Brown v. State

• Citation: 132 P. 359,9 Okla.Crim. 382,1913 OK CR 122
• Parties: BROWN v. STATE.
• Decision Date: 19 May 1913
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

132 P. 359

9 Okla.Crim. 382, 1913 OK CR 122

BROWN v. STATE.

Court of Criminal Appeals of Oklahoma

May 19, 1913

Syllabus by the Court.

(a) A departure from the form or mode prescribed in the Code of Criminal Procedure in respect to any pleadings or proceedings or any mistake therein will not render a judgment of conviction invalid unless it has actually prejudiced the defendant or tended to prejudice him in respect to his substantial rights.

(b) When an information is not signed by the county attorney, it fails to comply with the requirements of the Code, but under section 6754, Comp. Laws 1909, this defect can only be taken advantage of by demurrer and cannot be raised in the first instance in arrest of judgment.

(c) Jurisdiction of the subject-matter cannot be conferred by consent, and the want of such jurisdiction cannot be waived but jurisdiction of the person can be conferred by consent and the want of such jurisdiction is waived unless objected to in apt time.

(d) The Code of Criminal Procedure directs that all informations shall be signed by the county attorney. This is required as a guaranty of good faith and to protect a defendant against prosecution by private parties without authority of law; but where a defendant pleads to an information which is not signed by the county attorney, and without objection goes to trial thereon, he waives all right to afterwards object to the information upon this ground, and cannot be heard upon appeal to complain that the information was not signed by the county attorney as directed by law.

(e) It is not necessary for an information in a felony case to be verified by the oath or affirmation of any person. Such informations rest alone upon a preliminary trial had before an examining magistrate in which the defendant was held to answer the charge against him or the waiver of such examining trial by the defendant.

Where two or more persons are jointly indicted, the state may use one of such defendants either before or after conviction as a witness against the others without first dismissing the prosecution against such defendant so used as a witness.

(a) Both by the provisions of our statute and by the policy of the law an attorney is not permitted to testify concerning any communication made to him by his client in that relation or his advice thereon without the client's consent.

(b) Where a client takes the witness stand and testifies as to communications made by her to said attorney and as to his advice thereon, such action entirely removes the bond of secrecy provided by law as to communications passing between counsel and client and operates as a consent on the part of such client to the testimony of her said counsel as to what actually transpired between them.

(a) A witness may be qualified to testify as an expert by studying without practice or by practice without studying; and where a witness has qualified as an expert, based upon studying alone, it is error to reject the testimony of such witness upon the ground that such testimony was not based upon actual experience.

(b) It is not error for the trial court to reject expert testimony which is not applicable to the evidence in the case.

(c) Expert testimony may be given as to matters which come within the actual knowledge of the witness applicable to the evidence in the case, and also in reply to hypothetical questions; but, when given in reply to hypothetical questions, the questions asked should be based upon and include all and be limited to the testimony in the case with reference to which the expert testimony is desired.

(d) Hypothetical questions, which do not include all of the material testimony or which include matters not in testimony before the court, should not be propounded to expert witnesses.

(a) While it is true that the corpus delicti must be established as an independent fact, beyond a reasonable doubt, yet it is not necessary that it should be proven by direct and positive proof. It may be proven by circumstantial evidence if from all of the circumstances the jury are satisfied of the defendant's guilt beyond a reasonable doubt.

(b) For circumstantial evidence held to establish the corpus delicti in a murder case, see opinion.

(c) Where a woman is on trial charged with the murder of her husband, evidence may be admitted showing that she was in love with another man and had maintained illicit relations with him for the purpose of showing her motives and explaining the conduct of the parties implicated in the entire transaction.

Where it appears during the trial of a criminal case that one of the jurors on the panel has been convicted of a felony, and as soon as this discovery is made it is brought to the knowledge of counsel for appellant, and counsel do not promptly challenge said juror and seek to secure his discharge from the jury, he cannot after his conviction be heard to complain that such juror was disqualified.

