Hodge v. Territory Oklahoma

• Decision Date: 18 July 1902
• Citation: 1902 OK 56,69 P. 1077,12 Okla. 108
• Parties: Q. S. HODGE v. TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1902 OK 56

69 P. 1077

12 Okla. 108

Q. S. HODGE v. TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: July 18, 1902

Error from the District Court of Garfield County; before C. F. Irwin, Trial Judge.

Syllabus

¶0 1. INDICTMENT--Motion to Set Aside May be Made When. Before a defendant in a criminal action is entitled to be heard in a proceeding to set aside an indictment, he must bring himself clearly within the provisions of the statute.

2. SAME--Proof in Support of Motion to Set Aside May be Made, When. To enable a defendant to make proof in support of his motion to set aside an indictment, it is necessary for him to file his application before the court, and he must allege the following facts: (1) That he is indicted in the district court (naming it); (2) He must set forth a copy of his motion to set aside the indictment; (3) and that he is acting in good faith.

3. SAME--Not Error to Refuse to Hear Evidence, When. Hence, where an application fails to state these essential facts, it is not error to refuse to hear evidence in support of the motion to set aside the indictment.

4. INSTRUCTION--Inacurate Language--Not Grounds for Reversal, When. Whether in a given case there should be reversal for error in giving an instruction, depends quite as much upon the evidence before the jury to which the instruction might be applied, as upon the abstract accuracy of the instruction; hence, if it is apparent that the language of the instruction, though inaccurate, yet, when applied to the evidence before the jury it could not have misled the jury to believe that its duty was different from what it actually was, the inaccuracy can afford no reason for reversal.

5. CIRCUMSTANTIAL EVIDENCE--When Will Warrant Conviction. Where circumstantial evidence alone, that is evidence constituting a single chain, is relied upon by the prosecution for a conviction, each essential fact in the chain of circumstances must be found to be true by the jury, beyond a reasonable doubt, to warrant a conviction.

6. EVIDENCE--instruction--Not Reversible Error, When. On a trial for murder where there is an eye witness who testified to the homicide, and the evidence relied upon by the prosecution for a conviction is not entirely circumstantial, it is not reversible error for the court to give the following instructions: "The law requires the jury to be satisfied of the defendant's guilt, beyond a reasonable doubt, in order to warrant a conviction, but does not require that you should be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish the defendant's guilt. It is sufficient if, taking the testimony all together you are satisfied, beyond a reasonable doubt, that the defendant is guilty as charged in the indictment."

7. SAME--When the instructions of the court are considered altogether, and as applied to the evidence in this case, it is not reversible error to refuse to give the following instructions: "If any one of the jury, after having considered all the evidence in this case, and after having consulted his fellow jurymen, should entertain a reasonable doubt of the defendant's guilt then the Jury cannot find the defendant guilty."

8. NEW TRIAL--Refusal to Hear Arguments for Not Necessarily Reversible Error. The trial court should hear reasonable argument by counsel upon a motion for new trial, and especially in a criminal case where a party is charged with the grave crime of murder. However, the mere refusal of a court to hear argument on a motion for a new trial does not necessarily constitute reversible error.

9. SAME--When New Trial Will be Granted for Refusal to Hear Argument. Before this court will reverse a cause for the reason that the trial court declined to hear the argument in support of a motion for new trial, it must clearly appear that there was an abuse of discretion, and that the party was prejudiced thereby.

10. JUDGMENT--Technical Errors In Criminal Case--When Cause for Reversal. Our Statute provides that in an appeal in a criminal case, this court must give Judgment without regard to technical errors or defects, or exceptions which do not affect the substantial rights of the parties. We think that this provision of our statute is applicable to this case. And hence for this court to hold that mere technical errors or defects, which do not affect the substantial rights of the prisoner, are sufficient to reverse the cause, would, in our judgment, be a clear violation of not only the letter but the spirit of the statute.

Temple Houston D. P. Mature and W. S. Denton, for plaintiff in error.

