Carnes v. State
| Citation | 179 P. 475,14 Okla.Crim. 585,1918 OK CR 77 |
| Decision Date | 07 September 1918 |
| Docket Number | A-2827. |
| Parties | CARNES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied April 8, 1919.
Syllabus by the Court.
An application for a continuance on account of absent witnesses is addressed to the discretion of the trial court, and a judgment of conviction will not be reversed on the ground that the court refused to grant such continuance, unless there appears to have been a manifest abuse of discretion.
The constitutional provision, which guarantees to a defendant the right to be confronted by the witnesses against him, is complied with when the defendant has had the opportunity to cross-examine said witnesses in a preliminary trial before a justice of the peace. When this has been done, and upon a subsequent trial of said cause it is satisfactorily proved that any such witness has, since the said preliminary examination, died, the testimony of such witness given at such preliminary examination and reduced to writing and signed by him is admissible upon the subsequent trial.
Where the evidence of a witness who is dead at the time of the trial, but who had been examined at the preliminary examination and his evidence reduced to writing as aforesaid was admitted upon the trial over the objection and exception of the defendant, and it clearly appears that such evidence would have tended only to increase the degree of the crime from manslaughter to murder, and the conviction obtained is only for manslaughter, this court will not reverse such conviction even had such evidence been improperly admitted upon the trial, as it does not appear that its admission under such circumstances was prejudicial to the defendant.
Where in a capital case, the defendant is furnished a list of witnesses, together with their post office addresses, that will be used in chief against him more than two days before the case is called for trial, it is not prejudicial error for the court to allow one of such witnesses to testify in chief against the defendant, although the name of said witness was not indorsed upon the information prior to the time of trial.
Appeal from District Court, Atoka County; J. H. Linebaugh, Judge.
Willie Carnes was convicted of the crime of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a period of four years, and he appeals. Affirmed.
This killing occurred in Atoka county in the month of July, 1914. It was the outgrowth of a quarrel between some full-blood Indians. The deceased, Moses Bond, was a man 80 years old or over, while the defendant, Willie Carnes, at the time of the killing was 33 years of age. The homicide occurred at the home of one Jacob Frazier, since deceased, who was also a full-blood Indian. On the day of the killing, it appears that the defendant and an Indian woman by the name of Caroline Anderson gathered at the home of Harrison Bond, a son of the deceased, who lived about a mile from Jacob Frazier. Another Indian woman by the name of Maud Davis, or, as she was sometimes called, Maud Jordan, and Harrison Bond were also present at Bond's house, and took dinner there on the date of the killing. Shortly after dinner, Harrison Bond and Willie Carnes went out into the yard or field not far from the house to a place where a keg of Choctaw beer was located and drank some of the beer. It was also in evidence that a bucket or two of beer was carried to the house and consumed by the aforementioned girls. Along some time in the afternoon, old man Moses Bond appeared at Harrison Bond's house, and he, too, drank some beer. Just what occurred thereafter does not clearly appear from the evidence. According to some of the state's witnesses, a quarrel arose between Harrison Bond and Maud Davis or Jordan, in which Harrison Bond undertook to chastise her, and in which Willie Carnes interfered. It is not clear that old man Moses Bond was present at this time, or that, if he was present, he took any part in such difficulty.
The defendant testifies that he and old man Bond got into a quarrel at Harrison Bond's house, and that old man Bond accused him (Carnes) of having some knowledge as to who killed his (Bond's) wife. Any knowledge of this Carnes denied, and left Harrison Bond's premises along about 6 o'clock in the evening on horseback, but not before the defendant says old man Bond pulled him off of his horse. At any rate, he (defendant) proceeded to Jacob Frazier's house, and Caroline Anderson either preceded in a journey to Jacob Frazier's, or else went along about the same time that Carnes did. Afterwards old man Bond was heard coming towards Frazier's house whooping and singing, as it is the custom of full-blood Indians when intoxicated. Just what occurred after old man Bond reached Frazier's premises is not clear. According to the witness Caroline Anderson, she and Jacob Frazier were sitting out on the porch at Frazier's house, and heard a sound something like the beating on a rotten log with a stick or club. Their attention being attracted by this noise, but not being able to see anything, they went out towards the field gave, which was located in a fence surrounding a cow lot near the premises and there found old man Bond lying prostrate on the ground, and Willie Carnes with a club in his hands close by. With the assistance of Caroline Anderson and Frazier, the old man Bond was guided to the porch at Frazier's house, and he laid down upon the same. Willie Carnes stayed at Jacob Frazier's house and slept in a bed there until old man Bond died at 4 o'clock the next morning. The occurrence above set forth, wherein old man Bond was apparently injured, occurred along about 8 o'clock in the evening, or shortly thereafter. It was then just about dark. After the old man's death, his body was examined, and, according to one witness, his skull was crushed in, and his left arm broken in two places, and some of his ribs were broken loose from the spinal column. Such injuries were apparently fatal, and were the proximate cause of his death.
The defendant contends that he was assaulted by old man Bond with a knife, and that, at the time he struck old man Bond, Harrison Bond had come over to Jacob Frazier's and was urging old man Bond to kill defendant, and at the same time Harrison had defendant around the body holding him; that he (defendant) struck old man Bond with a club which he accidentally stumbled over while scuffling to get away from Harrison Bond; that he at no time intended to kill old man Bond, or to hurt him seriously; that everything he did was in defense of his own person and was justifiable.
The witness Jacob Frazier testified at the examining trial that he discovered near the corner of his house, the next morning after the killing, a club which was a homemade baseball bat, made of bois d'arc, on which said club spots of blood and a few hairs were found. The defendant, however, claims that such was not the club used by him, but that he used a club about three feet long and not quite so heavy as the instrument claimed to have been found by Frazier, which club the defendant claims that he took to bed with him that night, but did not preserve it. Caroline Anderson, a state witness, testified that she found a stick of wood in the bed in which Willie Carnes slept on the morning after the homicide, but that she threw it into a pile of stove wood, believing that it belonged there.
The foregoing is a narrative statement of the material facts in the case. Other minor details were testified to, but a statement of same is not essential.
J. H. Gernert, of Atoka, and Paul Pinson, of Tulsa, for plaintiff in error.
S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
MATSON J.
Among several assignments of error relied upon for a reversal of this judgment it is strenuously contended that the court erred in overruling the defendant's motion for a continuance on account of the absence of Molsie Reed, Katie Impson, and Maud Davis or Jordan. This motion for a continuance was filed on the 8th day of February, 1916, the date the case was set for the trial in which this conviction was had. However, it appears that this...
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