Hickman v. State
| Decision Date | 21 November 1925 |
| Docket Number | A-5125. |
| Citation | 240 P. 1097,32 Okla.Crim. 307 |
| Parties | HICKMAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The instructions must be considered as a whole, and, when considered altogether, if they fairly and correctly state the law applicable to the case, they will be sufficient.
If upon an examination of the whole instructions, it appears that the jury are clearly and fully informed that the presumption of innocence remains with a defendant until overcome by evidence beyond a reasonable doubt, and if, upon the whole case, they entertain a reasonable doubt as to the guilt of the defendant, they should find the defendant not guilty; it is not necessarily reversible error for the court to fail in one or more of the instructions to repeat the words "beyond a reasonable doubt."
The offense of assault with intent to do bodily harm by shooting another without justifiable or excusable cause is included in an information for assault with intent to kill by shooting another.
Where an information charges a defendant with an assault with intent to kill by shooting, and the evidence in any degree warrants, it is the duty of the trial court to submit to the jury the lesser offense of assault with intent to do bodily harm without justifiable or excusable cause.
Appeal from District Court, Carter County; W. F. Freeman, Judge.
Son Hickman was convicted of shooting another with intent to kill, and he appeals. Reversed and remanded.
Mathers & Coakley, of Ardmore, for plaintiff in error.
Geo. F Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
From a conviction in the district court of Carter county on a charge of shooting another with intent to kill, the plaintiff in error, hereinafter called defendant, has appealed.
The record discloses that on the 1st day of June, 1923, the defendant and Jodie Hope, at a political speaking at Springer, became involved in a difficulty. The Hope boy was 18 years old and the defendant 19, and they were not acquainted with each other. The circumstances of the difficulty vary widely as to the origin and the details as narrated by the defendant and the prosecuting witness; but they agree that a fight took place, in which the prosecuting witness knocked down the defendant once or twice, and the defendant, with a six-shooter, shot the prosecuting witness through the fleshy part of the leg. It appears that they both were feeling their oats, inclined to be pugnacious and ready to fight. The information is based on section 1756, Comp Laws 1921, and the verdict fixes the punishment at one year in the penitentiary. Upon the conclusion of the evidence, and before the court instructed the jury, defendant's counsel requested that the instructions define and submit the law of assault to do bodily harm under the provisions of section 1764, Comp. Laws 1921, which request was denied.
Only two assignments of error are argued: First. That the court in its instructions numbered 4, 5, and 6, shifted the burden of proof upon the defendant. Second. That the court erred in refusing to instruct on the lesser offense of assault with intent to do bodily harm. These assignments will be considered in the order presented.
The first assignment is directed to the failure of the trial court in his instructions numbered 4, 5, and 6 to require the proving of guilt beyond a reasonable doubt. In No. 4 the court used the language, "But if the jury find that the defendant had reasonable ground to believe, and did believe from the facts and circumstances," etc.; in instruction No. 5 the court said, "If you find the contention of the prosecuting witness, Jodie Hope, to be true," etc.; and in instruction No. 6 the court said, "If you find from the evidence, * * * and you should further find," etc., without the addition of the term "beyond a reasonable doubt." This, it is contended, shifts the burden and permits a conviction on a less degree of proof than the law requires, citing: Davis v. State, 4 Okl. Cr. 508, 113 P. 220; Nichols v. State, 10 Okl. Cr. 247, 135 P. 1071; Price v. State, 1 Okl. Cr. 358, 98 P. 447; Floyd v. State, 5 Okl. Cr. 65, 113 P. 212; Smith v. State, 12 Okl. Cr. 489, 159 P. 668.
Considered separately, these instructions would constitute reversible error, but, when considered with all the instructions in the case, we believe that the jury are clearly told that guilt must be established beyond a reasonable doubt. In instruction No. 8 the jury are told:
"If you should find the defendant not guilty, or if upon the whole case and these instructions you should entertain a reasonable doubt as to his guilt, you should find the defendant not guilty, and so say by your verdict."
In instruction No. 2 the jury are told that the presumption of innocence remains with the defendant until it is overcome by evidence beyond a reasonable doubt.
In the case of Edwards v. State (Okl. Cr. App.) 216 P. 947, this court said:
"The court, instructing the jury in a criminal case, is not obliged to repeat over and over again the words 'beyond a reasonable doubt,' where from a reasonable interpretation of the instructions as a whole it must be apparent to the jury that every material issue must be established beyond a reasonable doubt."
And in the case of McCarty v. State (Okl. Cr. App.) 207 P. 1069, it was said:
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