text:
    JAMES SUNDAY v. STATE.
    No. A-2390.
    Opinion Filed September 24, 1918.
    (174 Pac. 1095.)
    1. EVIDENCE — Res Gestae. On a trial for murder, where it appeared that the deceased and the defendant had an altercation during the progress of a card game, and the defendant then went to his home and procured a gun, and returned therewith, and shot the deceased, statements made by the defendant to his sisters that he was taking the gun with the intention of arresting the deceased, were admissible as part of the res gestae.
    2.- APPEAL AND ERROR — Harmless Error — Exclusion of Evidence. Where the' testimony of the defendant was that he took his Winchester rifle and followed the deceased and his two companions, and meeting them near their home, and without speaking to them, fired three shots, killing the deceased, and where upon the undisputed facts there was not the slightest authority in the defendant to arrest the deceased, it did not constitute reversible error to exclude the testimony of the defendant’s statements to his sisters.

      Appeal from District Court, Muskogee County; Fred P. Branson, Judge.

    James Sunday was convicted of murder, and he appeals.
    Affirmed.
    The plaintiff in error was convicted of the murder of Frank Dandridge, alleged to have been committed on or about the 8th day of March, 1914, by shooting with a Winchester rifle, and he was duly sentenced in accordance with the verdict to imprisonment for life at hard labor.
    The evidence shows that at the time Frank Dandridge was killed he was living at the home of his brother-in-law. Henry Phillips, about two and one-half miles north of Porum, and Pleas Taylor, a hired man, was also living at the Phillips home; that the defendant, Sunday, a Cherokee Indian, at the time lived with his mother and sisters, about a quarter of a mile from the Phillips home; that on Sunday afternon, March 8th, the defendant went to the home of Henry Phillips, and Dandridge and Taylor were there; that the defendant gave Taylor the money, and he went to town and returned with one or two pints of alcohol or whisky; that after drinking the liquor they together went after supper to a church in the neighborhood and attended a player meeting; that after the prayer meeting it was agreed among these parties to have a game of poker; that the defendant and Henry Phillips went' to his home and procured.a lantern, and Dandridge and Taylor went to the Phillips home after a deck of cards; that subsequently they all met at a vacant cabin in a field about half a mile from the Phillips home; that during the progress of the game the defendant accused Dandridge of stealing cards and taking his money; that the defendant then took his lantern and' left; that the other three also left together for the Phillips home; that just before they arrived at the Phillips home the defendant met them and shot Frank Dandridge with a Winchester rifle.
    A substantial statement of the evidence in the case is as follows:
    Henry Phillips testified: That he went to church with Frank Dandridge, Pleas Taylor, and Jim Sunday. That from church all four went to George Sunday’s. That from there Frank Dandridge and Taylor went by his place to get a deck of cards, and they all met later at the little shack. That they were playing poker, and he threw down a $5 bill, and Sunday put down a bill, then he took his money up, and Sunday said to Dandridge, “Give me my bill,” and Dandridge said he didn’t have it, and witness said to Dandridge, “If you have got Sunday’s money give it to him.” That they looked for the bill, but could not find it, and' Sunday said, “If you don’t give me my money I am going for my Winchester.” That Sunday then took his lantern and started towards home. That Dandridge had a pistol, and witness took it from him. That a few minutes after Sunday left witness heard a gun fire twice over about Sunday’s house. That it was a bright moonlight night. That they started home and were walking along side by side with Dandridge in the middle when they met Sunday coming towards them. That Sunday fired three or four shots, and Dandridge fell. That he walked up to them and told witness to throw' the six-shooter down, which he did, and Sunday held his Winchester in one hand and picked up the six-shooter with the other. That he then told witnes's to go ahead, and when they got to the road Sunday’s sisters were there. That about that time witness’ wife appeared, and he left Sunday in the road, and went home with his wife. That he did not go to the body until the officers came, which was about an hour after the shooting.
    Pleas Taylor testified: That he did not play in the game. That a dispute arose over stealing cards, and Sunday said, “Frank you stole some cards,” and Frank said he had not, and Sunday said, “Y;es, you have; you put your hand through the crack,” and he counted the deck, and only one was gone, and Sunday said, “You stole some money,” and Frank said, “He did not,” and Sunday said he had, and Frank said he could whip him, and Sunday said, “He could not whip anybody,” and there were some more words, and Sunday said, “Well, I am going home to get my gun, and you will give it up to me,” and grabbed the lantern and went out. That about the time for Sunday to get home two shots were fired about his house. That they walked towards Phillips’ house across a plowed field, and when about half way across the field Sunday appeared in front of them, and he said, “Oh, yes, God damn you,” and then fired three or four shots with a Winchester, and witness ran away.
    Rose Phillips testified: That she was the wife of Henry Phillips, and sister of Frank Dandridge. That she heard two shots fired that night about midnight, the sound coming from Jim Sunday’s house. That she got up and went to the door and saw Jim Sunday coming up the road in the direction of her house. That he was running, and turned into a little lane near the garden, and went out into the field. That in a few minutes she heard three or four shots, and heard her brother say, “Oh!” when the bullet hit him. That Jim Sunday’s house was about a quarter of a mile north of her house.
    Other witnesses testified as to finding three 38 Winchester shells near where the defendant stood when he fired the shots.
    Lee Miller testified: That Jim Sunday came to his house that night about midnight and called him, and he got up and went out on the porch where Sunday was stand • ing with a Winchester and a six-shooter, and Sunday said he had shot Frank Dandridge, and said, “I want to give up, and I want you to go with me to Bill Fool,” and he put on his clothes and went with him. That Sunday said they had all been drinking that evening, and went, to prayer meeting, and then they proposed a poker game, and Henry Phillips went with him to his house to get a lantern to play by, and Pleas and Frank went by Henry’s to get a deck of cards, and all met in the vacant house. That they played a while, and he threw down a .$5 bill, and Frank picked it up, and they played on a while, and he told Frank lie wanted Ms money, and Frank said he did not have it, and he said he knew he got it, and Frank jerked out a six-shooter and said, “I will give you that,” and he said, “Well, if that is the game, I will go home and get my gun,” and he picked up the lantern and went home. That Sunday then said, “I got my gun and went on down to Henry’s and came up the field and met them, and when I got up 50 or 40 yards they began shooting at me, and I commenced shooting, and then I just started ' to kill them all, and Frank fell and Pleas ran. When Frank fell Henry picked up the gun, and I ran up to him and took the gun, and he said, ‘Here it is.’ ”
    There was testimony showing that the bullet entered just below the left nipple, and that the body was lying face down about 150 yards from Phillips’ house.
    For the defense Callie Sunday testified: That she was a sister of the defendant. That on the night that Frank Dandridge was shot her brother first came to the house and got a lantern, and Henry Phillips was with him. That afterwards about 1 o’clock he came back and got his Winchester. She was then asked:
    “Q. What did he say he was going to do with the gun, if anything?
    “Mr. Disney: Objected to as self-serving.
    “Mr. Crump: The defendant excepts and insists it is a part of the res gestae what he said at the time.
    “The Court: Objection sustained.”
    She further testified: That she and her sister Eva got up and followed her brother. That they were standing-in the road, and other parties fired two shots before her brother fired. That her brother fired three shots, and at the third shot one of the. men fell.

