Summary
In Gorum v. State, 67 Okla. Cr. 75, 92 P.2d 1086, it was said that "the statute regulates the practice in such cases and its provisions must be substantially complied with."
Summary of this case from Parmenter v. StateOpinion
No. A-9487.
July 28, 1939.
(Syllabus.)
1. Appeal and Error — Continuance Within Discretion of Trial Court. Applications for continuance on the ground of absent witnesses are addressed to the discretion of the trial court, and a judgment of conviction will not be disturbed on appeal unless there appears to have been a manifest abuse of such discretion.
2. Continuance — Absent Witnesses — Showing of Diligence Required. Where a continuance is asked on ground of absent witnesses, it must be made to appear from the application that defendant has used due diligence to procure attendance of his witnesses, and the application must set out facts fully showing such diligence. The mere statement of defendant that he has used due diligence to secure the attendance of absent witnesses is not sufficient to show diligence.
3. Depositions — Depositions of Nonresident Witnesses in Behalf of Defendant — Compliance With Statute. The right to take and use deposition of nonresident witnesses in behalf of the defendant in a criminal case is statutory. The statute regulates the practice in such cases and its provisions must be substantially complied with.
4. Same — Requisite Showing in Application to Take Deposition. An application by defendant in a criminal case for a commission to take the deposition of an absent witness as provided for in the Code of Criminal Procedure (secs. 3039, 3040 and 3041, 22 Okla. St. Ann. §§ 781, 782 and 783) should state facts from which the court or judge may satisfy himself that the deposition of the witness is necessary to the attainment of justice.
5. Appeal and Error — Review — Discretion of Trial Court as to Overruling Application for Continuance to Take Deposition. Under the statutory provisions, when an application for a continuance to take the deposition of a nonresident witness is made, and the good faith of the application is questioned, or where the competency of the testimony sought is questioned, also if such testimony was merely cumulative, and the facts sought to be established by the witness may be shown by other witnesses within the jurisdiction of the court, this court will consider the record on appeal to determine whether or not there was an abuse of discretion upon the part of the trial court in overruling the application for continuance to take the deposition.
6. Same — Lack of Showing of Diligence by Applicant for Continuance. It is no abuse of discretion to overrule an application for continuance, where no diligence is shown to procure the attendance or take the deposition of a nonresident witness.
7. Trial — Discretion of Court as to Exclusion of Testimony of Witness Who Violated Rule. Where the court orders witnesses to be sworn and excluded from the courtroom during the taking of testimony, and a witness wilfully violates such rule, it is within the discretion of the court to allow or exclude the testimony of such witness.
8. Appeal and Error — Procedure for Preserving Question of Improper Argument of County Attorney. To preserve the question of alleged misconduct of the county attorney in his argument to the jury, the attention of the court should be called to the argument at the time by proper objection and a ruling had thereon and exception to an adverse ruling reserved and the same assigned as error in the motion for new trial. When this is not done, the question is not presented to this court for review.
9. Same — Requisite Record of Argument.
10. Evidence — Sufficiency of Accomplice and Other Testimony to Support Verdict of Guilty. A verdict based upon the testimony of accomplices, detailing at length the circumstances of the crime charged and supported by the testimony of other witnesses, clearly connecting defendant with the offense, is not contrary to law and the evidence.
11. Appeal and Error — Review — Sufficiency of Evidence to Sustain Verdict of Guilty. When a careful consideration of all the facts and circumstances disclosed by the record leads to the conclusion that an honest and impartial jury could reach no other conclusion than that of guilt, this court will not reverse the judgment of conviction in the absence of fundamental error.
12. Robbery — Conviction for Armed Robbery Sustained. In a prosecution for robbery with firearms, evidence held sufficient to sustain the verdict and judgment of conviction.
Appeal from District Court, Pontotoc County; Tal Crawford, Judge.
Sam Gorum was convicted of robbery with firearms, and he brings error. Affirmed.
Sam Gorum, Floyd Harris, Clifford Harris, T. C. Barnwell, John Eggleston and Craig Gyles were jointly charged by information filed in the district court of Pontotoc county on the 2d day of April, 1937, with the crime of robbery with firearms by making an assault upon one Bob Myers, with pistols, and while the said Bob Myers was under the influence and fear as aforesaid, the defendants above named did unlawfully and feloniously rob, take, steal and carry away from the immediate possession of said Bob Myers about $40 in money and one repeating shotgun, the personal property of said Myers, also about 30 cases of tax-paid whisky, the personal property of one Lowery Lee, then and there in the custody of said Bob Myers, with the unlawful intent then and there on the part of said defendants to deprive the owners thereof and to convert and appropriate the same to their own use and benefit. Said offense is alleged to have been committed in Pontotoc county on or about the 19th day of February, 1937.
