Edwards v. State
| Decision Date | 03 May 1913 |
| Parties | EDWARDS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) An application for a change of venue is addressed to the discretion of the trial court, and the ruling of the court thereon will not be reviewed upon appeal in the absence of a showing that the court abused its discretion.
(b) For counter affidavits held to be sufficient to put in issue the fact as to whether or not so great a prejudice existed in a county against a defendant as to prevent him from securing an unbiased and unprejudiced jury and a fair and impartial trial in said county, see opinion.
(a) An application for a continuance is addressed to the discretion of the trial court, and the ruling of the court thereon will not be reviewed upon appeal unless it is made to appear from the record that this discretion has been abused.
(b) For an application for a continuance held to be wholly insufficient on the question of diligence and also upon the question of the actual merits of the case, see opinion.
(a) Where a witness has testified in a preliminary trial and has been cross-examined by the defendant, and where the attendance of said witness cannot be obtained upon a subsequent trial of said cause, it is not error for the trial court to permit the introduction by the state of the testimony given by said witness upon such former trial.
(b) Where the evidence shows that a witness who had testified upon a preliminary trial could not be found by the officers after a diligent search, the trial court has a right in the exercise of its discretion to permit the admission of such testimony against a defendant, and upon appeal it will be presumed that this discretion was properly exercised in the absence of a showing to the contrary.
(c) For evidence which justified the trial court in admitting the previous testimony of a witness who was absent at the final trial, see opinion.
Where the evidence conclusively shows the guilt of a defendant of murder and the jury only convicts him of manslaughter ordinarily the court will not consider objections to improper remarks made by the county attorney in his closing argument to the jury.
(a) A conviction will not be reversed on account of the action of the trial court unless two things affirmatively appear in the record: First, that the court committed error during the trial of the cause; second, that by such error the defendant was deprived of a substantial right to his injury.
(b) It is no part of the duty of the members of the Criminal Court of Appeals to act as counsel for an appellant. We will not presume that the trial judge, the county attorney, and the jury entered into a conspiracy to unlawfully deprive an appellant of his liberty, or that either of them have not faithfully performed their respective duties. Every presumption will be indulged in favor of the rulings of the trial court, the regularity of the proceedings, and the correctness of the verdict of the jury. This is necessary in order that property rights may be protected and human life may be made safe and sacred in Oklahoma.
Additional Syllabus by Editorial Staff.
After conviction the presumption of innocence is destroyed, and on appeal the counter presumption, that the verdict is correct and appellant guilty, prevails.
Appeal from District Court, Garvin County; R. McMillan, Judge.
C. F Edwards was convicted of manslaughter in the first degree and he appeals. Affirmed.
The material testimony in the case may be substantially stated as follows: The homicide occurred on the 15th day of April, 1911, in Garvin county, Okl., at the home of appellant, who resided four or five miles west from Pauls Valley. The deceased lived about half a mile from appellant. On the day of the homicide the deceased and appellant came to Pauls Valley driving a pair of mules belonging to deceased hitched to a wagon belonging to appellant. They were accompanied by some friends in the wagon. They bought some feedstuff and groceries, and appellant procured a quart bottle of whisky. The deceased and appellant and some other persons in the wagon with them took a drink or two of whisky on their way home from Pauls Valley. The parties first stopped at the house of Ed Swan, where they got out of the wagon and placed in his house some goods which he had purchased. He then drove on half a mile further to the home of appellant. Up to this point there is no conflict in the evidence.
The testimony of F. L. Strickland at the preliminary trial was admitted. He testified: That on the day of the homicide he was breaking sod on appellant's farm working for appellant and that he was present at the time when the homicide occurred. That at 6:20 o'clock he left the field and went to the house. He there saw appellant and the deceased. That appellant came out of his house to the wagon. That deceased came out of the house and went to the wagon and sat down on the ground and drove a peg in the ground and was pitching his knife at it. That appellant and deceased were talking about a check which witness had given the deceased. Deceased told witness that the check had been turned down. Witness and appellant promised to pay deceased the money for the check. That they then ceased to discuss the check matter. That appellant said to deceased, "Ed, I made her come clean," and deceased replied, "My wife told the truth." Appellant then said, "I don't like to have my wife called a liar." Deceased then said, "My wife told the truth." Appellant did not make any reply to this, but he drew his knife out of his pocket and began to open it, but he did not open the knife, but drew out a revolver which he held in his right hand. Witness then took appellant by the left arm, and said, "Don't do that," and appellant replied, "Get back, or I will hurt you." Deceased was then standing up about 10 feet off, and, when ordered to turn appellant loose, witness stepped back, and appellant then walked up in front of deceased. Deceased said to appellant, "Kirk, you have got me bested." Appellant then struck deceased an upper cut with his left hand and knocked him down, at the same time holding his revolver in his right hand. Deceased got up and walked over and sat down on the wagon tongue. At this time the pair of mules which witness had been driving ran off, and witness pursued them and caught them, and as he pulled back the lines he heard a shot. Witness was then 25 or 30 yards from the scene of the homicide. Witness started to the place where the shooting occurred and found deceased lying on the ground. Appellant was there with a pistol in his hand. Deceased did not say anything. Witness then left and returned a few minutes after, and appellant and his brother John Edwards were there. John Edwards, speaking to witness, said, "He is as good a friend as I ever had and it was all over you," referring to witness.
W. W. Campbell testified for the state that at the time of the killing he lived in a tent about 75 or 100 yards from the house of appellant; witness' attention was attracted by some loud talking; he then looked; he saw appellant standing with him arms stretched out; he heard the report of a shot; he did not see deceased at the time; witness then went up to the house of appellant and to the wagon; he there saw deceased lying on the ground; deceased lived 15 or 20 minutes after witness reached him.
Dr. Johnson testified that he examined the body of the deceased; that there was an abrasion on his face just beneath the right eye and a gunshot wound 1 1/4 inches behind and a quarter of an inch above the right ear and coming out on the left side three inches above and three inches behind; that the abrasion on the face of the deceased was made before death.
Dr. Lindsay testified to the same facts, and further that he saw no powder marks on the deceased when he examined the body.
B. Bruce testified that he took a photograph of the deceased; that there was a black swollen place beneath a scar under one eye on deceased's face.
Jim Young testified to the bruise on deceased's face when his body was prepared for burial.
J. S. Kercheval testified to the bruised place on the face of the deceased, and also that he saw no powder marks on the deceased when he was prepared for burial.
Anna Edwards, the wife of appellant, testified that appellant and the deceased were pretty full of whisky at the time they came from Pauls Valley; that she first heard loud talking and then saw them scuffling; that she rushed out upon hearing the shot, and her husband came toward her and exclaimed, "What have I done?" Appellant then said he was going for a doctor, and left.
John Edwards testified that he came home in the wagon with appellant and the deceased; that they were both pretty full of whisky when they got home; that witness saw appellant and deceased scuffling and heard a gun fire and deceased fell back dead.
Appellant testified that he lived near deceased and that deceased had been friendly with him for quite a while; that when in the town of Pauls Valley on the day of the homicide he and the deceased drank considerable whisky and they had a quart bottle with them when they started home; that they took as many as 8 or 10 drinks a piece; that after they reached home appellant went into the house and talked to his wife, and while there he got his pistol and put it in his pocket appellant said he didn't know why he put the pistol in his pocket; appellant and deceased were talking about a check that Strickland had given to deceased which had been turned down; that they then saw Strickland coming over the hill driving toward them; that a hound dog came along and started toward the chicken house; that appellant drew his pistol and said, "I believe I...
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