      Eva Sunday testified: That she was a sister of the defendant. Her further testimony was the same as that of her sister’s. She was then asked:
    “Did Jim tell you what he wanted with that gun? A. Yes, he told her.
    “Mr. Crump: Now if the court please, I want to state here is the same question I asked the other witness about, I want to make a record. We now offer to prove by this witness that the defendant when he came after his gun told this witness and her sister that Frank Dandridge had robbed him of $6; that he was going down and arrest him and take him to Will Fool, deputy sheriff, and that for that reason this witness and his sister followed Jim down to where the trouble occurred.
    “Mr. Disney: I object.
    “The Court: Objection sustained.
    “Mr. Crump: To which I except.”
    As a witness in his own behalf the defendant testified:. That he was a full-blood Cherokee, 30 years of age. and that Will Fool was a deputy sheriff, and that he had been assisting Will Fool as an officer. That he had known Frank Dandridge since he was a little boy. That he went to Henry Phillips’ house that afternoon and gave the money to Pleas Taylor to get some alcohol, and Taylor 'went to town and brought back some alcohol. That after supper at Henry Phillips’ they went to prayer meeting; and at the church house he gave $5 to Pleas Taylor to get something to drink, and he brought back two pints of alcohol and gave him back a silver dollar, and that he had a $5 bill and $1 bill besides that. That they went to his brother George Sunday’s house, and he asked his brother to go with them to play poker and he refused to go. That after they left his brother’s, Frank Dandridge shot his pistol three times. That he went to his home and got a lantern, and Henry Phillips was with him. That they met the other two at the old house and started to play .poker. That Frank Dandridge reached over and picked up a $5 bill that he had lying in front of him when they were playing. Defendant’s testimony as to what later occurred is as follows:
    “Q. What did you do? A. I just sat over there a while and asked him to give me my money back, and he said, ‘All right.’ I told him again to give me my'money back, and he said, ‘All right, I will give it to you,’ and pulled a six-shooter, and said, T will give you this.’ I got up and took the lantern and walked off. Q. When you went back to the house what did you get? A. When I got to the house I thought I would get the gun and arrest them and take them to Will Fool’s, and I went to the house and got the Winchester. , Q. How came you to walk on down by Henry Phillips’? A. I thought I would head him off before he got to the house. Q. And you did ? A. Yes, sir. Q. How did you gét out into the field? A. Well, I went down that lane, and I went .off down this way, and I went up right there, and the boys came right there, and Frank Dandridge commenced shooting; shot twice. Q. How many times did you shoot? A. Three times. Q. What did he do with the pistol? A. Henry was standing there, and Henry went stooping over there, and when he raised up I just walked close to him, and Henry had the gun, and I told him, ‘Lay your gun down!’ and Henry threw over the gun, and I walked over and picked up the gun. Q. When you got the gun, did you tell your sisters what you were going to do with it? A. Yes, sir.
    “Mr. Disney: Object to what he told his sisters as self-serving.
    “The Court: Exception sustained.
    “Mr. Crump: The defendant now offers to prove by the witness on the stand, if permitted by the court, that when he went to his home and got the gun that he told his sisters Frank Dandridge robbed him of his money, and he was going down and arrest Frank Dandridge, and take him to Will Fool, a deputy sheriff.”
    The record is voluminous, but the foregoing statement is sufficient for the purpose of this opinion.

