Drury v. Territory Oklahoma

• Decision Date: 08 February 1900
• Citation: 60 P. 101,9 Okla. 398,1900 OK 23
• Parties: JOSEPH DRURY v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1900 OK 23

60 P. 101

9 Okla. 398

JOSEPH DRURY v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 8, 1900

Error from the District Court of Garfield County; before John L. McAtee, District Judge.

Syllabus

¶0 1. CRIMINAL LAW--Principal and Accessory--Distinction Abolished. By the provisions of our crimes act, all distinction between an accessory before the fact and a principal, and between principals in the first and second degree in cases of felony, are abolished, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, must be indicted, tried and punished as principals.

2. SAME--Accessories Before and After Fact--Statutory Denomination. All those persons who at the common law were classed as principals, principals in the first degree, principals in the second degree, accessories at the fact and accessories before the fact, are, under our statutes, made principals; while those who were classed as accessories after the fact, are, by the terms of the statute, denominated accessories.

3. SAME--Aide and A better-- Principal, When--Indictment--Necessary Charge. One who was present at the commission of a felony, and was aiding and abetting the one who committed the overt act, was at common law a principal in the second degree, and is under the statute a principal. In charging such offense it is not necessary to allege any facts other than would be necessary in charging the principal who committed the overt act.

4. MURDER--Indictment--Sufficient Which Charges, What. An indictment for murder is sufficient which charges that A and B, in and upon one C, feloniously, without authority of law, and with a premeditated design to effect the death of the said C, did make an assault, and the said A, a certain revolving pistol then and there charged with gunpowder and leaden bullet, which he, the said A, then and there held, and then and there, without authority of law, and with a premeditated design to effect the death of the said C, did shoot off and discharge, at and against the said C, thereby giving to him, the said C, then and there with the leaden bullet aforesaid so shot off and discharged as aforesaid, one mortal wound, in and through the head, of which mortal wound, he, the said C, then and there instantly died. And the said B., was then and there feloniously, without authority of law, and with the premeditated design to effect the death of the said C, present, aiding and abetting the murder aforesaid, in manner and form as aforesaid to do, commit and perpetrate. And the jurors aforesaid, upon their oaths aforesaid, do say that the said A and B, him, the said C, in the manner and by the means aforesaid, without authority of law, and with a premeditated design to effect the death of the said C, did kill and murder; contrary to the form of statutes in such case made and provided, and against the peace and dignity of the Territory of Oklahoma. Such indictment charges B as a principal, and not as an accessory, and the fact that the indictment charges the particular manner in which B is held as a principal, gives him no cause to complain, because the indictment is more specific than the statute requires.

5. VERDICT--Immaterial Evidence-- Same not Objected to. This court will not set aside the verdict of a jury on the ground that incompetent and immaterial evidence was permitted to go to the jury, where the record shows that such evidence was not objected to by the defendant, and no motion was made to strike it out.

6. INSTRUCTIONS--Not Reviewed, When. Instructions given by the court and not excepted to by the defendant at the trial, or before the trial court will not be reviewed on appeal

7. EVIDENCE--Objection to--Ground for-- Error. Where objection is made to the introduction of evidence on some particular ground, which is not well taken, the court will not treat such objection as general, and hold that it was error to permit such evidence to go to the jury, for some reason not stated in the objection.

8. CRIMINAL TRIAL--Admissions--Witness. When the prosecution is seeking to prove admissions made by the defendant tending to show his guilt, it is not required that the particulars of time, place and persons present shall be given, before the witness is permitted to testify to such admissions.

9. EVIDENCE--Witness--Confession--Error. Where a witness is called for the prosecution and asked if the defendant had not made certain statements in the nature of confessions or admissions to him, and the witness denies that any such statements were made, it is error to permit the attorneys for the prosecution to testify that the witness had stated to them that the defendant had made to the witness the statements inquired about and to permit such attorneys to testify what the witness had told them the admissions and confessions were.