(a) It is error for the trial court to single out a defendant and charge upon the weight of his testimony, and, where this is done and an exception is reserved to such instruction, a conviction will be reversed if any reasonable theory can be evolved from the testimony upon which the jury might have acquitted the defendant.

(b) Although the court may err in its instructions to the jury yet if the evidence is conclusive as to the guilt of the defendant, and it appears, upon an inspection of the entire record that the defendant could not have been injured by such error, a new trial will not be granted. It is not necessary that the appellate court should know that such error did not injure the defendant. The common things of life are matters of knowledge. The sacred things of life are matters of belief. If the court find nothing in the record from which it can reasonably believe that the defendant was injured thereby, the conviction should be affirmed, notwithstanding error in the ruling of the trial court.

(c) It is the duty of an appellate court to give judgment without regard to technical errors or defects or to any exceptions which do not affect the substantial rights of the parties.

The statute directing that this court shall render a decision in each case within three months from the date said cause is submitted is directory and not mandatory.

Appeal from District Court, Washington County; John J. Shea, Judge.

Nettie V. Brown was convicted of murder, and she appeals. Affirmed.

Charlton & Vandeventer, of Bartlesville, and King & Shinn, of Pawhuska, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN J.

First. In their brief counsel for appellant claim that "the information in this case has never been signed or verified by the county attorney." As disclosed by the record, the information in this case is as follows:

"State of Oklahoma, Osage County--ss.:

In the District Court of Said County.

The State of Oklahoma, Plaintiff, v. A. P. Brown, Nettie V Brown, Cora Brumfield, Bert Brumfield, Defendants.

Comes now L. F. Roberts, county attorney in and for Osage county in the state of Oklahoma, and in the name, and by the authority of, and on behalf of the state of Oklahoma, informs the court, and gives the court to know and understand that on the 28th day of April, in the year of our Lord one thousand nine hundred and nine, in the county of Osage, state of Oklahoma, the said defendants, A. P. Brown, Nettie V. Brown, Cora Brumfield and Bert Brumfield, did then and there knowingly, willfully, feloniously, and with malice aforethought, without authority of law, and with the premeditated design, then and there existing in the minds of the said defendants, A. P. Brown, Nettie V. Brown, Cora Brumfield and Bert Brumfield, to effect the death of one T. H. Brown with a certain deadly and dangerous weapon, to wit, a foot adz, struck the said T. H. Brown on the head and so inflicted and made a mortal wound upon and in the body of him (the said T. H. Brown), of which said mortal wound so inflicted upon him in the manner and form and with the purpose aforesaid the said T. H. Brown instantly died, as were intended by the said defendants, A. P. Brown, Nettie V. Brown, Cora Brumfield and Bert Brumfield, he should contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.

State of Oklahoma, Osage County--ss.:

F. L. Roberts, being first duly sworn, on oath says that the statements set forth in the within information are true."

Indorsed:

"No. 175. In District Court. Information. State of Oklahoma v. A. P. Brown, Nettie V. Brown, Cora Brumfield, Bert Brumfield. October 25th, 1909. Thos. Leahy, Jr., Clerk.

Names of Witnesses: Mode Johnson, George Davis, Mrs. E. Powell, Mrs. F. R. Powell, Mrs. Elsie Carson, Mode Jenkins, J. H. Wood, Frank Demerest, Ruby Waters, Mrs. Jenkins, Mrs. Ida Wharton, G. R. Powell, J. H. Busher, Chas. McWhirter, Roy Hooker, George Petit, John Evans, Lee McDonald.

I have examined the facts in this case and recommend that a warrant do issue.

L. F. Roberts, County Attorney."

In response to the objection that the information in this case was never signed by the county attorney, the Attorney General attempted to amend the record by showing that the original information had been lost and by filing affidavits of the county attorney and other persons who had seen the original information that it was properly signed by the county attorney. Waiving any discussion of the question as to whether or not this record can be amended in this way after being duly certified by the clerk of the district court of Osage county upon a change of venue to Washington county, we think that, even as the record appears without such attempted amendment, the objection now...