McDaniel v. State
| Citation | 127 P. 358,8 Okla.Crim. 209,1912 OK CR 398 |
| Parties | MCDANIEL ET AL. v. STATE. |
| Decision Date | 26 October 1912 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) In an information for a felony, it is not necessary to allege that the defendant has had a preliminary examination before an examining magistrate, or that he has waived such preliminary examination.
(b) If as a matter of fact there has not been a preliminary examination before an examining magistrate, or a waiver thereof, and a defendant desires to offer this as an objection to an information against him for a felony, he must set up by plea in abatement that such examining trial has not been had or waived by him.
(c) Where two or more persons are joined together in an information or indictment charged with the commission of a felony, and it is alleged that they acted together and with each other in the commission of such felony, it is not necessary that such information or indictment should go further, and state the facts showing how such parties acted together.
(d) Where an objection to an information is presented for the first time upon a motion to exclude testimony, the motion should be overruled if by any intendment or presumption the information can be sustained.
The modern rule is to admit generic threats or threats directed toward a class, and leave their weight for the jury.
Where a witness has testified on cross-examination for the purpose of affecting his credibility that he has been convicted of a felony, the state may go further, and require said witness to state of what felony he has been convicted, because different felonies indicate different degrees of infamy.
Where a defendant or defendants have been properly charged and fairly tried and convicted and proven to be guilty of an offense, a conviction will not be reversed upon light and trivial grounds, but a new trial will only be granted where the record shows that he or they was or were deprived of some substantial right, to his or their injury.
For approved instructions on the subject of murder, manslaughter self-defense, threats, and voluntary mutual combat, see statement of case.
Appeal from District Court, Pushmataha County; Malcom E. Rosser Judge.
Andrew McDaniel and another were convicted of murder, and appeal. Affirmed.
The information in this case was as follows:
Statement of Evidence.
Something like 30 witnesses testified upon the trial of this case. Their testimony covers several hundred pages. It would take up too much space to state the testimony in full, but we have made a condensed statement of the testimony in narrative form, and we think that the material facts are as follows:
The appellants, Andrew and Joe McDaniel, and also the deceased, were, or had been, residents of Pushmataha county, and at some time during their residence had lived neighbors. It appears from the record that a short time before this killing took place that Henry McDaniel, the brother of appellants, had been prosecuted by the deceased, W. M. Smith, for stealing some of his property, and that out of that prosecution a certain ill feeling grew up on the part of these appellants against the deceased, Smith, and this ill feeling is evidenced by certain threats that appear of record having been made on the part of both Andy and Joe McDaniel. This killing took place in the town of Antlers, and at a time when the deceased was in front of what was known as the Spruell or Commercial Hotel in that town. The main street of the town runs east and west by this hotel, which is on the north side of the street. The Frisco depot is west of the hotel about 50 or 60 yards; the main part of the town of Antlers being east of the hotel. Andy and Joe McDaniel had been down to the Frisco depot along about 2 o'clock of the afternoon of the day of the killing, and were coming back uptown, for what purpose it does not clearly appear from the record. In going uptown they had to pass by or did pass by the Spruell Hotel, which had a balcony that extends out over the sidewalk. The deceased, together with George and Eugene Stephenson and a man by the name of Wick Smith, were all out in front of this hotel, sitting on the rail of this balcony when the appellants approached. Joe McDaniel shook hands with George Stephenson, and then extended his hand toward Eugene Stephenson. The deceased, thinking that he intended to shake hands with him, extended his hand to shake hands with Joe McDaniel, when Joe McDaniel became incensed, and told him not to stick his paw out to shake hands with him. Whereupon the deceased withdrew his hand, and made a motion back of him, the witness says, as if to take hold of a pistol, at the same time remarking to Joe McDaniel that he was not ashamed of anything he had done. It appears that Andrew McDaniel at this time did not stop; but in his testimony he says that he heard the conversation between Joe McDaniel and the deceased, Smith. As soon as the remarks were made as above set forth, Joe McDaniel started on east towards town, and he and Andrew stopped in a poolhall about 60 or 70 feet east of the Spruell Hotel and Andrew asked the man in charge, by the name of Baker, and also the proprietor by the name of Belcher, to let him have a pistol, and they each refused to do so. Whereupon they left and started on up the street, Andrew going on to a wagon that was in town which he claims was his father's wagon, and out of it he procured a double-barreled shot gun (breach loading, hammerless, No. 12 gauge). This gun was loaded with buckshot. Immediately thereafter he got with his brother Joe, and they started, as they claim, toward the Frisco depot, where Andrew says he intended to take the train south. Several witnesses in rebuttal testified that the train south had already pulled out, or was pulling out at the time this shooting occurred. Therefore it would have been impossible for them to have taken the train out that afternoon. At any rate, they started back to the place where the previous difficulty had been had with the deceased, W. M. Smith. Andrew was carrying the shotgun under his arm, and was walking along on the north side of the sidewalk. Joe, who claims that he was unarmed, was walking by his side. As to what occurred when they got up to where the deceased was there is a dispute. The witnesses for the state, Eugene Stephenson, sheriff of the county, and Wick Smith, who was not a relative of the deceased and a total stranger to appellants, testified that Andrew McDaniel said: "Now do what you are going to do, or do what you intended to do." And then when he said that the deceased, Smith, started to reach for a gun, and the witness Wick Smith grabbed him, while the witness Eugene Stephenson started toward Andrew McDaniel, and took hold of his arm to prevent him from shooting. In the scuffle that followed W. M. Smith broke loose from Wick Smith, and fired a pistol in the direction of Joe McDaniel, and almost simultaneously therewith Andrew McDaniel shot him twice with a shotgun, inflicting two mortal wounds; one in the left breast and the other just about the right hip. The latter was inflicted after Smith fell to the ground. The defendants contend that they did not get the shotgun for the purpose of having a difficulty with deceased, but that they intended to go on by him and have no trouble with him, and that Andrew was taking the shotgun with him on the train; that, when they got even with Smith, Smith spoke up and said "I am ready for you now," or some similar expression, and started to pull a gun, and had a gun out and shot one shot at Joe McDaniel before Andrew fired the shot, and that the shots that he did fire were in defense of his brother Joe and of himself.
If the theory of the state was true, that Andrew and Joe McDaniel became incensed at the conduct of Smith in the first instance in attempting to draw his pistol and immediately left the scene with the intention of going and arming themselves, and then returned for the purpose of having a difficulty with Smith in which deadly weapons should be used, then both defendants were guilty of murder. On the other hand, if the theory of the defense is true, that they intended no such difficulty, that the trouble with the deceased, Smith, was over immediately after they left the scene on the first occasion, that they were on a peaceable mission to take the train to leave the town and were...
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