Love v. State
| Citation | 150 P. 913,12 Okla.Crim. 1,1915 OK CR 187 |
| Decision Date | 07 August 1915 |
| Docket Number | A1927. |
| Parties | LOVE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An objection to the sufficiency of an information cannot be raised for the first time upon appeal, unless it is an objection to the jurisdiction of the trial court over the subject-matter of the information.
The jury are the exclusive judges of the credibility of the witnesses as well as the weight to be given to their testimony, and, where the evidence is sufficient to support the verdict, this court will not reverse the judgment because the greater number of witnesses may have testified favorably to the defendant on the principal points in the case, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict.
In a prosecution for intentionally and wrongfully shooting another with a pistol with intent to kill, an instruction that if the jury do not find from the evidence that the defendant shot said person with a specific intent to kill, "but you do believe from the evidence beyond a reasonable doubt that the defendant shot said Hollis with a pistol, and you find that such pistol was capable and sufficient to inflict death to a person shot therewith, then it will be your duty to find the defendant guilty of the offense of an assault and battery by means of a deadly weapon, as defined in paragraph three of these instructions." Held, prejudicial to the defendant as abstractly erroneous, and not applicable to the evidence adduced and inconsistent with the instructions submitting the included offense of shooting with intent to injure any person, but without intent to kill such person.
Instructions couched in language which implies the expectation of the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to convict, or which tend to shift the burden of proof, are improper.
While verdicts in criminal cases should be certain and free from ambiguity, yet any words that convey, beyond a reasonable doubt, the meaning and intention of the jury, are sufficient and all fair intendments will be made to sustain them.
Appeal from District Court, Roger Mills County; G. A. Brown, Judge.
L. A Love was convicted of a felonious assault, and appeals. Reversed.
J. W McMurtry, of Hammon, and A. J. Welch, of Clinton, for plaintiff in error.
Chas. West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
Plaintiff in error was convicted upon an information which, omitting merely formal parts, charges:
"That within the county of Roger Mills, state of Oklahoma, on the 17th day of December, A. D. 1911, one L. A. Love, late of the county aforesaid, did then and there unlawfully, knowingly, feloniously, purposely, and with premeditated design to effect the death of one W. C. Hollis, shoot, fire, and discharge at, toward, and into the body and person of the said W. C. Hollis, one certain pistol, which he, the said L. A. Love, then and there had and held in his hand, which said pistol was then and there charged and loaded with gunpowder and leaden balls, and the said L. A. Love with said pistol so loaded and charged as aforesaid and in his hand so held and had as aforesaid, and with a premeditated design to effect the death of the said W. C. Hollis, did then and there shoot, fire, and discharge the said pistol at, toward, and into the body and person of the said W. C. Hollis, with the intent then and there and thereby, him, the said W. C. Hollis, unlawfully, feloniously, purposely, wrongfully, willfully, and knowingly, and with the premeditated design and malice to kill and murder, contrary to," etc.
The jury rendered the following verdict:
"We, the jury impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths find the defendant, L. A. Love, guilty of an assault and battery committed upon W. C. Hollis with a pistol and with which he shot W. C. Hollis with intent to injure said Hollis and without justifiable or excusable cause therefor, and we fix his punishment at imprisonment in the state prison for the period of one year."
To reverse the judgment rendered in accordance with the verdict, the defendant appeals.
The evidence for the state, briefly stated, was as follows:
The prosecuting witness, W. C. Hollis, testified: That he and his partner, W. L. Arnold, were running a short-order restaurant and lunch counter in the town of Hammon. That on the night of the shooting the defendant and D. C. McCullum came into his place of business between 10 and 11 o'clock, and each ordered an oyster stew. That his partner, Arnold, took the orders, and witness prepared the same in the kitchen and brought them to the counter. The defendant was talking to some one; his attention was called to the fact that his stew was getting cold, and he turned around, picked up the soup bowl, and threw it on the counter. Witness said:
And the defendant said he would tear up the whole thing and throw it out. Witness went around in front of the counter and told the defendant that if he started anything he would throw him out. The defendant walked away and then came back and apologized. About 1 o'clock in the morning, witness said to those in the restaurant, including the defendant and one Jack Gore, that it was getting late, and then went behind the counter and blew out the light next to the window. The defendant Gore and others went out, and witness fastened the door with a button. That W. K. Fretwell was in there and was going to sleep with witness in the restaurant. Shortly after some one rattled on the door and he did not answer. Then some one shoved against the door and it flew open. That he went to the door to see who it was and the defendant was there. That he asked him what he wanted, and the defendant commenced shooting and shot witness through the legs. That he got hold of the defendant's gun, and Mr. Arnold came in and took the pistol. That as the gun went off the last time he had the defendant down, but did not know what he was doing to him. That Arnold pulled witness off the defendant and held him until the defendant left. That the defendant fired five shots. That he could not tell whether the defendant was drunk or sober. That witness did not have a gun of any kind. On cross-examination he was asked:
Dr. V. C. Tizzle testified that he was called to treat the prosecuting witness, and found flesh wounds on both thighs and on the left arm; that he could not say that these wounds were dangerous or likely to produce death.
W. H. Arnold testified: That he went to bed about 12 o'clock in a little place cut off back of the kitchen to sleep in. That, hearing a noise in the restaurant, he jumped up and put on his pants and went in and hollowed to Judge Love to quit shooting, and ran and grabbed the gun, and it went off once after he got hold of it. That later he gave it to the city marshal. That it was a fiveshot Smith-Western pocket pistol. That Hollis had the defendant down on his back and was choking him with some effect, and he pulled Hollis off. That Hollis and W. K. Fretwell, commonly called "Shorty," had a bed by the side of the stove in the restaurant.
W. K. Fretwell testified that he was outside when he heard a shot and went in, but did not see who fired the shots; that about five minutes before the shooting took place witness and Hollis had a scuffle, but neither were angry.
For the defense:
L. A Love, as a witness in his own behalf, testified: That with McCullum and Gore he entered Hollis and Arnold's short-order joint and ordered an oyster stew, and, while sitting there talking over a business affair, Arnold tapped him on the arm and insisted on him eating the soup. That he said: "Go on, the soup will be paid for; I will eat it presently." Then Hollis made the same request, and it irritated him a little, and he put his finger on the bowl and turned it over on the counter. That Hollis came from behind the counter and commenced fussing about it, and he apologized and told him that he was sorry that he had lost his temper, and Hollis said it was all right, and invited them to the back room to take a drink with him. That McCullum declined, and witness and Gore accepted the invitation. Shortly after he left the place and went to his room in the Hammon News office, and from there to the Valley Hotel. That about an hour later, while walking along the street opposite the restaurant, he heard some one hallowing in there and, looking across, he saw two men struggling, one was calling for help, and he went across the street and opened the restaurant door and asked what was going on in there. That about that time Hollis said something and struck him on the head with a heavy stool. That he grabbed him, and they both went down together, and he reached into his pocket and pulled out a little pistol. That he asked Hollis to let him up. That Hollis kept on fighting, and he fired two or three shots, and Hollis fired...
To continue reading
Request your trial