Moran v. Territory Oklahoma

• Citation: 1904 OK 111,78 P. 111,14 Okla. 544
• Parties: GEORGE MORAN v. TERRITORY OF OKLAHOMA.
• Decision Date: 03 September 1904
• Court: Oklahoma Supreme Court

1904 OK 111

78 P. 111

14 Okla. 544

GEORGE MORAN v. TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: September 3, 1904

Syllabus

¶0 1. GRAND JURY--Summoning of--Jurisdiction of District Courts.

The district courts of Oklahoma possess common law jurisdiction, and these courts have the power to invoke the common law method of summoning grand jurors when no other provision is made by statute, or when the provision so made is inadequate.

2. SAME. Where no election has been held in a newly organized county, and, in consequence, no jury lists prepared and returned to the county clerk, as provided by statute, it is competent for the court or judge to issue an open venire, directed to the sheriff, or other competent officer, to summon the requisite number of grand jurors, who possess the necessary qualifications under the provisions of our statute.

3. CRIMINAL LAW--Evidence--Res Gestae. Where, upon the trial of an indictment for murder, it was shown by the evidence that three highwaymen attacked four persons, who were driving in a wagon on the public highway, and, without a moment''s warning, shot and mortally wounded one of the party, who, a few hours thereafter died, testimony concerning the taking of the money and effects of the parties immediately after the shooting was admissible on the ground that it was a part of the res gestae, and as showing a motive for the commission of the homicidal act.

4. SAME--Murder, Venue. A person charged with the commission of the crime of murder must be indicted and tried in the county where the injury which caused the death was inflicted, and not at the place where the death occurred.

5. SAME. In a murder case, where the evidence shows that the mortal wound was inflicted in Oklahoma, and the death occurred in the Indian Territory, the jurisdiction to indict, try, convict and sentence the murderer is in Oklahoma.

6. SAME. Where a new county or jurisdiction is established after the commission of a crime, the defendant must be indicted, tried and sentenced in the jurisdiction comprising the territory in which the offense was committed, and not in the county to which the unorganized territory was attached for judicial purposes at the time of the commission of the offense.

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

R. J. Ray, J. A. Fain, F. E. Riddle and Cruce, Cruce & Bleakmore, for plaintiff in error.

J. C. Robberts,, Attorney General, C. H. Woods, Assistant, and S. M. Cunningham, County Attorney, for defendant in error.

HAINER, J.:

¶1 The plaintiff in error, George Moran, was jointly indicted, in Comanche county, Oklahoma Territory, with Mort Perkins and Bert Casey, for the crime of the murder of Joseph Philip Beemblossom on the 4th day of August, 1901. A severance of trial was demanded by the defendant and granted by the court, and the plaintiff in error was separately tried and convicted of the crime of murder, and the jury fixed his punishment at imprisonment in the territorial prison, at hard labor, for his natural life, and judgment was entered by the court in accordance with the verdict. From this judgment and sentence the plaintiff in error appeals to this court.

¶2 The evidence in relation to the homicide may be briefly stated as follows: On the 4th day of August, 1901, Dr. Z. E. Beemblossom, his son, Joseph Philip, Professor Easely, and Harry Darbyshire started from Rush Springs, Indian Territory, about three o''clock in the afternoon for Lawton, Oklahoma. They were traveling in a light two-horse wagon, and when they had traveled about six or seven miles in a westerly course, being at that time in what is now Comanche county, Oklahoma, they met two men, and stopped to inquire where they could get some water. As this inquiry was made from the two strangers, three highwaymen, on horseback, suddenly came upon them from the rear. One came to the right side of the wagon, another to the left, and one kept in the rear, and then a voice exclaimed, "If they don''t get their hands up, kill them," and almost instantly there was a shot fired which struck Joseph Philip Beemblossom, a little boy eleven years old, in the back, the ball passing through his body. As the little boy was shot he cried out, "Oh, Papa, I am shot." Immediately after the shot these three highwaymen and desperadoes robbed the party of all the money and valuables which they possessed, and then fled. The entire transaction did not last over four minutes. After the tragedy the wounded and bleeding form of the dying boy was slowly and gently borne on an ambulance back to Rush Springs by the father and friends, and about twelve o''clock on the same evening the wound that he had received proved fatal, and Joseph Philip Beemblossom passed away.

¶3 Rush Springs is situated in the Indian Territory, about two miles from the eastern boundary of Comanche county, Oklahoma. The three highwaymen were identified by the witnesses for the prosecution as Mort Perkins, Bert Casey and George Moran, the plaintiff in error. But little testimony was introduced on behalf of the defendant, and this was to the effect that the prosecution had failed to sufficiently identify the parties.

¶4 A number of errors, which we will consider in their order, are assigned and argued by the plaintiff in error, and upon them a reversal of this cause is asked. Among them are several new and important questions as to jurisdiction. It is urged that the court erred in overruling the motion to set aside the indictment for the reason that the grand jurors who found and returned the indictment were not drawn, summoned and impanelled as required by law. This same question was before the court in the case of Smith and Mims v. The Territory, decided at this term of the court, but not officially reported, where it was held that:

"The district courts of Oklahoma possess common law jurisdiction, and these courts have the power and authority to invoke the common law method of summoning a grand jury when no other provision is made by statute, or when the provision so made has been exhausted."

¶5 Hence, in a newly organized county, where no election has been held, and consequently no jury lists prepared and returned to the county clerk, as provided by the statute, it is competent for the court or judge to issue an open venire, directed to the sheriff or United States marshal, to summon the requisite number of grand jurors, who possess the necessary qualifications as such under the provisions of our statute. The motion, therefore, to set aside the indictment was properly overruled.

¶6 The next error assigned is that the court erred in overruling the motion for a continuance, but as this assignment is not argued, it will be deemed to have been waived.

¶7 It is next contended that the court erred in permitting the Territory to introduce testimony to show the commission of another felony. We have carefully examined the record in this case, and, in our opinion, this does not correctly state the theory of the prosecution and the ruling of the court thereon. The Territory did not attempt to introduce testimony to show the commission of "another felony." The evidence that was offered on behalf of the Territory was in regard to the entire transaction surrounding the commission of the homicide. The motive of the crime undoubtedly was robbery. The three highwaymen, who had planned to commit the robbery, were acting conjointly. The robbery did not consist merely of the taking of the money and effects of the parties after the fatal shot was fired, which resulted in the death of Joseph Philip Beemblossom, but it also included the assault upon the parties, the command or threat, "If they don''t get their hands up kill them," and the firing of the fatal shot. All these things constituted one and the same transaction. They were a part of the res gestae, and were explanatory of the homicidal act. The entire transaction from start to finish, did not continue longer than three or four minutes. One eye-witness testified that it probably lasted two or three minutes. Another eye-witness testified that it did not last longer than three or four minutes. Hence, the evidence concerning the taking of the money and effects of the parties immediately after the shooting, the acts and conduct and statements of the parties until they fled, was clearly admissible, on the ground that it was a part of the res gestae, and as explanatory of the crime.

¶8 In the fourth assignment of error, it is claimed that the court erred in permitting the Territory to introduce testimony to show that the parties committed the homicide while in the commission of another felony. This contention is also clearly untenable, and is based upon an apparent misapprehension of the facts. The motive of the crime of murder, as heretofore stated, was no doubt highway robbery, and while the entire transaction at the scene of the homicide constituted two distinct felonies, to wit, conjoint robbery and murder, both crimes were...