DOYLE, P. J.
(after stating the facts as above). The plaintiff in error, Roswell Westbrook, and Jack Mc-Kennon were jointly charged by information duly filed in the district court of Latimer county on February 28, 1916, with the murder of Calyin Tomlinson, alleged to have been committed in said county on the 7th day of February, 1916, by shooting him with a pistol. Upon their arraignment on the 6th day of March, they took 24 hours to plead. On the 7th day of March, they filed a general demurrer to the information, which was overruled. Thereupon the defendants entered pleas of not guilty, and at that time the court fixed the time for trial for March 14, 1916. On the 13th day of March, the defendants filed in open court their application for a commission to take the deposition of one Bill Cole, a nonresident of the átate of Oklahoma. Their joint affidavit filed in support of said application contained all the formal allegations required by law, and concludes as follows:
“That Bill Cole is a material witness in their defense, without whom they cannot safely go to trial; that said witness, Bill Cole, saw this petitioner in the town of Calhoun, Le Flore county, about 16 miles from the place of the alleged killing, about 7 o’clock on the 7th day of February, 1916, and remained with the defendant, Jack Mc-Kennon, from about 7 o’clock p. m., on said day, all night in Calhoun. And further defendants say that the testi
mony of said witness is true and material in this cause, since it is alleged in the information that the defendants acting conjointly and together committed the crime of murder upon the person of Calvin Tomlinson in Latimer county, Okla., on said date, and the state relies upon proving that said crime was committed between 7 and 8 o’clock that evening. Affiants further say that said witness is a resident of the State of Arkansas and resides at No. IOO8V2 on Gar. Ave. Street, in the city of Ft. Smith, Ark.
“[Signed] JACK McKennon,
“Roswell Westbrook.”
The record shows, on the same day, the following proceedings:
“The Court. I understand from you, Mr. Church, that last Tuesday, which was the 7th day of this month, after Mr. Neal had served notice on you of his intention to make application for a commission to take depositions, that you at that time told him that you would waive the statutory notice to take the depositions, and that you would go with him at any time to take the depositions of this .witness.
“Mr. Church (Prosecuting Attorney) : Yes, sir; your honor. I told him that after he served the notice on me.
“The Court: Wasn’t it understood between you and Mr. Neal that all process was to be taken out for tomorrow, and every witness in this case was subpoenaed to be here tomorrow by the state and the defense?
“Mr. Neal: Now, after this notice had been served upon Mr. Church, he came , to me and said, ‘Neal, I will waive that notice,’ and I says: T don’t ask you to waive anything. We want those depositions taken, and we want it done legally.’-
“The Court: Application is denied.
“Mr. Neal: I would like for the court to state the ground of his denial in the order.
“The Court: I have a number of reasons for denying the application, and I don’t think it is necessary to state them.
“Mr. Neal. We save an exception to the ruling of the court.”
Thereafter, on the 15th day of March, the case was called for trial, and the defendants filed their motion for continuance. Their joint affidavit for continuance contained all the formal allegations required by law, and among others the following statements:
That T. L. Herron is a resident of Calhoun, Le Flore county. That on the 6th day of March, 1916, these defendants by their attorneys of record, Neal & Fleming,' filed with the clerk of the district court of Latimer county a praecipe that a subpoena issue for said witness, and on the same day procured such subpoena, indorsed by the judge of the district court for service in Le Flore county to be issued. That the sheriff of Le Flore county made return of said subpoena that said T. L. Herron was not found “in my county.”- That the defendants further- exercised diligence by procuring Owen Herron, a son of T. L. Herron, to go to Ft. Smith, Ark., where the said T. L. Herron was temporarily residing on account of his health and undertook to have the said T. L. Herron to come to Wilburton to attend the trial of this case. That said T. L. Herron is not present, but is confined to his room in the city of Ft: Smith, suffering from inflammation of the bowels, as is shown by the certificate-of T. E. Jeffery, a regular practicing physician of the city of Ft. Smith, which certificate is attached hereto and made a part hereof. That said witness would testify, if present, as follows: That on the evening and night of February 7, 1916, he was in the town of Calhoun, Okla., and saw the defendants Jack McKennon and Roswell Westbrook about 7 o’clock p. m., on said day, and remained with the defendant Jack McKennon from about 7 p. m. in the evening until some time the next morning, sleeping in the same
bed with him the night of the 7th, and knows and will testify that the defendants were not at the home of W. S. Tomlinson in Latimer county between 7 and 8 o’clock on the night of the- 7th day of February, 1918.