      J. H. Childers and Crump, Bailey & Crump, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen. for the State.
   DOYLE, P. J.

(after stating the facts as above). The plaintiff in error, James Sunday, was convicted of murder in the district court of Muskogee county, and in pursuance of the verdict of the jury he Was sentenced to imprisonment in the penitentiary for life at hard labor. From the judgment, he appeals.

The main contention in this ease is that the trial court erred in not permitting the defendant to prove by Eva Sunday and Callie Sunday “that he at the time he got the gun stated that Frank Dandridge had robbed him of $6, and that he was taking the gun with the intention of arresting Frank Dandridge, and turning him over to Deputy Sheriff Will Fool.”

Counsel for the defendant in their brief state:

“That if the defendant’s • testimony was true, Frank Dandridge was guilty of the crime of robbery or grand larceny, and if the defendant, knowing the crime to have been committed in his presence by Dandridge, went to his home for his gun in order to arrest Frank Dandridge and deliver him to the deputy sheriff as he testified, and after-wards met Dandridge, and the other two men in a field with the intention to arrest him, then and in this event the defendant was in the field for a lawful purpose, and he had a right to defend himself against any assault made upon him by Dandridge. If upon the other hand he went to his home for his gun with the purpose and intent to kill Frank Dandridge, then he was not in the field for a lawful purpose. Therefore his intention in procuring the gun was the vital question to be determined by the jury under the evidence, and what the defendant said to his sisters at the time of procuring the .gun was explanatory of his intent, and was admissible as a part of the res gestae.”

In support of this contention counsel cite Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44, wherein it was held by the Court of Criminal Appeals of Texas that:

“Where it appeared that deceased had spoken insulting words to defendant, and that the latter went home 'to procure a gun, and returned therewith, and shot deceased, declarations, made-by defendant at the time he went for the weapon, that he did not intend to kill deceased, but merely to make him retract the insult, were admissible as res gestae.”

And the case of Irvine v. State, 104 Tenn. 132, 56 S. W. 845, in which the Supreme Court of Tennessee held that:

“Statements made by the defendants to their mother, when leaving home, armed, in search of deceased, who had insulted her, that they were not going to hurt any one, but were going to beat deceased, when they killed him a short time afterwards, were admissible as part of the res gestae.”

Counsel for the state urge:

“That the statement made by defendant to his sisters was not res gestae, and was properly excluded as ‘self-serving declaration.’ ”

Self-serving declarations are not admissible for the defense, unless they form a part of the res gestae. Declarations as a part of the res gestae are regarded as verbal facts indicating a present purpose and intention, and therefore are admitted in proof like any other material facts. Prof. Wigmore says:

“Statements of design or plan are in general admissible, so far as the design or plan is relevant to show the doing of the act designed. Accordingly, it has never been doubted that the threats of an accused person are admissible to show his doing of the deed threatened, so also the threats of the deceased, on a charge of homicide, are by most courts admitted to show the deceased to have been the aggressor. Upon' the same principle, the expressions of plan, by the accused, not to do the thing charged, - or to do a different thing, are equally admissible. Statements before the act, asserting malice or hatred, are always received against an accused, except so far as the time of feeling is so remote as to make it irrelevant. Is there any reason why prior statements in favor of the accused — for example, of good feeling towards the injured party, or of fear of him as an aggressor — should not be equally admissible? Conduct offered as circumstantially evidential does not seem to be objected to. But statements asserting directly the existence of such feelings are by some courts treated as inadmissible, so far as they do not accompany the very act charged. .It is argued that the party must not be allowed to ‘make evidence for himself.’ But this objection applies equally to many classes of statements under the present exception, and is yet not thought of as fatal. Moreover, the notion of ‘making,’ that is, ‘manufacturing,’ evidence, assumes that the statements are false, which is to beg the whole question. Then it is further suggested that at any rate the accused, if guilty, may have falsely uttered these sentiments in order to furnish in advance evidence to exonerate him from a contemplated crime. But here the singular fallacy is committed of taking the possible trickery of guilty persons as a ground for excluding evidence in favor of a person not yet proved guilty; in other words, the fundamental idea of the presumption of innocence is repudiated. We elaborate this presumption in painful and quibbling detail; we expend upon it pages of judicial' rhetoric; we further maintain, with sentimental excess,- the .privilege against self-crimination; in short, we exhaust the resources of reasoning and strain the principles of common sense to protect an accused person against an assumption of guilt in the most violent form. Because (we say) this accused person might be guilty and therefore might have contrived these false utterances, therefore we shall exclude them, although without this assumption they indicate feelings wholly inconsistent with guilt, and although, if he is innocent, their exclusion is a cruel deprivation of a most natural and effective sort of evidence. To hold that every expression of hatred, malice, and bravado is to be received, while no expression of fear, good will, friendship, or the like, can be considered, is to exhibit ourselves the victims of a narrow whimsicality, which might be expected in the tribunal of a Jeffreys, going down from Loridon to Taun-ton with his list of victims in his pocket, or on a bench ‘condemning to order,’ as Zola said of Dreyfus’ military judges. But it was not to have been anticipated in a legal system which makes so showy a parade of the presumption of innocence and the rights of the accused. The question-begging fallacy about ‘making evidence for himself’ runs through much of the judicial treatment. There is no reason why a declaration of an existing state of mind, if it would be admissible against the accused, should also be admissible in his favor, except so far as the circumstances indicate plainly a motive to deceive. Statements of intent or motive, at the time of the act charged, are of course admissible under the present exception. Whether in strictness the principle properly involved is the present one, or that of the verbal act doctrine, is perhaps open to question. Practically there can be little difference in the result, for, under either principle, the statements must relate to the present state of mind at the time of the act. Most courts treat the question in terms of the verbal act doctrine. The statements, as already indicated, ought to be admissible as well in favor of the accused as against him.” (Wigmore on Evidence, sec. 1732.)

In Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183, it is said:

“No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the res gestae. Each case must necessarily depend on its own circumstances to determine whether the facts offered were really part of the same continuous transaction.”

See Wesley v. State, 11 Okla. Cr. 292, 146 Pac. 450; Price v. State, 1 Okla. Cr. 369, 98 Pac. 447.

In our opinion, the statements made by the defendant to his sisters were admissible as a part- of the res gestae. They were so connected with it as to constitute a part of the transaction which ended in the death of Dandridge; but while holding this, we are clearly of the opinion that the rulings of the trial court in this regard do not constitute reversible error. Because, assuming the defendant’s account of the difficulty at the log cabin to be true, it does not show or tend to show that a felony had been committed. At most, the taking of the $5 bill would be only petty larceny. There was. no element of robbery in the transaction.

Upon the undisputed facts there was not the slightest authority in the defendant to arrest the deceased. The law protects its citizens in the enjoyment of liberty, and prescribes the mode and manner by which they may be arrested and brought to trial, intrusting the execution of the same.to its peace officers. Arrests can be made by no one for alleged offenses, unless upon a warrant based upon an affidavit issued by a judicial officer, except those enumerated in sections 5654, 5656, 5658, 5659, and 5660, Rev. Laws 1910. A private person attempting to arrest a felon without warrant must, before making the arrest, inform .the person to be arrested of the cause thereof. Section 5661, Rev. Laws 1910. Unless he does so, the party attempted to be arrested has the right to. resist the arrest. In this case the defendant did not make his purpose and reason for attempting to make the arrest known.

The foregoing discussion disposes of all questions, in the case! No objection was made or exception saved to the instructions given by the court, which fully and fairly covered the law of the case. Upon a careful examination of the whole record,' we do not find any error prejudicial to the defendant, and we think it would have been a miscarriage of justice, if upon the evidence in this case any other verdict had been rendered.

The judgment of the district court of Muskogee county herein is affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    TOM WILSON v. STATE.
    No. A-2809.
    Opinion Filed October 20, 1917.
    Rehearing Denied September 24, 1918.
    1. INTOXICATING LIQUORS — Sale to Minor — Information. An information charging the sale of intoxicating liquor to a minor in the following language: “He, the said Tom Wilson, did then and there, unlawfully and feloniously, sell to one Maycil Harlan, a minor, one pint of whisky at and for the sum and price of one dollar and fifty cents, contrary to the: form of the statutes in suc.h cases made and provided, and against the peace and dignity of the state” — held, sufficient to give the court jurisdiction to try the cause and render judgment against the accused.
    2 TRIAL — Absence of Judge From Courtroom — Suspension of Proceedings. Objections to the validity of a judgment on the ground that the trial court left the courtroom during the course of the trial 'without suspending the proceedings, .cannot avail when the record affirmatively shows" that the proceedings were suspended:'
    3. APPEAL AND ERROR — Technical Objections — Instructions. Technical objections to the form of a particular instruction can not form the basis for the reversal of a judgment when all the instructions, taken’together, clearly, show that no hardship .was worked upon the accused and no prejudicial error contained in the charge, considered as a whole.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    Tom Wilson was convicted of unlawfully selling in- • toxicating liquor to a minor, and he appeals.
    Affirmed.

      Wm. Pfeiffer, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Tom Wilson was convicted in the district court of Carter county at the August, 1915, term, on a charge of unlawfully selling intoxicating liquor to a minor, and his punishment fixed at.imprisonment in the state penitentiary for one year and a fine of $100.

The first assignment of error urged as ground for reversal of the judgment of the trial court is based upon the proposition that the demurrer to the information should have been sustained.

The information, omitting the formal parts, is as follows:

“Tom Wilson did, in Carter county, and in the State of Oklahoma, on or about the 18th day of August, in the year of our Lord, one thousand nine hundred and fifteen, and before the presentment hereof, commit the crime of selling liquor to a minor, in the manner and form as follows, to wit:
“He, the said Tom Wilson, did then and there, unlawfully and feloniously, sell to one Maycil Harlan, a minor, one pint of whisky at and for the sum and price of one dollar and fifty cents, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

The demurrer is based upon the ground that the information fails to state facts sufficient to charge a public offense.

In the brief it is argued that the demurrer should have been sustained for the reason that .the information fails to state that Maycil Harlan is a male minor under the age of 21 years, or a female minor under the age of 18 years, and that for this defect the information is insufficient to give the court jurisdiction.

