Anderson v. State

• Decision Date: 16 June 1939
• Docket Number: A-9473.
• Parties: ANDERSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

91 P.2d 794

66 Okla.Crim. 291

ANDERSON v. STATE.

No. A-9473.

Court of Criminal Appeals of Oklahoma

June 16, 1939

Syllabus by the Court.

Oklahoma Statutes 1931, Section 1808; Oklahoma Statutes Annotated Title 21, Section 172, provides: "All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission though not present, are principals." Under the above statute, to be concerned in the commission of crime as a principal, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. A mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.

Appeal from District Court, Okmulgee County; J. Harvey Smith, Judge.

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

Judgment reversed.

Eaton & Eaton, of Okmulgee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for the State.

BAREFOOT Judge.

The defendant was charged jointly with Jimmie Goff, with the crime of murder, in Okmulgee County. A severance was taken; Jimmie Goff was tried, convicted and sentenced to serve a life term in the penitentiary. The defendant was tried, convicted of manslaughter in the first degree, and his punishment left to the court, who sentenced him to serve twenty years in the penitentiary, and he has appealed.

Several assignments of error are presented in this case. The conclusion we have reached shall cause us to consider but one of these assignments. Others will be referred to as occasion demands. Did the court err in overruling defendant's demurrer to the evidence, and in refusing to instruct the jury to return a verdict of not guilty? The consideration of this error requires us to review the testimony as shown by the record.

On the night of June 19, 1937, the defendant, Olin Anderson, Jimmie Goff, Louise Smith, May Ethel Ragsdale, and James Cravatte, who were negroes, residing in Okmulgee, left the home of Louise Smith, in an automobile for the purpose of attending a dance and picnic about two and one-half miles southeast of Beggs, in Okmulgee County. They arrived there about 11:00 o'clock, p. m. Some two hundred people were in attendance, and the dance platform was the main attraction. Several crude cold drink stands had been erected in close proximity to the dance platform, and the lighting system was composed of bottles filled with kerosene with rags stuffed therein and lighted. Soon after arriving upon the picnic grounds defendant and Louise Smith danced one set. A man by the name of Tony Williams, whose nick-name was "Tangle-eye", was managing the dancing platform. The defendant, after dancing, purchased a pint of liquor and with his party, Jimmie Goff, Louise Smith, and May Ethel Ragsdale, returned to defendant's parked automobile and there drank the whiskey. The two men returned to the dance platform and the girls followed them. Some words were had between defendant and the floor manager, Tony Williams, or "Tangle-eye", and the witness Williams testified that he spoke to defendant about getting off the platform, which was crowded, and attempting to lead him off, and defendant saying, "he would be back". Defendant testified that when asked to get off the platform, which was for the dancers, he merely said: "I am going to dance myself." There was not much of a controversy according to the evidence of either Williams or the defendant. A short while after this some words were had between the witness Williams and Jimmie Goff, who had come to the dance with defendant, and Goff immediately drew a gun from his bib-overalls and struck the witness Williams, or "Tangle-eye" over the head and began to fire the pistol indiscriminately into the crowd, with the result that three innocent bystanders were killed. One of them, a man by the name of John Grayson, and two young girls.

There is no evidence that defendant participated in any way in the shooting, and not a line of evidence as to any conspiracy between the defendant and Jimmie Goff, or that defendant had any knowledge that the shooting was to occur. The facts tending to connect the defendant with the crime will be hereafter related. Immediately after the shooting, defendant, as did all others, ran from the scene of the shooting. When defendant returned to his parked automobile he found all the other parties there, including Jimmie Goff, who had done the shooting, and who was attempting to move the car, but was having trouble in doing so, by reason of the congested condition of cars and trees. That defendant, at the request of the other parties, assumed control of the car and drove toward Okmulgee. Two of the parties, May Ethel Ragsdale and James Cravatte, were let out at their homes. At the request of Jimmie Goff, defendant and Louise Smith took him to the home of his uncle near Boynton, where they arrived early in the morning and stayed the balance of the night. The next day, being Sunday, they procured a paper to see if any one had been injured by reason of the shooting at the dance. They returned to Okmulgee in the afternoon. The defendant was taken into custody by the sheriff, and questioned. At first he denied knowing anything about the killing but after some time he told the sheriff he would tell him something "if he would treat him like a white man". The sheriff made him that promise, and he then told the sheriff that he was present at the time of the shooting, and that Jimmie Goff had fired the shots that killed the three innocent bystanders. He also told the sheriff where the gun was, which belonged to him, and with which Jimmie Goff had done the shooting. He also assisted the sheriff in securing the same. Upon making this statement he was released by the sheriff and attended the preliminary hearing of Jimmie Goff for the purpose of giving his testimony, when Jimmie Goff waived his preliminary hearing. Afterwards he was charged jointly with Jimmie Goff with the crime of murder of John Grayson, one of the parties who was killed on the night of June 19, 1937.

The state introduced as state's witnesses both Louise Smith and May Ethel Ragsdale. These two witnesses corroborated the testimony of the defendant in almost every detail. They both testified that when they left home that Jimmie Goff had possession of defendant's gun, and with which the killing was done. That they saw him in possession of it at various times during the evening. That defendant was never seen by them in possession of the same at any time. That they were on the platform at the time of the shooting. That defendant did nothing to aid, abet or assist Jimmie Goff at any time, nor did he in any way participate in the shooting. They both testified that defendant did not leave the dancing platform after they returned from the automobile, and that defendant danced three sets with Louise Smith prior to the time the shooting occurred, and was there present at the time, and they saw him run just as did all the other parties.

The witness James Cravatte, who was with the parties during the time before they left Okmulgee, and on the trip to the dance, saw Jimmie Goff with the gun, and he held it for him on two different occasions, while Jimmie Goff cranked the automobile.

The only witness whom the state produced that in any way connected the defendant with the gun, was a negro boy named Chester Lewis, who testified that just a few minutes before the shooting started he saw two negroes standing at a pop stand near the dancing platform, one wearing trousers, and the other bib overalls. (This was the way defendant and Goff were dressed.) He saw the one dressed in trousers load a pistol and hand it to the one dressed in overalls. This testimony occurs to us as unusual to say the least, in view of the other testimony in this case. In the first place, it is directly contrary to the two chief witnesses for the state, Louise Smith and May Ethel Ragsdale, who both swore that defendant did not leave the platform after they returned from the automobile. At the trial of this defendant this witness positively identified this defendant as being the one who loaded the pistol and handed it to the party wearing the bib overalls, and whom he could not identify and did not know. Yet the testimony of two jurors were introduced in evidence by the defendant who had been on the jury the day before, which tried the defendant Jimmie Goff, and both swore that in that trial the witness testified that he did not know either of the defendants.

His testimony on direct examination was as follows:

"Q. (Handing gun to witness) Just show about what position he walked up to the stand and held the gun in? A. He was standing just in this direction, and he was putting shells in this way. (Indicating)

Q. All right, sit down. Did you know who handed the fellow in overalls the gun? A. No sir. I didn't know him.

Q. Never saw him before? A. No sir, I never have seen him.

Q. How was he dressed? A. He had on pants and a shirt.

Q. He was not dressed in overalls? A. No sir."

The state attempts to rebut this fact on cross examination of these witnesses that he was not asked to identify the defendant, but merely stated that he did not know him. But the record in this case, where the defendant was on trial reveals that when this witness was called by the attorneys for the state, on direct examination he was at no...