A severance was granted, the state elected to try Sam Gorum first. The jury found him guilty as charged in the information and fixed his punishment at imprisonment in the state penitentiary for 15 years.
Motion for new trial was duly filed, presented and overruled.
From the judgment rendered November 3, 1937, in pursuance of the verdict, he has taken this appeal.
A substantial statement of the evidence on the part of the state is as follows:
Bob Myers, the complaining witness, testified that he lived 8 miles north of Ada, in a loghouse located 200 or 300 yards east of Highway No. 48, in Pontotoc county; that he had known the defendant Gorum approximately three weeks prior to February 19th, that he was storing whisky for Lowery Lee in the basement of his house, and Lee was paying him a dollar a day for the storage; that under the plan he was to let folks have whisky and receive the money for the same; that Sam Gorum came there five or six times prior to February 19th to get whisky and left the money; that the night before the robbery Sam Gorum was there and got three or four cases of whisky and said he would be back the next night for ten cases of "Old American Whisky"; that the next night or early morning, about 1 o'clock, Sam Gorum and Craig Gyles, the boy they call "Lettuce," came to his place. Lettuce called him, saying he wanted some Old American whisky; he had some money in his hand; another car drove up, he opened the door and asked who it was, someone said it was "Joe"; a man came in with a gun and a fellow behind him came in with a gun. Clifford and Floyd Harris were called into the courtroom and witness identified them as the men that came in with guns in their hands that night. They were told to turn their faces toward the wall and tell where the whisky was; that his wife came into the room with a shotgun, and one of the men took the gun from her; that he saw the defendant T. C. Barnwell outside; some of them went down in the basement and took the liquor while one held a gun on him, they got 35 or 40 cases; "Lettuce" helped them to get the liquor. When they loaded the whisky they said they did not want any heads sticking out of the door, then drove off, taking with them the shotgun and his money, $40; that he took Lettuce to the station and telephoned to Seminole for the law; then he called a cab from Ada; that the next time he saw defendants was in Seminole, at the Desborn Hotel, on Sunday morning following the robbery early Saturday morning; that late that Sunday night he saw Sam Gorum, Lettuce, and T. C. Barnwell in a dance hall north of Seminole.
Mrs. Minnie Myers, wife of the complaining witness, testified:
"I live north of Ada, I would say a mile and a half this side of the South Canadian river bridge; I know Sam Gorum, he had been at our place three or four times, and I know Craig or (Lettuce) Gyles, they came to our place between one and two o'clock in the morning, there was a knock on the door and Lettuce called Mr. Myers, he got up and let him in; I heard a second car come up; I got up and went to the window, there was a knock at the door, my husband opened the door, and I saw Sam Gorum get out and stand by the side of the car. He did not come inside; Joe and Blackie Harris came in with guns in their hands, they said, 'Stick 'em up,' I went back, picked up my husband's shotgun, and went into the room where they were; the Lettuce boy and my husband had their hands up; the Harris boys put their guns in my face and told me to lay down the shotgun, I laid the gun down on the edge of the bed, and walked back and stood where they told me, Joe told Blackie to search the room, and he went to the bed where my children were sleeping, picked up the shotgun and brought it into the kitchen where we were and handed it to a man on the outside. The liquor was in the basement. Blackie got down there, and handed it to Lettuce, and he put it on the outside, then it was carried by others to the cars. After loading the liquor Joe said, 'When we leave here I don't want to see any heads stuck out of the doors.' After the cars left Lettuce and my husband left the place in his truck; my husband returned in about 15 minutes."
She further stated that Sam Gorum was there the evening before, Thursday evening, about 8 o'clock.
C. L. Lee, commonly known as "Lowery" Lee, testified:
"I lived at Ada, I have known Bob Myers since he was a boy, I had an arrangement with him and paid him a dollar a day to store tax-paid whisky at his place, I have been convicted for handling tax-paid liquor in this court. On the 19th day of February I had somewhere around 40 cases of liquor stored at his place. I know Sam Gorum and met him one time at Bob Myers' place. He came there and made arrangements for whisky."