Counsel presented this proposition extensively in oral argument as well as in the brief, but failed to cite a single authority to support the proposition, and we do not feel that the court is required to search the State Library in an effort to find some authority which might support it. If there is such authority, it is the duty of counsel to find and present it. The well known diligence of the attorney arguing and briefing the case is such that we are constrained to the view that he failed after much effort to find any support in the opinions of other courts.

Ordinarily an information charging an offense of this kind should set forth that the party to' whom the. sale of liquor was made was a minor under the age of 21 years, if a male, and under the age of 18 years, if a female. However, the general statement that a sale was made to Maycil Harlan, a minor, is sufficient to give the court jurisdiction to try the case. If, at the trial, the facts developed in the case should show conclusively that the person to whom the sale was made was a male person over the age of 21 years, or a female person over the age of 18 years, the case would naturally fall, and the district court would lose jurisdiction to proceed further. In this case, the proof clearly established .the fact that Máycil Harlan was a male minor under the age of 21 years, and nobody denies that fact. Two eye-witnesses testified to the sale, and the plaintiff in error did not even deny making the sale. In fact, there was no defense offered. In oür judgment, the information is sufficient.

The next proposition urged is based upon the contention that the court lost jurisdiction of the proceedings by leaving the courtroom during the examination of the veniremen on the voir dire. Counsel sought to raise this question. by filing the affidavits of himself and three or four bystanders, all of whom testified that they did not hear the court make any order suspending the proceedings while he retired to the adjoining room to verify some legal document. The court and the clerk of the court state that there was an order made suspending the proceedings during the court’s retirement. Upon this proposition the record to the effect that the court was suspended is controlling. Even if the record failed to show that the proceedings were suspended temporarily by proper order of the judge, the recital in the case-made by the judge to the effect that he did make such an order, supported by the statement of the clerk that such order was given to him, would be sufficient. No person, on behalf of the plaintiff in error, stated positively that the order was not made, but all stated that they did not hear it. The court says he did make the order, and the clerk says it was made, as does the court bailiff. Upon this state of facts, the assignment of error fails. This court would not undertake to reverse a judgment based upon the mere statement of bystanders that they did not hear an order made, when the officials of the court all say that it was made.

All orders suspending proceedings temporarily, however, should be noted in the minutes of the clerk and the proceedings stopped by the court before retiring from the bench, so that no question of this kind could arise. -

The only other assignment of error is based upon a complaint against the instructions of the court.

The first instruction complained of is as follows:

“Ylou are instructed that under the laws of this state all persons who take part, participate, or engage in an offense are guilty as principals.”

. The other instruction complained of is as follows:

“If you believe from all the evidence admitted by the court for your consideration, and all the facts and circumstances before you, that the defendant, Tom Wilson, sold the whisky to the witness, Maycil Harlan, and you further so find that the said Maycil Harlan was at the time of said sale, if you should find that there was such a sale, was a minor, as is alleged in the information, or if you so believe beyond a reasonable doubt that’ the defendant, Tom Wilson, took any part or participated in such unlawful sale, then and in that event you should find the defendant guilty as charged and assess his punishment as the law directs. * * *”

It is argued that these instructions fail to include a definition of the word “minor,” and that the particular paragraph does not contain a “reasonable doubt” clause. This objection is covered in the general charge of the court, and a consideration of the entire record clearly discloses that the element of reasonable doubt is sufficiently included in the instructions to the jury to protect the rights of the defendant.

In a separate instruction the court informed the jury that the term “minor,” as used in the instructions theretofore given, means a male person under the age of 21 years. Under the facts disclosed, this instruction amply covered the proposition.

Finding no error prejudicial to the substantial rights of the plaintiff in error, the judgment is affirmed.

DOYLE, P. J., and MATSON, J., concur. .


author: MATSON, J.

text:
    J. L. NORWOOD v. STATE.
    No. A-2569.
    Opinion Filed January 12, 1918.
    Rehearing Denied September 24, 1918.
    (169 Pac. 656.)
    1. TRIAL — Preliminary Examination — Indorsement of Complaint. After a justice of the peace has certified to the court the record of a preliminary examination of an accused person held by him for trial upon a charge' of crime, he may, upon motion to quash the information for failure to indorse upon the original complaint that he found a crime had been committed and that defendant was probably guilty thereof, by leave of the court and before the trial commences, complete such record by making said indorsement where the same is not inconsistent with the tranc-ript of the record as previously made and certified.
    2, INDICTMENT AND INFORMATION — Preliminary Examina- ' tion — Jurisdiction. Section 17, Bill of Rights, prescribes: “No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examinaton.” Held, that under the constitutional provision the precedent fact that a preliminary examination has been had or waived, constitutes a jurisdictional basis for a prosecution on information in the district court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial .determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that the defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence. on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant.

      Appeal from District Court, Oklahoma County; John W. Hayson, Judge.

    J. L. Norwood was convicted of forgery in the second degree, and he brings error.
    Affirmed.

      E. C. Patton and C. W. Stringer, for plaintiff in error.

      S. P. Freelmg,' Atty. Gen., and C. W. King, Asst. Atty. Gen., for the State.
   MATSON, J.

In the brief of counsel for plaintiff in error the only alleged errors relied upon are that the court erred to the prejudice of the plaintiff in error in overruling the motion to quash the information, and in permitting the justice of the peace, upon the motion of the county attorney, to amend the record of the prosecution by indorsing upon the original complaint an order to the effect that he found a crime had been committed as charged in the original complaint, and that there was probable cause to believe that the plaintiff in error in this case and the other jointly charged were guilty of its commission. This indorsement concurred with the oral testimony' given by the justice of the peace upon the hearing of the motion to quash in the district court, the same not being inconsistent with the transcript theretofore filed by him. We are of the opinion that there is no merit in either of these contentions.

