Boswell v. State

1912 OK CR 391, 126 P. 826, 8 Okla. Crim. 152, 1912 Okla. Crim. App. LEXIS 397

• Court: Court of Criminal Appeals of Oklahoma
• Decided: September 30, 1912
• Docket: No. A-1312.
• Status: Published

Opinion

FURMAN, P. J.

(after stating the facts as above). The application for a continuance in this case is altogether insufficient. As to the two absent witnesses, T. S. Williams and P. V. Woodruff, the application does not show when the subpoena was issued, or when or by whom or how it was served upon these witnesses. Neither does it show the residence of the witnesses. The testimony set out in the motion for a continuance was in no manner material. If appellant killed the deceased, the fact that he was also injured would not constitute any defense unless the killing occurred while the appellant was attempting to defend himself against such injuries. As to the witness Ruth Myers, there is no statement that a subpoena was ever issued for or served upon her, and no showing is made as to any diligence on the part of appellant to locate this witness or discover her place of residence. It is not enough to state in general terms that a defendant has used due diligence, but the motion must go further, and state the facts which constitute the diligence used, so that the court may judge of this matter. It is an exceedingly serious and dangerous matter for a man to be charged with crime in the courts of Oklahoma, and it is the duty of such person and his attorneys to exert themselves to the utmost and avail themselves of the process of the court in order to obtain witnesses in their behalf. The testimony of the absent witness was not material, because it was simply a statement of her opinion that the appellant was so engaged as to be unable to throw the stone which killed the deceased. An application for a continuance should state the facts which will be testified to, and not the opinion of the witness. The application does not state the residence of Nancy McDaniels, or state when or by whom or how process was served upon her, or at what time she was required by this process to appear in court. The testimony of said Nancy McDaniels is immaterial because it does not state any fact which would justify appellant in killing deceased. Even if the application had been good upon its face, it should have been refused because it was presented on the 7tth day of February, while the trial did not begin until the 13th day of February, which was ample time for appellant to send from one end of the state of Oklahoma to the other for his absent witnesses, and there is no showing that appellant attempted to get process for such witnesses or made any effort to secure their presence during this time. Even if the application had been good upon its face, and if appellant had exercised the utmost diligence to obtain the- attendance of these witnesses, this conviction would not be reversed, because the entire testimony in the case shows the absent witnesses’ testimony was immaterial and was at most only cumulative. It is the settled rule of this court that an application for a continuance is addressed to the discretion of the trial court, and that the refusal of the court to grant a continuance will not be reversible error upon appeal, unless upon an examination of the entire record it appears that appellant was deprived of some substantial right thereby, to his injury. An application for a continuance should state the name and place of residence of each absent witness. It should then allege that due diligence has been used to secure the attendance of said witness, and should disclose the diligence as to each witness by stating the time at which the subpoena was issued, and when and by whom served, and that the witness was summoned to be present at the time of the trial. The better practice is to attach the subpoena for each witness with the return thereon indorsed to the motion for a continuance, and make it- a part thereof, so that the court can tell whether or not as a matter of fact due diligence has been used. The motion should allege in general terms that the testimony of the absent witness is material and set out the facts expected to be proven by each absent witness, and it must also contain such statements as will show that such expected evidence is both competent and material. If the testimony of the absent witness cannot be procured from any other source, this fact should be stated. If it can be procured from some other source, the motion should contain a statement as to why it was not so obtained. But, if such absent testimony can be obtained from some other source, the motion must state the special facts which in reason and justice would entitle a defendant to a continuance in order to enable him to obtain cumulative evidence. A motion which does not comply with either of these requirements is bad upon its face.

Second. Upon the trial of this cause, among other things, the court instructed the jury as follows:

“You are instructed that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant inflicted the wound upon the deceased as charged in the information, and that said wound was the immediate and necessary cause of the death of the deceased, then the burden of proving circumstances of mitigation that jusitfy or excuse the homicide shall devolve upon the defendant, unless by the proof on the part of the state it is apparently and sufficiently manifest that the accused was justified or excused in committing the homicide.”

The court also instructed the jury as follows:

“But, if, after viewing all of the evidence and circumstances in the case, there is a reasonable doubt upon your minds as to the guilt of the defendant of any charge mentioned in these instructions, then it would be your duty to give the benefit of that doubt to the defendant and acquit him.”

We are at a loss to know why appellant should except to this instruction, because the record shows that he requested the court to charge as follows:

“You are instructed that if you believe from the evidence in this case beyond a reasonable doubt that the defendant inflicted the wound upon the deceased as charged in the informa tion, and that said wound was the immediate and necessary cause of the death of the deceased, then the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the defendant, unless by the proof oh the part of the state it is apparently and sufficiently manifest that the accused was justified or excused in committing the homicide.”

Section 6854, Comp. Laws 1909, is as follows:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, -the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

The latter part of the instruction given and complained of does not follow the statute, and is more onerous than the law requires. But this does not constitute reversible error for two reasons: First, it is a substantial copy of the instruction requested by appellant and because a defendant cannot avail himself of an error which was committed by the court at his suggestion; and, second, because there is no word of evidence in this record either on the part of the state or appellant which in any manner tends to excuse, mitigate, or justify the offense committed, and it is a well-settled rule of law that an error in the instructions of the court will not be reversible unless it appears from the record that appellant was injured thereby.

From the whole record appellant is guilty of the offense for which he was convicted. Upon his own showing it was a case of manslaughter, and, while he was probably acting under such intense excitement as to render him incapable of forming that specific intent to kill which is necessary to constitute murder, he is clearly guilty of manslaugther in the first degree.

The other alleged errors in the record are not deemed of sufficient importance to require discussion. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.