It is first alleged that the court erred in failing to strike from the information the allegation that the defendant had waived a preliminary examination. Reference to a preliminary examination should not have been incorporated in the information, and the trial court should have sustained the motion to strike the same, as it forms no material part of the charge against the accused. The fact that the accused has had a preliminary examination or has waived same is a matter prerequisite to the jurisdiction of the trial court in felony cases; but, if the information does allege such jurisdictional matter, the allegation is wholly irrelevant, and will be treated as surplusage. Davis v. State,4 Okla. Cr. 508, 113 P. 220; Wood v. State, 3 Okla. Cr. 553,107 P. 937. The alleged error, therefore, is technical, and cannot be considered as in any way prejudicing the substantial rights of the defendant on the merits.
Also the refusal of the trial court to sustain a demurrer to the information because of improper punctuation is purely technical. An examination of the information shows that it contains a good charge for murder. Defects in the form of an information, or mere grammatical errors, do not tend to prejudice the substantial rights of the defendant, and present no ground for a demurrer to an information. Blair v. State,4 Okla. Cr. 359, 111 P. 1003.
The conclusion is reached, therefore, that the grounds of alleged error, both in the failure of the trial court to strike redundant matter from the information and failure to sustain the demurrer thereto, are without merit.
The second contention of defendant is that the court erred in not permitting her to use the codefendant, Mrs. Mossie Baustert, as a witness in her behalf. The record shows that this defendant and Mrs. Mossie Baustert were *Page 566 jointly charged; that defendant demanded a severance, and her trial was held first. There had been no disposition of the case against Mrs. Mossie Baustert until after the defendant had closed her case. The defendant attempted to use Mrs. Mossie Baustert as a witness in her behalf, and the said Mrs. Mossie Baustert, being a codefendant and charged with the same offense, refused to testify. The court sustained her in such refusal. This was not error. Section 5881, Rev. Laws 1910, sustains the court's action, and is as follows:
"In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial."
Section 21, art. 2 of the Constitution, in part provides:
"No person shall be compelled to give evidence which will tend to incriminate him except as in this Constitution specifically provided. * * *"
Also in the case of John Buxton v. State, 11 Okla. Cr. 85,143 P. 58, this court held:
"Under section 5881, Rev. Laws 1910, providing that, in criminal proceedings, `the person charged shall at his own request, but not otherwise, be a competent witness,' a codefendant is competent as a witness for all purposes, where he requests to be a witness in his own behalf. It does not matter whether his testimony is for or against himself, or for or against his codefendant; the only limitation in the statute is that he cannot be compelled to testify either for himself, his codefendant, or for the state while he is a party in the case." *Page 567
It developed from defendant's testimony on the trial that it would be necessary for the state to use the codefendant, Mrs. Mossie Baustert, in rebuttal to impeach some of the statements attributed to her by the defendant. This was done, and, on motion of Mrs. Baustert's counsel, the state dismissed the case against her in order to use her as a witness to impeach her codefendant and defendant attempted to subject her to cross-examination on matters not properly the subject of the rebuttal examination. The court sustained an objection by the state to this line of examination, the record being as follows:
"Q. You say, Mrs. Baustert, you didn't use the language of `that awful disease?' A. No; I didn't.
"Q. At the time of this unfortunate tragedy was your husband afflicted with a venereal disease?
"By Mr. Phelps. Objected to as incompetent, irrelevant, and immaterial and not proper cross-examination.
"By Mr. Pruiett: If the court please, this morning we couldn't use this codefendant when I asked her this question, for the reason that they objected, and she claimed her constitutional right.
By Mr. Roberson: We objected to that statement, and then we withdrew our objection this morning, and insisted that the question be asked.
"By Mr. Pruiett: I understand, but they objected, and she claimed her constitutional right. Now, your honor, this testimony is competent on cross-examination for the reason, the testimony of the witness they are seeking to impeach is that she used the words, `the awful disease.' Now, if this witness knows that he had this disease, isn't it competent to go to these jurors, impeaching her own credibility as to whether or not she was likely to have used that expression?
"By Mr. Phelps: We renew our objection to the speech of the attorney for the reason it is made for the purpose of influencing the jury. *Page 568
"By the Court: I don't think it is competent. The court has some doubt as to the correctness of its ruling as to some of the evidence. I think the question was probably competent at that time as bearing upon the fact that on that night the witness and her husband did not occupy the same bed, there having been evidence introduced prior to that time to the effect that it had been their custom to occupy the same bed until, I think, the child was about two years old. But this is cross-examination of the witness in rebuttal, and nothing has been asked this witness that would call for this question or an answer to it. The objection will be sustained.
"By Mr. Pruiett: To which the defendant excepts."
The trial court's ruling on the objection to the question asked was without error.
There was no request made by counsel for the defendant for permission to use the witness at this time as a witness for the defendant; neither is there any showing made of what the testimony of Mrs. Baustert would have been had the trial court permitted a full cross-examination into all the facts and circumstances within the knowledge of the witness, surrounding the killing of Baustert.
Counsel contend that Mrs. Baustert having refused to testify in behalf of this defendant because her answers to questions might tend to incriminate her shows conclusively that she (Mrs. Baustert) was the guilty party, and for that reason, if for no other, the court erred in not permitting the fullest possible cross-examination. In this appeal we are not concerned with the question of the guilt or innocence of Mrs. Baustert, except in so far as her guilt or innocence may have some bearing on the question of the guilt or innocence of Mrs. Dix.
