Beshirs v. State

• Decision Date: 07 September 1918
• Docket Number: A-2717.
• Citation: 174 P. 577,14 Okla.Crim. 578,1918 OK CR 7
• Parties: BESHIRS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

174 P. 577

14 Okla.Crim. 578, 1918 OK CR 7

BESHIRS v. STATE.

No. A-2717.

Court of Criminal Appeals of Oklahoma

September 7, 1918

Syllabus by the Court.

In a prosecution for murder, where the testimony of a witness was given at the preliminary examination, and his testimony was taken by the reporter, in the presence of the defendant and his counsel, who cross-examined him, and such testimony is transcribed and filed with the court clerk, held, that if the witness is not present at the final trial, and the state shows that such witness cannot, with due diligence be found within the jurisdiction of the court, the testimony of the witness may be read to the jury; and held, further, that it is immaterial that the names of the witnesses used by the state to prove that defendant had been confronted by the witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon the information.

In a prosecution for murder, evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce the degree of homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine.

A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he had formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.

In a homicide case, it is not error to refuse the defendant's request for instructions submitting the issue of manslaughter in the second degree, where there is no evidence tending to establish that degree of homicide.

Appeal from District Court, Bryan County; Jesse M. Hatchet, Judge.

Aaron Beshirs was convicted of manslaughter, and he appeals. Affirmed.

McPherren & Cochran, of Durant, for plaintiff in error.

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

DOYLE P.J.

This appeal is from a conviction had in the district court of Bryan county, in which appellant was found guilty of manslaughter in the first degree and his punishment assessed at imprisonment in the penitentiary for the term of 17 years. The information charged the defendant, Aaron Beshirs, with the murder of one Walter Smith, alleged to have been committed in Bryan county on or about the 5th day of September, 1915.

The evidence was substantially as follows:

Lucy Purvis testified: That she was staying at the home of her sister, Mrs. Joe Beshirs, and on Sunday afternoon, September 5, 1915, Ada Beshirs was there and Walter Smith. The deceased called there about 3 o'clock. The defendant called there about 4 o'clock and left shortly afterwards. That she and Ada Beshirs, with Walter Smith, started that evening in a buggy to go to singing at Yuba. After going some distance they met the defendant who said, "Is that you Walter?" and Mr. Smith said, "Yes." He then said, "Where are you going and who have you with you?" and Mr. Smith replied, "To the singing with Lucy and Ada." The defendant then began cursing Mr. Smith and they drove off and left him. They met Wayne Creager, and the defendant overtook them and again began cursing Mr. Smith and calling him vile names, and Mr. Smith asked Mr. Creager to take the defendant back, as he did not want the girls to hear him cursing. That they had not gone far when the defendant overtook them again and rode up alongside of the buggy with a bottle in his hand, and he hit at Mr. Smith with the bottle, and said he was going to throw the bottle at him, and Ada, his sister, said "he should have more respect for her than that," the defendant answered that he did not care if he was dead and went to hell in 15 minutes, and he rode alongside the buggy cursing Smith, and hit at him with the bottle, and then struck Mr. Smith on the temple, and Mr. Smith fell over in the buggy and somebody caught the team.

W. A. Creager testified: That he met the defendant that evening, and he whooped and hallooed and said he was a fighting son of a bitch. That the defendant had a bottle in his hand. That he rode off and left him, and soon the defendant overtook him, and they overtook Walter Smith with the defendant's sister, Miss Ada Beshirs, and Miss Lucy Purvis in the buggy. The defendant began cursing Smith, and Smith asked witness to take him away, and they stopped, and the defendant got off of his horse. In a few minutes the defendant got on his horse and said, "Creag, let's go catch up with them," and he started on pretty fast. That he heard the girls screaming, and when he reached the buggy in front of Mr. Stowers' house the defendant was in the buggy with Smith. Mr. Stowers took the bottle away from him, and pulled him out of the buggy and told him to go on home or he would hurt him. The defendant asked witness to catch his horse for him. That he caught his horse and led it to him, and he got on and said he would go home and get his gun and come back and kill the damn son of a bitch, and rode off.

Fred Stowers testified that he lived near Yuba; that after dark on Sunday September 5th, he heard women screaming a few hundred yards from his house, and a few minutes later he heard the screaming in front of his house, and somebody was calling for help; that he went to the road and met the girls near the roadside, and Walter Smith was in a buggy and the defendant climbed into the buggy and grabbed Smith around the neck;...