Anderson v. State

• Decision Date: 14 April 1943
• Docket Number: A-10138.
• Citation: 137 P.2d 254,76 Okla.Crim. 260
• Parties: ANDERSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

137 P.2d 254

76 Okla.Crim. 260

ANDERSON v. STATE.

No. A-10138.

Court of Criminal Appeals of Oklahoma

April 14, 1943

Syllabus by the Court

1. Where an appeal is taken to this court, and the case is reversed for the reason of the insufficiency of the evidence it is the better practice to give directions to the lower court to grant a retrial if in the opinion of the County Attorney he has sufficient evidence other than was offered at the first trial to sustain a conviction, otherwise, the defendant to be discharged.

2. If the reversal of the case is upon grounds that defendant may not again be tried as a matter of law, directions should be given to discharge the defendant.

3. When a case is reversed and retried and the evidence on the second trial is sufficient to sustain the judgment and sentence, the case will not be reversed.

4. Evidence examined, and found that judgment and sentence should be modified from fifteen years in the State penitentiary, to four years in the State penitentiary.

Appeal from District Court, Okmulgee County; Arthur Cochran, Judge.

Olin Anderson was convicted of manslaughter in the first degree and he appeals.

Judgment modified and as so modified affirmed.

Joe S Eaton and James K. Eaton, both of Okmulgee, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Jack Pitchford, County Atty., of Okmulgee, for defendant in error.

BAREFOOT Judge.

Defendant, Olin Anderson, was charged in the District Court of Okmulgee County with the crime of murder, was tried, convicted of manslaughter in the first degree, sentenced to serve a term of fifteen years in the penitentiary, and has appealed.

Defendant was jointly charged with one Jimmie Goff with the crime of murder of John Grayson, at or near Beggs, in Okmulgee County, on the night of June 19, 1937. A severance was granted and his codefendant, Jimmie Goff, was tried, convicted and sentenced to a term of life imprisonment in the State penitentiary, which he is now serving.

Defendant was later tried, convicted of manslaughter in the first degree and sentenced to serve twenty years in the penitentiary. He appealed to this court and on the 16th day of July, 1939, his case was reversed for the reason that the evidence was insufficient to sustain the judgment and sentence. Defendant was again tried, convicted of manslaughter in the first degree and sentenced to serve fifteen years in the State penitentiary, and this case is on appeal from that judgment and sentence.

Pending his first appeal, defendant executed a supersedeas bond, and was at liberty. Since the date of his second conviction, June 13, 1941, he has been confined in the penitentiary of this State at McAlester, unable to make bond.

The first appeal is reported in the case of Anderson v. State, 66 Okl.Cr. 291, 91 P.2d 794. The facts are fully stated in that case, and it will be unnecessary to review them here. It will only be necessary to consider the new evidence that may have been developed at his second trial.

The evidence at the second trial is practically the same as that of the first, with the exception that the codefendant, Jimmie Goff, who had been convicted and is serving a life sentence in the State penitentiary, was brought by the State and used as a witness in this case. That part of his evidence which is material as against this defendant is as follows:

"Q. After you got up there, what did you do? Did you dance yourself? A. No, sir, I didn't. After we got up there, Olin bought two pints of whiskey and we drank one and a half.

Q. Who drank out of this bottle,--the first pint he bought? A. Myself, Olin Anderson, Louise, Ethel Ragsdale, and James Cravatte.

Q. Where did you drink this whiskey? A. At the end of the platform.

Q. You drank out of a pint bottle? A. Yes, sir, I did.

Q. And you say you had the second pint later? A. We did.

Q. Who furnished the whiskey? A. Olin Anderson.

Q. Who paid for the whiskey when you were down at this Frances Smith's home? A. Olin Anderson.

Q. Did you have a pistol with you? A. I didn't.

Q. Did Olin Anderson have a pistol? A. He did.

Q. Did you later see the pistol? A. I did.

Q. What kind of a pistol was it? A. A .38.

Q. What make pistol? A. I don't know, sir.

Q. Was it a long or a short barrel? A. Seems it was a long barrel. I am not much of a judge.

Q. Where did you first see that pistol? A. You mean after we arrived at the picnic?

Q. Yes. A. He had it in his pocket.

Q. He carried it up there with him? A. Yes sir.

Q. Did you later see the pistol on the picnic grounds? A. Yes sir, I did.

Q. Tell the jury about that. A. After we drank the last whiskey he bought, Olin Anderson gave me the rest of the whiskey and the pistol.

Q. How much whiskey was in the bottle? A. Half pint. Told me he was going to dance and said he would give me the whiskey and the pistol.

Q. What did you do with the whiskey and the pistol? A. I put the whiskey in my pocket and the pistol in the bib of my overalls.

Q. Then what did you do? A. I walked out northwest of the platform, and stood out there under a tree, northwest of the platform, and after being out there a few minutes later, he came out where I was and asked me if I had any more whiskey and I told him yes, and he says, 'let's drink it,' and then he asked me for the pistol, and I pulled it out and he loaded it.

Q. When did he hand you the pistol? A. When we were drinking this whiskey.

Q. Did you know why he handed you the pistol? A. No, not at the time. Q. Did he say why he wanted you to hold the pistol? A. He didn't.

Q. You took the pistol? A. I did.

Q. You drank this half pint of whiskey? A. Yes.

Q. What did you do with the pistol? A. I put the pistol back in my bosom after he gave it back to me.

Q. Under the bib of your overalls? A. Yes, sir; under the bib of my overalls.

Q. Did you go over near this stand which was located north of the platform? A. I don't remember whether we went over that way or not.

Q. Then later what happened in the way of him calling for the pistol or you handing him the pistol? Tell the jury about that. A. He asked me for the pistol after we drank the whiskey, and he taken the pistol and loaded it and handed me the pistol back, and told me about him and Tang having a little trouble.

Q. Who was Tang? A. I don't know.

Q. Is that the fellow they called 'Tangle-Eye'? A. Yes, sir.

Q. Did you later learn his correct name was Tommy Williams? A. I don't remember. I don't know anything about him.

Q. Do you know whether he was the man in charge of the dance platform? A. I don't.

Q. You handed Olin Anderson the pistol; then what happened? A. He gave it back to me after he loaded it.

Q. How many shells did he put in the pistol? A. I don't know.

Q. You saw him put some shells in the pistol? A. Yes, sir.

Q. And handed it back to you? A. Yes sir.

Q. What did he say when he handed the pistol back to you? A. He said he and Tang had had a few words, and I asked him what it was about and he said something about dancing, and he says, 'Let's go back up on the platform,' and I said, 'All right,' and did go with him. After we got up there, Tangle-Eyes says to Olin, 'I asked you to get off the platform,' and Olin says, 'To hell with him,' and I hit him, and Olin says, 'Shoot the son-of-a-bitch!', and I did.

Q. When you first hit him over the head with the pistol, where was the pistol when you pulled it out? A. In the bib of my overalls.

Q. Where was Tang, or Tommy Williams, standing on the platform when you first hit him? A. On the northeast corner.

Q. You hit him over the head with the pistol? A. Yes, sir.

Q. How many times? A. One.

Q. Then what did he do? A. Throwed his hands over his face and run through the crowd.

Q. Which way did he run from the platform? A. Northeast, as I remember. He just cut off and run through the crowd. I couldn't tell much which way he was going.

Q. Then what did you do? A. I just throwed it up and shot it, as far as I can remember.

Q. How many times did you shoot it? A. Three times, that I can remember.

Q. Then you went immediately to the car? A. We did."

It is first contended by the defendant that after the reversal of this case by reason of the insufficiency of the evidence, the State did not have the right to retry him, and he should have been discharged.

This contention is based on Sec. 3205, O.S.1931, Tit. 22 Okl.Stat.Ann.1941,§ 1067, which is as follows: "When a judgment against the defendant is reversed, and it appears that no offense whatever has been committed, the Criminal Court of Appeals must direct that the defendant be discharged; but if it appears that the defendant is guilty of an offense although defectively charged in the indictment, the Criminal Court of Appeals must direct the prisoner to be returned and delivered over to the jailer of the proper county, there to abide the order of the court in which he was convicted."

In reversing the first case, the following language was used by this court [66 Okl.Cr. 291, 91 P.2d 799]:

"We are of the opinion that the evidence did not justify this conviction, and the court erred in refusing to instruct the jury to return a verdict of not guilty.

It is, therefore, ordered that the judgment of the District Court of Okmulgee County be reversed."

It would have been the better practice for us to have stated in that opinion that the case was reversed and remanded for a new trial, if in the opinion of the County Attorney he had sufficient evidence other than was offered in the first trial, to sustain a conviction of the defendant, otherwise the defendant be discharged. Williams v. State, 61 Okl.Cr. 396, 68 P.2d 530; Id., 68 Okl.Cr. 348, 98 P.2d 937.

The only case cited and relied upon by defendant to support his contention is the case of Harmon v. Territory, 9...