Jones v. State
| Citation | 129 P. 446,8 Okla.Crim. 576,1913 OK CR 26 |
| Parties | JONES v. STATE. |
| Decision Date | 25 January 1913 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) An application for a continuance is addressed to the sound discretion of the trial court, and a conviction will not be reversed upon the ground that the continuance should have been granted, unless it clearly appears from the record that the court abused its discretion in this respect.
(b) A defendant is not entitled to a continuance, as a matter of right, to secure cumulative testimony. If special reasons exist why a continuance should be granted to obtain this class of evidence, these reasons must clearly be set out in the application for a continuance.
(c) For an application for a continuance, which was insufficient on account of the absence of witnesses and the sickness of one of the counsel for appellant, see opinion.
(a) Before a juror is disqualified on account of an opinion, it must appear that the opinion is fixed and is such as will combat the evidence and resist its force. A mere impression as to the guilt or innocence of a defendant, where it appears to the court that a juror can and will disregard such impression and be governed entirely in arriving at a verdict by the testimony of the witnesses and the instructions of the court, will not disqualify such juror.
(b) Where there is nothing in the record to show that an incompetent, disqualified, or otherwise objectionable juror was forced upon the defendant, this court will not consider an assignment of error based upon the ruling of the trial court on a challenge for cause.
(a) Where an indictment or information charges that a murder was committed with a premeditated design to effect the death of the person killed, or of some other person, a conviction can be had for manslaughter in the second degree.
(b) The various classifications made in our statutes on the subject of felonious homicide were never intended to, and do not establish so many different rules of pleading. Their purpose is to mitigate the hardships of the common law and to furnish rules to guide the trial judge in the admission of evidence and in his instructions to the jury.
(a) When a defendant is on trial for murder, and the jury, under proper instructions, find him guilty of manslaughter in the second degree, this court will not grant a new trial upon the ground that the defendant should have been either convicted of murder or manslaughter in the first degree or acquitted.
(b) The jury have the absolute right to fix the degree of a crime of which a defendant is convicted when the court submits to them the different degrees, and this court will not disturb their verdict upon the ground that they have found the defendant guilty of a less degree of offense than that which the evidence establishes.
Appeal from District Court, Beckham County; G. A. Brown, Judge.
E. E Jones was convicted of manslaughter in the second degree, and appeals. Affirmed.
A mere impression as to the guilt or innocence of defendant, which a juror can disregard in arriving at a verdict, does not disqualify him.
J. C Baker, a practicing physician at Sayre, examined the wounds of John Thurmond, the deceased, shortly after he died on April 23, 1910. The examination disclosed three gunshot wounds, one on the right arm just above the elbow, and two through the body, one about a half inch to the right of the breast bone, between the fourth and fifth ribs, and the other just to the right of that, about an inch or so. The bullets were lodged just beneath the skin in the back, and witness cut them out. They were pistol bullets. They went straight through the body, about on a level, and did not range much to the left or right. The wounds caused his death. The body was warm when the examination was made.
R. B Brittain was present at Thurmond's barn at the time when the homicide occurred. Witness was standing on the sidewalk in front of the barn when Jones and Shorty Myers became involved in a difficulty. The latter cursed defendant, and Jones hit him, knocking him down. Myers then ran around the barn and entered it again, saying to Jones, "Now I will get you, you son of a bitch," and Jones grabbed him by the collar and the seat of his pants and butted him against the wall. Thurmond came in then and told them to stop and to get out of his place of business. Jones then rushed for his gun and fired. Witness saw Thurmond enter the barn, but did not notice any pistol or gun on him. He did not appear angry when he demanded that Jones and Myers get out of his barn.
J. B. Carson was with defendant on the Sunday of the killing, from 9 o'clock to near 12 o'clock, which was about the time the homicide occurred. Defendant then had a pistol.
