McHugh v. Territory Oklahoma

• Decision Date: 11 June 1906
• Citation: 17 Okla. 1,1906 OK 35,86 P. 433
• Parties: C. E. MCHUGH v. TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1906 OK 35

86 P. 433

17 Okla. 1

C. E. MCHUGH v. TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: June 11, 1906

Syllabus

¶0 1. INDICTMENT--Allegations--Phraseology. An indictment is sufficient which states the facts clearly and distinctly, in ordinary and concise language, without repetition, and which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what was meant, and to apprise the defendant of the exact nature of the offence with which he was charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal pleading

2. NEW TRIAL--Granted, When. Where a new trial is sought on the ground of newly discovered evidence, and where it is apparent that all reasonable diligence of which the subject is susceptible has been exercised by the defendant to procure the same, and where it is apparent that the evidence not only tends to discredit or impeach the prosecuting witness, but is such as might reasonably affect and probably would change the result of the trial, a new trial should be granted.

3. EVIDENCE--Criminal Trial--What Competent. In a criminal prosecution for an alleged assault with intent to kill, where the defendant claims that he acted solely in self defense and to prevent a felony being committed upon him, and some evidence is introduced tending to show that such were the nature and character of his acts, it is then competent for the defendant, in corroboration of such evidence, and to show the state of the feelings existing between the defendant and the prosecuting witness at the time of the alleged assault, to introduce other evidence, tending to show that the person on whom the assault is alleged to have been made, had, a short time previous to said alleged assault, committed an assault upon the defendant with a deadly weapon, and attempted to do him bodily harm with said weapon, where the evidence in the case on trial tends to show that at the time of the alleged assault, the person assaulted had in his possession a weapon similar to that with which the previous assault was committed.

STATEMENT OF FACTS.

This is an indictment charging the defendant with the crime of an assault with intent to kill, returned by the grand jury of the district court of Kiowa county, Oklahoma Territory, on the 8th day of September, 1904, being one of the regular days of a regular term of the court, charging that the defendant committed said assault upon one James L. Horton, in Kiowa county, Oklahoma Territory on the 28th day of March, 1904. On the 7th day of April, 1905, defendant filed a demurrer to the instrument. Said demurrer was argued and submitted to the court on April 10, 1905, and by the court overruled, to which ruling the defendant excepted. On the same day the defendant entered a plea of not guilty, and the cause proceeded to trial before a jury. On the 12th day of April, 1905, the jury returned a verdict finding the defendant guilty as charged in the indictment. On April 28th, 1905, defendant filed a motion for a new trial, setting up the statutory grounds therein, and in addition thereto, a claim of newly discovered evidence, which was overruled by the court. A motion in arrest of judgment, setting up the grounds stated in the demurrer was also filed on the same day, which the court also overruled, to which the defendant excepted. On the same day the court rendered judgment against the defendant and sentenced him to eighteen months' imprisonment in the territorial prison, to which judgment and sentence plaintiff in error excepted, and brings the case here for review.

Error from the District Court of Kiowa County; before F. E. Gillette, Trial Judge.

H. P. McGuire, Howard Parker, and E. M. Bradley, for plaintiff in error.

P. C. Simons, Attorney General, Don C. Smith, Ass't for defendant in error.

IRWIN, J.:

¶1 A reversal of this case is asked for on three grounds, the first being that the indictment is not sufficient. The charging part of the indictment is as follows:

"Ed. C. McHugh, then and there being, in and upon the body of one James L. Horton, unlawfully, wrongfully, intentionally and feloniously did make assault; and the said Ed. C. McHugh with the intent then and there unlawfully, wrongfully, intentionally and feloniously, to kill and murder James L. Horton, did then and there, on the date aforesaid, with a certain firearm, to-wit: a revolving pistol loaded with gunpowder and leaden bullets, which he, the said Ed. C. McHugh, then and there in his hand held, with intent aforesaid, did then and there shoot off, at, toward and into the body of him, the said James L. Horton, said pistol then and there and thereby giving to him, the said James L. Horton, a dangerous wound."

