Manning v. State
| Decision Date | 01 June 1912 |
| Citation | 123 P. 1029,7 Okla.Crim. 367,1912 OK CR 186 |
| Parties | MANNING v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) A juror cannot be disqualified on his voir dire by asking him if it would have any bearing upon him in rendering his verdict in a case if it should develop during the trial that the defendant had prior thereto been convicted of manslaughter, and it is not error for the trial court to refuse to allow such question to be answered.
(b) Under certain conditions the fact of a previous conviction for manslaughter of a defendant might be admissible in evidence and become a matter to be considered by the jury under proper instructions from the court.
(a) Where a defendant takes the witness stand in his own behalf he may be asked if he has ever been convicted of a felony or of any offense showing want of moral character. The purpose of this evidence is to affect his credibility as a witness by showing that he has been convicted of a felony or of any offense indicating a want of moral character. The fact that an appeal is pending from such conviction will not render such evidence inadmissible. It is the verdict of the jury upon such accusation that affects the credibility of the witness.
While it is improper for the court to instruct the jury that if they find any witness in the case has willfully sworn falsely as to any material fact, then the jury has a right to disregard the testimony of such witness except in so far as the same may be corroborated by other facts and circumstances in evidence, yet the giving of such instruction will only be reversible error where it appears from the entire record that the appellant was injured thereby.
It is not error for the trial court to refuse to give a requested instruction although it may be a correct statement of the law, if the principles therein contained have already been given in the general instructions to the jury.
(a) For circumstances under which the trial court was justified in finding that in a capital case the name of a witness was furnished, the defendant more than two days prior to the day on which such case was called for trial, see opinion.
(b) The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.
(c) Where a witness in a capital case is permitted to testify over objection that the name of such witness was not furnished the defendant two days before the case was called for trial, such failure to furnish the defendant with the name of such witness and permitting such witness to testify will not be reversible error where it is shown that the witness did not testify as to any material fact against the appellant.
(a) The admission of incompetent evidence is not ground for reversal of a conviction unless it affirmatively appears from the record that the appellant was injured thereby.
(b) A doctor should not be allowed to testify to his opinion as to the position the body of the deceased may have been in when he received the fatal wound; but, where from an inspection of the entire record it appears that the defendant was not injury by the introduction of this incompetent evidence, it will not be ground for the reversal of a conviction.
(c) When the wife of a defendant is a material witness in his behalf and she is not placed upon the stand by him or her absence is not accounted for by the defendant, this becomes a circumstance to be considered against the defendant.
Appeal from District Court, Tulsa County; L. M. Poe, Judge.
Frank Manning was convicted of manslaughter in the first degree and his punishment assessed by the jury at eight years' imprisonment in the state penitentiary, and he appeals. Affirmed.
Giddings & Giddings, of Oklahoma City, for appellant.
Smith C. Matson, Asst. Atty. Gen., and Redmond S. Cole, Co. Atty for the State.
First. Upon the trial of this case when the jury were being examined on their voir dire, counsel for appellant propounded the following question to the juror Kelly: "Mr. Kelly, if it should develop in the trial of this case that the defendant had at one time prior in his lifetime been convicted of manslaughter in the second degree, and that the case was now pending in the Criminal Court of Appeals of this state, would that have any effect or bearing upon you in rendering a verdict in this case?" The question was objected to as incompetent. The objection was sustained, and the appellant excepted to the ruling of the court. We do not think that the court erred in sustaining the objection to the question as asked. In the case of Slater v. United States, 1 Okl. Cr. 275, 98 P. 110, this court expressly decided that, where a witness had been convicted of a felony or of any offense which indicated a want of moral character, this was a proper fact to be admitted in evidence and considered by the jury as affecting his credibility as a witness. Again, if upon the trial appellant had offered evidence of his previous good character for peace, it would have been competent for the state to prove this previous conviction in rebuttal. These are the only two contingencies in which such previous conviction could be developed upon the trial, and in both of them it would have been proper and necessary for the jury to consider such conviction in arriving at a verdict.
Second. Upon the trial of this case when appellant was upon the witness stand in his own behalf he was asked the question, "Were you ever convicted of manslaughter?" to which appellant objected, and, the objection being overruled, appellant answered "Yes, sir." It is objected that this evidence was inadmissible because the appellant had appealed from such conviction, and that at the time of this trial the case in which appellant had been convicted of manslaughter was pending in the Criminal Court of Appeals, the proposition being that, as the case was upon appeal, the conviction was not necessarily final. The sole purpose of evidence of this kind is to affect the credibility of a witness. This purpose is accomplished by showing such conviction, even though the conviction may have been reversed upon appeal. If the conviction had been reversed because it was contrary to the evidence, this might be shown in behalf of such witness. Many courts hold that for the purpose of impeachment a witness may be asked if he has ever been arrested or accused of an offense. For the reasons given in the case of Slater v. United States, 1 Okl. Cr. 275, 98 P. 110, this court holds that the mere fact that a witness may have been accused of an offense could not be proven for the purpose of affecting his credibility, but we think that where a witness has been tried for a felony or for any crime which indicates a want of moral character, and the case has been submitted to a jury, and they have found from the evidence that he is guilty, this fact may be given in evidence to the jury for the purpose of affecting the credibility of the witness. The law presumes that the jury was intelligent and impartial and that they would not find a man guilty upon mere suspicion or an accusation of his enemies. It is the verdict of the jury upon such an accusation that affects the credibility of the witness. Prior to a trial and verdict of guilty the law presumes that a defendant is not guilty, but, when a jury selected in part by a defendant finds that he is guilty, this presumption of innocence is wiped out and the opposite presumption that he is guilty prevails. We therefore hold that the court did not err in overruling the objection to this evidence.
Third. Upon the trial of this case the court instructed the jury as follows: "And if you believe that any witness in the case has willfully sworn falsely to any material fact, then you have the right to totally disregard his testimony except in so far as the same may be corroborated by other facts and circumstances in evidence." This instruction is erroneous but is not necessarily reversible error. See Henry v. State, 6 Okl. Cr. 430, 119 P. 278. Upon the entire record in this case the jury would have been warranted in finding that appellant had willfully sworn falsely to material facts, but his testimony was in some respects corroborated by the testimony for the state. We therefore feel that this instruction benefited appellant and is not ground for reversing this conviction.
Fourth. Counsel in their brief complain of the action of the trial court in refusing to give certain special instructions requested by appellant upon the trial. We have examined the instructions requested and find all of the issues involved in this case fully set forth in the instructions given. It is not error for the trial judge to refuse to give a requested instruction, even if it may be a correct statement of the law if the principles therein contained have already been given in the general instructions.
Fifth. Upon the trial of this case the state placed Madona R Kenefick upon the witness stand, and the following occurred as appears of record: ...
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