Driggers v. United States
| Decision Date | 13 May 1908 |
| Docket Number | Case Number: 675 Ind Ter T |
| Citation | 95 P. 612,1908 OK 84,21 Okla. 60 |
| Parties | DRIGGERS v. UNITED STATES. |
| Court | Oklahoma Supreme Court |
¶0 1. CRIMINAL LAW--Conspiracy--Evidence--Acts and Statements of Co-conspirators Prior to Formation. Where the guilt of one of several defendants, jointly indicted for a felony, is sought to be established by evidence showing, or tending to show, a conspiracy between him and the others for the commission of the crime, evidence as to acts or statements of the others must be confined to such statements as were made, or acts done, at times when the proofs in the case permit of a finding that a conspiracy existed, and the acts or statements of one of the defendants prior to the formation of the conspiracy are inadmissible as evidence against others.
2. WITNESS--Impeachment--Prior Consistent Statement. It is a general rule that where evidence of contradictory statements is offered to impeach the credit of a witness, evidence of statements made by him on former occasions consistent with his evidence are inadmissible. But, where it is charged that the evidence of the witness is a recent fabrication, and is the result of some relation to the party or cause, or of some motive or personal interest, his evidence may be supported by showing that he had made a similar statement before that relation or motive existed.
3. CRIMINAL LAW--Hearsay Evidence--Former Evidence--Death of Witness--Return on Subpoena. Proof of the return of an officer on a subpoena that the witness is dead, the same not being authorized or required by law, and by the oral evidence of witnesses that they had been informed of his death, is insufficient to establish this as a fact to render competent in a final trial the testimony of such witness taken and transcribed at the preliminary examination.
4. SAME--Accomplice--Instruction--Question for Jury. Whether a witness is an accomplice requiring corroboration to support a conviction is a question of fact for the jury, and hence an instruction that under Mansf. Dig. section 2259 (Ind. T. Ann. St. 1899, section 1602), a conviction cannot be had on the testimony of an accomplice unless corroborated was sufficient, and it was not error not to further charge that a certain witness was an accomplice. If defendant regards the word "accomplice" as a technical one requiring a definition by the court, he should so request, but not ask an instruction that a certain witness is an accomplice; that being a question for the jury.
5. HOMICIDE--Instruction--"Mutual Combat." A charge that if defendant was informed and believed that the deceased had taken possession of a field claimed by him, and that he would be there with an armed party on the morning of the killing, and that they had made threats against the life of defendant, and the defendant, knowing all of these things, voluntarily organized a party, arming them With deadly weapons for the purpose of meeting said parties in deadly conflict, going to the place of the killing, and a conflict ensued, and the deceased was killed, then such conflict was a "mutual combat," and all parties who knowingly and intentionally engaged in it are guilty of murder, was not, under the theory of the prosecution and the evidence it, this case, erroneous.
Appeal from the United States Court for the Southern District of the Indian Territory, at Pauls Valley; before J. T. Dickerson, Judge.
B. F. Driggers was convicted of murder, and brings error. Reversed and remanded.
October 3, 1903, the grand jury of the United States Court for the Southern District of Indian Territory returned its indictment, charging B. F. Driggers, Tom McCarter, John Underwood, and Ted Bennett, with the murder of Robert G. Brady, and L. W. G off as a principal, in the second degree as to each of them. Goff was placed on trial at Ada; and after his conviction, the venue was changed, for the trial of the other defendants, to Pauls Valley, at which place the appellant in this case was placed on trial, in June, 1905, and the jury returned a verdict finding him guilty in the manner and form charged, without capital punishment. A motion for new trial was filed and overruled, the defendant saving his exception, and the case was taken to the United States Court of Appeals of Indian Territory by writ of error. On September 26, 1905, that court affirmed the judgment of the lower court. Driggers v. U.S. 104 S.W. 1166. A petition for rehearing was filed, which was pending at the time Indian Territory was admitted as a state, and the case is in this court by virtue of the terms of the enabling act.
On the consideration of the petition for rehearing this court granted it, and on the hearing on the merits of the case the Attorney General, represented by Hon. W. A. Ledbetter, filed his answer to the contentions of appellant, and admitted error in the record sufficient to require us to reverse the prior decision rendered herein. He admitted that the admission of the testimony of witnesses Rhea and Saddler was erroneous, and then said: "There are other errors in the case, which will doubtless receive the attention of the court." In view of the fact that we concur in the conclusion reached by the Attorney General's office, it will be unnecessary for us to discuss in detail and at length many of the propositions urged upon the attention and considered by Mr. Justice Clayton, who wrote the opinion for the United States Court of Appeals of Indian Territory, but will confine our discussion to those matters which, at the trial of the case anew, will probably arise again.
The scene of the homicide was at a farm, located near the little town of Jesse, in the Chickasaw Nation in Indian Territory. An Indian woman by the name of Colbert owned this land, which she had leased to a merchant by the name of McNeal. He, in turn, had rented the place, for the year 1902, to one of the defendants named in the indictment (Goff) and a man by the name of Riley. A crop of cotton had been raised on one part of the land, and a crop of corn on the other, the two crops joining, but without any fence or other division between them. Driggers, the defendant, who lived in that neighborhood, some time in the month of October, 1902, bought the right to run his stock in the cornfield after the corn was gathered, paying therefor the stun of $ 50. Riley and Goff had not picked their entire crop of cotton; and, there being no fence between the cornfield and the unpicked cotton, the defendant Driggers did not turn his cattle in, under an agreement with his vendors that they would protect him and see that he was permitted to turn in after the cotton crop was gathered. Goff claimed that he had rented the land from McNeal for the year 1903, and it was under this asserted right of his that he agreed that Driggers might have the benefit of the stock field, notwithstanding the fact that the cotton crop was not all gathered at the end of December, 1902. McNeal testified that he had not rented to Goff, but the evidence shows that if he had, he changed his mind, and rented the land to Robert G. Brady, the deceased, who was living in that neighborhood, running cattle, and who, desiring to use the stock field, the day before the homicide, started to run a fence across the land dividing the cotton field from the stock field, so that his cattle might run therein without interfering with the unpicked cotton crop. While he was engaged with his hands in the construction of this fence, Goff came to him in the afternoon, and, according to the testimony of Kelley, said to Brady:
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This testimony was offered on the theory that a conspiracy had been formed between Goff and the defendant McCarter, which was subsequently joined by Driggers, and that it was admisssible, as against Driggers, by virtue of this fact. It was objected to on the part of the defendant, and its admission is assigned as one of the errors. Goff immediately went down to where Driggers lived for the purpose of informing him of the presence of Brady on the land, of the adverse claim, and the building of the fence. Driggers was not at home, but returned that night about 10 or 11 o'clock, and then learned that Brady was going to turn cattle in the cornfield. During the rest of that evening, and that night, the defendants here gathered together Winchesters and shotguns and ammunition, and arming themselves with them, appeared next morning inside the field, along the highway where it was expected Brady would drive his cattle near to turn them in. Driggers testified that he and Kelley were enemies, and that he expected that he would accompany Brady when he came with the cattle; that he expected to drive them out if they were turned in; that his presence and his purpose in going to the field with the parties named, armed as they were, was that he believed that when Brady saw they were there, he would not come up; that he supposes that he was there to resist any trouble that Kelley would bring about, and that he thought he would keep the cattle out. On the morning of the difficulty a man by the name of French Curtiss came down, ahead of the Brady party, in a wagon, with some wire and posts for the purpose...
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