Craig Gyles testified:
"I am commonly called by my nickname, 'Lettuce.' I have known Sam Gorum about two years, I was in the employ of Sam Gorum about two months prior to my arrest; I have been in jail about eight months, jointly charged with the other defendants. While working for Gorum I stayed at the Desborn Hotel, at Seminole. Sam Gorum and a girl occupied two rooms; my duties were answering the telephone, taking orders for whisky, and I delivered once in a while. He had two cars, a Plymouth and a Packard. I know Bob Myers and his wife when I see them. I have been there three or four times prior to the 19th day of February after liquor; Sam Gorum took me down there the first time and introduced me to Bob Myers; I had known T. C. Barnwell for about a month, and I know John Eggleston, I know Floyd and Clifford Harris; the first time I met them was when Sam Gorum gave me the money and told me to take T. C. Barnwell out to the farm and get the Harris boys; they lived about ten miles north of Seminole; I went with Sam Gorum into the coffee shop and got something to eat. He said he wanted me to go out and buy some whisky; that was at noon, and we went that night. He said he would give me $75 when I got back to the hotel, and said, 'We are going out and get that whisky; I am pretty near busted, and I am going to take that whisky, and I will pay you some money when we get back.' He then gave me $2 to buy some gasoline. The Harris boys went with me to get the gasoline. Sam then told me to drive to the other side of Konawa and wait out there, then he sent me back to get his gun from the girl Johnny Wilson that stayed there; she would not let me have it. She said tell Sam to come up and 'I will let him have it.' I told Sam what she said. He went up to the room and got the gun. The Harris boys went with me in the Plymouth coupe. T. C. Barnwell was driving John Eggleston's car. We drove out south of Konawa and stopped. Sam Gorum drove up before T. C. Barnwell got there; John Eggleston was with him; they were in the Packard car; while they were working on the car Sam Gorum came over and talked to me and the Harris boys, and handed his pistol to Floyd Harris; the two Harris boys went to the Packard. Sam gave me $30 and said, 'I want you to buy two cases of Old American Whisky,' and said, 'This is up to me to get on my feet and go ahead and do it,' then he said that he would pick us up at Bob Myers' house. We drove across the river to Bob Myers' place, Sam told me to go in the house first so they could come in; the light was out, Myers had gone to bed. I knocked at the door. Myers knew the car I was driving; I told him I wanted two cases of Old American Whisky, I had the money in my hand. He started to count the money, about that time the Harris boys came in and said, 'Stick 'em up,' I put my money in my hat and raised my hands up. Mrs. Myers came out of the next room with the shotgun, one of the Harris boys grabbed the shotgun, I believe it was Clifford. We were standing in line, facing the wall. They took the shotgun from her and threw it outside, then they commenced loading the whisky, and made me help carry it. Clifford Harris, the one they call 'Blackie,' went into the basement, Floyd Harris held the pistol there in the moonlight; after they loaded the whisky into both cars Myers told them to take the shells out and leave the shotgun; they took it with them; I stayed there until Myers cranked his truck and I went with him to the station. I called Seminole and reported the Plymouth being stolen. I called Ada for a taxi, so I could get back to Seminole, I got back there about 7 o'clock. Sam Gorum was there at the Desborn Hotel. He asked me if I made it all right, and I said, 'Yes, I am back.' That day Sam sent me out to the Harris boys' home north of Seminole with T. C. Barnwell; we went in Sam's Packard, and got the whisky and transferred it to John Eggleston's Chevrolet car, and T. C. Barnwell drove the car to Wewoka; I was arrested that night at Dale's Tavern, on the Seminole Highway; Sam Gorum and T. C. Barnwell were with me; we went out there to eat dinner; the officers took me to Wewoka and put me in the city jail; while there Sam Gorum called me over the telephone and said, 'You damn son of a bitch, keep your mouth shut.' "
Defendant Floyd Harris testified:
"I live on a farm about 12 miles north of Seminole, I know Sam Gorum, T. C. Barnwell and John Eggleston. The defendant Clifford Harris is my cousin, he was living two miles south of me with his uncle, I have lived around Seminole practically all of my life. I saw Sam Gorum Thursday night at the Desborn Hotel, in Seminole, and made a trip in his Packard car to Bob Myers' place. Clifford Harris and T. C. Barnwell were with us, Sam Gorum was the only one that got out of the car that night, he got two cases of whisky, the next night I saw Sam Gorum at the Desborn Hotel, and heard Sam Gorum tell Lettuce to go upstairs and get the gun from Johnny, he went up, came back, and said he could not get the gun, then Sam went upstairs, that he left Seminole that night with Craig Gyles, and Clifford Harris in the Plymouth car and stopped this side of Konawa, waiting for Sam, Barnwell and Eggleston; Sam came first, driving the Packard, John Eggleston was with him, Sam gave Clifford Harris a 45 automatic. We got back in the Plymouth and went to Bob Myers' place, Lettuce got out first and went in. I waited about three minutes and then went in with Clifford Harris. I had a pistol in my hand and Clifford had the 45 automatic in his hand; we got two big loads of whisky, put one in Eggleston's Chevrolet, and the other in Sam Gorum's Plymouth, I saw Clifford take a shotgun from the house, but I don't know what became of it; Clifford went into the basement and handed out the whisky to Lettuce while I stood in the door with the gun, T. C. Barnwell helped me load the whisky; I left there in the Plymouth with Clifford Harris. After crossing the bridge we had a flat. Sam Gorum and John Eggleston came by in the Packard and let us have a jack to fix the flat, then they moved on, the liquor in the Plymouth was taken to my place. T. C. Barnwell, John Eggleston, and Sam Gorum were present when the liquor was unloaded; Lettuce and T. C. Barnwell drove over in the Packard, one time, another time in the Plymouth, they made three trips out there, taking the liquor away, I was supposed to get one-fourth, but got nothing. I didn't take any money off Mr. or Mrs. Myers, we didn't go for any money."