J. C. Strang, Attorney General, W. P. Hickok and O. D. Hubbell, for defendant in error.

HAINER, J.:

¶1 The plaintiff in error, Q. S. Hodge, was indicted in the district court of Dewey county on the charge of the murder of Nelson H. Christian. Upon application of the defendant the cause was removed from Dewey county to Garfield county for trial. The defendant was tried and convicted of murder, and sentenced to the territorial penitentiary at hard labor for the term of his natural life. From this judgment the defendant brings the cause here on appeal for review.

¶2 The first error complained of and argued in the brief of counsel for plaintiff in error is that the court erred in refusing to hear testimony in support of defendant's application to set aside the indictment. It is alleged in substance in this application that J. C. Strang was without authority appointed by the court as assistant county attorney; that in the investigation of the cause by the grand jury, said Strang was present before said grand jury, and conducted the examination of the witnesses, and during said time W. P. Hickok was the duly, elected, qualified and acting county attorney of said county, and was in attendance upon the court and grand jury when his attendance was required by them; that there was no physical or mental disability which incapacitated him from performing the duties as county attorney at said time; that he was at all times present, ready, willing and able to perform his duties as country attorney in said matter; that during the investigation of this case that said grand jury acted under the advice and influence of said Strang. The motion was verified. We think this application is wholly insufficient as a matter of law, and that the court properly denied the defendant's application to hear evidence to set aside the indictment. The grounds upon which an indictment may be set aside under the laws of this territory are clearly defined in chapter 41, section 19, page 196, of the Session Laws of 1895. They are as follows:

"The indictment must be set aside by the court, in which the defendant is arraigned, and upon his motion in either of the following cases: First: When it is not found, indorsed, presented or filed as prescribed by the statutes of the territory, or when the grand jury is not drawn and empaneled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause. Second, When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment, as provided in section 5063, as amended in this act. Third, When a person is permitted to be present during the session of a grand jury while the vote on the finding of the indictment is being taken, or when it is shown that after the grand jury was first empaneled, any member or members thereof, were discharged, and their places filled by persons not regularly drawn from the jury list, as provided by this act, and that they were admitted into the grand jury or took part in their deliberations, or that the grand jury was not empaneled anew as a whole body in open court."

¶3 To enable the defendant to make proof of matters set up as reasons for setting aside an indictment, it is necessary for him to file his application before the court, and he must allege the following facts: (1) That he is indicted in the district court (naming it); (2) He must set forth a copy of his motion to set aside the indictment; (3) That he is acting in good faith.

¶4 It is apparent that if the application does not set forth these matters that are required by the statute it is the duty of the court to deny the application. In other words, before the defendant is entitled to be heard in a proceeding to set aside an indictment he must come clearly within the provisions of the statute. The motion or application failed to state that it was made in good faith. This is absolutely essential in order to entitle the defendant to a hearing. And hence there was no error in denying a hearing upon the application to set aside the indictment. (Keith v. Territory, 8 Okla. 307, 57 P. 834.)

¶5 It is next claimed that the court erred in not discharging the regular panel of petit jurors on the ground that Judge McAtee made certain prejudicial remarks in the presence of the jurors before the cause was called for trial. This matter was considered by Judge Irwin after a change of judge had been granted, on application of the defendant, by examining the jurors as to the alleged statements made by Judge McAtee, and the application to discharge the regular panel was denied. The defendant had full opportunity to examine each juror empaneled in the cause as to any statements made by Judge McAtee, or any other source that rendered said juror incompetent, and if it appeared that the statements made by Judge MeAtee prejudiced the juror or in any manner rendered him incompetent, it was a good ground for challenge to an individual juror but not to the panel. The application was, therefore, properly denied.

¶6 It is next claimed that the court erred in excluding certain testimony offered on behalf of the defendant. The evidence excluded by the court relates to certain declarations and statements which the defendant offered to show by the witness Calvin Lawson. It was sought to be shown that Calvin Lawson had...