Opinion
No. A-8320.
June 11, 1932.
(Syllabus.)
1. Trial — Discretion of Court in Permitting Indorsement of Additional Witnesses on Information in Felony Cases Less Than Capital. In felony cases less than capital, the names of additional witnesses to be used in chief may be indorsed on an information at any time within the discretion of the court. Permitting the indorsement of the names of additional witnesses after the trial has begun is not error unless there is an abuse of discretion.
2. Same — Waiver by Defendant of Error in Permitting Indorsement of Names of Additional Witnesses on Information by Failure to Apply for Postponement on Account of Surprise. If, after announcing ready for trial, defendant's counsel first learns of the indorsement of the names of additional witnesses on an information, if the defendant is surprised thereat, and such indorsement of additional witnesses requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for a postponement or a continuance in which he should set out the facts constituting such surprise, and what evidence, if any, he could produce to rebut the testimony of such additional witnesses if the case were postponed or continued. Where he fails to do this, the error, if any, is waived.
Appeal from District Court, Oklahoma County; John L. Norman, Judge.
John Shaw was convicted of robbery, and he appeals. Affirmed.
Ellmore Pinnick, for plaintiff in error.
J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery and was sentenced to serve a term of 15 years in the state penitentiary.
The record discloses that at the time charged defendant assaulted and robbed one R. T. Chapman, taking from the person of Chapman some $60 in money. In this robbery defendant was assisted by Willard Shaw and Ed Bosford. We deem it unnecessary to recite the facts proven, but under the testimony there appears to be no reason to doubt the guilt of defendant.
The only assignment of error argued is that the court erred in permitting certain witnesses to testify, the name of one of whom had been indorsed on the information by leave of court the day preceding the trial; the names of the other two had been indorsed a few days prior to the trial, and without notice to defendant or his counsel. Defendant announced ready for trial, and, after the jury had been impaneled, counsel objected to these witnesses testifying for the reason their names were not indorsed on the copy of the information furnished defendant, and that he had no knowledge that they would be called. These witnesses testified in chief and were material.
Sections 2511 and 2550, Comp. St. 1921, provide for the indorsing of the names of witnesses on information in cases less than capital. This court has held many times in such cases that the names of additional witnesses may be indorsed at any time within the discretion of the court. Such indorsement is not error unless there is an abuse of this discretion. Nelson v. State, 5 Okla. Cr. 368, 114 P. 1124; Bigfeather v. State, 7 Okla. Cr. 364, 123 P. 1026; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222.
At the time the court overruled defendant's objection to the witnesses testifying, counsel noted an exception. He did not state to the court he was surprised at the appearance of these witnesses. He made no application to withdraw his announcement of ready, made no application for a postponement or continuance on account of the appearance of these witnesses, nor asked time to procure witnesses to rebut their testimony. If we consider his position similar to that of a defendant where the court permits the indorsement of the names of additional witnesses after a defendant has announced ready for trial or a trial has begun, defendant may not rest upon a bare exception to the ruling of the court, but must withdraw his announcement of ready for trial and must file a motion for a postponement or continuance in which he should set up the facts constituting such surprise and what evidence, if any, he could produce if the case were postponed or continued, to rebut the testimony of such witnesses. To do otherwise is to permit a defendant to speculate upon the verdict of the jury, and, if it results in a conviction, to then claim a new trial on account of an abuse of discretion. Star v. State, supra.
This being the only contention made, the case is affirmed.
DAVENPORT, P. J., and CHAPPELL, J., concur.