text:
    JOHN PRYOR v. STATE.
    No. A-5716.
    Opinion Filed June 25, 1927.
    (257 Pac. 335.)

      Horsley & Stith, for plaintiff in ,;error.
    Geo. F. Short, Atty. Gen., and W. L. Murphy, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Osage county on a charge of pointing a pistol and was sentenced to pay a fine- of $50 and to serve a term of four months in the county jail.

The principal testimony for the state was given by Mrs. S. C. Harvey, C. W. Ward, and his wife. It is,, in substance, that they were on the highway between Wynona and Barnsdall, and had stopped to fix a tire, when a car in which defendant was riding came up and stopped. Defendant got out and asked if they needed any help and was informed that they did not. Immediately following defendant pointed a pistol at S. C. Harvey and ordered him to put up his hands and punched him in the stomach with the gun and threatened to kill him; that defendant acted like he was crazy or drunk. Defendant testified that he was a full-blood Osage Indian; that on the occasion in question he was drunk and had no recollection whatever of any of the matters testified to by the state’s witnesses; that he did not know the Harveys or Wards, who were with them, and had no anger or feeling whatever against them. The testimony of some of the persons in the car with defendant was that he was drunk; that the car stopped and he went to where Harvey was; and that they did not see him point a pistol.

The principal contention argued is that the court erred in excluding testimony showing the interest of the state’s witnesses. It appears that S. C. Harvey had a suit for damages against defendant growing out of this transaction in the sum of $60,500, and that the witness Mrs. C. W. Ward had a similar suit against defendant for $10,000 damages. S. C. Harvey was out of the state and did not testify. His wife was asked on cross-examination in reference to the damage suit of her husband. Upon objection, this evidence was excluded. Mrs. Ward was asked on cross-examination if she had a damage suit pending against defendant, and, upon objection, this was excluded. The court said in the first instance:

“Objection sustained. The fact that a damage suit has been filed does not make any difference in this case. * * * There is nobody interested in the outcome of this case, or any other criminal case, except the state of Oklahoma.”

In the second instance, the court said:

“The objection is sustained on the theory that the witness does not have any interest in the outcome of this suit under the law.”

This ruling was manifestly error. It is clearly within the right of a defendant on cross-examination to ask proper questions touching the interest, animus, bias, or prejudice of a witness. Such evidence is not collateral. It is material and direct as going to the weight and credibility of the evidence. Gibbons v. Territory, 5 Okla. Cr. 212, 115 P. 129; Gilbert v. State, 8 Okla. Cr. 543, 128 P. 1100, 129 P. 671; Stanfield v. State, 30 Okla, Cr. 82, 235 P. 256; Morris v. State, 30 Okla. Cr. 382, 236 P. 443; Durant v. State, 32 Okla. Cr. 288, 240 P. 1088.

The state, however, insists that defendant is manifestly guilty and under section 2822, Comp. St. 1921, the harmless error statute, and the general holding of this court, that this error should not work a reversal. These damage suits growing out of this transaction are of a substantial nature. The defendant had a right to show the fact of the pendency of .these suits as going to the interest, animus, or bias of the witnesses. While the showing of such facts might not have influenced the finding of a verdict of guilty, it might have aflrected materially the punishment fixed by the jury. Justice requires that a new trial should be awarded.

The case is reversed and remanded.

DÓYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    Ex parte KEITH DECKER.
    No. A-6667.
    Opinion Filed June 28, 1927.
    (257 Pac. 332. )
    Hill & Banta, and Mathers & Whiteside, for petitioner. ! i

      Smith C. Matson, Asst. Atty. Gen., and Homer H. Bishop, Co. Atty., for respondent.
   EDWARDS, J.

This is an original application by Keith Decker for a writ of habeas corpus to be admitted to bail.

This case was submitted on the verified petition of Keith Decker with the return showing that petitioner is held by respondent, under a commitment of a magistrate, in the county jail of Seminole county. With the petition is a transcript of the testimony taken at the preliminary hearing. Bail was denied by the magistrate, and by the district judge of the county to whom application was made by habeas corpus.