Clifford Harris testified:
"I live north of Seminole, I have known T. C. Barnwell about all my life, I know John Eggleston, and I have known Sam Gorum four or five years, I have known Craig Gyles, commonly called 'Lettuce' eight or nine months, Sam Gorum was living in the Desborn Hotel in Seminole during the month of February, about 8 or 9 o'clock Thursday night, T. C. Barnwell, Floyd and myself went with Sam Gorum in his Packard sedan to Bob Myers' place, Sam got out and got two or three cases of liquor. The next night, about 9 o'clock I saw Sam at the Desborn Hotel, Barnwell and Lettuce was there. I left there with Lettuce and Floyd Harris in the Plymouth car, we went to a filling station for some gasoline and stopped three or four miles south of Konawa, while there Sam Gorum and John Eggleston drove up in the Packard, T. C. Barnwell drove up in a Chevrolet, there was a leak in the Packard, we fixed that, Sam gave me his gun and we took a few drinks, started down to Myers' place. When we stopped Lettuce got out and went into the house; about three minutes later I went in with Floyd Harris, we had our guns in our hands, I told the old man that we had come after his liquor and told them to hold up their hands; I think there was some kids in another room, the liquor was in the basement, Mrs. Myers came into the room with a shotgun, when she put it down I went in, got the gun and handed it to T. C. Barnwell, I don't know what became of the gun, we loaded about 32 or 33 cases of whisky, into the Plymouth and Chevrolet cars, I drove the Plymouth away, Floyd Harris with me, T. C. Barnwell pulled out with his car, north of the bridge we had a flat, John Eggleston and Sam Gorum came by in the Packard, we got the jack out of the Packard and Sam got out and helped fix the flat, we then drove to Floyd Harris' house, north of Seminole, while unloading the liquor Sam Gorum, John Eggleston and T. C. Barnwell came in the other car, the liquor was unloaded from both cars, it was then about five o'clock in the morning, John Eggleston took a couple of the cases of liquor with him when he left. I heard Sam Gorum say that he would pay John for the use of his car and the whisky, I was supposed to get a fourth of the whisky, but I only got three quarts."
At the close of the state's case, the defendant interposed a demurrer to the evidence, which was overruled. Exception.
The defense interposed was an alibi.
On the part of the defense Eric Nicholson testified that he as deputy sheriff with two other officers raided rooms 115 and 117 Desborn Hotel about 9 o'clock, on a Friday evening in February, did not know the date, the two Harris boys, John Eggleston, T. C. Barnwell and a girl they called Mildred were in Sam Gorum's room, but he was not there, and they found six or seven pints of liquor in the other room.
Charley Reynolds testified that he is and has been for several years a policeman, city of Seminole, that he was at the police station when Lettuce telephoned and said that he had been hi-jacked; that the call came in around midnight; that he saw Sam Gorum in front of the Manhattan Cafe across the street from the Desborn Hotel and talked with him about midnight.
P. C. McCollough testified that he was night clerk at the Desborn Hotel in February, 1937, and had been night clerk for about 18 months, employed by Johnny Daniels, owner and manager; that Sam Gorum had rooms 115 and 117; that Lettuce Gyles occupied room 115 on the night the hi-jacking was reported; he saw Sam Gorum in the lobby of the hotel a little after 12 o'clock the first time, later, a little after 1 o'clock, he came into the lobby; Harry Nelson was in the lobby at the time; around 2 o'clock, February 20, there was a long distance call from Ada for Sam Gorum, and Sam answered the call; that Lettuce came in the next morning between 4:30 and 5 o'clock, that he saw the officers when they came out of Sam Gorum's room, that Officer Nicholson got the key to the room about 9 o'clock that night, that it was the first time a raid on the hotel had been made while he was night clerk.
Harry Nelson testified that he is a rig builder, has lived in the Desborn hotel for the past two years; has known Gorum twelve years, saw Sam Gorum on the night of February 19th two or three times in the lobby of the hotel; that he went to bed shortly before 1 o'clock, saw Sam Gorum was then talking to the night clerk.