First. The district court had jurisdiction to permit the justice of the peace to amend his proceedings. The following authorities are in point:

12 Cyc. 320, where it is said:

“After the justice had certified the record of the preliminary examination, he may, upon the trial, and by direction of the court, amend or complete his record where it is deficient, by inserting additional or corrected entries consistent with the record as previously made out and certified.”

In State v. Geary, 58 Kan. 502, 49 Pac. 596, it is said:

“After a justice of the peace has certified to the * * * court the record of a preliminary examination of an accused person held by him for trial upon a charge of crime, he may, upon such trial, by leave of the court, complete such record, in any respect in which it is deficient,' by additional entries therein not inconsistent with the record as previously made and certified.”

See, also, People v. Wright, 89 Mich. 70, 50 N. W. 792; State v. Clark (Kan.) 49 Pac. 1117.

After this indorsement was permitted to be made, which we hold it was proper for the court to permit, there was no question as to the jurisdiction of the district court, because it clearly appears therefrom that the plaintiff in, error had been accorded a preliminary examination in full compliance with the requirements of the Constitution, thus to permit a prosecution by information in the district court.

In Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006, it was held by this court:

“Section 17, Bill of Rights, prescribes: ‘No person shall be prosecuted for a felony by information without, having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.’ Held, that under the constitutional provision the precedent fact that a preliminary examination has been had or waived, constitutes a jurisdictional basis for a prosecution on information, in. the district court. It is the fact that there was a • preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to. believe that defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said' court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant.”

It is the fact that a preliminary examination has been had or waived which confers the jurisdiction upon the district court. A-mere clerical error on the part of the justice of the peace in failing to indorse this fact upon the preliminary complaint cannot deprive the district court of the power to assume jurisdiction of the prosecution, if the fact itself existed, and when that fact was made to appear, before trial, as in this case, then the jurisdiction of the district court immediately attached, and the said court had authority and power to proceed fully with the investigation. See, also, Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Sayers v. State, 10 Okla. Cr. 195, 135 Pac. 944; Id., 10 Okla. Cr. 233, 135 Pac. 1073.

The facts appear to be, and there is little dispute thereon, that certain parties jointly .informed against with the plaintiff in error, Norwood, told him they desired to have him assist in fixing a deed to a tract of land to take the place of a lost deed, and desired his direction as to a notary public who would take the acknowledgment of persons not present, and the said .parties were directed and accompanied by the defendant, Norwood, to the office of one J. D. C., an attorney at law and notary public. It appears that the deed in question was presented to Nor-: wood, with the explanation that it was a substituted deed for one already in existence, but which had been lost, and that it was necessary to have it fixed up so that it could be placed in the abstract to énable the parties to secure a loan on the land therein described. Prompted by his disposition to accommodate his friends the said Norwood admits that he assisted in the forgery of the names of the grantors to said deed, and the same was acknowledged before said notary public and delivered. Norwood, denies, however, that he received any consideration therefor, but says he merely thought that he was doing. an act of accommodation for his friends in the transaction, and that no one would be harmed thereby. This pretended defense is culpable within itself. It is unavailing to resort to this court and ask that a judgment of conviction be set aside upon mere technical grounds when such a defense as this is interposed.

.The judgment of the trial court is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
    HENRY BLUMHOFF v. STATE.
    No. A-2898.
    Opinion Filed March 23, 1918.
    Rehearing Denied September 24, 1918.
    (171 Pac. 492.)
    INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evidence. In a prosecution for selling intoxicating liquors, the evidence considered, and held sufficient to sustain a conviction, and that no reversible error was committed on the trial.

      Appeal from County Court, Stephens County; J. W. Marshall, Judge.

    Henry Blumhoff was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      Bond & Kolb, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Upon an indictment returned by the grand jury in the district court of Stephens county, and duly transferred to the county court of said county, which charges that Henry Blumhoff did sell certain intoxicating liquors, to wit, beer, to one Jess Calloway, the defendant, Blumhoff, was convicted, and on the 23d day of October, 1916, he was by the judgment of the county court sentenced to be confined in the county jail for 60 days and to pay a fine of $200, and he appeals. 1

Jess Calloway testified that on the date alleged he was at the defendant’s home and received six bottles of beer from him; that he did not pay for it; that, he had bought beer from him before at 50 cents a'bottle and expected to pay that price for it.

Henry Blumhoff, as a witness in his'own behalf, testified that he did not sell Jess Calloway any beer; that he did let him have six bottles of beer, but did not charge him for it, and did not expect him to pay for it, “but at the time he got the beer he said he had a barrel of beer at Lawton and would give me my six back; that is, we would just exchange, he said.”

The petition contains 14 assignments.