An examination of the testimony discloses that on the 7th day of June, 1927, petitioner, in the town of Seminole, shot and killed one O. B. or Slim Harris. The state offered testimony of several eyewitnesses and a dying declaration. From this it appears that petitioner and deceased were interested jointly in handling narcotics. On the morning of the homicide petitioner and one Pomroy were driving an automobile out of an alley as deceased came along the sidewalk. Petitioner got out of the car and assaulted deceased by striking at him with a pistol, and, as he backed away with his hands up, shot him, from the effects of which shot he died in a short time. The evidence of the state makes a case of murder. Petitioner offers testimony of eyewitnesses that he was accosted by deceased, who attacked and struck at him with a knife, and that petitioner during the difficulty struck at deceased with the pistol and then fired. Petitioner testified that deceased accosted him, then struck at him twice with a knife, and that he struck at deceased with the pistol and while using the pistol as a club the fatal shot was accidentally fired.

Where an accused is charged with crime he is entitled to bail except in a capital case where the proof is evident or the presumption thereof great, in which case the offense is not bailable. Section 2921, Comp. Stat. 1921.

It is well settled that upon an application by habeas corpus to be let to bail after commitment for a capital offense by a magistrate, the burden is upori the petitioner to show that he is illegally restrained of his liberty. Ex parte Smith, 2 Okla. Cr. 24, 99 P. 893; Ex parte Dykes, 6 Okla. Cr. 162, 117 P. 724; Ex parte Lytton, 31 Okla. Cr. 369, 239 P. 270.

It is not sufficient to authorize bail that there is a conflict of testimony in the essential ingredients of the crime charged. The testimony should be viewed as a whole and the credibility of the witnesses weighed in the light of all the surrounding circumstances. Then, unless it appears that there is a reasonable doubt of the guilt of the accused of a capital offense, or if there be a reasonable doubt, yet upon such consideration of the entire testimony the presumption is great, bail should be denied. In re Bollin, 3 Okla. Cr. 725, 109 P. 288; Ex parte Lytton, supra.

The testimony disclosed that petitioner had been twice convicted of a felony; two of his witnesses admitted they were drug addicts. These facts, with the appearance of the witnesses, and their candor or frankness or lack thereof and their manner and conduct on the stand, were observed by the magistrate. We are not warranted in disturbing the order of the magistrate and the district judge.

Bail is denied.

DOYLE, P. J., concurs.

DAVENPOBT, J., absent, not participating.


author: PER CURIAM.

text:
    NOAH GRAHAM v. STATE.
    No. A-5963.
    Opinion Filed July 2, 1927.
    (257 Pac. 336.)
    Anglin & Stevenson and Forrest M. Barrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Hughes county on a charge of having the unlawful possession of mash, capable of distillation, and was sentenced to serve 30 days in the county jail and pay a fine of $50.

The evidence was entirely circumstantial. The evidence discloses that about 100 to 200 yards from plaintiff in error’s house was a well from which various people, including plaintiff in error, used water. Two other houses at which families resided were in the same field in which the well was located, as was plaintiff in error, and one of them lived about the same distance from the well. Only two witnesses were used by the state; they were officers and testified that about 85 feet from this well in one direction they found a barrel of mash and about 100 yards in another direction they found another barrel. There was a trail from plaintiff in error’s house to the well, but none from his house to the place where the mash was found. One of the officers testified as follows:

“* * * Q. You don’t know whether that (referring to the place where the mash was found) was on his place or belonged to another house close to that well? A. His house is just as close.
“Q. Which one is the closest to the well? A. Mr. Graham’s was the closest to the well.
“Q. That is where he got his water? A. Yes, sir. * * *
“Q. Isn’t it a fact there is a house about the same distance from the spring as Graham’s house? A. Well; I didn’t pay no attention.
“Q. Graham’s is the closest? A. Yes, sir.
“Q. You say there is another house? A. Yes, sir.
“Q. There was another one pretty close? A. I didn’t pay much attention to it.
“Q. You don’t know whether this was on his place or not? A. No; I don’t.
“Q. Other people were getting water? A. I don’t know. * * *”

The other officer testified in part:

“* * * How many other houses in that same inclosure? A. One by the creek quite a ways, three or four hundred yards, then one house about the same distance as Graham’s, one south, and two or three west. * * *
“Q. You don’t know whether that was on his place or not? A. There was a trail from his house leading down to the well. * * *
“Q. How many other houses in that inclosure? A. Three in that field.
“Q. Three houses all in the same inclosure in that field? A. Yes, sir. * * *”

This evidence on the part of the state is not sufficient to sustain the judgment. It raises a strong suspicion of defendant’s guilt, but does not exclude every reasonable hypothesis other than his guilt. Plaintiff in errer denied any knowledge or connection with the mash.

