Defendant, George Smith, was charged in the district court of Okmulgee county with the crime of maiming, was tried, convicted and sentenced to serve seven years in the State Penitentiary, and has appealed.
It is charged that on June 21, 1943, the defendant struck one H. O. Crane across the face with a whisky bottle, which disfigured the personal appearance of the said H. O. Crane, and destroyed the sight of his right eye.
A preliminary was had on June 29, 1943, at which time defendant was held to the district court, and information filed on the same date, charging him as above stated. On August 9, 1943, defendant was arraigned; and the case was assigned for trial on August 23, 1943.
On the date of the trial, August 23, 1943, defendant, who is a negro, filed an affidavit for continuance on the ground that he could not proceed to trial without the testimony of two witnesses, whom he alleged to be in *Page 414 the Army. In his affidavit, he set out what he claimed would be the testimony of the two witnesses. There was a hearing on this motion, at which time testimony was offered, and the county attorney agreed that the affidavit made by the defendant might be read to the jury as the deposition of the two absent witnesses. The motion for continuance was overruled, and the case proceeded to trial.
Defendant sets out eleven assignments of error, but argues only four of them, in the following order:
"Assignment of error No. 7. Error of the court in overruling the motion for continuance on behalf of the defendant and excepted to by the defendant.
"Assignment of Error No. Nine: Error of the court in permitting the jury to ask questions and interrogate the defendant upon matters which were highly prejudicial to the rights of the defendant, and which was duly excepted to by the defendant.
"Assignment of Error No. Eight: Error of the County Attorney making highly prejudicial remarks to the rights of the defendant and excepted to by the defendant.
"Assignment of Error No. Two: That the verdict of the jury is contrary to law."
The complaining witness, H. O. Crane, testified about as follows: He boarded a Santa Fe bus at Muskogee, Okla., about 1 o'clock in the morning of June 21, 1943. He was a pipefitter by trade, and was going to Okmulgee to work on the hospital there. Before the bus left Muskogee, the driver asked the defendant to move from where he was sitting to the compartment reserved for colored people and defendant refused to do so. The bus driver got off and brought two military police, who tried to persuade defendant to move "back where he belonged." *Page 415 Defendant refused to move, informing them that he had been discharged from the Army, and, "it was out of their jurisdiction." The military police left the bus and returned with an officer, who told the defendant that so long as he was wearing the uniform, he would have to obey orders. Defendant then moved to the rear without any further trouble. Witness did not say anything to defendant, and defendant said nothing to him. Witness was sitting about two-thirds of the way back in the bus, and when they reached Boynton he got off, and when he returned, sat down in the front seat to the right of the driver, and next to the aisle. He had gone to sleep before the bus reached Okmulgee about 2 o'clock, and was leaning back in his seat. The first thing he knew, defendant hit him in the face with a bottle. He suffered the loss of his right eye, his left eye was injured, his nose broken, and the nerves around the eye and face were injured. He denied that he made any remark to the driver about putting the defendant in his place, or keeping him there.
Dr. Geo. L. Tracewell testified that he attended the prosecuting witness about 2:30 on the morning of June 21, 1943, and that he was still under observation. That Mr. Crane was in the hospital 31 days. When he was first called, Mr. Crane had a laceration of both eyeballs, and the laceration extended from the right eyeball to two inches across the nose, and across his right cheek. That he was totally blind in the right eye except for light perception, and he considered it a permanent loss; that he had 10 per cent vision in the left eye and 25 per cent with the aid of a glass. There were no injuries to the eyelids.
Juanita Action testified: She was on the bus at the time of the difficulty, occupying the third seat back, *Page 416 on the left. The first time she observed the defendant was when the bus driver asked him to move back. Defendant was in the third or fourth seat from the rear, and she did not notice anyone in the seat with him. She testified about the military police coming on the bus, and the defendant moving back, and that when he did move she heard him remark: "I will get even with you." She did not know whether he addressed the bus driver or Mr. Crane. She did not hear Mr. Crane say anything to the defendant. The bus stopped east of the Frisco tracks at Okmulgee, and two colored boys got off before the defendant started to move. He then came quickly, and as he went out of the bus, turned and struck Mr. Crane across the face with a bottle. Part of the glass fell on her, and she had one slight cut, testifying: "he broke the bottle with such force it broke into a thousand pieces. Mr. Crane was not able to see anything after he hit him, blood streaming down his face." She did not hear Mr. Crane speak a word during the difficulty between the bus driver, the military police and the defendant. Mr. Crane was seated when the defendant passed him, got as far out as the step, came back and struck him just as he started to leave the bus.
