Carson v. State

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county of robbery with firearms, and was sentenced to serve a term of five years in the state penitentiary.

Defendant was charged with two others with holding up one N. Pendegraph on the highway with a pistol and taking from his person the sum of 50 cents, all that he had. The testimony for the state, while very brief, sustains the charge. The defense was alibi. Counsel who appear here did not represent defendant in the lower court.

The first contention made is that the court denied defendant's counsel a fair examination of prospective jurors and peremptory challenges. The record discloses that when the trial began the court directed the clerk to call a jury. There were not sufficient jurors not engaged in attendance, and the court then ordered the sheriff to summon eight talesmen to act as jurors. They were summoned, and their names placed in the box, and the trial proceeded. The court might have procured additional jurors by drawing from the box, by an open venire to be issued by the clerk, or by ordering the sheriff to summon talesmen. He followed the last method. See Allen v. State,16 Okla. Cr. 136, 180 P. 564. Counsel who appeared for defendant at the time seemed to be of the opinion that the court was without authority to do this, and at considerable length interposed objections and challenges to the eight jurors in a body and to them individually. The court permitted a considerable record to be made, and after some time a colloquy between the court and the counsel for defendant ensued; finally the court directed counsel to take his seat and that he did not want to hear anything further from him. The court then directed the jury to be sworn. The trial judge was proceeding *Page 106 correctly in having the sheriff summon talesmen to complete the panel. Section 3518, Comp. St. 1921. See, also, sections 2657, 2658, 2659, 2665, Comp. St. 1921. Counsel, of course, had a right to make a record to preserve the question of the qualifications of the jurors. We cannot perceive from the record that counsel made any objection to any juror to try the case if qualified to serve on the jury nor seek by voir dire to show that any one of the talesmen called was not qualified, but by assuming disqualifications because of the manner in which he was summoned. This objection was repeated several times. The court was patient for some time, but finally spoiled a good record for patience by becoming testy at the close of counsel's objections. There is nothing in this point that prevented defendant from having a fair jury and a fair trial.

The only other point urged is that the transcript of the testimony of Pendegraph, the person alleged to have been robbed, was admitted in evidence without a sufficient predicate or showing the presence of the witness could not be obtained. The testimony of this witness at the preliminary was that he was a miner out of employment; that his home was near Miami, and he was on his way to Arizona to find work. He was tramping through the country with 50 cents in his pocket, carrying as his personal effects a pair of extra trousers wrapped in a package. The county attorney testified that before the trial he sent a telegram and a telephone call to the witness at Miami endeavoring to locate this witness, and also called the sheriff, the police station, and the retail merchants' association at Miami by long-distance telephone, and made inquiry and was advised he was in Joplin, Mo., and that he made a like effort to locate the witness there and was advised that nothing was known of the witness; that the *Page 107 inquiry at Miami was made by his direction by a long-distance telephone operator. In view of the fact that this witness was unemployed and had no fixed abode, the same effort or attempt to locate would not be required as in the case of a witness who had a fixed place of residence and might reasonably be expected to be found. We conclude there was no error in admitting the transcript of this witness' testimony.

The case is affirmed.

CHAPPELL, J., concurs.