Fitzsimmons v. State

• Citation: 166 P. 453,14 Okla.Crim. 80,1917 OK CR 180
• Decision Date: 18 July 1917
• Docket Number: A-2659. [a1]
• Parties: FITZSIMMONS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

166 P. 453

14 Okla.Crim. 80, 1917 OK CR 180

FITZSIMMONS v. STATE.

No. A-2659. ^[a1]

Court of Criminal Appeals of Oklahoma

July 18, 1917

Syllabus by the Court.

In a prosecution for murder, where the testimony of a witness was given at the preliminary examination, and his testimony was taken by the reporter, in the presence of the defendant and his counsel, who cross-examined him, and such testimony is transcribed and filed with the court clerk, held, that if the witness is not present at the final trial, and the state shows that such witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the witness may be read to the jury; and held further, that it is immaterial that the names of the witnesses used by the state to prove that defendant had been confronted by the witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon the information.

Where a party desires the court to give any particular instruction or that the one that is given shall be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the instruction complained of.

Where a verdict is clearly sustained by the evidence, a new trial will not be granted for slight inaccuracies in the instructions.

Appeal from District Court, Payne County; A. H. Huston, Judge.

James P. Fitzsimmons was convicted of manslaughter in the first degree, and appeals. Affirmed.

John P Hickam, of Stillwater, and Vaught & Brewer, of Oklahoma City for plaintiff in error.

The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.

DOYLE P.J.

Plaintiff in error, herein referred to as the defendant, was convicted of manslaughter in the first degree on an information filed in the district court of Payne county on the 19th day of April, 1915, charging him with the murder of Jack Corrigan, in said county on the 23d day of March, 1915. In accordance with the verdict of the jury rendered October 15, 1915, he was sentenced to serve a term of five years' imprisonment in the state penitentiary. To reverse the judgment the defendant appealed, by filing in this court on February 28, 1916, a petition in error with case-made.

In order to better understand the errors assigned, the following brief statement of the facts disclosed by the testimony is made; also extracts from the testimony of the witnesses and of the defendant as a witness in his own behalf:

It appears from the evidence that the killing occurred at a roadhouse known as the Line House, situated on the road between Cushing and Drumright. The record shows that the testimony of J. W. Barrett and J. R. Long, as given upon the defendant's preliminary examination, was relied upon by the state to show the circumstances of the killing. The testimony of J. W. Barrett, as read from the transcript by the reporter who took the same, was in substance as follows: That on the date alleged in the information he left Drumright, where he lived at that time, with J. R. Long, and went to the Line House, just across the line in Payne county, about two miles west of Drumright; that they arrived there about 4 o'clock; that he knows the defendant, Fitzsimmons, and saw him when he came into the road house; that at that time Jack Corrigan, the deceased, was standing with his back to the bar and with his elbows on the bar; that when the defendant came in he had a pistol in his hand, and he walked up to the deceased and shot him; that he never saw Jack Corrigan before; that there were six or seven people in the room when the shot was fired; that J. R. Long and J. P. King and a woman called Billie Reed were present at the time; that the deceased sank to the floor, and J. R. Long called for a glass of water and a pillow; that the defendant then made the remark, "If any of his friends wanted any of it, they could get it;" that he later saw the body of the deceased at the undertaker's, and noticed that the bullet entered below the collar bone and passed out near the small of the back; that it was between 4 and 5 o'clock when the shooting occurred; that he left the room and saw the defendant coming out with Billie Reed, and he then went back in; then Billie Reed came back and threw herself on the body. His cross-examination by Mr. Hickam, counsel for the defendant, was in part as follows:

"Q. Where were you standing in this room at the time the defendant came in? A. I was standing at the north end of the bar; the door comes in from the north. Q. Does the building extend north and south? A. Yes, sir. Q. This counter runs what direction? A. North and south. Q. This door is in what side of the house? A. North. Q. How many windows in this building? A. One north and one west. Q. Where is the window as to this counter? A. The window is near the end of the counter, where the man was shot. There may be more, but this one window is there, because the bullet went through the blind of the window and broke the top sash out of the window. Q. Where was you standing? A. Right at the door. Q. Where was Corrigan standing? A. He was standing at the opposite end of the counter. Q. Did you know Corrigan before this time? A. No, sir. Q. What was the first thing said when the defendant came in? A. I didn't hear anything said before the shooting. Q. When the defendant came in, where were you as to the defendant? A. I was standing right at the end of the bar, and stood there until after the shooting. Q. Where was the defendant standing? A. He walked down the counter within four feet of the man that was shot."

