Agent v. State
| Decision Date | 07 June 1920 |
| Docket Number | A-3358. |
| Citation | 194 P. 233,18 Okla.Crim. 281 |
| Parties | AGENT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Jan. 15, 1921.
Syllabus by the Court.
When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer is unavailing, and was properly overruled.
Under the provisions of section 5680, Rev. Laws 1910, the examining magistrate in felony cases is authorized to bind the defendant to answer either the offense named in the preliminary complaint or "any other offense, according to the fact"; and this court will presume, in the absence of an affirmative showing to the contrary, that the information upon which the case is tried was supported by the facts disclosed by the evidence of the state at the preliminary hearing.
In a charge for murder under the first subdivision of section 2313, Rev. Laws 1910, the information may charge the killing to have been committed with a premeditated design to effect the death of some person other than the one killed, and it would not be a fatal variance to prove at the trial a premeditated design to effect the death of the person killed and the converse of this proposition is also true.
Where a defendant is convicted of manslaughter in the first degree instructions complained of, defining murder, will not be considered on appeal, in the absence of some affirmative showing that the defendant was substantially injured thereby.
Where the record shows that the regular county attorney, who signed and presented the information, appeared at the trial and was in charge and control of the prosecution of the case, it is immaterial whether another attorney appeared to assist in such prosecution either in the rôle of private counsel or as an assistant county attorney.
It is discretionary with the trial judge to excuse from the operation of a rule separating the witnesses, and to permit a member of the bar to remain in the courtroom during the progress of the trial, although such person's name is indorsed on the information as a witness for the state, and he is sworn as such a witness.
The issue raised upon a challenge for cause to a juror in a criminal case on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.
Alleged threats made by a third person against the defendant, and not communicated to the defendant prior to the commission of the homicide, are inadmissible in evidence in a case where the defendant claims to have killed the deceased in self-defense mistaking the deceased for such third person, there being no evidence of a conspiracy between such third person and the deceased to kill the defendant or to do him serious bodily harm, or any concert of action between such third person and the deceased at the time of the commission of the homicide or any other evidence tending to connect such third person with the deceased, or tending to connect the deceased with any alleged uncommunicated threats.
Under section 2094, Rev. Laws 1910, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.
In a homicide case, where the plea is self-defense, evidence as to whether the accused was intoxicated or under the influence of intoxicating liquors at the time of the homicide is competent for the purpose of aiding the jury to determine whether or not the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life or receiving great personal injury.
The instructions must be considered as a whole, and where they fairly and fully state the law of the case, and are as favorable to the defendant as the evidence would warrant, they are sufficient.
Additional Syllabus by Editorial Staff.
To justify a killing in self-defense, there must be a reasonable belief by defendant that he is in danger of losing his life or receiving great bodily harm at hands of the deceased, and such a real or apparent danger must be imminent at the time of the killing.
Evidence held sufficient to sustain a conviction of manslaughter in the first degree.
Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.
Clay Agent was convicted of the crime of manslaughter in the first degree, and he appeals. Affirmed.
This is an appeal from the district court of Sequoyah county, wherein the defendant, Clay Agent, was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of six years' imprisonment in the state penitentiary, for the killing of one A. B. Watson.
This killing occurred in the city of Sallisaw, on about the 5th day of May, 1916, at about 8:30 or 9 o'clock in the evening. The killing occurred at the home of Sarah C. Brackett, a neighbor of the defendant, who lived across the street and southwest from the defendant's home. The defendant and deceased were total strangers, and the only excuse the defendant had for killing the deceased was that he mistook him for one Ben Summers, a brother of whom the defendant had previously killed, when the defendant was acting as deputy sheriff of that county, in an effort on the part of the defendant and other officers to quell a riot and to prevent the commission of a felony by the said brother of Summers and others, at the time the defendant was compelled to and did kill the said brother of Ben Summers.
Further, it is contended on the part of the defendant that, after the defendant had killed Summers, Ben Summers made numerous threats to take the life of this defendant, which said threats were communicated to the defendant; and there is considerable evidence in the record to show that the defendant was told of certain alleged threats on the part of Ben Summers against him.
The defendant claims he shot A. B. Watson in his apparent necessary self-defense, under the impression at the time that the said A. B. Watson was Ben Summers, and in this connection, concerning the reasonableness of defendant's belief, the following excerpts from his direct and cross-examination are incorporated in this statement:
"Q. Where did you go from there? A. I went in and lit the lamp, and I saw some parties sitting on the porch at Mrs. Brackett's, and I went over and asked Mrs. Brackett if Mrs. Agent was there. Q. Now what direction does Mrs. Brackett live from your house? A. Mrs. Brackett lives very nearly southwest across the street; not exactly, but very nearly, southwest of where I live. Q. When you saw them sitting over there on the porch and got over there, where was Mrs. Brackett sitting? A. She was sitting on a chair on the north of the door on the porch. Q. Where was Mr. Watson sitting? A. He was sitting in a chair with his back leaning against the post. Q. Where was the post with reference to the door? A. Well, the door--I can explain to you better than I can tell you. Like this was the house (indicating). There is three posts, supports, on the porch, and this post was sitting here about the center I suppose, and he was sitting with his back to this post on the porch. Q. Was he immediately in front of the door or south or north of the door? A. He was south of the door. Q. What did you do when you walked over there? A. I asked Mrs. Brackett if Mrs. Agent was there. Q. What did she say? A. She said, 'No, she isn't here.' She said, 'Go away from here.' Q. Go ahead and tell what occurred and what was said. A. Well, I asked her if Mrs. Agent was there, and she said, 'No, you go away from here;' and this man turned and said, 'Get away from here; you have no business here;' and I said, 'All right,' I would go away, and I started to retreat, and as I started away this man kind of stood up about in this position (indicating), and throwed his hand back nearly in this position (indicating), and the first impulse of the moment was that it was Ben Summers, and I immediately pulled my gun and fired. I went on across the street. As I went up the street Mrs. Brackett was still at the door; she hadn't gone in the house; and I said, 'Mrs. Brackett, you have been harboring a man to kill me.' Q. When the deceased, Watson, attempted to get up, what was said, if anything, by him? A. He says, 'Get away from here, damn you, or I will get you.' Q. What position was he in, and what position was his hands in, when he made that statement? A. Well, he was in a rising position over something like this (indicating), turning this way (indicating), like he was turning around. He hadn't got straight up. Q. And you fired? A. Yes, sir. Q. Did you ever at that time say to Mrs. Brackett--call her any vile name of any kind? A. No, sir; none whatever. There was not but the one word spoke that I said. Q. What did you do then? A. I went on across the street on the corner, and back up the street a piece, and stayed there for quite a while, and then went up to Mr. Spelse's. Q. What did you do when you got to Spelse's? A. I told Mr. Spelse I had shot Summers, and to call my son. He was police, and I told him to call him, and tell him I was up there,...
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