Dunham v. State

• Decision Date: 01 December 1943
• Docket Number: A-10175.
• Citation: 143 P.2d 834,78 Okla.Crim. 54
• Parties: DUNHAM v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

143 P.2d 834

78 Okla.Crim. 54

DUNHAM v. STATE.

No. A-10175.

Court of Criminal Appeals of Oklahoma

December 1, 1943

Syllabus by the Court.

1. Test of sufficiency of indictment or information is, not whether it might possibly have been made more certain, but whether it alleges every element of offense intended to be charged and sufficiently apprises defendant of what he must be prepared to meet.

2. An information which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.

3. It is not necessary to allege and prove that the homicide was perpetrated without a design to effect death, where one is charged with murder while engaged in the commission of a felony.

4. Where a party has placed a witness upon the stand, having reason to believe that he will testify to a given state of facts, and the witness then testifies to a different state of facts, the party calling him as a witness may show his previous statements for the purpose of affecting his credibility and to explain the reason for placing him on the stand and to counteract the injurious effect of his testimony.

5. A witness' prior contradictory statement when introduced is to be considered only for the purpose of impeachment and to explain the calling of such witness. It cannot be used as substantive testimony tending to prove the truth of the facts stated. The court, by proper instruction, should limit the application of such testimony to this purpose.

6. The jury are not bound to believe testimony because it is uncontradicted and not directly impeached. The credibility of the witnesses testifying in behalf of defendant is the exclusive province of the jury to determine, and although such testimony may be uncontradicted, and not directly impeached, when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.

7. In a prosecution for murder as defined by Sec. 10324, O.S.1931, 47 O.S.1941 § 93, the evidence is held to support a verdict of manslaughter in the first degree, and fixing minimum punishment at four years' imprisonment in the penitentiary, and that no reversible error was committed on the trial.

Appeal from District Court, Delaware County; Wm. M. Thomas, Judge.

Joe Dunham was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

L Keith Smith, of Jay, and R. A. Wilkerson, of Pryor, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for the State.

DOYLE Judge.

Plaintiff in error was convicted on an information filed in the District Court of Delaware county March 12, 1941, which omitting formal parts, charged: "that Joe Dunham did, in Delaware County, and in the State of Oklahoma, on or about the 2nd day of February, in the year of Our Lord, One Thousand Nine Hundred and Forty-one, and anterior to the presentment hereof, commit the crime of Murder, in the manner and form as follows, to-wit: Said defendant, Joe Dunham then and there being was then and there wilfully, wrongfully, unlawfully, and feloniously operating and propelling a motor vehicle, to-wit: One 1933 Model Chevrolet coupe, upon a public highway while under the influence of intoxicating liquor, from a point known as Connie Martin's beer tavern, on state Highway No. 20, near Jay, Oklahoma, to another point near Eucha, in Delaware County, Oklahoma, and said defendant, then and there being, then and there driving, operating and propelling said motor vehicle while under the influence of intoxicating liquor as aforesaid did, wilfully, unlawfully, wrongfully, and feloniously operate and propel said motor or vehicle in such manner as to cause the said vehicle to overturn and wreck, inflicting upon the body and person of one George Hughes, certain mortal wounds and injuries from which the said George Hughes did, on February 2nd, 1941, die, contrary to," etc.

Upon trial he was by the verdict of the jury found guilty of "manslaughter in the First degree as charged in the information herein". But were unable to agree upon the punishment.

His motion for new trial was overruled; May 20, 1941, the court rendered judgment and sentenced the defendant to imprisonment in the State penitentiary for the term of four years.

On November 7, 1941, an appeal was perfected by filing in this court a petition in error with case-made attached.

The record shows that when judgment was rendered the defendant gave notices of his intention to appeal. The court fixed the amount of the appeal bond at $3,000, which was given and approved May 24, 1941.

It is first contended that the court erred in overruling the demurrer to the information and defendant's objection to the introduction of evidence on the ground that the facts stated do not constitute a public offense.