¶2 The only answer that is necessary to make to this contention is to refer to the decision of this court in the case of Heatly v. Territory, reported in the 78 P. 79. The language used by Chief Justice Burford, in rendering that opinion, in our opinion clearly, concisely, and unequivocally states the law. The language of that opinion is as follows:

"The first objection presented by counsel for plaintiff in error is that the indictment does not charge a public offense. There is some repetition and surplusage in the indictment, but under sec. 2206, Wilson's Rev. & Ann. Stat., 1903, the material averments necessary to charge a public offense are, 'That in the county of Greer, and Territory of Oklahoma, on the second day of September, 1903, one Jeff D. Heatly did then and there intentionally, wrongfully, and feloniously shoot one R. Bell with a certain firearm, to-wit: a shotgun with the intent then and there and thereby to kill him, the said Bell.' The indictment contains all this and more. To hold that it was necessary that the indictment should aver that the shotgun was loaded with gunpowder and leaden bullets, and was had and held in the right hand of him, the said Heatly, and that it was shot off and discharged at and against the body of him, the said Bell, and such other ancient and unnecessary phrases as are usually found in forms presented by Chitty and other law writers of the remote past, would be to do violence to those provisions of our criminal code which prescribe the requisites of criminal pleading. By sec. 5357, Wilson's Rev. & Ann. S., 1903, it is provided that the indictment must contain 'A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended;' and by sec. 536, subd. 6, it is enacted, among other requirements, that the indictment is sufficient if it can be understood therefrom 'That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language without repetition, and in such manner as to enable a person of common understanding to know what is intended.' * * *.

"It is a common and ordinary mode of expressing the fact to say that one person 'shot another' and when it is said that a man was 'shot,' or that one person 'did shoot' another, every person of common understanding knows what is intended without explanation; and in order to set forth such fact in ordinary and concise language, it is no longer necessary to express in words each component or constituent embraced in the fact. The term 'did shoot' embraces the weapon, the load, the discharge, and the act of discharging, and it is so meant and understood by courts, counsel, jurors and witnesses, and why should more particularity or repetition be required in a pleading than is required to express the same fact in every day parlance? The law does not require it, and the necessity for following ancient and obsolete forms made up of repetitions, unnecessary particularization, and crude phraseology, if it ever existed, no longer prevails. Stutsman v. Territory, 7 Okla. 490, 54 P. 707; People v. Steventon, 9 Cal. 273; People v. Choiser, 10 Cal. 310. The tendency of prosecuting attorneys to abandon prolix, abstruse, and superfluous terms and phrases in criminal pleading is rather to be commended than condemned. When the character of the firearm is designated, the manner of using it, the intent with which the act is done, and the person against whom the act is directed, are averred in plain, common sense English language, the act charged as the offense is sufficiently pleaded, and the law requires no more."

¶3 The next assignment of error, in our judgment, presents a more serious question. That is, that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. The evidence claimed to have been newly discovered, was the testimony of Charles Hubbard, and G. H. Chadwick. Said testimony relates to statements made by the prosecuting witness Horton, soon after the alleged assault, and not only tends to impeach the witness Horton, but tends to corroborate the testimony of the defendant as to how the altercation and difficulty occurred. It is first contended by counsel for defendant in error that no diligence was shown in endeavoring to procure this testimony, but from the very nature of the testimony itself, it must be apparent that diligence on the part of defendant or his counsel would have been of no avail in procuring this testimony, because these parties were not witnesses to the transaction, were not persons who were in the vicinity at the time of the transaction, and it would reasonably be supposed they knew nothing of the matter. These conversations with Horton, as testified to by these witnesses in their affidavits, do not seem to have been had in the presence of any third person, but were admissions and statements made by Horton to these witnesses, and according to their affidavits were not communicated to any one until after the trial and conviction of the defendant. So it can be seen that by no reasonable diligence could the...