Smith v State

Smith v State
1926 OK CR 411
251 P. 507
36 Okl.Cr. 9
Decided: 12/11/1926
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Continuance Denying Continuance to Produce Witnesses to Corroborate Alibi Held not Abuse of Discretion. Where the exact time of the day at which an offense is committed has not been established, and the defendant seeks to establish an alibi by showing his presence elsewhere at an exact time and place on that day, a motion for a continuance to procure witnesses to corroborate such an alibi, the court did not abuse his discretion in denying the motion, where the evidence sought was of a cumulative nature, and of uncertain probative force.

2. Appeal and Error Harmless Error Introduction of Evidence Out of Order. Evidence out of order will not work a reversal, where, if introduced in order, the result would probably have been the same.

3. Intoxicating Liquors Evidence Sustaining Conviction for Sale. The evidence examined, held sufficient to support the verdict.

Appeal from County Court, Caddo County; R.L. Lawrence, Judge.

Frank Smith was convicted of the illegal sale of intoxicating liquor, and he appeals. Affirmed.

Page 10

M. Bristow, for plaintiff in error.

The Attorney General, for the State.

BESSEY, P.J. Frank Smith, plaintiff in error, here referred to as the defendant, was, by a verdict of a jury, found guilty of the illegal sale of one-half pint of whisky, with his punishment assessed at a fine of $50 and confinement in jail for 30 days.

Two young men, visiting strangers in Carnegie, claim they made inquiry about where they could get whisky and were referred to the defendant, whom they afterwards approached and the sale and delivery followed.

The exact hour of the commission of the offense was uncertain. A motion for a continuance was interposed on account of the absence of two witnesses, who would give testimony corroborating other testimony tending to establish the presence of the defendant elsewhere at a particular hour of the day. The court did not abuse his discretion in refusing this application, because the evidence sought was of cumulative nature and of uncertain probative force.

Two witnesses testified that they purchased this whisky from the defendant. There was evidence indicating that one, or possibly both, of the state's witnesses were under the influence of whisky when first seen by the officers. This condition may have arisen from the consumption of the whisky here in issue, or liquor obtained from some other source. Be that as it may, the weight of the testimony was for the jury.

The defendant claims that evidence that should have been introduced in chief was withheld and introduced in rebuttal. Evidence received out of order will not work a reversal, where, if introduced in order, the result would probably have been the same.