First. It is contended that said indictment was invalid, and furnishes no basis for a prosecution, and that if in law said indictment .was .valid, the same has never been transferred to the county court of Stephens county. It is a sufficient answer to this contention to say that we find the indictment was regularly and duly presented in said district court and properly transferred, and the court very properly overruled the motion to set aside the same.

Other assignments based on the rulings of the court on the admission and rejection of evidence are, we think, entirely destitute of merit.

Other assignments are based on exceptions, taken to the instructions of the court, and are without merit, as the instructions fully and fairly cover the law of the case.

It is also insisted that the evidence is insufficient to sustain the verdict. The assignment is elaborately argued in the brief. Suffice it to say that in our opinion the defendant is guilty of the offense charged in the indictment upon his own testimony. Finding no material error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    PAUL V. HADLEY v. STATE.
    No. A-2900.
    Opinion Filed March 23, 1918.
    Rehearing Denied September 24, 1918.
    (171 Pac. 485.)
    1. APPEAL AND ERROR — Question of Fact. This court will only-set aside a verdict because it is contrary to the evidence, in a case where the jury have plainly decided against the evidence, or where the verdict is without evidence.
    2. HOMICIDE — Conviction—Sufficiency of Evidence. In a prosecution for murder, the evidence reviewed, and held sufficient to sustain the conviction with imprisonment for life as the punishment.

      Appeal from District Court, Muskogee County; Chas. G. Watts, Judge.

      ■ Paul V. Hadley was convicted of murder, and he appeals.
    Affirmed.

      P. A. Gavin, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Paul V. Hadley, and Ida Hadley were jointly charged with the murder of W. J. (Jacob) Giles, alleged to have been committed in Muskogee county on or about the 24th day of March, 1916, by shooting him with a pistol. Upon their trial the jury rendered verdicts finding “the defendant Ida Hadley not guilty on account of insanity,” and finding “the defendant Paul V. Hadley guilty of the crime of murder as charged in the information, and fix his punishment at imprisonment in the state penitentiary at hard labor for life.” From the judgment rendered in pursuance of the verdict, the defendant Paul V. Hadley appeals.

The evidence shows: That Paul V. Hadley and Ida Hadley resided in Beaumont, Jefferson county, Tex. That Paul V. Hadley was indicted for assault with intent to kill in Jefferson county, Tex., and as a fugitive from justice was arrested March 20, 1916, in Kansas City, Mo., where he was -going under the name of J. O.- Kendrick. That W. J. (Jacob) Giles, sheriff of Jefferson county, Tex., was notified of his arrest, and in the meantime Hadley was incarcerated in what is known as the matron’s department at the police station. That while held there his wife, the defendant Ida Hadley, visited him several times, and had several conversations with him before Sheriff Giles arrived in Kansas City. That on the 2Sd day of March, Sheriff Giles arrived in Kansas City with a requisition from the Governor of Texas for Paul V. Hadley. That the defendant Ida Hadley met Sheriff Giles at the police station and requested the sheriff to allow her to return to Texas with her husband. That in response to that request Sheriff Giles replied that she could come if she wanted to, but she would have to pay her own railroad fare. That she then gave the money to Mr. Sanderson, who was present, to purchase a ticket for her, which he did. That Sheriff Giles, with both the defendants, left Kansas City on a train called the “Katy Limited” at 5:30 p. m. on the 23d day of March, 1916, which train arrived in Muskogee just after midnight the next morning. That before leaving Kansas City, Ida Hadley requested Sheriff Giles to remove the handcuffs from Paul V. Had-ley, who had agreed to return to Texas- with Sheriff Giles by signing a written waiver of formal requisition. That the sheriff did not grant her request. That when the train left Parsons, Ida Hadley was sitting- in the rear seat on ■the right side of the chair car, and shortly after- the sheriff, with Paul V. Hadley in custody, came out of the smoking car into the chair car, where Hadley sat down by his wife, and the sheriff sat down in the seat across the aisle; that the defendants engaged in a whispered conversation, and Ida Hadley went to the ladies’ toilet in the front end of the car several times, and each time returned to her seat by her husband. That at that time the handcuffs had beén removed from Hadley, and he was riding just as any other passenger in company with his wife. That Sheriff Giles at that time was sitting across the aisle in the third seat from the rear, the back of which had been reversed, and he was facing the defendants. That when the train left Muskogee, Ida Hadley said to Sheriff Giles, “You' might just as well go to sleep; Paul and I are going to sleep in a minute”; that within ten minutes after leaving Muskogee,. Ida Hadley got up from her seat and walked to the ladies’ toilet in the forward end of the car; that after staying there a few minutes she returned, carrying a satchel or package; that reaching the sheriff, she drew a pistol from somewhere about her person, and shot Sheriff Giles in the back of the head; that the bullet passed through his head and fell on the floor; that the train at that time was passing through the town of Oktaha, Muskogee county; that instantly Paul V. Hadley jumped across the aisle and grabbed Sheriff Giles’ pistol and said to his wife, “Hold the gun on all of them; if they move blow their heads off”; that Ida Hadley said to the other passengers in the car, “Don’t a man or woman of you get up”; that Paul V. Hadley, after taking the sheriff’s pistol, proceeded to go through the pockets of the sheriff, taking papers out of his pockets and sticking them into his own pockets; that about this time the train auditor came into the car, and Paul V. Hadley, holding his pistol on him, said, “Stop this train, God damn you, or I will blow your brains out”; that the auditor pulled the bell cord, but the train did not stop; that the Hadleys then went out on the front vestibule of the car, and there kept their guns on, the auditor, demanding that he stop the train; that the train stopped at Checotah, and the two defendants stepped off; that they walked about five miles south from Checotah and stopped at the home of Mr. Ennis, and asked permission to stop there until morning; that they also arranged to have Mr. Ennis’ son drive them to Briartown in the morning; that young Ennis started to drive the defendants to Briartown or Porum; that after going about ten miles he left them at Mr. Stevens’ place on Hi Early Mountain; that Sheriff McCune, of McIntosh county, with a posse, arrested the defendants there that forenoon; that Ida Hadley asked Sheriff McCune if Giles was dead, and he told her he was, and she asked, “What are you going to do with us ?” and the sheriff said, “We are going to take you to Eufaula, the county seat of the county where you killed this man”; the defendant Paul V. Hadley then said, “I am in it just as much as she is; just as much to blame as she.” It appears that Sheriff Giles' never spoke after he was shot, and died two or three minutes after he was taken from the train at Checotah. The defendant Paul V. Hadley did not testify as a witness. The defendant Ida Hadley testified as a witness in her own behalf and in behalf of her codefendant.