It cannot be presumed that Mrs. Baustert alone was guilty of the crime, and that her testimony would have *Page 569 cleared Mrs. Dix of any criminal responsibility for the murder of Baustert. Was it error to limit counsel for defendant in cross-examination of this witness to matters strictly rebuttal in the absence of some showing that her testimony would tend to exonerate Mrs. Dix? We think not. It would be foolish, in the face of the overwhelming evidence in this record tending to establish the guilt of Mrs. Dix, to reverse this judgment in order to allow Mrs. Baustert to testify as a witness for Mrs. Dix in a subsequent trial, and the result be that Mrs. Baustert would testify to facts that strengthen the state's case against Mrs. Dix.
Before this court would be justified in reversing this judgment of conviction on the ground that defendant should have an opportunity to use her codefendant as a witness in her behalf, there ought to be some showing that the testimony of Mrs. Baustert, given on the subsequent trial, would be such as likely to change the result reached by the jury on this trial.
It is not enough that evidence may be produced on the subsequent trial to fasten the guilt on Mrs. Baustert, but a showing should be made that reasonably tends to the conclusion that Mrs. Dix has been unjustly convicted. Both Mrs. Dix and Mrs. Baustert may have been guilty of this offense. The guilt of neither depends on the innocence of the other. Either had equal opportunity with the other to commit the deed, and the court is satisfied from the evidence in this record that both were likely concerned in its commission.
Before the taking of evidence had been concluded in this trial, the state dismissed its prosecution against Mrs. Baustert. This action removed the disqualification that otherwise existed against her being a qualified witness in *Page 570 behalf of her codefendant, Mrs. Dix. After the dismissal of the state's case against Mrs. Baustert, there was no request interposed by Mrs. Dix to use Mrs. Baustert as a witness in her own behalf, although she was available for that purpose before the trial had been concluded, and it was discretionary with the trial court to permit the defendant to reopen her case for the purpose of using Mrs. Baustert as a witness had she so desired.Harvey v. Territory, 11 Okla. 156, 65 P. 837; Shires v. State,2 Okla. Cr. 89, 99 P. 1100; George v. U.S., 1 Okla. Cr. 307, 316, 97 P. 1052, 100 P. 46; Ferrell v. State, 45 Fla. 26, 34 So. 220; Fordham v. State, 125 Ga. 791, 54 S.E. 694; Frazierv. State, 112 Ga. 869, 38 S.E. 349.
How, then, can this defendant, with such a display of lack of diligence on her part to procure the evidence of Mrs. Baustert, expect this court to reverse a judgment of conviction against her based on evidence which clearly establishes her guilt for the sole purpose of permitting that to be done which she already had the opportunity to do. We are not familiar with a decision of an appellate court to the effect that, without some showing that the evidence of an incompetent witness that has since the former trial become competent, would be material to the defense interposed and likely to change the result, a new trial will be granted, merely for the purpose of obtaining the testimony of such witness.
Even the cases that hold that a new trial will be granted where there is a showing that new evidence material to the defense can be obtained from a witness who was incompetent at the time the case was tried are cases wherein the witness has become competent since the former trial and not during its progress. We know of no case that holds that where a witness became competent *Page 571 during the progress of the trial and before the case was concluded, and this fact became known to the defendant, and no request was then made to use such witness on that trial, a new trial would be granted to give defendant another opportunity to use such witness in his behalf. Certainly if this was an application for a new trial on the ground of newly discovered evidence, the trial court should have overruled the motion because of lack of diligence. In the case of State v. Drake,11 Or. 396, 4 P. 1204, it is held:
"A motion for a new trial on the ground that the defendant desires the evidence of an acquitted codefendant cannot be sustained on the bare affidavit of the defendant, unsupported by an affidavit of the acquitted codefendant, and without allegations that the latter can prove facts of that character which would be considered material for his defense, or which would render a different result probable in a retrial."
We find no prejudicial error in the ruling of the trial court in refusing to permit a cross-examination of the witness Mrs. Baustert beyond the scope of her testimony given in rebuttal. Had defendant desired to use Mrs. Baustert as a witness in her own behalf, her intention so to do should have been clearly indicated after the state had dismissed the prosecution against Mrs. Baustert. The question would then have been squarely put to the trial court as a matter of discretion as to whether Mrs. Baustert should have been permitted to testify in behalf of Mrs. Dix. It is apparent that the cases cited by counsel, to the effect that a new trial should be granted, "if after a defendant in a criminal case is tried and convicted his codefendant is tried and acquitted, the incompetency of the latter as a witness thus being removed, his testimony constitutes newly discovered evidence which warrants granting *Page 572 a new trial to the convicted defendant, provided such testimony is of a character as likely to change the result" (Gill v. State,56 Tex.Crim. 202, 119 S.W. 684, 17 Ann. Cas. 1164; Helm v.State, 20 Tex. App. 41[20 Tex.Crim. 41]), are not in point, because in this case the codefendant became a competent witness for the defendant during the progress of the trial and not afterwards, and there is no showing that the evidence sought would be such as likely to change the result. The defendant should have made some effort to use Mrs. Baustert as a witness during the trial, and not wait until a conviction has been had, and then for the first time assert that she should have the advantage of the testimony of her codefendant, and for that reason a new trial should be granted.
We find no reversible error in the record, and the judgment is therefore affirmed.
DOYLE, P.J., and ARMSTRONG, J., concur.