That there is absent from attendance of the court one-Mrs. Covey, who is a resident of Calhoun, and for whose attendance a subpoena duly issued indorsed by the district judge, commanding the attendance of said witness, and. the sheriff of Le Flore county served said subpoena upon the said Mrs. Covey by delivering a copy thereof to her in Calhoun on the 7th day-of March, 1916, a copy of which subpoena and the return thereto is hereto attached. That said witness, if present, would testify: That she was present all the time during the conversation as is claimed by the state between Charity Covey and Roswell West-brook, and that Roswell Westbrook at no time in her presence told Charity Covey that he (Westbrook) and the defendant Jack McKennon intended to rob any person. That said witness is sick and unable to attend the trial of this case, as is shown by certificate of physician hereto attached. That the testimony of said witness is true, and that defendants can prove these facts by no other witness in their power to procure, and that there is every reason to believe that the testimony of said witness may be procured by the next term of this court if this case is continued.
On the same day witnesses were called and testified in support of and against said motion for continuance.
The court in overruling the motion in part said:
“It seems, from the undisputed evidence in this case, that this woman (Mrs. Covey) has been suffering from pellagra for several months; and that it was known at least to one of the defendants that she was confined to her bed.
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DOYLE, P. J.
(after stating the facts as above). The plaintiff in error, Roswell Westbrook, and Jack Mc-Kennon were jointly charged by information duly filed in the district court of Latimer county on February 28, 1916, with the murder of Calyin Tomlinson, alleged to have been committed in said county on the 7th day of February, 1916, by shooting him with a pistol. Upon their arraignment on the 6th day of March, they took 24 hours to plead. On the 7th day of March, they filed a general demurrer to the information, which was overruled. Thereupon the defendants entered pleas of not guilty, and at that time the court fixed the time for trial for March 14, 1916. On the 13th day of March, the defendants filed in open court their application for a commission to take the deposition of one Bill Cole, a nonresident of the átate of Oklahoma. Their joint affidavit filed in support of said application contained all the formal allegations required by law, and concludes as follows:
“That Bill Cole is a material witness in their defense, without whom they cannot safely go to trial; that said witness, Bill Cole, saw this petitioner in the town of Calhoun, Le Flore county, about 16 miles from the place of the alleged killing, about 7 o’clock on the 7th day of February, 1916, and remained with the defendant, Jack Mc-Kennon, from about 7 o’clock p. m., on said day, all night in Calhoun. And further defendants say that the testi
mony of said witness is true and material in this cause, since it is alleged in the information that the defendants acting conjointly and together committed the crime of murder upon the person of Calvin Tomlinson in Latimer county, Okla., on said date, and the state relies upon proving that said crime was committed between 7 and 8 o’clock that evening. Affiants further say that said witness is a resident of the State of Arkansas and resides at No. IOO8V2 on Gar. Ave. Street, in the city of Ft. Smith, Ark.
“[Signed] JACK McKennon,
“Roswell Westbrook.”
The record shows, on the same day, the following proceedings:
“The Court. I understand from you, Mr. Church, that last Tuesday, which was the 7th day of this month, after Mr. Neal had served notice on you of his intention to make application for a commission to take depositions, that you at that time told him that you would waive the statutory notice to take the depositions, and that you would go with him at any time to take the depositions of this .witness.
“Mr. Church (Prosecuting Attorney) : Yes, sir; your honor. I told him that after he served the notice on me.
“The Court: Wasn’t it understood between you and Mr. Neal that all process was to be taken out for tomorrow, and every witness in this case was subpoenaed to be here tomorrow by the state and the defense?
“Mr. Neal: Now, after this notice had been served upon Mr. Church, he came , to me and said, ‘Neal, I will waive that notice,’ and I says: T don’t ask you to waive anything. We want those depositions taken, and we want it done legally.’-
“The Court: Application is denied.
“Mr. Neal: I would like for the court to state the ground of his denial in the order.
“The Court: I have a number of reasons for denying the application, and I don’t think it is necessary to state them.
“Mr. Neal. We save an exception to the ruling of the court.”