Bud Gordon testified that he was a constable, Seminole county; had been a deputy sheriff for six years and a policeman and a Wewoka policeman; that he has been a peace officer 23 years; that he knows all of the defendants in this case. On Monday morning he arrested the Harris boys and took them to Wewoka; Bob Myers was there and he heard Myers say that he could not stand to lose that whisky, there was not any use to file a robbery case against these boys, what he wanted was the whisky back or the price of it; that with Frank Loftis he arrested Lettuce and delivered him to the sheriff; that on the way to Wewoka Lettuce said "that Sam Gorum had not treated him right, had only paid him 75 cents a day for answering telephone calls and delivering liquor, that he was ahead of the deal because he had taken $125 of Sam's money to buy whisky; that Myers had been hi-jacked and Sam didn't know anything about it" and Lettuce also said, "he had been double-crossed on his share of the whisky, because the Harris boys had taken a gun and ran him off when he went there to get his share."
Frank Loftis testified that he was a constable of Lincoln township, Seminole county; that he knew all of the defendants in the case; that he arrested Lettuce at Deal's Tavern west of Seminole, and met Bob Myers that day in Wewoka in the Mickey Coffee Shop, across the street from the courthouse. Myers said "that he had been hi-jacked by Lettuce and some other fellows, connected with Sam Gorum, and that he had lost several hundred dollars' worth of whisky and could not stand that loss, and wanted somebody to work on the case"; that he told him, "if he had been actually robbed of any money or property he would work on the case." Myers said he had lost $40 in money and a shotgun; that Lettuce told him "that Sam Gorum furnished the money, but did not know anything about the hi-jacking, that Sam did not get any of the money back, he kept it all himself."
As a witness in his own behalf, Sam Gorum testified:
"I lived in Seminole county a little over 10 years, I have been engaged in selling whisky for six or seven years, I first met Bob Myers about the 15th day of December, 1936; went down there to buy whisky a number of times from him during the next two months, I took Craig Gyles down there with me, and sent him down there by himself several times; sometimes I would make two or three trips a week to Myers' place to buy whisky, always paid him cash for it, I did not know Lowery Lee, I would judge that up to March, 1937, I paid Bob Myers somewhere in the neighborhood of about $2,000 for whisky, about 1 o'clock in the afternoon, before the hijacking that night, went to Bob Myers' place and bought $102 worth of whisky. That night the officers raided my rooms; I had made three or four deliveries down town before the raid and had a case and a half in my car, I was called and told to come to the police station and make bond, and I went down there at 12 o'clock that night, I had instructed Gyles to go down to Bob Myers' place and get the whisky to fill orders going to Wewoka and to Seminole, and I told him to get John's car, and get a driver for it, to go with him, and to put the whisky for the Wewoka orders in one car and the Seminole orders in the other car, I was supposed to be handling the deliveries myself, I told Lettuce to get eight cases and I gave him $140 to pay for it, I gave him a part of the money in Seminole and a part of it just south of Konawa, my purpose of being down there that night was to give Lettuce some more money, I did not have enough when he left Seminole, John Eggleston went down there with me in my car. It was about eleven thirty when we started back. I did not drive across the river to Bob Myers' place that night, and I did not rob Bob Myers of $40 in money or a shotgun, or of any whisky. When I was down south of Konawa that night, I fixed a hose leak on my car, I left there with John Eggleston, coming back over the short cut dirt road, and arrived at the hotel at Seminole about 12 o'clock; I saw Harry Nelson in the hotel, I received a long distance call from Ada, it was Lettuce, he said he had been robbed at the Myers place and would call a cab to come back. Early in the morning he came in, I didn't go out north of Seminole where this whisky was unloaded, I did not get any part of the whisky, I lost $140 that I gave to Lettuce, he never returned that money to me. It was about nine or ten o'clock Sunday night when they arrested Lettuce. I have known T. C. Barnwell about eight years. The Harris boys did not go down with me to Bob Myers' place the day before the hi-jacking. I did not send Lettuce to get a gun from Johnny Wilson that night. After I was arrested Mr. Stanfield, the county attorney, came to see me and tried to get me to make a statement, I told him I did not care about making any statement whatever. It is about twenty-five miles from Seminole to where the cars were parked on the highway south of Konawa, and I would say that it was around thirty-six miles from Seminole to Ada; I was convicted on a liquor charge in the Federal court at Okmulgee and served time in the federal jail at Muskogee, I was convicted twice in the county court on liquor charges, in 1937, I served one term before my arrest in this case and one term since my arrest."
