The assignments of error relied upon for the reversal of this judgment are based on exceptions to rulings in receiving and rejecting evidence. A careful examination of the record leads to the conclusion that the only error assigned which we cannot disregard as merely technical and without substantial merit is the first, that the court erred in permitting the state's witness Earl E. Ellsworth to testify without service of written notice at least two days before the trial. The record shows that on February 5, Earl E. Ellsworth was sworn and called as the first witness for the state. After stating his name, age, and residence, the defendant objected to his being allowed to further testify "for the reason that his name was not indorsed upon the information as required by law, and that no notice has been served upon the defendant that this witness would be produced as a witness against him." Thereupon the county attorney introduced a copy of a notice, which, omitting title, reads as follows: *Page 538
"NOTICE. "To Bob Walker, Defendant:
"You are hereby notified that the above-styled case in which you are the defendant has been set for trial on the 30th day of January, 1912, at nine o'clock a.m. at the courthouse in Sapulpa, Oklahoma, and that the following is part of a list of the witnesses that will be called in chief to prove the allegations of the information filed against you, together with their post-office addresses:
Name of Witnesses. Post Office Address. Elsworth whose first name is unknown to me. Enid, Oklahoma. Jim Hayes. Mannford, Oklahoma. J.J. Horn. Mannford, Oklahoma.
"Dated at Sapulpa, Oklahoma, this 25th day of January, 1912.
"VICK S. DECKER, County Attorney. "By ROY T. WILDMAN, Dep. Co. Atty." Indorsements:
"1197. State v. Bob Walker. Received and filed this 27 of Jan., 1912.
"J.B. SUMMERS, District Clerk.
"Received this notice on 25th day of January, 1912, served same on Bob Walker in person on 25 day of January, 1912, by delivering him a true copy.
"J.W. BERRY, Sheriff, Creek County, "BY J.H. TOWNSEND, Deputy."
Also a subpoena issued on the defendant's praecipe for Earl E. Ellsworth, which subpoena shows that it was served by the sheriff on the 2d day of February, 1912. Thereupon the defendant's objection was overruled by the court. The objection is founded on section 20 of the Bill of Rights, which provides, among other things, that:
"In capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses."
This constitutional provision is mandatory, and preserves an important right to a defendant in a capital case. Its purpose *Page 539 is to enable him to inquire into the testimony that he will be called on to meet, and to enable him to prepare for his defense.
Where a constitutional right is largely for the benefit of the accused, or in the nature of a personal privilege, the law is well settled that an accused may waive such right. Blair v.State, 4 Okla. Cr. 359, 111 P. 1003; Starr v. State,5 Okla. Cr. 440, 115 P. 356; Stouse et al. v. State, 6 Okla. Cr. 415,119 P. 271.
Says Mr. Bishop:
"Any right given by statute or otherwise to the defendant for his benefit, such as to have a copy of the indictment, or a list of the jurors, or of the witnesses against him, at a particular time, or before trial, may be waived, either in words or by omitting to apply for the thing. And if, for example, the copy of the indictment furnished him is incomplete, he cannot first object after trial." (Bishop's New Crim. Proc. par. 126.)
In the case of Logan v. United States, 144 U.S. 263-304, 12 Sup. Ct. 617, 630 (36 L.Ed. 429), it is said:
"The defendant, if indicted for treason, is to have delivered to him three days before the trial `a copy of the indictment, and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment;' and if indicted for any other capital offense, is to have `such copy of the indictment and list of the jurors and witnesses' two days before the trial. The list of witnesses required to be delivered to the defendant is not a list of the witnesses on whose testimony the indictment has been found, or whose names are indorsed on the indictment; but it is a list of the `witnesses to be produced on the trial for proving the indictment.' The provision is not directory only, but mandatory to the government; and its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense. Being enacted for his benefit, he may doubtless waive it, if he pleases; but he has a right to insist upon it, and if he seasonably does so, the trial cannot lawfully proceed until the requirement has been complied with.United States v. Stewart, 2 U.S. (2 Dall.) 343, 1 L.Ed. 408;United States v. Curtis, 4 Mason, 232; United States v. Dow, Taney, 34 [Fed. Cas. No. 14990]; Reg. v. Frost, 9 Car. P. 129; 2 Mood. C.C. 140; Lord v. State, *Page 540 18 N.H. 173; People v. Hall, 48 Mich. 482, 487 [12 N.W. 665, 42 Am. Rep. 477]; Keener v. State, 18 Ga. 194, 218 [63 Am. Dec. 269]."
And in Hickory v. U.S., 151 U.S. 303, 14 Sup. Ct. 334, 38 L.Ed. 170, it is held that the benefits of this statute may be waived expressly or impliedly by failure to make seasonable objection.
It clearly appears from the record that the defendant had written notice as early as January 25, 1912, that a man by the name of Ellsworth, whose post-office address was Enid, Okla., would be used in chief by the state, and that the first name of such witness was unknown at that time to the county attorney. There was no showing that the county attorney had any fuller knowledge of the witness' name than that contained in the notice served, nor showing of any attempt on his part to conceal the identity of this witness, and no objection to the list as served upon the defendant was made before entering upon the trial, nor did he ask for continuance because of the uncertainty of the name of this witness, and in this connection it will be observed that the defendant had caused a subpoena to be served upon the same witness to testify in his behalf. So that it clearly appears that the defendant not only had ample notice of the identity of the witness, but that he was acquainted with what his testimony would be, to such an extent that he caused said witness to be subpoenaed in his own behalf.
We cannot give our consent to a construction of the constitutional provision that would necessitate a reversal of the judgment from the record in this case. It is sufficient to say that where it affirmatively appears that the defendant has not been misled to his prejudice by the omission of the given name of a witness, whose surname and post-office address appeared upon the list furnished to the defendant, he is not entitled to a reversal because the testimony of such witness has been received.
The court very fully and fairly instructed the jury as to all questions of law arising in the case.
The only controverted question is as to whether the defendant was present and participated in the shooting. The testimony *Page 541 of all the witnesses, except the defendant, is that he was present at the time of the homicide, aiding and assisting in it. One who is present, aiding and abetting in a murder, is guilty as a principal; though another does the killing.
We are not favorably impressed with the defendant's testimony in which he attempts to prove an alibi.
A careful examination of the record leads us to the conclusion that the only debatable question in the case for the jury to consider was whether the defendant's punishment should be death or imprisonment for life. Having been unable to find any material error in the proceedings in this case, the judgment of conviction will be affirmed.
ARMSTRONG, P.J., and FURMAN, J., concur.