McCoy v. State , 568 P.2d 1294 ( 1977 )


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  • OPINION

    PER CURIAM:

    The appellant, William Thomas McCoy, hereinafter referred to as defendant, was charged in the District Court, Oklahoma County, Case No. CRF-76-1785, with the offense of Carrying a Firearm, After Former Conviction of a Felony, in violation of 21 O.S. 1971, § 1283. He was convicted by a jury, and was given a sentence of three (3) years’ imprisonment. From said judgment and sentence the defendant has appealed to this Court.

    A recitation of the facts is unnecessary in this case, since the defendant’s sole assignment of error is that the trial court permitted the State to present a witness who was not endorsed on the information, resulting in surprise to the defendant. Defendant cites Britt v. State, Okl.Cr., 285 P.2d 441 (1955) which quotes from Harding v. State, 95 Okl.Cr. 8, 238 P.2d 376 (1951), arguing that the trial court abused its discretion in permitting the witness to testify after the State failed to say why the name was not endorsed on the information until the day of the trial.

    Harding, however, is not in point, since in that case, as was stated in Britt, the State stood mute concerning its failure to endorse the witness at the proper time; so that there was nothing upon which the trial court could exercise judicial discretion. In the instant case, however, the counsel for the State told the court that he had notified the defendant’s counsel the previous day of his intended endorsement of the additional witness. In addition, the Court offered the defendant an opportunity to interview the witness before he took the stand. Had he conducted such an interview and then informed the court that additional time was needed and stated the reason therefor, a continuance may have been justified. But under the facts as set forth in the record we find nothing which would justify our interfering with the trial court’s exercise of his sound discretion.

    The judgment and sentence is AFFIRMED.

Document Info

Docket Number: No. F-77-187

Citation Numbers: 568 P.2d 1294

Judges: Brett, Bussey

Filed Date: 8/31/1977

Precedential Status: Precedential

Modified Date: 1/2/2022