses, but witnesses may not be subpoenaed until after he has been given an opportunity to change the venue. It appears from the record that the state did not have its subpoenas issued for its witnesses until seven days after the defendant had been arrested, arraigned, and enlarged on bond, and five days prior to the time of the filing of defendant's affidavit for a change of venue. While it is the constitutional and statutory right of defendant to have a change of venue, the Legislature may by law, within the limitation of the Constitution, regulate the time and manner of exercising such right. Before the defendant is entitled to a change, he must comply with the requirements of the statute.

In Neff v. State, supra, in paragraph 3 of the syllabus, this court said:

"The statute provides the manner of procedure by which a change of venue may be had for a preliminary examination; the requirements of the statute are mandatory and must be strictly construed."

Under section 2485, supra, defendant may have a change of venue at any time before examination begins by filing an affidavit alleging that he cannot have a fair and impartial examination because of the bias and prejudice of the magistrate; while under section 2966 he does not have to make affidavit that the magistrate is biased and prejudiced against him, but only needs to allege that he has reason to believe and does believe he cannot have a fair and impartial examination, but must file this affidavit after he has been arraigned and had an opportunity to change the venue and before subpoenas have been issued by the state.

Section 962, C. O. S. 1921, provides for change of venue in civil cases and enumerates the same grounds as have been heretofore held to be constitutional grounds for a change of venue in criminal cases. Sections 2485, 2966, and 962, supra, must be construed together, and when so construed, they are not in conflict with each other and do not violate section 6, article 2, of the Constitution of Oklahoma.

The affidavit of defendant not having been filed within the time required by section 2966, the court did not err in overruling the application for a change of venue.

The defendant next contends that the information is insufficient to charge an offense under the laws of Oklahoma.

The information is the usual one filed in embezzlement cases, and was sufficient to charge the offense of embezzlement.

The defendant next contends that the court erred in permitting the state to introduce a great number of tickets which showed a series of embezzlements of the funds of the Gray Eagle Oil Company.

The defendant was an employee of this company, and was charged with embezzling $6.88 of said company's funds. The tickets were introduced for the purpose of showing a plan, scheme, or system of embezzling the complaining company's money, and under State v. Rule, 11 Okla. Cr. 237,144 P. 807, Johnson v. State, 35 Okla. Cr. 212, 249 P. 971, and Reeves v. State, 36 Okla. Cr. 409, 255 P. 162, were properly admitted in evidence.

There being sufficient evidence in the record to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, J., concurs.