The testimony of J. R. Long is substantially as follows: That he had lived at Drumright about 18 months; was a rig builder; took the witness Barrett and his child to the Line House that afternoon in his automobile; was in the room when the defendant came in and shot Jack Corrigan, who was commonly called "Happy Jack." The defendant came in with Billie Reed, and was holding her by the arm, and she was crying when they entered the door. "Happy Jack" was standing at the bar; the defendant pushed the girl aside and shot him. The man that was shot said nothing. "He just sank down," and witness caught him in his arms and called for water and for something to put under his head. Immediately after shooting Corrigan the defendant said, "If you fellows are friends of this man, and want any of it, you can get it," and then said to the deceased, "Get up and fight, you son of a bitch, like a man;" that the deceased did not have anything in his hands at the time he was shot. His cross-examination by Mr. Hickam was in part as follows:

"Q. Were you ever convicted of any crime? A. I never was. Q. You came to this Line House at what time? A. About 4 o'clock. Q. How long were you in this house? A. All together about ten minutes. Q. What part of this building is the counter in? A. Northwest. Q. When the defendant came in at the north door where did he go? A. Walked right through. Q. Did he say anything? A. Not that I heard. Q. What did the deceased say? A. Didn't

say anything that I heard. Q. How far were you standing from the deceased? A. Right beside him. Q. How far from the defendant? A. Five or six feet."

Roy McClerken, as a witness for the defendant, testified that he knew Jack Corrigan, known as "Happy Jack," for more than a year; that on the day he was shot he went with Oscar Hendricks from Drumright to the Line House; that they arrived there a little after 4 o'clock, and found "Happy Jack" there, and they had a few drinks together. He further testified as follows:

"Q. Did you see this defendant that afternoon? A. We were out there about an hour. I and this boy went out there in a livery car, went out there to get a drink, and this livery man went back in Drumright, and during this time we concluded to go to Cushing. I guess we had been there maybe half or three-quarters of an hour, I would not say how long, and Mr. Fitzsimmons drove up, and I hallooed at him. I knew him. I used to ride with him, and I asked him if he had a load in town. He stopped and said, 'No, he had room for another one or two;' and I said, 'If you wait a few minutes I will go with you; I have another boy with me.' So he got out and came in, and this fellow with him, named Chris Glacken. When they came in, this 'Happy Jack' spoke up and said, 'There is that G____ damn son of a bitch that would not sign my bond.' That Fitzsimmons walked in and walked past us. We were standing at the bar, and this guy turned around and looked at him and made this remark. 'Happy Jack' made this remark. Jack he picked up something, I don't know what it was, looked like a piece of iron or chisel, and started towards Fitzsimmons, and Fitzsimmons said, 'Stop, Happy; better stop.' Said that about three times. Happy, when he got over close to him, pulled this iron. Q. Did Fitzsimmons move? A. He backed off, clean as far as--well he couldn't get out, he was against the wall; Happy pulled this iron back and hit up on Fitzsimmons, and Fitzsimmons shot him. Q. What did the defendant say, if anything, after the shooting took place? A. I never heard him make any remark. Q. What did the defendant do after the shooting; where did he go? A. He came in Cushing. Q. What did he say, if anything, about going to Cushing? A. He just spoke and says, 'I guess I will go in and give up.' Q. Tell the jury what he did. A. Got in the car and drove towards town; met the deputy sheriff out there. I think there were two more fellows in the car. The deputy got in

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