Johnson v. State

• Decision Date: 13 September 1944
• Docket Number: A-10278.
• Parties: JOHNSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

151 P.2d 801

79 Okla.Crim. 71

JOHNSON v. STATE.

No. A-10278.

Court of Criminal Appeals of Oklahoma

September 13, 1944

Syllabus by the Court.

1. Habitual criminal statute, Penal Code, Art. 6, Section 1817 and 1818, O.S.1931, 21 Okl.St.Ann. §§ 51 and 52, does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. "Habitual criminality" is a state and not a crime.

2. In order to subject an accused to the enhanced punishment for a subsequent offense, it is necessary to allege in the indictment or information the fact of a prior conviction or convictions, in order that defendant may be clearly informed of the charge he is called upon to meet.

3. In a prosecution seeking an enhanced punishment for a second or subsequent offense, the burden is upon the state to prove the prior conviction or convictions beyond a reasonable doubt.

4. Habitual criminal statute authorizing increased punishment for subsequent conviction should not be used by prosecution in capital felonies, unless it is clear that the Court must charge the jury on some included offense, because there can be no cumulative punishment in a capital case, and statute should not be used to prejudice an accused on trial for his life by admitting evidence of distinct offenses which tend to show the bad character of the accused.

5. Trial court may admit evidence of former conviction in murder prosecution where plea of self-defense is interposed and evidence of State shows that included offense of manslaughter in the first degree must be submitted to the jury, provided said prior conviction is charged in the information.

6. An information charging all the essential elements of murder is not subject to demurrer, because it further alleges the fact of a prior conviction.

7. To warrant the admission of a statement as a dying declaration it is not essential that there be an express declaration that declarant is going to die, or that he has no hope of recovering. It is sufficient if it satisfactorily appears that he believed he could not survive, whether it be directly proven by the express language of the declarant or from the other circumstances of the case, such as the nature and extent of the injuries, his evident danger, the opinion of medical attendants, stated to him, or the length of time between the time of statement and death.

8. The admissibility of a dying declaration is primarily a question for the Court. Ordinarily, when a dying declaration is offered as evidence, the Court should require proof of its admissibility in the absence of the jury.

9. The preliminary proof laying grounds for the admission of a dying declaration, examined and found sufficient to require Court to submit declaration to jury.

10. Record examined, and held that instructions substantially state the law of the case, and evidence is sufficient to sustain conviction for murder.

Appeal from Superior Court, Seminole County; Otis H. Presson, Judge.

Wilbur B. Johnson was convicted of murder, and he appeals.

Affirmed.

Hubert Hargrave, of Wewoka, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen for defendant in error.

JONES Presiding Judge.

The defendant, W. B. Johnson, was charged by information filed in the Superior Court of Seminole County with the crime of murder; was tried, convicted, and sentenced to serve life imprisonment in the State Penitentiary, and has appealed.

On July 23, 1941, the defendant shot the deceased, R. A. Davis, with a 38-caliber pistol, which caused the death of the deceased two days later. About a year prior to the killing, the defendant was hired by the deceased to work on his farm near the town of Maud. Later, in February, 1941, the parties started farming certain land on a share-crop basis. In connection with these operations, they jointly borrowed money from a Maud bank, and, also, carried a joint account with two or three business establishments. The defendant was a widower sixty-six years of age. The deceased was thirty-six years of age, and lived with his wife on the farm. About two weeks before the killing occurred, the defendant who had been living in the house with the deceased moved to a small house on a lease adjoining the farm of deceased.

According to the evidence of the State, on the morning the shooting occurred, the deceased took some bantam chickens allegedly belonging to the defendant over to the shack where defendant had moved. An argument arose because the deceased failed to bring a bantam rooster which the defendant claimed belonged to him.