In Maney v. State, 53 Okl.Cr. 438, 13 P.2d 597, this court held: "An information which informs the accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient."

In Clark v. State, 63 Okl.Cr. 138, 73 P.2d 481, this court held: "It is not necessary to allege and prove that the homicide was perpetrated without a design to effect death, where one is charged with murder while engaged in the commission of a felony."

And see Harry v. State, 59 Okl.Cr. 302, 58 P.2d 340; Martin v. State, 35 Okl.Cr. 248, 250 P. 552; Warren v. State, 24 Okl.Cr. 6, 215 P. 635.

It follows that the information in this case is sufficient and the court did not err in overruling the demurrer thereto.

The two other assignments of error argued in the brief require a brief statement of the evidence.

It appears that on February 1st, 1941, the defendant, Joe Dunham, Tobe Reasor and George Hughes borrowed a trailer truck from Connie Martin to make a delivery of posts, which they had made, to Salina. In taking the same to Salina they had to go to Pryor to collect their pay for making the posts; there the payment check was cashed. Before starting back to return the truck to Connie Martin, the defendant, Dunham and George Hughes bought a pint of whisky and on their way from Salina to Johnson's Service Station at the "Y" they drank the whisky, arriving at Connie Martin's about 9 o'clock p.m., they there drank beer. They left Martin's place in a Chevrolet coupe, owned by the defendant. Tobe Reasor was driving the car and the defendant, Dunham, Hughes and a girl named Frankie Fern Quick was in the car. After going south on Highway No. 10 for about a mile they stopped the car and the boys left the car and behind a stump near the highway picked up a bottle. When they came back to the car, the defendant Dunham took the wheel and was driving. Other stops were made and they were fussing and quarreling. Frankie Fern Quick was sitting in the middle, Tobe Reasor on the right side, with George Hughes sitting in his lap. They proceeded on until they came to a turn in the road, there on account of the defendant's intoxicated condition the car turned over in such a manner that George Hughes was crushed to death under the car, and Tobe Reasor's right leg caught in the door of the car and he lay there for about an hour until help came to release him.

Roy J. Durnil testified: "I live in Jay, engaged in the funeral business. On February 2nd, 1941, I was called to the place of the accident on the highway between Jay and Eucha, coming there about 4:30 in the morning I found the body of George Hughes lying by the side of the car. His head was badly bruised, also his right knee and left hip, and on his chest was a bruise that caused his death."

Frankie Fern Quick testified that: "My age is 18 years, I was working at Martin's tavern when these boys arrived around 9 o'clock p.m., they stayed there until 12:30; I left with the boys. Witness then describes the drive from the tavern to the scene of the accident. That at the time of the accident Joe Dunham was driving the car, that he was intoxicated when they left the tavern; that after going a short distance down Highway No. 10, they stopped the car and the boys got out and picked a brown bottle up near a stump and brought it back to the car; Joe Dunham got under the wheel and was driving, a difficulty arose between Joe Dunham and Tobe Reasor, they got mad at each other and were quarreling. This kept up until the wreck occurred. That she got out of the car and she ran to Mr. Gee's house to tell that George Hughes was under the car; that she was trying to get out of the car just before this happened."

Tobe Reasor as a witness for the state testified: "My age is 22 years, I have lived near Eucha almost all my life; I am not married; my brother-in-law, Joe Dunham and I lived together, and the last three weeks of his life, my uncle George Hughes lived with us.

"The morning before the accident we worked cutting posts until about noon when Joe and George went to Jay in Joe's Chevrolet Coupe and borrowed a trailer from Connie Martin. They got back about two o'clock and we loaded up our posts, and took them to Salina but had to go to Pryor to get the money, the check was made out in Uncle George's name, he cashed it and we started back with the trailer. We stopped at Salina and bought some groceries and an axe, I do not know whether or not Joe and

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