Caples v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: FURMAN, P.J. (after stating the facts as above).
• Citation: Caples v. State, 104 P. 493, 3 Okla.Crim. 72, 1909 OK CR 130 (Okla. Crim. App. 1909)
• Decision Date: 18 October 1909
• Parties: CAPLES v. STATE.

104 P. 493

3 Okla.Crim. 72, 1909 OK CR 130

CAPLES v. STATE.

Court of Criminal Appeals of Oklahoma

October 18, 1909

Syllabus by the Court.

(a) The omission of the word "the" before the words "State of Oklahoma" in the caption of an information is not fatal to the information.

(b) It is not necessary that an information should contain the words "in the name and by the authority of the state of Oklahoma." It is sufficient if it appears from the record of a case that the prosecution was carried on in the name and by the authority of the state. But this court suggests that, as a matter of good pleading, it would be well for indictments and informations to begin with these words.

(c) This court will give full consideration to all authorities which are founded upon, and supported by, living principles but it will not recognize or follow any precedents which have outlived their usefulness; when the reason of a rule of law ceases, this court will not enforce such rule.

(a) It is not necessary for an information charging a felony to allege that the defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await final trial thereon, or has waived such examination. If these things have not been done, the defendant can present this question to the court by plea in abatement.

(a) If a witness has been improperly impeached, it is not ground for reversal when his testimony does not present any issue material to the case. Such improper impeachment would constitute harmless error.

(b) It is improper to ask a witness, for the sole purpose of impeachment, whether he had married a woman with whom he had committed adultery, or if he had been indicted, arrested, or imprisoned, prior to conviction for any offense whatever.

(c) When a defendant, upon a trial for assault with intent to kill, takes the witness stand, and, for the purpose of mitigating the offense, is permitted to testify that he made the assault while smarting under a sense of wounded honor, on account of an insult offered to his wife, it is proper for the state to prove the relations existing between the defendant and his wife, and that the defendant had exposed his wife to such insults, in order that the jury may understand the true motive of the defendant in making such assault. For evidence which was properly admitted for this purpose, see facts stated in the opinion.

(a) While jeopardy does not begin until after the jury have been selected and sworn, yet for all other purposes the trial begins when the jury are called into the box for examination as to their qualifications.

(b) An application for a change of venue comes too late when presented without reasonable notice to the county attorney, and after the jury have been called into the box for examination.

(c) When an application for a change of venue has been prepared, signed, and verified for over 30 days, and this fact is concealed from the county attorney and the trial court, and the counsel for the defendant obtains repeated postponements of the trial, during this time, under conditions which caused the trial court and county attorney to believe that the case would be tried at the date of the postponement, and then when the case is finally called for trial, and a motion for a continuance has been overruled, and a jury has been called into the box for examination, and the trial is thus begun, the application is presented without previous notice to the county attorney, such proceedings will not be approved by this court.

(d) The court should treat all persons having business therein with absolute fairness, and such persons, and especially attorneys, must treat the court in the same manner.

(e) The proper administration of justice requires the lawyers should be fair and honorable with opposing counsel, the court, and with their clients. Any deviation from this rule will be condemned by this court, and should not be tolerated by trial courts.

(f) It is an act of justice to say that the attorneys who appeared for the defendant in this court had no connection with the case in the trial court, and are in no manner responsible for what was done by the counsel who then represented the defendant.

An information is not a "writ" or "process." It is an accusation, upon which writs and processes issue (citing 8 Words and Phrases, p. 7531).

Appeal from District Court, Carter County; Stilwell H. Russell, Judge.

W. T. Caples was convicted of assault with intent to kill, and he appeals. Affirmed.

It was improper to ask a witness for the sole purpose of impeachment, if he had married a woman with whom he had committed adultery.

The defendant was convicted in the district court of Carter county of the offense of assault with intent to kill, and his punishment was assessed at confinement in the penitentiary for the period of five years. The facts of the case are sufficiently stated in the opinion. The court instructed the jury as follows:

"Gentlemen of the Jury:

"(1) The court instructs you that in this case the defendant, Will Caples, now on trial before you, is being prosecuted by the state of Oklahoma, upon an information duly and legally presented in this court, charging him on or about the 24th day of April, 1908, at and within the county of Carter and state of Oklahoma, and within the jurisdiction of this court, with having committed the crime of assault with intent to kill, in manner and form as follows, to wit: The said Will Caples did then and there unlawfully, intentionally, wrongfully, and feloniously shoot at one Elmer Finley with a certain firearm, to wit, a pistol, with intent then and there and there by to kill him, the said Elmer Finley, contrary to the form of the statutes in such case made and provided, etc.

"(2) The court instructs you that, for a more definite and accurate description of the crime charged against the defendant, you are referred to the indictment, which you will take with you in your retirement.

"(3) You are instructed that the statutes under which the defendant is being prosecuted is as follows: 'Every person who intentionally and wrongfully shoots, shoots at or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or resisting the execution of any legal process, is punishable by imprisonment in the state prison not exceeding ten years.'

"(4) To the information read to you, the defendant has entered his plea of not guilty, and you are instructed that under the law the defendant is presumed to be innocent of the offense charged against him, and of every ingredient thereof, until such presumption is overcome by competent evidence to your satisfaction beyond a reasonable doubt, and you are instructed in this connection that it devolves upon the state to prove to your satisfaction beyond a reasonable doubt every material allegation of the information charging the offense against the defendant.

"(5) The jury are the sole judges of the facts proven and of the credibility of the witnesses, and each of them, and of the weight and value to be given to their testimony, and this rule and instruction applies to each and every witness who has testified in this case. In determining what credit you will give to a witness and the weight and value you will attach to his testimony, you will take into consideration the conduct and appearance of the witnesses on the stand, the interest of the witness, if any, in the trial or the result thereof, the motives of the witness in testifying, the witness' relation to, or feeling for or against, the defendant, and give the testimony of each witness such weight and value as you may deem right and proper.

"(6) You are instructed that an assault is any willful or unlawful attempt or offer, with force or violence, to do a corporal hurt to another.

"(7) You are instructed that homicide, or attempt to commit a homicide, is justifiable when committed by any person when resisting any attempt to murder such person or commit any felony upon him. Second, when committed in the lawful defense of such person, when there is a reasonable ground to apprehend a design to commit a felony against such person, or to do him some personal injury, and there is imminent danger of such design being accomplished.

"(8) Therefore, in this case, if you believe from the evidence beyond a reasonable doubt that the defendant, W. T. Caples, did on or about the time alleged in the information, in the county of Carter and state of Oklahoma, intentionally and wrongfully, with a pistol in his hand and held, shoot, at Elmer Finley, with said pistol, with intent to kill the said Elmer Finley, as alleged in said information, then under such circumstances you are instructed that it is your duty to find the defendant guilty, as charged in the information.

"(9) You are instructed that although you may believe from the evidence that the defendant's wife communicated to him the fact that the witness, Elmer Finley, had made overtures to her to have carnal intercourse with her, in the manner testified to in the evidence before you, and you further believe that this was the reason that prompted the shooting at the said Elmer Finley by the defendant, if you find that he did so shoot at him, then you are instructed that such communication referred to did not excuse or justify the defendant in shooting at the said Finley, as alleged in the information, and if you find that such communications were the reason for such shooting, then you are instructed to find the defendant guilty.

"(10) You are...