In the argument that ensued over the bantam rooster, the deceased called the defendant a "damn liar." This enraged the defendant, and he went into the shack after his pistol. Upon his return to the pick-up truck where deceased was sitting behind the steering wheel, the defendant fired a shot which struck deceased in the right shoulder and ranged downward severing the spinal cord and causing complete paralysis of the deceased's body below the place where the spinal cord had been severed. Some neighbors were attracted to the scene by the shooting and the yelling of deceased, and they removed the deceased to a hospital at Maud, where he died two days later. While in the hospital, the deceased made a statement to the officers concerning the incidents surrounding the shooting, which statement was admitted in evidence as a dying declaration.

The defendant testified that the deceased had taken advantage of him and had not carried out certain transactions in accordance with promises made to the defendant. That the deceased was younger and much stronger man than he was, and that at the time the shooting occurred the deceased had ordered the defendant to leave the place, and that he told the deceased that he was not going to leave, but that he intended to finish the crop; that deceased then started toward defendant, and defendant went into the shack; that deceased started in the door, and, to quote the defendant: "I ran in that door, pulled out that six-shooter, and said 'Cotton, don't come in that door.' He said, 'Hell, you won't do nothing,' and started in, and, bam, I took him." On cross-examination, the defendant admitted that he had been convicted of manslaughter in Pontotoc County, Oklahoma, and served 15 years, and that he had, also, been convicted previously of armed robbery.

It is first contended that the trial court erred in overruling the demurrer to the amended information filed against the defendant for the reason that it charged the crime of murder, the same being a second and subsequent offense. That the statute authorizing the filing of an information charging a former conviction is only for the purpose of increasing the punishment; therefore, in a capital offense, it is improper to charge the alleged offense was a second or subsequent offense for the reason that this allegation would not authorize an increase in punishment for the alleged offender, but could only be used by the State to attack the character and reputation of the defendant by introducing evidence in chief to show former convictions.

The amended information in question, omitting formal parts, provides:

"That at and in the county of Seminole, and the State of Oklahoma, on or about the 23 day of July, 1941, and prior to the filing of this information, said defendant, Wilbur B. Johnson did then and there wilfully, unlawfully and feloniously, with premeditated design to effect the death of R. A. Davis, shoot and discharge into the body of the said R. A. Davis, certain metal bullets from a certain gun, and there inflicting upon the body of the said R. A. Davis, certain mortal wounds, from the wounds the said R. A. Davis thereafter did die on the 25th day of July, 1941.

Said offense being a second and subsequent offense, he, the said Wilbur B. Johnson having been previously convicted in the District Court of Pontotoc County, Oklahoma, a Court of competent jurisdiction, in Case No. 2027, for the crime of Manslaughter in the First Degree, on the 8th day of April, 1929, and thereafter, on the 11th day of April, 1929, he, the said Wilbur B. Johnson, was by judgment and sentence of the Court sentenced to serve a term of fifteen (15) years in the State Penitentiary at McAlester, Oklahoma, for the crime of Manslaughter in the First Degree, and against the peace and dignity of the state."

The question raised by counsel for defendant is very interesting and is without judicial precedent in this State. Counsel for both the State and defendant have stated to the Court that they had been unable to find any authority passing directly upon the point herein involved, except counsel for defendant insists that the case of Wright v. Commonwealth, 109 Va. 847, 65 S.E. 19, is in point.

In determining the disposition of this case, the instructions pertaining to this issue should be fully considered along with the evidence which was permitted to go to the jury. In this case, the killing was admitted; the plea was one of self-defense. Under the record herein, the Court was bound to submit to the jury not only the charge of murder as alleged in the information, but, also, the included and lesser offense of manslaughter in the first degree. Manslaughter in the first degree is punishable by imprisonment in the State Penitentiary for any period of time not less than 4 years. 21 O.S.1941§ 715. Under the second offense statute, 21 O.S.1941 § 51, in case the jury should find the accused guilty of manslaughter in the first degree, and further find that the said crime was a second and subsequent offense, the minimum punishment which they could assess...