Howington v. State
| Decision Date | 29 November 1926 |
| Docket Number | A-5830. |
| Parties | HOWINGTON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Homicide committed in the perpetration of robbery is "murder," and in such a case deliberation and premeditated design to effect death are presumed.
Where an information charging the defendant with the crime of murder alleges that he feloniously and premeditatedly and designedly, without authority of law, and with intent to rob did shoot, thereby inflicting a mortal wound, and while engaged in the commission of a felony did so kill and murder the crime of murder is sufficiently charged.
Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.
Additional Syllabus by Editorial Staff.
Evidence held to sustain conviction for murder in perpetration of robbery.
Appeal from District Court, Oklahoma County; William H. Zwick, Judge.
Hoyt Howington was convicted of murder, and he appeals. Affirmed.
Gustave A. Erixon and E. J. Giddings, both of Oklahoma City, for plaintiff in error.
George F. Short, Atty. Gen., for the State.
Appellant, Hoyt Howington, was convicted of murder, and in accordance with the verdict of the jury was sentenced to imprisonment for life. This is the second appeal in this case. The former conviction of appellant was reversed in this court. Howington v. State (Okl. Cr. App.) 235 P. 931.
The only questions presented on this appeal are, Is the information sufficient; and, was there a fair trial free from prejudice?
The information in substance charges that in Oklahoma county, on the 20th day of January, 1924, appellant, in an attempt to perpetrate a robbery, killed and murdered one Jack King by shooting him with a pistol.
The information properly charges the crime of murder committed in perpetration of a robbery. Homicide committed in the perpetration of a robbery is murder, and, in such a case, deliberation and premeditated design to effect death are presumed. Fritz v. State, 8 Okl. Cr. 342, 128 P. 170.
The evidence shows that Jack King, proprietor of a restaurant, 400 W. Washington street, Oklahoma City, was shot and killed at his place of business.
Marvin Cox testified that at that time he was employed by Jack King and was with him in the restaurant about half past eleven that night; that Mr. King was sitting on a stool counting up how much he had taken in and paid out that day, when a man entered by the back door and said to King, "Hands up!" that King raised up from the stool, and the man fired four shots, turned, and ran out of the back door; that King fired a shot or two and ran out the front door, fell in the street, and died almost instantly.
The defendant testified that he bought the gun introduced in evidence in Chickasha...
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