Henson v. State
| Decision Date | 07 March 1911 |
| Parties | HENSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A conviction on an information charging a felony by the prosecuting attorney, verified only on information and belief, is not in derogation of the defendant's constitutional guaranty that no warrant shall issue but upon probable cause, supported by oath or affirmation, where the prosecution was in fact predicated on a verified complaint filed before an examining magistrate and the action of that officer in holding for trial in the district court.
In the absence of a statute requiring verification, the prosecuting attorney, acting on his official oath, may present an information charging a felony, where the defendant having had a preliminary examination before an examining magistrate, or having waived such preliminary examination, was held to the district court for trial for the felony charged.
The verifications of an information charging a felony is no part of the information itself, and is not an indispensable requisite.
Appeal from District Court, Tulsa County; L. M. Poe, Judge.
Frank Henson was convicted of murder, and appeals. Affirmed.
Deichman & Prentice, for plaintiff in error.
Chas West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error, Frank Henson, was informed against tried, and convicted of the crime of murder. The homicide is alleged to have been committed in Tulsa county on the 9th day of October, 1910, by killing one Charley Stamper. Judgment and sentence in accordance with the verdict, assessing the death penalty, was pronounced and rendered on the 3d day of December, 1910. From which judgment and sentence, an appeal was perfected by filing in this court on January 13, 1911, a petition in error with case-made attached.
The case comes before this court for a second time. Just prior to the expiration of his term of office, Hon. Chas. N. Haskell Governor, in pursuance to section 6928, Snyder's Statutes 1909, requested the opinion of the judges of the Criminal Court of Appeals, and accompanied the request with a statement of the conviction of the defendant, together with the record and a transcript of the testimony taken upon the trial as transmitted to the Governor by the trial judge, and in compliance with section 6927, Snyder's Statutes, the court without notice that an appeal was being taken responded with an opinion of the judges. 4 Okl. Cr. 594, 112 P. 948.
A brief view of the facts as established at the trial seems to us to exclude every element of reasonable doubt as to the justice of the judgment herein upon the merits. In the town of Dawson, Tulsa county, Okl., on Sunday, October 9, 1910, the defendant, a negro, in a fight with another negro or Indian fired eight or ten shots. The deceased, Charley Stamper, a deputy sheriff living at Dawson, attempted to arrest the defendant, whereupon defendant with a 45-caliber pistol shot him, the ball shattering his jaw, and passing out through his neck, from which wound he died that day. The evidence shows that the defendant, seeing Stamper with several other persons coming toward him, said, in substance, that, if an officer came near him, he was going to shoot his damn brains out. All the witnesses testify that, when the deceased told the defendant to "consider yourself under arrest," the defendant fired the fatal shot. After the shooting, the defendant attempted to escape, and was captured by those present when the shooting occurred. A plea of self-defense was interposed, and the defendant in his own behalf testified that he did not know that Charley Stamper was an officer; that the deceased, with another man, walked up to him, and said, "Consider yourself under arrest, young man," and that he told him "all right"; that the deceased then shot him, hitting him on his right leg; that he then pulled his gun and shot the deceased; that the deceased then shot him a second time. The defendant is not corroborated by any person present when the shooting occurred. All the witnesses testify that the deceased shot at the defendant only after the defendant had shot him. There is not a circumstance in the case that is even seemingly corroborative of the defendant's testimony. The trial was eminently fair, the instructions fully, fairly, and correctly state the law, and the few exceptions taken to the rulings of the court upon the trial were without merit.
It is assigned as error: "That the court erred in overruling the motion to quash the information because the same was not verified as required by law, in that said...
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