10. INCOMPETENT EVIDENCE--Criminal Cause--Reversible Error. Where the trial court has permitted illegal and incompetent evidence to go to the jury, and subsequently withdraws such evidence and directs the jury to disregard it, and give such evidence no consideration, the correct rule for determining whether such action is reversible error is, if the illegal evidence was of such a character as would ordinarily create such prejudice against the defendant as was reasonably calculated to make a fixed impression on the minds of the jury and influence their verdict, and the court, from an examination of the whole case, is unable to say that such evidence did not affect the verdict, or that the verdict would not probably have been different in any event, then the verdict should be set aside and new trial ordered.

11. MURDER-- Necessary Proof--Defense. Where one is charged with the crime of murder and it is alleged that another committed the overt act in the perpetration of the crime, it is not sufficient to show that the defendant was present and knew the offense was being committed; the proof must go further and show, beyond a reasonable doubt, that he was participating in the homicide before or at the time of its commission.

12. NEW TRIAL--Grounds for-- Rule Applied. The evidence in this case examined, and held, that the illegal evidence admitted and subsequently withdrawn was of such a damaging and prejudicial character, and the legal and competent evidence of such weak and uncertain character, that the court cannot say that the jury were not probably misled and influenced by the illegal evidence, and new trial should be ordered.

Buckner & Son, for plaintiff in error.

Harper S. Cunningham, Attorney General, for defendant in error.

BURFORD, C. J.:

¶1 The defendant, Drury, and one Crandall, were tried and convicted for the crime of murder. Drury appeals to this court. The first contention of plaintiff in error is that the court erred in overruling the demurrer to the indictment. The indictment, after the formal parts, charges as follows:

"That John W. Crandall and Joseph Drury, late of said county, on the fourth day of February, in the year of our Lord one thousand eight hundred and ninety-eight, in the said county of Garfield, Territory of Oklahoma, in and upon one John McCoy, then and there being, feloniously, wilfully, of their malice aforethought, without authority of law, and with a premeditated design to effect the death of the said John McCoy, did make an assault; and that the said John W. Crandall, a ce rtain revolving pistol then and there charge and loaded with gunpowder and a leaden bullet, which he, the said John W. Crandall, then and there had and held, at and against the said John McCoy, then and there feloniously, wilfully, purposely, of his malice aforethought, without authority of law, and with a premeditated design to effect the death of the said John McCoy, did shoot off and discharge, and that said John W. Crandall, with the leaden bullet, out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said John W. Crandall, discharged and shot off as afore aid, at and against the said John McCoy, did then and there feloniously, wilfully, purposely, of his malice aforethought, without authority of law, and with a premeditated design to effect the death of the said John McCoy, strike, penetrate and wound the said John McCoy, in and upon the head of the said John McCoy, giving to him, the said John McCoy, then and there with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said John W. Crandall, at and against the said John McCoy as aforesaid, one mortal wound, in and through the head of him, the said John McCoy, of which mortal wound the said John McCoy did then and there, to-wit: in the county of Garfield, and Territory of Oklahoma, on the fourth day of February, A. D. 1898, die; and that the aforesaid Joseph Drury then and there feloniously, wilfully, of his malice aforethought, without authority of law, and with a premeditated design to effect the death of the said John McCoy, was present, aiding, helping, abetting, comforting, assisting, maintaining and advising the murder aforesaid, in manner and form aforesaid, to do, commit, and perpetrate. And the jurors aforesaid, upon their oaths aforesaid, do say that the said John W. Crandall and Joseph Drury, him, the said John McCoy, in the manner and by the means aforesaid, feloniously, wilfully purposely, of their malice aforethought, without authority of law, and with a premeditated design to effect the death of the said John McCoy, did kill and murder; contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the Territory of Oklahoma."

¶2 It is the contention of counsel for plaintiff in error, that this indictment charges Crandall as a principal in the crime, and Drury as an accessory before the fact, and that as our statute abolishes these distinctions, and requires all...