Thereafter, on the 15th day of March, the case was called for trial, and the defendants filed their motion for continuance. Their joint affidavit for continuance contained all the formal allegations required by law, and among others the following statements:
That T. L. Herron is a resident of Calhoun, Le Flore county. That on the 6th day of March, 1916, these defendants by their attorneys of record, Neal & Fleming,' filed with the clerk of the district court of Latimer county a praecipe that a subpoena issue for said witness, and on the same day procured such subpoena, indorsed by the judge of the district court for service in Le Flore county to be issued. That the sheriff of Le Flore county made return of said subpoena that said T. L. Herron was not found “in my county.”- That the defendants further- exercised diligence by procuring Owen Herron, a son of T. L. Herron, to go to Ft. Smith, Ark., where the said T. L. Herron was temporarily residing on account of his health and undertook to have the said T. L. Herron to come to Wilburton to attend the trial of this case. That said T. L. Herron is not present, but is confined to his room in the city of Ft: Smith, suffering from inflammation of the bowels, as is shown by the certificate-of T. E. Jeffery, a regular practicing physician of the city of Ft. Smith, which certificate is attached hereto and made a part hereof. That said witness would testify, if present, as follows: That on the evening and night of February 7, 1916, he was in the town of Calhoun, Okla., and saw the defendants Jack McKennon and Roswell Westbrook about 7 o’clock p. m., on said day, and remained with the defendant Jack McKennon from about 7 p. m. in the evening until some time the next morning, sleeping in the same
bed with him the night of the 7th, and knows and will testify that the defendants were not at the home of W. S. Tomlinson in Latimer county between 7 and 8 o’clock on the night of the- 7th day of February, 1918.
That there is absent from attendance of the court one-Mrs. Covey, who is a resident of Calhoun, and for whose attendance a subpoena duly issued indorsed by the district judge, commanding the attendance of said witness, and. the sheriff of Le Flore county served said subpoena upon the said Mrs. Covey by delivering a copy thereof to her in Calhoun on the 7th day-of March, 1916, a copy of which subpoena and the return thereto is hereto attached. That said witness, if present, would testify: That she was present all the time during the conversation as is claimed by the state between Charity Covey and Roswell West-brook, and that Roswell Westbrook at no time in her presence told Charity Covey that he (Westbrook) and the defendant Jack McKennon intended to rob any person. That said witness is sick and unable to attend the trial of this case, as is shown by certificate of physician hereto attached. That the testimony of said witness is true, and that defendants can prove these facts by no other witness in their power to procure, and that there is every reason to believe that the testimony of said witness may be procured by the next term of this court if this case is continued.
On the same day witnesses were called and testified in support of and against said motion for continuance.
The court in overruling the motion in part said:
“It seems, from the undisputed evidence in this case, that this woman (Mrs. Covey) has been suffering from pellagra for several months; and that it was known at least to one of the defendants that she was confined to her bed. When he was arraigned in this case, he must have known at that time that it was unreasonable to think that she would be here; that is, he couldn’t reasonably expect that she would be here at this trial. If he was inter
•ested in getting her testimony before this court, it was his duty at that time to make an application for a commission to take depositions, and try to secure this woman’s deposition, if she was able to give her testimony. There is no diligence shown to get this woman’s testimony before this court at this time. Taking all things into consideration in this case and all of the evidence that has been introduced before me in the hearing, I will overrule the motion for continuance.” (Exceptions allowed.)
Thereupon the defendants each demanded a severance, which is by the court granted, and the state elects to try the defendant Westbrook at this time.
On March 23, 1916, the jury returned their verdict finding the defendant Roswell Westbrook guilty of murder and assessing his punishment at death.
The petition alleges 54 assignments of error, but the foregoing transcript of the record presents the only errors assigned which we deem of sufficient merit to require discussion.
Counsel for the defendant insist “that the court erred in refusing, to grant to the defendant a commission to take depositions.”
The statutory provisions for the taking of depositions by the defendant in a criminal case are, in part, as follows:
Section 6036, Rev. Laws 1910: “When an issue of fact is joined upon an indictment or -information, the defendant may have any material -Witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.
“Sec. 6037. When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission
to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and. certify the deposition of the witness and return it acéord-ing to the instructions gi'ven with the commission.