In rebuttal R. H. Gaines, for the state, testified that he was in the hotel business at Checotah, 'and was present with others there when Ida Hadley stated in the presence of her husband, Paul V. Hadley:

“That her husband had shot a man down in Texas; that she expected that some time he would be arrested, and it was her intention to • take him away from' the officers when they started back to Texas with him; that she had put her gun in her grip, and had kept it there all the- time since the trouble ■ in Texas; that when her husband was arrested in Kansas City she asked Sheriff Giles’ permission to accompany him back to Texas; that her husband knew the gun was in the grip, and they had talked this matter over several times — that is, the possibility of her taking him away from the.officer — and when they got to a little city above here that had- electric lights, a city of 15,000, 20,000, or possibly 30,000 people, she whispered to Mr. Hadley, ‘When we leave this town I am going to take Jake’s gun off of him, and you get ready to make your getaway.’ ”

And that she further stated:

“I asked Giles to lend me his drinking cup; he let me 'have the cup, and I started back to the wash room; there I took the gun out and put it in my dress, and I came out and down the aisle toward Mr. Hadley and Jake, and when I got near Mr. Hadley I gave him a nod to get ready to get up; that she and Mr. Hadley had frequently talked over the subject that she would use the gun in taking him away from the officer — that they had talked it over after they left Kansas City while sitting in the car.”

Other witnesses testified that they were present when Ida Hadley made these statements in the hotel at Che-cotah, and that at the time she and her husband were handcuffed together.

The record is voluminous, but the foregoing statement of facts is sufficient for the purpose of this opinion.

It appears that upon a sufficient showing that the defendant Paul V. Hadley was a poor person, and by reason of his poverty unable to pay for the same, the court ordered that he be furnished with a transcript of the tes-. timony and the proceedings had on the trial for the. purpose of perfecting this appeal, and for the same reason the petition with case-made was filed in this court without cost. No brief has been filed, but the defendant’s counsel appeared and made an elaborate oral argument in support of the only question presented by the record; that is, the sufficiency of the evidence to support the verdict.

Upon a careful reading of the testimony in- the case, there can be no doubt that the verdict of the jury is abundantly supported if they believed the evidence given on the part of the state; that the jury did believe the evidence on the part of the state is clearly established by the fact that they found this defendant guilty. The evidence for the state showed or tended to show that the homicide was committed in pursuance of an agreement or understanding between the Hadleys, and that they conspired together to have the defendant, Paul V. Hadley, make his escape from the officer having him in custody.

It is a rule of law that when a conspiracy is entered into to commit a crime, all persons who engage therein are responsible for all that is done in pursuance thereof by any of their conspirators until the object for which the conspiracy was entered into is fully accomplished. Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334; Irvin v. State, 11 Okla. Cr. 301, 146 Pac. 453.

Says Mr. Bishop:

“Since a combined act and evil intent constitute crime, and since a thing which one does through the agency of another is the same in law as though performed by his personal volition, one who contributes his will to a crime, by whomsoever the physical act of wrong is done, is guilty of the crime. Hence, when two or more persons unite to accomplish a criminal object, whether through the physical volition of one, or of all, proceeding severally or collectively, each individual whose will contributes to the wrongdoing is in law responsible for the whole, the same as though performed by himself alone.” (1 Bishop, New Crim. Law, sec. 629.)

We are satisfied, from a careful examination of the record and of the proceedings had upon the trial, with respect to fairness, that the defendant had a fair and impartial trial. The charge of the court, to which no objection was made or exception taken, was an elaborate exposition of the law of the case. While the jury by their verdict acquitted the defendant Ida Hadley, that was their peculiar proyince. No one can tell what considerations enter into a verdict returned by a jury where a woman is on trial. Nevertheless, if the jury made a mistake as to her, that is no reason why this defendant should not suffer the just penalty of the law. Upon the whole case we are satisfied that the verdict was neither against the weight of the evidence nor against the law.

Finding no error in the record, the judgment appealed from is affirmed.

ARMSTRONG and MATSON, JJ., concur.