John A. Stitzler was present at Thurmond's barn at the time of the difficulty--about 12 o'clock. About 30 minutes before the shooting, defendant called to Thurmond to come into the office of the barn, that he had some business with him. Thurmond, Moon, and witness went in. Defendant then held out a bottle of whisky in one hand and pointed a gun at Thurmond with the other and asked him which he wanted. They all took a drink, except Thurmond. Shortly afterwards the difficulty between defendant Jones and Shorty Myers occurred. Witness caught Shorty in his arms to separate them, and Jones hit at him again, missing him, but hitting witness. Witness told him to stop; that he would make Shorty quit bothering him. Defendant then told witness that if he had anything to say they could settle it pretty quick. About then Thurmond came up and told Jones to get out of the barn, that he wanted to raise nothing but trouble there, and he wanted him to get out. Jones then pulled his gun and told Thurmond, "It is your next move, God damn you, get in the road." Thurmond tried then to draw his gun from his pants pocket, but had only the handle of it out, when Jones fired. Jones shifted his position then to the office door, but Thurmond remained where he was. Both of them, meanwhile, were shooting. Jones' gun snapped twice. Jones threw up his hands saying, "I am hit," and staggered as though he were about to fall. Thurmond dropped his hands and said, "Well, I guess I have got him too." Jones staggered through the door and threw his hand against the door and pulled himself around, then, seeing Thurmond, he quickly raised his gun and shot again and shot through a crack in the office door and hit Thurmond. Witness saw the death look in Thurmond's face, and saw him staggering, and he turned away. When he looked again, he was lying upon the sidewalk.
W. J. Moon testified to practically the same facts sworn to by Stitzler as occurring up to the time when the shooting commenced. He left the barn at that time.
C. H. Cope was near the barn when he heard shots. He went over there and found deceased lying at the front door. Defendant was standing a few feet from the door, with a gun in his hand, which witness took from him. There were two cartridges in it and three empty hulls. The cartridges had been snapped on, but they failed to fire.
Alex. Watson testified in behalf of appellant that he was in a restaurant just across the street from Thurmond's barn when the shooting commenced. He went to where he could see the difficulty. Thurmond was a little south and west of the door, about six feet from the office door. Just after he saw a man go into the office, Thurmond shot into the office door. Then two shots came out of the door. After Thurmond fell he saw Jones standing near him with his gun in his hand.
William Poindexter testified in behalf of appellant. His testimony is substantially the same as that of Watson.
Roy Dunbar testified in behalf of appellant that he was near the barn when the shooting began; heard about seven shots. The second shot was louder than the first.
C. H. Bogard testified in behalf of appellant that he was in the restaurant; heard about seven shots; the second was louder than the first; saw Jones come out of the office door; just as Jones started into the office, Thurmond shot twice, then Jones shot twice at him.
T. S. Combs testified in behalf of appellant that he ran a shop east of the stable and also of Jones' place of business. Jones had pawned his pistol with him, and on the morning of the homicide redeemed it. It was not loaded when he redeemed it. Did not keep his place of business open on Sunday. Jones came there and wanted to redeem his pistol, so witness let him have it.
E. E Jones, the appellant, testified in his own behalf that he ran a restaurant in Sayre, knew deceased, was friendly with him, never had any previous difficulty with him. About 9 o'clock of the day of the difficulty, defendant went to Thurmond's stable and while there took a drink with deceased and Shorty Myers. Did not then have his pistol. Went by the second-hand store and got his pistol and tried to sell it to Mr. Carson. He passed Thurmond's barn about noon. When Shorty Myers accosted him in insulting language, a difficulty between them ensued, in which defendant shoved Shorty to the ground. Thurmond came over and caught Shorty and thew went out of the barn; after a few minutes Shorty returned and began cursing defendant. The latter caught hold of him and they both fell to the floor. Thurmond had returned and was standing there watching them. John Stitzler then placed his hand on defendant's shoulder and said, "John, don't do that"; and just about then Thurmond said, "You God damned son of a bitch, cut that out"; and as he said that he drew an automatic gun from his pocket and fired at defendant from his hip. Defendant jumped to the south and fired, then fell. Thurmond then shot at him a second time, and, as defendant jumped up and started for the office door, he...
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