“Sec. 6038. Application must be made upon affidavit-stating: First. The nature of the offense charged. Second. The state of the proceedings in the action and that an issue of the fact has been joined therein. Third, The name of. the witness and that his testimony i's material to the defense of the action. Fourth. That the witness resides out of the state.
“Sec. 6039. The application may be made to the court or judge himself, and must be upon five days’ notice to the county attorney.
“Sec. 6040. If the court or the judge to whom the application is made, is satisfied of the truth of the facts-stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return' thereof, or the case may be continued.”
Counsel for the state contend that under section 6040, above quoted, the issuance of a commission to take the deposition of a nonresident witness rests in the discretion of the trial court or judge, and that no abuse of discretion appears .in this case.
From the record it appears that the defendants, on the day they .entered their pleas, served notice on the county attorney that they would make application to take the deposition of a nonresident witness, which application was supported by their affidavits, averring the facts
required to be shown under the statute. The county attorney offered to waive notice and the issuance of a commission, and offered to appear at any time to take the deposition of said witness. Counsel for the defendants, very properly we think, refused to accept this proposition. There is no inherent power in a court of record, to issue commissions • to take depositions to be read in behalf of a defendant in a criminal case. The right to take and use the deposition of a nonresident witness in behalf of a defendant in a criminal case is statutory, and the procedure prescribed for taking and returning the same must be substantially complied with in order to make such deposition competent and admissible. We think the record shows a manifest abuse of judicial discretion in overruling the application of the defendants for a commission to take the deposition. In cases of this kind, where the defendant is on trial for his life, he should have the advantage of every right which the law secures to him upon his trial, and in a capital case, when notice is given and a proper affidavit for the taking of a deposition is made by the defendant and filed as soon as issue is joined by entering plea, it would be an abuse of discretion to deny an application properly made.
However, we think it is apparent from the record in this case that the errors complained of are not such as demand a reversal of the conviction. The application for the commission to take the depositions was made before the severance was demanded, and it appears that the testimony of said nonresident witnesses was material only for the defendant McKennon.
It is also insisted that the court erred in overruling the motion by the defendants for a continuance. We are inclined to think that, if counsel for the state refused to
consent to having the facts alleged in the affidavit for a continuance read and considered as the depositions of the absent witnesses, the trial court in the exercise of a sound judicial discretion should have postponed the. trial, until a later day in the term in order to give the defendants the necessary time to take the depositions of the absent witnesses. It appears that, after the severance was granted, this defendant did not renew the application and motion made jointly, and there was testimony upon the hearing tending to show that the witnesses were absent by the procurement and consent of the defendants. However, technical objections should not ordinarily prevent the granting of a motion for a continuance in a capital case, if necessary to a proper presentation of the defendant’s case. It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until ten days after the issues are made up and no felony case should be set over the objection of the defendant within ten days after his plea is entered. Under the provisions of our Procedure Criminal (section 6003, Rev. Laws 1910), this court, in the furtherance of justice, has the power and authority to modify any judgment appealed from by reducing the sentence. However, that power should not be exercised unless it is apparent that an injustice has been done.
Owen v. State,
13 Okla. Cr. 195, 163 Pac. 548;
Fritz v. State,
8 Okla. Cr. 342, 128 Pac. 170.
To reverse the judgment of conviction in this case on the facts which are either admitted or so clearly established as to be beyond controversy would be not only
to delay justice, but to give no force to the statute which prescribes that such judgments may be reversed only when upon the whole record the court is satisfied that the substantial rights of the defendant have been prejudiced. However, if the guilt of the defendant was in any way left in doubt, or if we could believe that the defendant was prejudiced, we should feel it our duty to give him a new trial.
For the reasons stated, and taking into consideration the fact that the defendant McKennon, who it appears was the arch-conspirator, was, upon the recommendation of the prosecuting attorney, sentenced to life imprisonment upon his plea of guilty, we are of the opinion that in the furtherance of justice the judgment and sentence in this case should be modified to imprisonment for life at hard labor.
The judgment of the district court of Latimer county herein will be modified to the extent that the sentence will be changed from the infliction of the penalty of death to that of imprisonment in the state penitentiary at hard labor for life, and as thus modified the judgment is affirmed.
ARMSTRONG and MATSON, JJ., concur.