The case is reversed and remanded.


text:
    H. B. JEFFRIES v. STATE.
    No. A-5729.
    Opinion Filed July 2, 1927.
    (257 Pac. 333.)
    J. Hugh Nolen, J. Y. Crawford, and O. A. Shaw, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county on a charge of child abandonment, and was sentenced to serve a term of 7 years in the state penitentiary.

The record discloses that defendant was an oil driller, able-bodied and capable of earning good wages; he had three children ranging in ages from 4 to 12 years. Their mother was deceased, and defendant had married a second time. At the time of the second marriage, the children were with their grandmother in the state of Arkansas. About six months after the second marriage, the grandmother, being unable to longer care for them, returned them to defendant, at Paden, Okla. They stayed with him from the latter part of December, 1923, until the early part of June, 1924, when he sent them to an aunt in the state of Arkansas, telling them they were going on a visit and would be gone about two weeks. They were kept by this aunt until the first part of October, following, when they were sent back to Paden at the expense of the aunt. When they got to Paden, defendant had separated from his second wife and was working as an oil driller at Cromwell. On their return the children went to the home of Lester Jeffries, a relative of defendant, and on October 6, this prosecution was instituted, under section 1856, C. O. S. 1921, as amended by Laws of 1923, c. 78, § 2. The trisp was had five months later. After the prosecution was commenced defendant contracted with two neighbors to take care of the children, but had failed to make any payment and had contributed but a trifling item to clothe them.

Three assignments of error are argued. The insufficiency of the evidence; the admission of incompetent evidence; error in the instructions. These assign-xnents really go to a single proposition and are included in a single contention; that is, that the evidence, if it shows an abandonment at all, shows it to have been subsequent .to the commencement of this prosecution, and that a conviction cannot be sustained on proof of an offense occurring subsequent to the filing of the preliminary complaint. If the facts proved disclose that the conviction is for an offense occurring after the prosecution commenced, the judgment cannot be upheld.

It is well settled that a prosecution in a felony case is begun with the filing of the preliminary complaint, and proof of the commission of the offense subsequent to the filing of such complaint is not admissible and will not sustain a conviction. The state is not limited in its evidence to proof of the commission of an offense to the particular date charged in an information, but may prove the commission of the offense fit a date different to that charged within the period of limitations; but the offense must be proved at a time prior to the time the prosecution was commenced. Mitchell v. State, 2 Okla. Cr. 442, 101 P. 1100; Johnson v. State, 5 Okla. Cr. 128, 113 P. 997; Bandy v. State, 13 Okla. Cr. 468, 165 P. 616.

While the conviction must be for an offense committed prior to the filing of the preliminary complaint, yet evidence of acts occurring after the filing of the preliminary complaint is. admissible in some cases as tending to throw light upon and explain the offense charged, or to show motive or intent.

In the case of Firmeis v. State, 61 Wis. 140, 20 N. W. 663, it was held:

“Evidence of the conduct of the accused toward his family after the time of the alleged abandonment is admissible to show his intent at that time.”

In the body of the opinion the . court said:

“The complaint was made against the accused some time in July, 1883. An information was filed August 13, 1883, charging the abandonment on the 11th of July, 1883. The defendant was arrested some time in July, but was permitted to go upon his own recognizance, and the proceedings upon the information were continued. On the 5th of January, 1884, the defendant was arrested and brought into court, and again allowed to go upon his own recognizance, and a trial was had on January 22, 1884. Objection was made by the defendant on the trial to the admission of evidence as to what the conduct of the defendant towards his family was after the time he was charged with abandoning his children. We think the evidence was properly received as bearing upon the question of the. intent of the defendant at the time he left his children to abandon them. * * *”

The same rule is announced in Adams v. State, 164 Wis. 223, 159 N. W. 726. See, also, Hopkins v. State, 126 Wis. 104, 105 N. W. 223; People v. Turner, 29 Cal. App. 193, 156 P. 381.

Upon consideration of the entire record, we find no error that requires a reversal. We are of the opinion, however, that the punishment assessed is too severe and that justice requires the sentence of 7 years in the penitentiary should be reduced to 3 years, and, as modified, the case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    BEN GOSNEY v. STATE.
    No. A-5734.
    Opinion Filed April 16, 1927.
    (255 Pac. 161.)
    J. V. Long and S. A. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Osage county on a charge of selling whisky, and was sentenced to pay a fine of $50 and to be confined in the county jail for a term of 30 days.

It is first argued that the evidence is insufficient to sustain the verdict. This contention cannot be sustained. The state’s witness Maudlin testified that he went to the Clark restaurant in the town of Avant, and there purchased from defendant a drink of whisky and a half pint of whisky, and paid him the sum of $2. Another witness testified that he went to this restaurant with Maudlin, and remained in the front room while Maudlin went into the hack room, and soon returned with a half pint of whisky. Defendant denied the sale. The weight of this evidence and the credibility of the witnesses was for the jury. This court will not disturb the verdict for insufficiency.

It is next argued that the court erred in denying defendant a new trial on the ground of newly discovered evidence. This newly discovered evidence is set out in two affidavits, one of I. J. Clark, the owner of the restaurant, where the sale is alleged to have taken place, in effect denying that Maudlin was at his restaurant at the time h^ testified. Reasonable diligence in the first instance would have required that before trial defendant inquire of the owner of the restaurant as to his knowledge. The other is an affidavit of one George Gideon in effect that he heard the state’s witness say at one time that he did not purchase any whisky from defendant. These affidavits are in the nature of impeaching evidence, and present no sufficient showing to warrant the granting of a new trial on the ground of newly discovered evidence. Wampler v. State, 34 Okla, Cr. 141, 245 P. 69; McKenzie v. State, 34 Okla. Cr. 233, 245 P. 1005; Wilson v. State, 36 Okla. Cr. 148, 252 P. 1106.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    CHARLEY WYRICK et al. v. STATE.
    No. A-5704.
    Opinion Filed April 16, 1927.
    (255 Pac. 163.)

      Jas. A. Embry, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Lincoln county on a charge of selling whisky, and each sentenced to pay a fine of $400 and to serve a term of 60 days in the county jail.

The information alleged the offense to have been committed on or about April 1st. At the opening of the trial, the county attorney asked leave to amend the information to allege the selling of liquor during the months of February, March, and April. During the course of the trial, the state, over the objection of defendants, introduced evidence tending to prove various violations of the prohibitory liquor law by defendants as to sales, to the having unlawful possession of liquor, and to the transportation of liquor. No single violation of the law is relied upon, but the proof is to different offenses at different times. At the close of the trial the court instructed the jury generally, but did not fix any particular date or particular violation of the law as a basis for a conviction. It is fundamental that, where a defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence showing him guilty of the offense charged, and proof of separate and distinct offenses is incompetent and inadmissible, unless such evidence is admissible to show motive, intent, or some recognized exception. Certainly, where the state charges a particular sale of intoxicating liquor, it is error to admit proof of other sales. Smith v. State, 5 Okla. Cr. 67, 113 P. 204; Appleby v. State, 11 Okla. Cr. 284, 146 P. 228; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256.

In addition to the errors in the admission of evidence, the state attacked the character of one of the defendants, without the defendant having introduced evidence of good character. This was error. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; McPhetridge v. State, 30 Okla. Cr. 41, 234 P. 785; Grubbs v. State, 30 Okla. Cr. 256, 235 P. 1115.

Further, there is no proof of venue. There is evidence that the defendants and the witnesses for the state resided in Lincoln county, but no evidence that the transactions referred to occurred in that county. A county attorney in the trial of cases should inform himself on the fundamental rules of evidence and not inject. into the record matters obviously incompetent and inadmissible. Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L. R. A. (N. S.) 153; Groh v. State, 30 Okla. Cr. 396, 236 P. 435; Hunter v. State, 6 Okla. Cr. 446, 119 P. 445.

For the reasons assigned, the case is reversed and remanded.

DOYLE, P. J„ and DAVENPORT, J., concur.