Bilton v. Territory
| Decision Date | 13 January 1909 |
| Parties | BILTON v. TERRITORY. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is error to allow the jury to be separated in a capital case unless such separation is necessary and permitted by the trial court; and, when such separation is permitted by the court, the juror or jurors so separated must be accompanied and in charge of a sworn officer of the trial court.
[Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § 854. [*]]
The use of intoxicating liquor as a beverage by a juror during the trial and consideration of a capital case will vitiate a verdict of guilty, and entitle the accused to a new trial.
[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 2254; Dec. Dig. § 926. [*]]
In order to render dying declarations admissible, it must be shown that the declarant was not only in articulo mortis, but under the sense of impending death, without hope of recovery at the time such declarations were made.
[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 430; Dec. Dig. § 203. [*]
For other definitions, see Words and Phrases, vol. 3, pp. 2297, 2298.]
Contradictory statements as to expectations of impending death may prevent the admission of a statement as a dying declaration.
[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203. [*]]
The accused will not be heard to complain that evidence offered in support of a dying declaration was heard by the court in the absence of the jury, when such absence was requested by the accused.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3009; Dec. Dig. § 1137. [*]]
The court in a prosecution for homicide, in which dying declarations are sought to be introduced in evidence, will not presume in the absence of evidence that a man who has been injured, though seriously, must necessarily feel that he is about to die, and on such presumption admit his declaration.
[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203. [*]]
It is error for the trial court to admit in evidence as a dying declaration a paper writing in the following words and figures: -unless competent evidence independent of such declaration is offered in support thereof, showing that at the time said declaration was made the declarant had given up all hope of recovery.
[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203. [*]]
When dying declarations are offered in evidence, it becomes the duty of the trial court to first determine whether the declarant was in extremis, and whether he had lost all hope of recovery at the time the declaration was made; and, if such declaration is admitted as competent, it is then for the jury to pass upon its credibility.
[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 458, 459; Dec. Dig. § 218. [*]]
The accused in a murder case having put in evidence his general reputation as a peaceable, law-abiding citizen in the community where he resides, it is error for the trial court to instruct the jury that, if the evidence independent of the testimony in reference to character is found to be evenly balanced, then evidence of character would be sufficient to turn the scale in favor of the accused.
[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 782. [*]]
In a criminal case, if the evidence is equally balanced, the accused is entitled to a verdict of acquittal.
[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 560. [*]]
The trial court ought to confine counsel strictly within the facts of the case, and, if counsel persistently go outside of the record in their argument or statements to the jury, then the court should punish them; and, if they should obtain their verdict by this means, then the court should set such verdict aside.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719. [*]]
When the prosecuting attorney goes outside of the record and makes improper remarks, calculated to prejudice the rights of the accused, it is the duty of counsel of the accused to promptly interpose an objection to such remarks, and move the court to withdraw them from the consideration of the jury and instruct the jury not to consider such remarks. In this case, if this court believes that the remarks of the county attorney complained of materially aided in bringing about the verdict, we will set the verdict aside on account of such remarks.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1689; Dec. Dig. § 728. [*]]
Error from District Court, Comanche County; F. E. Gillette, Judge.
J. M. Bilton was convicted of manslaughter in the first degree, and he brings error. Reversed.
On the 12th day of March, 1906, during the regular term of the district court of the county of Comanche, territory of Oklahoma, the grand jury duly found and returned into said court an indictment against J. M. Bilton, charging that on the 17th day of June, 1905, the said Bilton did kill and murder one P. A. Cox. The accused was arrested, arraigned, and pleaded not guilty. On the 23d day of October, 1906, he was put on his trial on said indictment, which resulted in his conviction of manslaughter in the first decree, and was, by said court, duly sentenced to serve a term of 10 years in the territorial prison at Lansing, Kan. It is from this verdict, and the judgment of the court thereon and the action of said court in refusing a new trial, that the accused appeals this case to this court.
Hudson & Key, Bridges & Vertrees, and Stillwell H. Russell, for plaintiff in error.
W. O. Cromwell, Thomas R. Clift, Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for the Territory.
The errors complained of by the accused, as shown by his petition in error herein, are as follows:
(1) Said court erred in overruling the motion of the accused for a new trial.
(2) Said court erred in overruling the motion of the accused for a new trial on the ground of newly discovered evidence.
(3) Said court erred in admitting evidence offered on the part of the territory of Oklahoma.
(4) Said court erred in refusing and ruling out competent and legal evidence offered on the part of the accused.
(5) Said court misdirected the jury in matters of law.
(6) Said court erred in the decisions of questions of law arising during the course of the trial.
(7) Said court erred in admitting in evidence the purported "dying declaration" of the deceased, P. A. Cox.
(8) Said court erred in giving general instructions numbered 3, 11, 14, 18, 20, 24, and 27.
(9) Said court erred in refusing to give special instructions requested by accused, numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 10 1/2, 11, 12, 13, and 14.
(10) Said court erred in granting a continuance to the territory of Oklahoma.
(11) Said court erred in not withdrawing from the jury certain statements made by the county attorney.
(12) Said court committed other errors appearing in the record to the prejudice of the substantial rights of the accused.
Elaborate well-prepared briefs were filed on both sides, citing more than 200 cases, all of which were duly examined and carefully read by this court.
The first assignment of error, being predicated upon the overruling of the motion for a new trial, necessarily involves a consideration of all the grounds urged by the accused for a new trial in the court below. The motion for a new trial sets up, in substance, that the jury separated without leave of the court after retiring to deliberate on their verdict, and before delivering the same into open court; that the jury was guilty of misconduct, by which a fair and due consideration of this case was prevented. From an examination of the evidence in support of the first and second grounds alleged for a new trial we find the affidavits of R. E. Dishman, T. A. Lewis, Alvin Campbell, and the accused. The substance of these affidavits is that, at different times during the introduction of testimony and the consideration of their verdict, the jury was permitted without leave of court to intermingle with the guests of the hotel at which the jury was being entertained, unattended at times by a sworn officer or bailiff, and at such times were in a position to hear any comments or statements that might have been made by other guests at said hotel; that the jury in a body, accompanied by a sworn officer, attended a public entertainment at the opera house, and were guilty of misconduct prejudicial to the rights of the accused by drinking whisky in the washroom at the hotel and in a certain saloon. Eleven of the jurors who sat in this case were called by the territory, and they each testified upon the hearing of the motion for a new trial; the substance of their testimony being that the Juror Horton left the other jurors, unattended by a sworn officer, and went alone to a closet in the rear of the lot upon which the hotel at which the jury in this case were being entertained was located; that on their way from the hotel to the courthouse Jurors Thompson and Curtis left the remainder of the panel on...
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Stephenson v. State
... ... held to prevent the admission of a statement as a dying ... declaration, 30 J. C. 266, citing, Bilton v ... Terr. (1909), 1 Okla. Crim. 566, 99 P. 163 ... The ... appellee contends that the words last above quoted ... "could ... ...