His cross-examination was in part as follows:
"Q. Don't you know that it is a fact that you were the man that went into Floyd Harris' room and sacked up the whisky — you knew the brands and you placed one brand here and one, somewhere else? A. No, sir. Q. And don't you know it is a fact that T. C. Barnwell made you acquainted with Ol Harris' wife the next morning, when she was preparing breakfast? A. I wasn't there. Q. Don't you know — isn't it a fact that you went back the next morning and after Floyd Harris had gone away and after Ol Harris had gone and you went in through the room, where the baby was sleeping there, and if there wasn't a woman there washing and that woman was Mrs. Ol Harris and you asked if it would be all right to get the liquor? A. No, sir. Q. How did John Eggleston get home on that night? A. I don't just remember how he got home. Q. I will ask you if you stated in the presence of Ol Harris that you stayed around the place where the hi-jacking was going on and drove up and down the road by Bob Myers' during the time that they were getting the liquor and stated that if anybody started to turn in and go up to Bob Myers' place that you were going to stop them? A. No, sir. Q. That was the night of the robbery — the 19th of February? A. No, sir. Q. I will ask you to state whether or not the night you were at Ol Harris' place and while this liquor was being unloaded, whether or not you made this statement or this in substance: 'That you followed the cars on from Bob Myers and if the officers or anybody else should try to stop those cars that you were going to use your Packard and cut in between them so they could not shake them down? A. No, sir, because I wasn't following the cars. Q. I will ask you if it isn't a fact that you and John Eggleston drove up on this coupe while they had a flat tire on it on this off-road — if you didn't stop and give them a jack out of your car and John Eggleston helped them fix the flat that night? A. No, sir."
In rebuttal Ollie Harris testified:
"My age is 26 years, I live with my wife and three children on a farm about 12 miles north of Seminole; I know all of the defendants, I have known Sam Gorum about 8 years, Floyd Harris is my brother and has been making his home with me for the past five years, about 4 o'clock, Saturday morning, the defendants came to my place, I got out of bed, went out and found my brother Floyd, Sam Gorum, John Eggleston and Clifford Harris, they had a carload of liquor, it was unloaded and stored in Floyd's room; then my wife got up and T. C. Barnwell introduced her to Sam Gorum. I heard Sam Gorum say that he was driving up and down the road in front of Bob Myers', and if anybody tried to come in there he was going to stop them. John Eggleston took two sacks of the whisky with him when he left, I went to Seminole and returned that morning about 10 o'clock; T. C. Barnwell and Lettuce came back Sunday night in the Packard Sedan, the car Sam Gorum had there Saturday morning."
Mrs. Ollie Harris testified:
"On Saturday morning T. C. Barnwell, Clifford Harris and others she did not know were there. T. C. Barnwell introduced Sam Gorum. About 9:30 that morning Sam Gorum came back to the place in a big two-seated car, the whisky was stored in her brother-in-law's room, Mr. Gorum asked her about getting some whisky, I told him to go ahead. After he left I went away and did not come back until Sunday night."
Bert Harris testified:
"I live with my wife and child about 100 yards north of Ollie and Floyd Harris; on Saturday morning, the 20th, I went over there, T. C. Barnwell, Floyd and Clifford and Sam Gorum were there, Sam Gorum was telling what kind of whisky it was, John Eggleston took two sacks of whisky with him when he left."
The record is voluminous. The transcript of the testimony covers five hundred pages, but the foregoing is a brief statement of the material testimony of each witness called in the case.
Codefendants, T. C. Barnwell and John Eggleston, did not testify on the trial of this case.
Mack M. Braly, of Ada, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
This appeal is from a judgment of conviction rendered in the district court of Pontotoc county, wherein appellant, Sam Gorum, was found guilty of the crime of robbery with fire-arms, and was sentenced to serve a term of 15 years in the state penitentiary.
The errors assigned will be noticed in the order presented.
The first contention in this case is that the trial court abused its discretion in denying the application for a continuance for the purpose of taking the deposition of an out of state witness, and because of the absence of witnesses who had been subpoenaed.
The record shows that on April 16, 1937, defendant Sam Gorum, present and by his attorney, Homer Bishop, waived formal arraignment and requested time and was given ten days in which to plead.
On April 24th defendant filed a demurrer to the information on the ground that the same did not state facts sufficient to constitute a charge of robbery with fire-arms, which was overruled.
On September 13th, the case was assigned for trial on September 27th, and on that day passed to October 5, 1937.
That on October 1st there was filed officer's return on the notice, showing that defendant had been furnished with a list of the witnesses to be called in chief, and their post-office addresses, together with a true copy of the information.
On October 2d permission to file a motion to quash was granted, which motion alleged that the information was duplicitous, in that it attempted to charge three distinct offenses in one count. On the same day this motion was overruled.
On October 5th defendant filed motion to strike and set aside the order setting this case this day for trial, for the reason that a plea of not guilty had not yet been entered by this defendant, which was overruled. Thereupon in open court the defendant Sam Gorum pleaded not guilty.
On the same day and thereafter the affidavit and application for continuance, together with proof of service of notice to county attorney of intention to make application to said district court for commission to take deposition of an out of state witness was filed, with copy of application attached.
The rule is well settled that it is the duty of the defendant to use all reasonable diligence in order to secure the attendance of witnesses in his behalf, and it must be made to appear from the application for a continuance that he has used due diligence to procure the attendance of his witnesses, and the application must set out facts fully which constitute such diligence. The mere statement of a defendant that he has used due diligence to secure the attendance of an absent witness is not sufficient to show diligence. Davis v. State, 10 Okla. Cr. 169, 135 P. 438.
