Davis v. State

• Decision Date: 03 December 1935
• Docket Number: A-8978.
• Citation: 57 P.2d 634,59 Okla.Crim. 26
• Parties: DAVIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

57 P.2d 634

59 Okla.Crim. 26

DAVIS v. STATE.

No. A-8978.

Court of Criminal Appeals of Oklahoma

December 3, 1935

Rehearing Denied March 13, 1936.

Syllabus by the Court.

1. In a prosecution for murder, the evidence reviewed, and held sufficient to sustain the conviction with imprisonment for life as the punishment.

2. A peace officer has the right without a warrant to arrest a fugitive from justice. The officer being in the right and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing if he kills the officer, he is guilty of murder if he knew that the person attempting to make the arrest was an officer.

3. One who is present, aiding, and abetting in perpetrating a murder is guilty as a principal, though another does the killing.

4. A witness may not be impeached on a matter collateral to the issue. Where, however, the matter inquired about is relevant to the issue, and the witness denies having made a statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him.

Appeal from District Court, Creek County; J. Harvey Smith, Judge.

Lee Davis was convicted of murder, and he appeals.

Affirmed.

Where matter inquired about is relevant to issue and witness denies having made statement material thereto, such statement, if contradictory to his testimony given on trial, may be shown to impeach him.

The plaintiff in error, Lee Davis, was convicted of murder in the district court of Creek county, and in accordance with the verdict of the jury was sentenced to imprisonment in the State Penitentiary for and during the term of his life.

From the judgment rendered on March 14, 1935, he has taken this appeal.

The information in substance charges that Lee Davis did in said county on the 3d day of February, 1934, commit the crime of murder, in manner and form as follows: Said defendant, Lee Davis, then and there being concerned and acting with Eldon Wilson, Aussie Elliott, and Raymond Moore, alias Dupert Carolan, did unlawfully and feloniously and without authority of law and with the premeditated design to effect the death of T. J. Brumley, shoot at and into the body of the said T J. Brumley with an automatic pistol then and there held in the hand of Raymond Moore, alias Dupert Carolan, and did then and thereby inflict a mortal wound in and upon the said T. J Brumley, of which said mortal wound the said T. J. Brumley then and there died, as was intended by the said defendants.

The evidence establishes, or tends to establish, the following facts:

T. J Brumley, the deceased chief of police of the city of Sapulpa was shot and killed at the home of plaintiff in error about 4 p. m. on February 3, 1934.

The defendant, Lee Davis, was living about two miles northwest of Sapulpa in a house facing east; the "Frisco" right of way being between the house and Highway 66. The house had a north and south room with a lean-to shed behind the north room. On the day of the tragedy, Aussie Elliott, Eldon Wilson, Raymond Moore, alias Dupert Carolan, all three fugitives from justice, having escaped from the State Penitentiary, were at the home of the defendant. The night before the tragedy, the defendant was in Sapulpa in company with Eldon Wilson, who was armed with a pistol. Together they took a taxi to a house on East McKinley street, stayed a short time, then the taxi driver drove them back to the main part of the city. The defendant was approached by Policeman Floyd Sellers on Main street and asked who the man was that was with him an hour before; the defendant answered there wasn't anybody with him. The defendant was in Sapulpa the next day and hired a taxi to take him home; stopping at a grocery, he bought a box of groceries. Arriving at the home of the defendant, the taxi driver offered to carry the groceries into the house; the defendant said, "No," he would do that himself. In the afternoon of that day, Willis C. Strange, sheriff, T. J. Brumley, chief of police, with Officers W. E. Gage and Floyd Sellers, drove to the home of the defendant in the sheriff's car. Sellers went around the south side of the house; Brumley went around on the north side. The defendant came out the front door, Sheriff Strange asked him who was in the house, and he said, "Just an old country boy." Floyd Sellers came back saying there were three men in the lean-to shed, each armed with two pistols, one in each hand. "One of them is Aussie Elliott another is Eldon Wilson, I don't know who the third man is." The sheriff said to the defendant, "Why did you tell us there was only one old country boy in the house?" And the defendant said, "Well, there might be two old country boys in the house."

Sheriff Strange then told the defendant to go in and tell the boys to come out with their hands up. The defendant went into his house. In a few minutes he came back out and said, "They are willing to come out." He went back in the house again. Two or three minutes later he came to the door and said, "They are coming out with their hands up." Then Aussie Elliott and Eldon Wilson came out the front door with their hands up. As they stepped out a shot was fired, and T. J. Brumley, standing near the northeast corner of the house, fell mortally wounded and instantly died. Elliott and Wilson rushed the two officers standing in the front yard, and in the shooting that followed Aussie Elliott was killed instantly; Eldon Wilson was mortally wounded and later died. Moore alias Carolan ran from the back of the house and was pursued by Officers Sellers and Gage. They came back for ammunition and assistance. Carolan was later found armed with a Luger pistol with drum attached which made it a machine gun that would shoot 32 times. When the assisting officers came upon Carolan, he was hiding in a gully; the shooting commenced; Carolan raised up and shot and killed C. F. Loyd, a police officer. The officers then shot and killed Carolan.

Sheriff Strange testified that he knew Eldon Wilson and had him in jail charged with shooting the city marshal of Depew; later he was shot northwest of Sapulpa when he was wanted for breaking jail; that he had been convicted and sentenced for a term of 50 years for bank robbery, the Fairfax bank, and 20 years for highway robbery, and had escaped from the State Penitentiary; that Aussie Elliott was sentenced to 50 years for the bank robbery at Fairfax, and had escaped from the Granite Penitentiary.

He further testified in part as follows: About the time Elliott and Wilson got on the doorsteps a gun fired at the back of the house and Tom Brumley fell. These boys dropped their hands and reached for their guns. Elliott started at Mr. Sellers and Wilson came at him, the firing began, Elliott was killed, and Wilson mortally wounded. That they found an automatic pistol on Elliott under his shirt and in his belt; he identified the gun; that Mr. Sellers took a gun off of Wilson about the same time. That he guarded Wilson and the defendant while Officers Sellers and Gage pursued Carolan. Shortly after, with four or five assisting officers, he located Carolan in a gully, about 200 yards north of the defendant's house. As they approached the place he said, "Look out boys he is down in that gully"; Carolan raised up and exchanged shots with Mr. Loyd; after firing his second shot, Mr. Loyd fell, dying instantly. They were all shooting at Carolan and he was riddled with shot; beside the body was an automatic German Luger gun.

The testimony of Officer W. E. Gage was substantially the same as that of Sheriff Strange.

Floyd Sellers testified that he saw the defendant in Lawrence's Cigar Store on the night of February 2, about 9:30, talking to George Marz. About an hour later he met him and asked his name, he said it was "Lee Davis." Then he asked him who was the young man that was with him about an hour before; he said there wasn't any one with him. The next day about 4 o'clock he saw him at his home. Davis came out the front door; Sheriff Strange asked him who was in there; Davis said, "An old country boy"; that he recognized him as being the man he talked to the night before. That he went around the south side of the house and saw Aussie Elliott and Eldon Wilson and a third man he didn't know in the lean-to shed; each one had a gun in each hand, and he rushed back and told the sheriff and chief of police that Elliott and Wilson were back there and a third man. The sheriff said to Davis, "I thought you said there was just one old country boy back there," and Davis said, "There is two old country boys back there." Witness said: "Lee, why do you want to lie like that; I saw three myself back there." The sheriff asked him to get his rifle out of the rack in the car; he got it and handed it to him, then took out his shotgun. The sheriff said, "Davis, you go in the house and tell those boys to come out with their hands up." The defendant went in, stayed long enough to have a conversation, then came out and said, "They are coming out with their hands up," and the sheriff said to him, "Go back in there and tell them to come out if they don't want us to start shooting." The defendant went back in and had a conversation with them, then came to the front door and said, "They are coming out with their hands up now"; then he disappeared back in the house; Elliott came to the front door with his hands up; Wilson with his hands up was right behind him; a shot fired and Mr. Brumley fell; then Elliott ran at him and Wilson ran at the sheriff, at the same time reaching for their guns; that he started shooting; Elliott fell dead; Wilson fell wounded and died the next morning.

The sheriff called to Davis to come out the front door and he came out with his hands up; that he...