Ramona Howell testified that she was on the bus, sitting just behind Mr. Crane, as they reached Okmulgee. She saw the defendant strike Mr. Crane in the face, and she did not see Mr. Crane make any demonstration toward defendant at any time, and did not hear him say anything to him.
Howard Reckhon, a painter, testified that he was on the bus, when defendant got on and crawled over a white soldier and took the seat next to the window. The white soldier got up and moved and the bus driver went *Page 417 back and asked the defendant to move to the rear of the bus. That the prosecuting witness told the bus driver, "Let me help you move him back there," but the bus driver took witness by the arm and made him sit down, and went for the military police. He saw the defendant strike the prosecuting witness with the whisky bottle. Mr. Crane said nothing to defendant, and had made no demonstration toward him.
Defendant testified in his own behalf, produced three character witnesses, two ministers and the principal of his school, and offered the affidavit as set out in the motion for continuance, as the deposition of the two witnesses who were in the army.
These two witnesses were colored boys and were on the bus when defendant entered. The affidavit recites that they would testify that defendant stopped at a seat occupied by a white soldier and asked permission to occupy the seat by him and next to the window, and the soldier answered, "Sure Buddy, sit down." Defendant told the soldier that he was sick and would be more comfortable in the reclining seat next to the window than in the rear. The bus driver asked defendant to move and he refused. The bus driver got the military police and they in turn brought in an officer, and defendant complied with the request of the officer to move to the rear. After the officers left the bus, the bus driver went to the rear and told defendant to stay in that section of the bus, or he would be required to put him off the bus, and that when he did, "a large white man whose name is unknown to the witnesses, threateningly arose from his seat and saying, quote: 'By golly you don't have to tell him to stay back there, I will keep him back there.' " They left the bus before the defendant, and turned to see him *Page 418 get off the bus, and as he approached the seat where the white man was sitting, on the front seat, he commenced to rise from his seat and at the same time mumbling something to the defendant. He had his hand in his pocket and was removing his hand from the right pocket of his trousers when the defendant struck him with the bottle.
The testimony of the defendant was practically the same as that set out in his affidavit as the testimony of the two absent witnesses.
It will thus be noted that there is some conflict in the testimony as to just what the prosecuting witness said and did, but this was a question for the jury. The evidence offered by the state was amply sufficient to sustain the judgment and sentence. LeFavour v. State, 77 Okla. Crim. 383, 142 P.2d 132; Grooms v. State, 77 Okla. Crim. 448, 142 P.2d 862; Butler v. State, 78 Okla. Crim. 133, 145 P.2d 215; Salisbury v. State,80 Okla. Crim. 13, 156 P.2d 149.
We have carefully examined the record with reference to the assignment of error that the court erred in overruling the motion for continuance.
In the opinion of the court, the affidavit did not show due diligence. The two witnesses left Okmulgee county only a short time prior to the date an attempt was made to subpoena them. They were in the Army, and located in different camps in other states. Nothing was shown that would cause the court to believe this evidence could be secured at a future date. The court permitted the affidavit made by defendant to be read to the jury. This affidavit set out what their evidence would be, and no doubt was stated as strongly as the witnesses would have testified, had they been present. *Page 419
It has often been held by this court that the question of granting a continuance is within the sound discretion of the trial court, and that unless there is an abuse of this discretion, the ruling will not be set aside. Jackson v. State,77 Okla. Crim. 160, 140 P.2d 606; McKendree v. State,78 Okla. Crim. 321, 148 P.2d 210; Nix v. State, 80 Okla. Crim. 265,158 P.2d 726.
The next assignment of error is that the court erred in permitting a juror to ask a question while defendant was on the witness stand.
The question had reference to the kind of discharge defendant received at the time he was released from the Army. The court, at the instance of the defendant, permitted the discharge to be introduced. It was neither an honorable nor a dishonorable discharge; but was issued under certain provisions of the regulations, which witnesses testified was for "inaptitude," and as not being recommended for reinstatement.
We recognize the rule that the court should be careful in permitting the jurors to ask questions, for the reason that incompetent and prejudicial evidence may be brought before the jury, but we do not believe the questions asked in this instance were prejudicial to the rights of the defendant, as revealed by the record.