The record in this case shows that this application for a continuance was presented to the court after the case was called for trial.
In his affidavit applicant states that on September 27, 1937, he caused a subpoena to issue for Paul Ingraham, Herman Johnson, Albert Wayman and Gene Horgan, all residents of Seminole, and that the subpoena for said witnesses has been returned "not found." That he is unable to proceed to trial and adequately present his defense by reason of the absence of said witnesses, whose testimony he, with the exercise of due diligence, has been unable to secure. That witness Herman Johnson, if present, would testify that he has been acquainted with Bob Myers for several years, that on February 21st and a few hours before the arrest of Sam Gorum and others, he met Bob Myers in Seminole; Myers stated that he was looking for Craig Gyles, alias "Lettuce," that he had been double crossed, but knew that Sam Gorum was not guilty of any unlawful act towards him, but he could not stand to lose $800 worth of whisky and was going to have the heat poured on Sam so that he would make up for this loss.
That the other witnesses for whom the subpoenaes issued, but not served, if present, each would testify of having known Craig Gyles, alias "Lettuce," a long time prior to the robbery complained of; "that on the night of the 20th of February, 1937, in a conversation with these witnesses and each of them Craig Gyles told these witnesses that he had pulled a fast one on Sam Gorum. That he had hi-jacked Bob Myers and his wife. That he had taken $125 of money given to him by Sam Gorum to buy whisky from Bob Myers. That he had actually stolen Sam's money, and that he had taken a large quantity of whisky from Mr. and Mrs. Bob Myers without paying for the same, and that he had made a clean get-away with the job; that Craig Gyles was intoxicated at the time of this conversation."
That witness Albert Wayman would testify, if present, that he talked with Mr. and Mrs. Bob Myers, and they each said they knew Sam Gorum was not present at the robbery, and that they did not believe Sam Gorum to be guilty.
That none of these witnesses were absent by the procurement and consent of affiant. That there is no witness or witnesses by whom he can prove the facts stated herein.
Affiant further states that he has this day served notice on the county attorney of his intention to apply for a commission to take the deposition of Dale Robinson, who resides in Martinez, Cal., a copy of said notice and application being attached thereto.
Therefore defendant prays that a reasonable continuance may be granted in order to procure the same, and also procure the attendance of said absent witnesses.
It was stipulated and agreed that the subpoena as issued and directed to the sheriff for the witnesses named in the motion for continuance may be considered as attached to the affidavit and made a part of the same.
In his application for commission to take the deposition, the defendant states that Dale Robinson, in said deposition to be taken, will testify that he was personally acquainted with Craig Gyles, alias "Lettuce," Clifford Harris, Floyd Harris and T. C. Barnwell; that in the city of Seminole, on the 18th day of February, 1937, the above-named persons proposed to witness that they hi-jack and rob Bob Myers and Mrs. Myers of a large quantity of tax-paid liquor; that said Craig Gyles stated that he would furnish cars to transport the party to the Myers place, and would furnish any firearms necessary for perpetrating said robbery. That witness Dale Robinson will further testify that he declined to take any part in said robbery; "that on February 20, 1937, the said 'Lettuce' told him that he together with T. C. Barnwell, Floyd Harris and Clifford Harris had accomplished the robbery and had divided the money of Sam Gorum between them, something over $125, and that the whisky had been divided, and that Sam Gorum knew nothing of said robbery."
An application by a defendant in a criminal case to take the deposition of an absent witness as provided for in the Code of Criminal Procedure (secs. 3039, 3040 and 3041, 22 Okla. Sts. Ann. §§ 781, 782 and 783) should state facts from which the court or judge may satisfy himself that the deposition of the witness is necessary to the attainment of justice. Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L.R.A. 1918A, p. 312; Russell v. State, 41 Okla. Cr. 71, 270 P. 339.
In Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, this court held:
"It is no abuse of discretion to overrule an application for continuance, where no diligence is shown to procure the attendance or to take the deposition of a nonresident witness."
Evidently, the trial court was satisfied that due diligence was not shown. This court has repeatedly held that applications for a continuance on account of absent witnesses are addressed to the discretion of the trial court, and that the ruling of the trial court on such a matter will not be disturbed on appeal, unless there appears to have been a manifest abuse of such discretion.
If the defendant had exercised due diligence, he could have procured the deposition of the nonresident witness. The delay of the defendant as shown by the record in procuring process for his witnesses amounts almost to indifference. We think the application for a continuance lacks the evidence of good faith, as well as that of due diligence.
It is our opinion, considering the entire record in the case, that the trial court did not abuse its discretion in overruling the application for continuance.
