Cole v. State
| Decision Date | 05 March 1921 |
| Docket Number | A-3532. |
| Citation | 195 P. 901,18 Okla.Crim. 430 |
| Parties | COLE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is within the province of the jury to believe the state's witnesses, to the exclusion of those for defendant. A judgment of conviction, based upon conflicting evidence, will not be disturbed on appeal, where there is competent, legal and apparently credible evidence reasonably supporting the verdict.
The principle of "reasonable doubt" is so firmly intrenched in the criminal jurisprudence of this country, and so well known by jurors generally, as not to require constant repetition of the rule in every paragraph of the instructions, especially where the issues are not involved and no affirmative defense is interposed.
The general instruction on the credibility of witnesses is a sufficient rule for the guidance of the jury. The trial court should not attempt to give the jury an instruction as to whom they should believe, or whom they may disbelieve, but leave this matter to the common sense, sound judgment, and experience of the jurors.
The trial court gave the following instruction: "If you find that any witness has willfully testified falsely to any material question, then you are at liberty to disregard the whole of the testimony of such witness, except so far as the same may be corroborated by other credible evidence." Held, said instruction does not amount to a comment upon the weight of the evidence of any witness, nor an invasion of the province of the jury as to the credibility of witnesses, when considered in connection with the general instructions, given in this case, "that the jury is the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony." The decision in Rea v. State, 3 Okl. Cr. 269, 105 P 381, as to this point, disapproved and overruled.
Appeal from County Court, Pushmataha County; A. W. Rison, Judge.
Peter Cole was convicted of pointing a deadly weapon, and he appeals. Affirmed.
Welch & Welch, of Antlers, for plaintiff in error.
S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
This is an appeal from the county court of Pushmataha county, in which court defendant, Peter Cole, was convicted of pointing a Winchester rifle at one S. L. Capps, and sentenced to pay a fine of $250 and to serve three months' imprisonment in the county jail.
The offense was committed at the home of the prosecuting witness, Capps, on the 1st day of May, 1918, late in the afternoon of that date, and both the prosecuting witness and his wife testify positively that defendant pointed a Winchester rifle at Capps. Defendant admitted being at the place on that occasion, explaining his presence there for the purpose of inquiring of Capps about ejecting a tenant of defendant from certain land that Capps had recently purchased. Defendant admitted having the Winchester rifle, and said he had taken it out for hunting purposes. He denied, however, pointing the weapon at Capps.
It is contended that under this state of facts the evidence is insufficient to sustain the conviction. The testimony of the state's witnesses makes out a clear case of guilt of the crime charged. Defendant flatly denies his guilt. A son of the prosecuting witness, who was working in a field a short distance away, says he did not see defendant point any weapon at the prosecuting witness, but saw him go in the direction of the home of the prosecuting witness, carrying a Winchester rifle on his shoulder. A witness by the name of Thomlinson, who was the tenant above referred to, also testified that he did not see defendant point the Winchester rifle at Capps, and further said that he was in a position to see it if it had occurred.
The weight of this evidence, as well as the credibility of the witnesses, were matters for the exclusive determination of the jury. It was within the province of the jury to believe the state's witnesses to the exclusion of defendant. There is no good reason to disturb the judgment because of the insufficiency of the evidence. If this judgment of conviction were to be disturbed on that ground, every case appealed to this court based upon conflicting evidence would necessarily have to be reversed.
Secondly, it is contended that the court erred in giving instruction No. 3, which is as follows:
"And you are further instructed that, if you believe from the evidence in this case that on or about the 1st day of May, 1918, in this county and state, the defendant, Peter Cole, pointed a deadly weapon, to wit, a Winchester rifle, at S. L. Capps, you should find the defendant guilty as charged."
A general exception was taken to the foregoing instruction on the ground that it did not state "the law applicable to the case." No more definite objection was made at the time, nor was any other instruction in more specific terms presented to the court with a request that it be given.
The particular objection here urged against the instruction is that it omits, after the words "if you believe from the evidence in this case," the words "beyond a reasonable doubt."
By instruction No. 1, the jury were charged as follows:
"You are instructed, that the defendant is presumed innocent, and that this presumption remains with him during the trial until it has been overcome by legal and competent evidence, sufficient to satisfy your minds of his guilt beyond a reasonable doubt."
The court also gave the following instruction:
"If, after a careful and fair consideration of the testimony in the whole case, you have a reasonable doubt of defendant's guilt, you will resolve that doubt in favor of defendant and return a verdict of acquittal."
The argument is advanced that instruction No. 3 is the substantive instruction of the whole charge to the jury; that it is the only instruction advising the jury under what circumstances they should find defendant guilty and upon what degree of proof the conviction should be based; and being, the only substantive instruction contained in the general charge, it was particularly prejudicial to defendant to omit the words "beyond a reasonable doubt" from this particular instruction, because the jury without the use of such words would be permitted by said instruction to convict defendant, were they only satisfied of guilt by a fair preponderance of the evidence.
The contention urged finds some support in the early opinions of this court. On the other hand, there are numerous and later authorities to the effect that the instructions must be considered as a whole, and if, when considered together, they fairly and correctly state the law applicable to the case and are not misleading, they will be sufficient. Updike v. State, 9 Okl. Cr. 124, 130 P. 1107; Nutt v. State, 8 Okl. Cr. 266, 128 P. 165; Davis v. State, 16 Okl. Cr. 377, 182 P. 909; Davis v. State, 15 Okl. Cr. 661, 182 P. 909; Dunbar v. State, 15 Okl. Cr. 513, 178 P. 699.
Also:
"Defendant is not permitted to pick out a certain instruction and ask the court to pass upon its correctness separate and apart from the instructions as a whole." Inklebarger v. State, 8 Okl. Cr. 316, 127 P. 707.
The trial court here gave the benefit to defendant of an instruction on the presumption of innocence, and further told the jury that upon the whole case they must be satisfied of the guilt of defendant beyond a reasonable doubt, else they must acquit.
The issue in this case was not involved. Defendant merely denied his guilt, he interposed no affirmative defense. While instruction No. 3 is incomplete within itself, it is not in direct conflict with instructions Nos. 1 and 6, heretofore referred to, and, when supplemented by said instructions, it is our opinion that the doctrine of "reasonable doubt" was fairly conveyed to the jury. The principle of reasonable doubt at this late day is so firmly intrenched in the criminal jurisprudence of this country, and is so well known by jurors generally, as certainly not to require constant repetition of the rule in every paragraph of the charge, especially where the issues are not involved and no affirmative defense is interposed.
In view of the specific provisions of section 6005, Revised Laws 1910 (which was not in force at the time the cases relied upon by defendant's counsel were decided), that the appellate court shall not set aside any judgment on the ground, among others, of the misdirection of the jury, unless it appears after an examination of the entire record that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right, it cannot be said that the instruction complained of, when considered in connection with the other instructions given, in any way tended to deprive defendant of proof of his guilt beyond a reasonable doubt, or resulted to his prejudice to the extent of depriving him of a fair trial. See, also, Teague v. State, 100 S.W 401; Edwards v. State, 58 Tex. Cr. R. 342, 125 S.W. 894; James v. State, 74 Tex. Cr. R. 139, 167 S.W. 727; Nance v. State, 126 Ga. 95, 54 S.E. 932; Watts v. State, ...
To continue reading
Request your trial