State ex rel. Tucker v. Alvis

OPINION By THE COURT. This is an application for a writ of habeas corpus. The record discloses that on the 24th day of April, A. D. 1946, the [286] plaintiff was found guilty of murder in the first degree with a recommendation of mercy. The ground relied upon by the plaintiff for the relief sought is that none of the witnesses who testified against him at the trial was sworn. , The plaintiff testified that during the course of the trial his counsel questioned whether or not the witnesses had been sworn and the prosecutor answered in the affirmative. The plaintiff now insists, however, that none of the witnesses was sworn and for this reason he was denied due process of law and that he is entitled to his release. When .a defect such as alleged here is known at the time, the defect must be taken advantage of at once and the failure to do so is such acquiescence in the -testimony as will preclude objection after the verdict. See 28 R. C. L. Section 177, page 585. Since the ground upon which the relief is sought is inadequate it will not be necessary for us to pass upon the truth of the charge made. The application will be denied. MILLER, PJ, HORNBECK and WISEMAN, JJ, concur