Gibbons v. Territory
| Decision Date | 18 April 1911 |
| Parties | GIBBONS v. TERRITORY. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a)Where an indictment was returned by a grand jury in Oklahoma Territory prior to statehood, and the jury box from which the grand jurors composing said grand jury were drawn was not prepared in accordance with the provisions of section 6, c 46 (section 3313) of Wilson's Rev. & Ann. St., under the rule announced in the case of Sharp v. U. S., 138 F 878, 71 C. C. A. 258, followed by our Supreme Court in McGinley v. State, 20 Okl. 218, 94 P. 525, such grand jury was illegal, and indictments returned by it should be set aside on proper motion.
(b) Where a grand jury is not legally formed, the filing of a waiver by a person charged with crime, by his counsel, to the illegality of such grand jury, does not make such grand jury legal or validate its acts.
(a) Prior to statehood a valid indictment was a jurisdictional requirement in all felony cases under the provisions of the law in force in Oklahoma Territory, and no act of a person charged with crime could confer jurisdiction upon the courts of the territory to legally try any cause pending against such person.
(b) Jurisdictional questions disclosed by the record are never waived, and can be raised at any time before or after trial in a motion in arrest of judgment, or even for the first time in the appellate court.
(a) When a witness on direct examination is interrogated relative to a conversation, the opposing party is entitled to draw out all the material portions of such conversation pertinent to the issues on cross-examination.
(b) The acts and conduct of a witness variant from his testimony, and inconsistent therewith, may be shown for the purpose of weakening the testimony of such witness.
(a) The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his attention on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of such examination and tending to limit, explain, or modify the same.
(b) Testimony tending to show the interest or bias of a witness or lack of it, drawn out on cross-examination, is not, and has never been, regarded as collateral.
(c) When a witness, though on cross-examination, gives adverse testimony to the person cross-examining, showing his interest or bias in the case, or lack of it, such person is not bound to accept the statements of such witness as conclusive, but is entitled to offer proof contradicting such witness and tending to establish the existence of facts to the contrary.
(a) In order to entitle the state in a criminal prosecution for murder to introduce proof of threats made by some third person, for the purpose of binding the defendant, it must be made clear that the declaration or statement containing the threat was made in the presence and hearing of the person sought to be bound, and was such a declaration and made under such circumstances as called for serious admission or denial on his part.
(b) When, in a criminal action, testimony sought to be introduced, for the purpose of proving threats by implication, shows that the person whom it seeks to bind reproved the third party for making such statement and in no way acquiesced in or approved such action, it is not admissible and should not be allowed to go to the jury.
(a) An officer on trial for murder growing out of an attempt to serve civil and criminal process, when the issue of self-defense is raised, is entitled to introduce proof tending to show that deceased had committed a crime, and the result of serving such process would be to place in the hands of the officers the evidence of such offense, for the purpose of throwing light on the transaction and tending to show animous or hostility and who was probably the aggressor in the difficulty.
(b) When the officer has introduced such proof, the state cannot show that the deceased was advised to commit such offense by a public officer or other person, for the purpose of minimizing the effect of the proof. The rule limits the proof that the state is entitled to introduce for this purpose to such as the deceased would have been entitled to introduce in his defense had he been on trial charged with the offense.
(a) When evidence of experiments is sought to be introduced, it must be shown that the experiments were made under like conditions, on like material, with similar apparatus and under similar circumstances, fairly and honestly made, and they must be testified to by competent persons having expert knowledge thereof.
(b) Proof of experiments made with firearms upon certain material for the purpose of shedcing light on the effect of a rifle shot from a specific kind of rifle on a specific kind of material, in order to be admissible must be made upon the same kind of material, in the same condition, by a competent person, and fairly and honestly conducted.
(c) When evidence of experiments is offered, it should be admitted only when it is clear to the court that the jury will be enlightened and not confused.
(d) A trial court has no right to permit counsel for the state to mutilate exhibits of a defendant, introduced in his behalf by making experiments on them, or otherwise.
(a) When a witness has been permitted to testify without being sworn, and this fact is unknown to counsel or the defendant until after the verdict, a new trial should be granted.
(b) The fact that the testimony given by an unsworn witness may not have been as material as other testimony received in evidence does not cure the error. The court cannot say upon what particular testimony the jury bases its verdict. It is the duty of the courts to see that persons on trial for their lives or liberty receive all the protection of the law.
An instruction advising the jury that they are at liberty to disregard the testimony of any witness whom they may believe from the evidence has testified falsely, except in so far as it is corroborated by other evidence, or facts and circumstances proven, is erroneous. The jury is not bound to believe any of the testimony of such witnesses whether corroborated or not. See Rea v. State, 3 Okl. Cr. 269, 105 P. 381.
Where a person is on trial for murder, and the issue of self-defense is raised, it is error for the court to give an instruction which in effect tells the jury that any intent other than the intent to do some lawful act stated is sufficient to destroy the right of self-defense.
(a) Where a person is on trial for murder alleged to have been committed by him, and the proof shows that he was an officer and had gone to the premises where the killing occurred for the purpose of serving certain process, and his defense is self-defense based on the contention that he was endeavoring to serve such process in a lawful manner, and while so doing was attacked by the deceased, it is error for the court to give an instruction on this phase of the case which leaves the jury to determine for themselves what constitutes serving processes in a lawful manner. For instruction condemned, see opinion.
(b) The manner in which processes may be served is an intricate legal question, and, when upon a trial of issues joined it becomes necessary for such question to be determined, the court should carefully define it as applied to the facts in the record.
(a) It is error for the court to give an instruction in a murder trial which destroys the right of self-defense, when that issue is raised, if bare intent and purpose to provoke a difficulty existed in the mind of the defendant. The rule is that the defendant must do some act at the time of the difficulty which does provoke it. For instruction condemned, see opinion.
(b) When, in a homicide case, the state endeavors to show that the defendant sought or brought on the difficulty, and the general rules of law are charged on this phase of the case, the court should define and state what character of acts on the part of the defendant would deprive him of the right of self-defense.
(c) Where the prosecution in a homicide case is based on the theory that the defendant provoked the difficulty, the character of the provocation, in connection with the intent, should be set out and defined in separate affirmative charges.
Under our statute officers in the actual discharge of their official duties are entitled to carry weapons, and when any such officer is on trial for murder growing out of an effort to discharge his official duty, and the proof shows that he was armed with and killed deceased with a weapon, the carrying of which is prohibited by law, except by officers in the discharge of their official duties, a charge requested by the defendant embodying the law on this proposition should be given.
(Additional Syllabus by Editorial Staff.)
Where the court permits accused to withdraw his plea of not guilty, accused stands in the same attitude as if no plea had been entered.
Appeal from District Court, Caddo County; Frank M. Bailey, Judge.
Thomas Gibbons was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.
Where a witness though on cross-examination gives testimony adverse to the party cross-examining, showing his interest or bias in the case, or lack of it, such party is not bound to accept the statements of such witness as conclusive, but may offer proof contradictory thereof and tending to establish the existence of facts to the contrary.
Barclay, Fauntleroy & Cullen, for plaintiff in error.
Charles West. Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the Territory.
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Bosse v. State, D–2012–1128
...is within the trial court's discretion. Irby v. State , 18 Okla.Crim. 671, 197 P. 526, 530 (1920) ; see also Gibbons v. Terr ., 5 Okla.Crim. 212, 115 P. 129, 137–38 (1911). An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts......