Lawson v. Territory Oklahoma

• Decision Date: 11 February 1899
• Court: Oklahoma Supreme Court
• Parties: CALVIN LAWSON v. THE TERRITORY OF OKLAHOMA.

1899 OK 27

56 P. 698

8 Okla. 1

CALVIN LAWSON v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 11, 1899

SYLLABUS

¶0 1. TRIAL--Criminal Cause--Continuance--Error. The defendant was indicted on September 20, 1897, for the crime of murder. A demurrer to the indictment was overruled on September 21, 1897, and on the same day he presented an application for continuance on account of the absence of material witnesses who were temporarily absent from the Territory, which was overruled, and the defendant put upon his trial. Held, that the refusal to grant such continuance was prejudical error, and that a period of only one day after the filing of the indictment was not a sufficient length of time in which to prepare for trial.

2. HOMICIDE--Trial--Questions of Fact--Instructions. All questions of fact, in a criminal prosecution, are to be determined by the jury, and the court cannot express an opinion as to the weight of evidence, except to direct a verdict of not guilty, and even then it must advise the jury that they may disregard such instruction and return a verdict of guilty; and it is error for a trial court, in a prosecution for murder, when the homicide was committed while the parties were having a personal difficulty, and there was some evidence tending to show that the deceased was the aggressor, to instruct the jury that "in this case there is no evidence to support or justify a verdict of manslaughter in the first degree, manslaughter in the second degree, or justifiable homicide," and to further instruct them, as a matter of law, that their verdict should be guilty of murder, as charged in the indictment, or that such killing amounted in law to justifiable homicide, and that the defendant is not guilty. It is for the jury to say as to whether or not the defendant committed the homicide, and then it becomes their further duty to determine from the evidence, under the instructions of the court, of what particular crime, included in the indictment for murder, he is guilty.

3. VERDICT--Presence of Accused--Record. A verdict in a case of felony cannot be received in the absence of the defendant, but, once defendant's presence is shown at a session of court, it will be presumed that he continued to be present in court during the day, or until the first adjournment, unless the contrary is made to affirmatively appear. And where the record shows that the defendant was present when the court instructed the jury, when arguments were made by counsel, and when his case was submitted to the jury, and the jury thereafter, on the same day, returned their verdict, and the record fails to show any adjournment between the retiring of the jury and the returning of the verdict, such record affirmatively shows the presence of the defendant when the verdict was received.

Error from the District Court of D County; before John C. Tarsney, District Judge.

Calvin Lawson was convicted of murder, and brings error. Reversed.

John I. Dille, C. O. Blake, E. E. Blake and W. A. Maurer, for plaintiff in error.

Harper S. Cunningham, Attorney General, for defendant in error.

BURWELL, J.:

¶1 The defendant, Calvin Lawson, was indicted in the district court of D county on September 20, 1897, charged with having murdered one Robert De Racon, on September 1 of the same year. On September 21, his demurrer to the indictment and his application for a continuance were overruled, and, over his objections, he was immediately put upon his trial. Defendant was convicted and sentenced to life imprisonment, whereupon he appealed to this court.

¶2 The first error complained of is that the court erred in overruling the application for a continuance. The application conformed to the standard fixed by our statutes and the facts which it was claimed that the absent witnesses would swear to were certainly material. The defendant stated that one of the witnesses, if present, would swear that the deceased tried to employ him to kill and murder the defendant, and on divers other times threatened defendant's life; that the other two witnesses would swear that the deceased had on different occasions threatened to kill defendant; that each of the witnesses named was a resident of D county, but that they were each temporarily absent therefrom; that he believes the testimony of such witnesses, as set out in his application, to be true; and that he could not prove those facts by any other known witness. It is not claimed that these threats were ever communicated to the defendant prior to the homicide. Therefore they could not have influenced the action of the defendant at the time of the killing. But they are admissible for the purpose of showing which was the aggressor. (Young v. Com. [Ky.] 42 S.W. 1141; State v. Tarter, [Ore.] 37 P. 53; Wiggins v. People, 93 U.S. 465, 467, 23 L. Ed. 941, and cases therein cited.)

¶3 The defendant testified that the deceased was coming towards him with a corn knife in his hand, and was making demonstrations with it, as though he was going to throw it at him; that deceased was about thirteen feet away, and the only obstruction between them was a wire fence, consisting of one wire, which a person could step over; that as deceased advanced, he used the language: "God damn you! I'll kill you;" that defendant said, "Don't come any further, or I'll have to kill you. For heaven's sake! don't come any further;" that deceased said, "No, you won't," and continued advancing, whereupon defendant shot just as deceased turned to step over the fence. The question as to which was the aggressor was squarely in issue, and any evidence which would legitimately tend to fasten the wrong upon the deceased was proper; and defendant should have been given a reasonable time to procure such evidence. It is true that these witnesses were out of the jurisdiction of the court; but the defendant swore that, if given until the next term of court, he believed he could secure the evidence. At any rate, we do not believe that the rule as to persons out of the jurisdiction of the court should apply when the witnesses live in the county and are only temporarily absent from the Territory. In such cases a defendant should be given a reasonable time to prepare for his defense and to secure his evidence; and, even if the evidence which the continuance was asked for were incompetent--which we cannot concede--the defendant should have been given more time in which to prepare for his defense. It is doubtless true that by delay defendants are ofttimes enabled to manufacture a defense, and thereby escape merited punishment, and it is the duty of the courts to try persons charged with crime as speedily as is consistent with justice to the defendant; but to indict a man for murder one day, and force him to trial the next, in many cases would virtually deprive him of the right of defense.

¶4 In section 143, Clark, Cr. Proc., the following language will be found. "Nor does a 'speedy trial' mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law does not exact impossibilities, extraordinary efforts, diligence, or exertion, from the courts or the representatives of the state; not does it contemplate that the right to a speedy trial shall operate to deprive the state of a reasonable opportunity of fairly prosecuting criminals. Whenever, therefore, without fault on the part of the prosecution, delay is necessary in order that it may procure the attendance of material witnesses, or otherwise prepare properly for trial, or because the prosecuting officer is sick or unable to attend, a reasonable continuance should be granted."

¶5 The supreme court of Iowa said in the case of City of Creston v. Nye, 37 N.W. 777, that "the constitutional provision requiring a 'speedy' trial must be construed in a reasonable manner." Now, if the state cannot be compelled to immediately go to trial, can the defendant be expected, ordinarily to be ready for trial as soon as the indictment is returned? We think not. The defendant was charged with the gravest crime known to our law; and if no showing had been made by his, other than that he was not prepared to, and could not safely, go to trial, the court should have given him a reasonable time in which to prepare his defense. (State v. Pool, [La.] 23 So. 503.)

¶6 One accused of crime has the right to have the aid of counsel to defend him, and the constitutional guaranty that he shall have the right to the assistance of counsel means that he shall have the benefit of the best skill and thought that his counsel can give him; and an attorney cannot, under the most favorable circumstances, properly defend one charged with murder, without...