Hopkins v. State
| Citation | 108 P. 420,4 Okla.Crim. 194,1910 OK CR 177 |
| Parties | HOPKINS v. STATE. |
| Decision Date | 31 March 1910 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Within the meaning of the Constitution, any law is ex post facto which is enacted after the offense was committed, and which in relation to it or its consequences, alters the situation of the accused to his disadvantage.
An indictment charging a felony, where the offense was committed prior to statehood, must be returned on concurrence of 12 grand jurors.
When an indictment is duly returned as a true bill, properly indorsed and with the signature of the foreman, the presumption is that it was regularly found, on legal and sufficient evidence, with due deliberation, and by the concurrence of the requisite number of jurors.
A defendant cannot be heard to complain of the refusal of the court to give instructions on insanity, when there is no evidence offered even tending to prove insanity on part of the defendant.
It is the duty of the trial court to instruct on the law of manslaughter if there is any evidence that the alleged crime might have been done under circumstances that would reduce it from murder to manslaughter, but it is no error to refuse such instructions if there is no such evidence offered.
A specification of error in the following language: "The court erred in matters of law during the trial of this case which ruling of the court was excepted to by the defendant and exception allowed," is too general; and when the counsel for the defendant does not point out the errors complained of, such assignment will not be considered by this court.
In this case the grand jury was drawn from a list of jurors delivered to the clerk of the court by the jury commissioners, but indorsed, "For the County Court"; there being no contention that the jurors were not in fact qualified to serve as grand jurors. Held, this was a substantial compliance with the act providing for the selection of grand jurors, and sufficient to prevent the setting aside of the indictment on motion to quash.
Error from District Court, Comanche County; W. M. Bolmes, Special Judge.
John Hopkins was convicted of murder, and brings error. Affirmed.
W. C Henderson, for plaintiff in error.
Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for defendant in error.
The petition in error filed in this case contains 15 specifications or assignments. The first is to the action of the court in overruling the motion to quash the indictment and in not permitting the defendant to offer proof in support of the motion. The motion is to the effect that the grand jury which returned the indictment in this case was composed of only 12 men, and that in impaneling the grand jury the court in its general instructions advised the grand jury that an indictment in any case might be returned on the concurrence of 9 of the jurors. The homicide in this case was committed prior to statehood. Under the law in force in Oklahoma Territory at that time, a grand jury was composed of 16 men, and an indictment could not be returned without the concurrence of at least 12 of the 16. This court agrees with the contention of counsel that all rights guaranteed to the defendant under the law at the time of the commission of the offense must be allowed him at the time of his trial. Under the Constitution of this state, adopted after the commission of the crime and before the trial, a grand jury is composed of 12 men. This would be ex post facto as to this defendant if the charge deprived him of any protection afforded under the law at the time of the commission of the offense. Any law is ex post facto which is enacted after the offense was committed, and which in relation to it or its consequences alters the situation of the accused to his disadvantage. The right guaranteed to the defendant in this instance was the concurrence of 12 jurors before an indictment could be returned against him. If the reduction in the number necessary to compose a grand jury had been below the number necessary to concur in an indictment, then he would have been deprived of a substantial right. At the time of the homicide an indictment could not be returned except on the oaths of 12 jurors, and this right must be preserved to the defendant. If the number of the grand jury had been increased to a greater number than 16, he might have been deprived of a substantial right. In a jury of 16 a failure of 5 to concur would prevent an indictment. If the grand jury be increased, it would require a greater number to prevent an indictment. But when the number composing the jury has been reduced to 12, the failure of one man to concur would prevent an indictment. The motion to quash in this case does not allege that a less number than 12 did in fact concur; the motion is to the effect that the defendant had no knowledge that a less number than 12 did concur. Counsel for the defendant urges that, inasmuch as the court directed the jury that 9 concurring might return indictments, the presumption is that less than 12 did concur. With this contention we cannot agree. We understand the rule to be exactly the converse on this proposition. When an indictment is duly returned as a true bill, properly indorsed, and with the signature of the foreman, the presumption is that it was regularly found on legal evidence and by the requisite number of jurors. The presumption of regularity is in favor of the indictment. Canard v. State, 103 P. 737. In volume 22 Cyc., page 206, the rule is announced in accordance with our holding here; citing a number of authorities. In the case of U.S. v. Wilson, 28 F. Cas. No. 16,737, on this proposition, the United States court said: "Where the record shows that the grand jury found the bill of indictment on their oaths, the intendment and legal effect and presumption is that it was found on proper evidence, with due deliberation, and by the concurrence of 12 of their number." Specifications 2, 3, 4, and 5 refer to the action of the court in overruling defendant's motion for change of venue. The error complained of under these assignments consist in the court having permitted the county attorney to file counter affidavits. Counsel insists that, under section 5427, Wilson's Rev. & Ann. St. 1903, the county attorney is not permitted to file counter affidavits in a crime where the punishment may be death or imprisonment for life. Counsel has overlooked the fact that this statute was amended by the territorial Legislature in 1895. The...
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Hopkins v. State
...1910 OK CR 176 HOPKINS v. STATE. Court of Criminal Appeals of OklahomaNovember 22, 1910 On rehearing. Affirmed. For former opinion, see 108 P. 420. CURIAM. The court has given to the motion for a rehearing herein that attention and consideration which the gravity of the charge and the serio......