Moore v. State
| Decision Date | 22 November 1910 |
| Citation | 111 P. 822,4 Okla.Crim. 212,1910 OK CR 180 |
| Parties | MOORE et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the evidence is conflicting, and that on the part of the prosecution such that, if believed by the jury, a verdict of guilty should result, a conviction will not be set aside on the ground that it is not justified by the evidence.
A specification of error in a petition in error as follows "For errors of law occurring at the time and excepted to by plaintiffs in error"--is too general and indefinite to raise any question for review in the appellate court.
It is error to instruct the jury that a person who stands by and consents or acquiesces in the commission of a crime is a participant therein. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or he must aid, assist, abet, advise, or encourage its commission.
Where two defendants were jointly charged with a crime, and all the evidence as to the actual commission of the offense identified one defendant as the person who did the manual act constituting it, and tended to show that the other only aided and abetted therein, an erroneous instruction to the effect that all persons who stand by and consent or acquiesce in the commission of a crime are participants therein, being applicable only to the latter defendant, was prejudicial only to him.
The statement in an instruction defining a reasonable doubt that "a doubt, to justify an acquittal, must be reasonable and arise from a candid and impartial consideration of all the evidence in the case," is not erroneous as precluding a reasonable doubt arising from a want of evidence.
The orders of the court or judge for the drawing of jurors, and directing the issuance of open venires, must be entered of record; and, to be considered on appeal, they must be shown by a transcript of the record, and cannot be shown by affidavit.
The propriety of the court's action in ordering the issuance and service of an open venire for a certain number of jurors when the names of sufficient jurors yet remained in the jury box, cannot be raised for the first time after verdict has been rendered.
In an information for an assault with intent to kill, drawn under section 2307, Snyder's Comp. Laws Okl. 1909, it is not necessary to allege that the intent to kill was felonious the information alleging that the assault was intentional and wrongful.
An allegation in an information that the defendant did intentionally and wrongfully assault, beat, cut, stab, and wound one C. sufficiently alleges a battery.
The fact that an assaulted party was cut in the nighttime with some sharp instrument, that a serious wound was thereby inflicted upon him which blinded him, covered him with blood confined him to his bed for quite a while, and necessitated a physician's attendance upon him for some considerable time, the weapon remaining in the perpetrator's possession, were circumstances from which the jury could legitimately find that the assault was committed with a knife or some instrument of that character, and that the same was a deadly weapon.
Appeal from District Court, Creek County; T. L. Brown, Judge.
C. H. Moore and Harry G. Carpenter were convicted of assault with intent to kill, and they appeal. Reversed and remanded as to Moore, and affirmed as to Carpenter.
J. L. Byrne and Lucien B. Wright, for plaintiffs in error.
Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
In this case plaintiffs in error and one John Jones were jointly charged with an assault with intent to kill. The trial resulted in the acquittal of Jones and the conviction of plaintiffs in error as charged. It is contended that the verdict of conviction was not sustained by the evidence, in that it was not shown beyond a reasonable doubt that plaintiffs in error were the parties who committed the assault. The evidence on this question was conflicting. John Chee, the assaulted party, testified that he was called to the door of his restaurant about midnight, and that, when he opened it, plaintiff in error Carpenter stabbed him and cut him, and then ran; that there was another man with Carpenter whom witness did not fully recognize, but whom he thought to be Moore, but that Jones was not present in so far as witness knew. Ira Payne testified that about the hour stated he was sitting some 40 or 50 yards from John Chee's place; that he saw Carpenter go to Chee's door and knock; that he saw the scuffle and saw three men run away, but that Carpenter was the only one whom he recognized. Plaintiffs in error denied the matter in toto, and their evidence tended to prove an alibi. It will thus be seen that the evidence on the part of the state was such that, if believed by the jury, it fully warranted a finding that plaintiffs in error were the guilty parties. The credibility of the various witnesses and the weight and value to be given their testimony was a question solely for the jury's determination; and we cannot say that the evidence does not support the verdict in this particular.
It is next contended that the court erred in permitting John Chee, the assaulted party, to testify in this case because his knowledge of the English language was so defective as to render him incapable of understanding and correctly answering the questions propounded to him. This matter is not properly before us, however, for the reason that it was not assigned as error in the petition in error; the only assignment therein which could be held to include this being the sixth, "For errors of law occurring at the time and excepted to by plaintiffs in error." It may be that this would be a sufficient assignment in a motion for a new trial, but it is certainly too general and indefinite for a specification of error in the petition in error. Furthermore, from an examination of the record, we think the witness was competent.
The court's sixth instruction to the jury was as follows "If you believe from all the testimony in the case beyond a reasonable doubt that only one of these defendants actually participated in the cutting and the others stood by, and aided, abetted, or consented or acquiesced in the commission of the offense, then all would be guilty of the crime charged, and it is for you to say under all the testimony in this case whether either or all of these defendants were present or did in any manner aid, assist, abet, or acquiesce in committing the crime charged." It is contended that this instruction was erroneous, because it told the jury that if they believed beyond a reasonable doubt that one of the defendants did the cutting, and that the other two stood by and consented or acquiesced in the assault made by the one, then all would be guilty as charged. The instruction was erroneous. Section 2045, Snyder's Comp. Laws Okl. 1909, provides that "all persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals." To constitute one a party to a crime under this statute, it is necessary that such person be concerned in the commission of the offense--that is, that he either commit it or aid or abet its commission--and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime...
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