Davis v. State , 8 Okla. Crim. 515 ( 1913 )

Counsel for appellant has filed a most able and elaborate brief in which he has discussed a large number of supposed errors alleged to have occurred upon the trial of this case. None of these alleged errors involve any material question in this case, or could have influenced the action of the jury in finding a verdict. At best, they were mere irregularities. This is recognized by counsel for appellant, for he says in his brief:

"In this connection we desire to suggest that in view of the cumulation of error before pointed out, if none, standing alone, should be deemed sufficient by the court, when viewed in the light of all together, and in view of the record in this case, the defendant has been deprived of a fair trial as contemplated by the Constitution and laws of this state."

We think, if human testimony is worth anything, the appellant is guilty of the offense of which he has been convicted. It appears from the record that appellant is an old and confirmed offender. See Bob Davis v. State, 7 Okla. Cr. 322, 123 P. 560. It is true that the conviction in this case should not be affirmed upon the ground that appellant is a persistent criminal, but, as the evidence of his guilt in this case is conclusive, we should hesitate long before granting a new trial upon any mere irregularity. If there was any theory presented by the evidence upon which the jury could honestly have acquitted him, a different question would be presented. The property rights of the people of Oklahoma should be protected against such characters. This court is not hunting for excuses to set aside the verdicts of juries. We only grant new trials when it appears that some fundamental error has been committed, or that justice has not been done. We believe that the law was substantially complied with in the trial of appellant, and that justice was vindicated in his conviction. It would, therefore, be a waste of time for this court to discuss and consider the various questions of practice presented in the brief of counsel for appellant, as we find no fundamental error there.

There is one matter, however, which has not yet been directly passed upon by this court, which we feel should be settled. Upon the trial of this case appellant attempted to prove that one Cliff Sellers and one Dan Foster had stated that they had gotten Bob Davis, Joe Davis, and Tom Cobb arrested for stealing a bunch of cattle; that the officers had arrested the wrong men; that Sellers and Dan Foster had sold these cattle to appellant, and could prove how they got them; and that appellant was not guilty of stealing the cattle. Appellant contends that this was a confession of Sellers and Foster that they, and not appellant, had stolen the cattle, and was therefore admissible as testimony in behalf of appellant. In support of this proposition appellant's counsel cites the case of Gilder v. State,61 Tex.Crim. 16, 133 S.W. 883, and Dubose v. State, 10 Tex. App. 230[10 Tex.Crim. 230]. In Dubose v. State, 10 Tex. App. 230[10 Tex.Crim. 230], the defendant was charged with and convicted of murder. In that case Judge Hurt held that a defendant has the right to attack with every character and description of legal evidence any fact upon which his guilt depends. Not one word is said about the admission of hearsay evidence. The case of Gilder v. State, 61 Tex. C.R. 16,133 S.W. 883, is also a Texas case. The opinion is by Presiding Judge Davidson. Gilder was tried and convicted of burglary. The principal witness against him was a man named Smith. The defendant applied for a continuance upon the ground that he could prove by absent witnesses that the state's witness Smith had confessed to being the real thief. The court held that this evidence was competent, and the continuance should have been granted. With this we fully agree, because the testimony was admissible for the purpose of impeaching the testimony of the state's witness Smith. But, if Smith had not been a witness against Gilder, the previous confession of Smith would have been the wildest kind of hearsay. If Sellers and Foster had testified against appellant, they could have been questioned as to the alleged confession, and, if they had denied it, it would have been admissible in evidence for the purpose of impeaching their testimony. This is all that the authorities cited by counsel for appellant decide, and with this we agree. So it is seen upon examination that the authorities relied upon do not support the contention of counsel. If evidence of this kind were admissible as original testimony for a defendant, it would be impossible to convict any thief, because he could always find witnesses who would testify that they had heard some one who was absent confess to being guilty of the crime. To hold that such evidence was competent would put a premium on fraud, make perjury safe, and place the state at the mercy of criminals. This would make a mockery of the law, and will not be permitted in the courts of Oklahoma.

We find no material error in the record. The judgment of the lower court is in all things affirmed.

ARMSTRONG, P.J., and DOYLE, J., concur.