The next contention is that the court erred in overruling the defendant's motion to declare a mistrial, because of the prejudicial conduct of the county attorney in the course of the trial.
The record shows that on the cross-examination of the witness McCollough he was asked if he had talked to some bell hops, who were witnesses, out in the hall of the courthouse yesterday. Answered, "Yes, sir, but I didn't say anything about the case." Asked if he saw a lady standing out in the hall, answered, "Yes, sir."
Thereupon counsel for the defendant asked the court to declare a mistrial, based on the alleged misconduct of the county attorney. Motion overruled.
It is the practice of the courts, whenever requested, as in this case, to have all the witnesses, both for the state and the defendant, called and sworn, and then instructed to retire beyond the limits of the court room, and there remain, without communication with any one as to what may have been testified to in the trial, until they are called to testify. And where the order of the court is willfully violated, it is a matter within the discretion of the court to allow or exclude the testimony of such witnesses. Kilgore v. State, 10 Okla. Cr. 446, 137 P. 364; Womble v. State, 50 Okla. Cr. 108, 296 P. 515.
As we view the record, we are satisfied that the error, if any, was not prejudicial to the defendant.
Another contention is that the county attorney was guilty of misconduct "in making a highly prejudicial closing argument to the jury, in referring to the fact that the defendant failed to call his codefendant, John Eggleston, to the stand to corroborate the defendant's evidence, and in making other statements outside of the record, that were improper and prejudicial."
In the case cited, Hopkins v. State, 11 Okla. Cr. 385, 146 P. 917, 919, it is said:
"The court, by refusing to sustain the objections to the improper remarks, and in refusing to instruct the jury that, under the law, the defendant had no more right than the state had to call his codefendants as witnesses, and that his failure to call certain codefendants as witnesses should create no presumption against him, and the court's failure to direct the jury to disregard such improper remarks as not within the limits of legitimate argument, gave the jury to understand that they might properly and lawfully consider the same, all of which was manifestly prejudicial to the substantial rights of the defendant.
"Considering the doubtful character of the testimony introduced against the defendant, we think the improper remarks of the prosecuting attorneys in their arguments to the jury and the erroneous rulings of the court thereon probably determined the verdict."
In the instant case, however, it appears from the record that no objections were made at the time, nor was the attention of the trial court in any manner called to the alleged improper remarks.
It also appears that the arguments of counsel for the defendant are not incorporated in the record.
As a general rule, in order to make improper remarks available as a ground for a new trial, objections should be interposed at the time the prejudicial statements are made. To entitle a defendant to have reviewed by this court alleged improper remarks made by a county attorney to the jury, such remarks must not only be objected to, but defendant must go further and also move the court to exclude such remarks from the jury, and to instruct the jury not to consider such remarks.
In Cummings v. State, 57 Okla. Cr. 428, 48 P.2d 879, this court held:
"To preserve the question of alleged misconduct of the county attorney in his argument to the jury, the attention of the court should be called to the argument at the time by proper objection and a ruling had thereon and an exception to the adverse ruling reserved and the same assigned as error in the motion for new trial and the petition in error. When this is not done, the question is not presented to this court for review."
In Simpson v. State, 40 Okla. Cr. 58, 266 P. 783, this court held:
"Where two or more defendants are charged in the same information, and are tried separately, a codefendant is a competent witness only with his own consent. He cannot be compelled to testify so long as the action is pending against him, and any comment by counsel for the state on the failure of defendant to call his codefendant not on trial to testify is not legitimate argument. Unless the case is close on the facts, and this misconduct may have influenced the verdict, it is not necessarily reversible error."
In Kennamer v. State, 59 Okla. Cr. 146, 57 P.2d 646, 665, it is said:
"The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact as well as in matters of law by full and fair forensic discussion. Argument may violate ethics and not violate law. It may be improper, but not illegal. Improper remarks by the prosecuting attorney in the argument do not require a reversal, where they appear to be strictly in reply to allusions of counsel for the defendant."
It follows from the foregoing that this contention is not tenable.
The remaining errors question the sufficiency of the evidence to support the verdict and judgment of conviction.
It is urged that defendant's demurrer to the evidence should have been sustained, because there was no evidence other than that given by accomplices that connected defendant with the crime charged.
The statement of the case is a sufficient answer to this contention. Obviously, it is destitute of merit. In our opinion the guilt of the appellant is clearly and conclusively established by the evidence in the case.
This court has ever been zealous to protect the constitutional and statutory rights of a person convicted of crime, and to give to his appeal the fullest consideration permitted by law. We have done that in this case.
Upon a careful review of the entire record, it is the opinion of this court that the appellant is guilty of the crime charged, that he received a fair and impartial trial, and that the punishment assessed is merited by the evidence. It follows that the judgment of the district court of Pontotoc county herein must be affirmed. It is so ordered.
BAREFOOT and DAVENPORT, JJ., concur.