We have examined the record with reference to the assignment of error as to prejudicial remarks of the county attorney in his argument to the jury.
The argument of the county attorney was not taken by the court reporter up to the time objection was made. Counsel for defendant requested the county attorney to restate the argument he had made, and the county attorney declined to do so, giving as his reason that it had *Page 420 been made in the heat of argument, and he did not recall just what he had said. Counsel for defendant then dictated the statement of the county attorney as he remembered it. The statement had reference to some other similar case the county attorney had prosecuted some 15 years prior to that time, and in which the defendant had been given the maximum punishment. After the statement was dictated by counsel for defendant, the court in the presence of the jury said:
"The objection is sustained. During the jury's deliberations in the juryroom, you are not to consider any statement made with reference to any other case, or what punishment might have been given. This is the only case for you to consider."
In view of this statement by the court, and a review of the record as a whole, we are of the opinion that the statement of the county attorney was not such as to require reversal or modification of the judgment rendered in this case.
In concluding his brief, counsel for defendant argues assignment of error No. 2, and states:
"The next error which we wish to urge was not discovered by us until we were about ready to close this brief. But may properly be discussed under the second assignment of error which is as follows: 'That the verdict of the jury is contrary to law.' "
Counsel then calls attention to the verdict of the jury, which reads:
'We, the jury, drawn, impaneled and sworn in the above entitled cause do upon our oaths find the defendant George Smith, guilty of maiming as charged in the information herein, and assess his punishment at imprisonment in the State Penitentiary, for Seven (7) * * *." *Page 421
Counsel propounds the question:
"Did the jury intend to assess his punishment at seven years or seven months or seven days, or even seven hours?"
We think there was no doubt in the mind of the court, counsel, or even the defendant, that the jury intended to fix the punishment of defendant at seven years in the State Penitentiary. Counsel at the outset of his brief states that "defendant was convicted and by punishment by the jury assessed at a term of seven years in the State Penitentiary at McAlester."
This defendant was charged under 21 O. S. 1941 § 751, which is:
"Every person who, with premeditated design to injure another, inflicts upon his person any injury which disfigures his personal appearance or disables any member or organ of his body or seriously diminishes his physical vigor, is guilty of maiming."
Section 759 of the same Title prescribes the punishment for maiming:
"Every person guilty of maiming is punishable by imprisonment in the penitentiary not exceeding seven years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or both such fine and imprisonment."
The court properly instructed the jury on the charge, and the punishment for the crime, his instruction being in the identical words of the statute.
In the consideration of a verdict, the first object is to ascertain what the jury intended to find; and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are *Page 422 applicable to pleadings. Walker v. State, 11 Okla. Crim. 339,127 P. 895.
The jury found the defendant "guilty of maiming as charged in the information herein," and under 22 O. S. 1941 § 927, the court had the authority to assess the punishment of the defendant, even though the jury had not attempted to do so. Felice v. State, 18 Okla. Crim. 313, 194 P. 251.
Before a defendant can take advantage of uncertainty in a verdict, he must first object to the verdict in the trial court, and ask the court to require the jury to amend it. When this is not done, all reasonable intendments and inferences will be indulged to sustain it as to form. Harrell v. State,43 Okla. Crim. 278, 278 P. 404. The verdict in this case was returned in open court. The verdict was read. Defendant and his counsel had the right to examine the same. No objection was made to the verdict, and the sufficiency of the same was not challenged in the motion for new trial, and no motion in arrest of judgment was filed. In the absence of such objection the defendant will be presumed to have waived any defect in the form of the verdict. It is only when the error committed is considered fundamental that relief will be granted. Coleman v. State, 16 Okla. Crim. 579, 194 P. 282; Pruitt v. State,17 Okla. Crim. 434, 190 P. 894; Nelson v. State, 34 Okla. Crim. 187,245 P. 1009; Nance v. State, 43 Okla. Crim. 247, 278 P. 357; People v. Chiappelone, 90 Cal. App. 472, 265 P. 976; Crump v. Commonwealth, 215 Ky. 827, 287 S.W. 23; Critchfield v. People,91 Colo. 127, 13 P.2d 270.
For the reasons above stated, the judgment of the district court of Okmulgee county is affirmed.
DOYLE, J., concurs. JONES, P. J., dissents. *Page 423