Morehead v. State

• Decision Date: 18 October 1915
• Docket Number: A-2501.
• Citation: 151 P. 1183,12 Okla.Crim. 62,1915 OK CR 202
• Parties: MOREHEAD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

151 P. 1183

12 Okla.Crim. 62, 1915 OK CR 202

MOREHEAD v. STATE.

No. A-2501.

Court of Criminal Appeals of Oklahoma

October 18, 1915

Syllabus by the Court.

An application for a continuance is addressed to the sound discretion of the trial court, and a ruling of the trial court denying a continuance will not be disturbed by the appellate court, unless an abuse of this discretion is clearly shown, but where such an abuse is manifest especially in a capital case, it is the duty of the appellate court to interfere, in the furtherance of justice.

A juror who on his voir dire testified that he had heard detailed what purported to be all the facts by a person who claimed to know all about the case of his own knowledge, and that he had a fixed opinion as to the guilt or innocence of the defendant that it would take strong evidence to remove, is clearly incompetent to sit as a juror and on a challenge for cause should be rejected, even though on further examination he stated that he could and would, notwithstanding such opinion act impartially and fairly, and render an impartial verdict upon the law and the evidence, and where the defendant exhausts his peremptory challenges, and such juror is retained on the panel, the overruling of the challenge is ground for reversal.

Dying declarations, to be admissible, must be made under a sense of impending death; but it is not necessary that the declarant state that he is expecting immediate death. It is enough if from all the circumstances, it satisfactorily appears that such was the condition of his mind at the time of the declarations.

On a trial for murder the dying declarations of the deceased are not limited as evidence in favor of the state alone, but are equally admissible in favor of the defendant.

It is the province of the court to determine, in the first instance, the admissibility of declarations offered in evidence as dying declarations, and for the purpose of proving the declarant's sense of impending death expressions or statements of the deceased are always admissible, if made at or about the time the dying declarations were made; and in this case it was the duty of the court to hear the evidence offered by the defendant, before determining that the dying declarations were incompetent and inadmissible.

On a trial for murder, declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the homicidal act, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal fact might not be properly understood, are admissible as part of the res gestæ.

On the trial of a negro charged with the murder of a white man, before a jury of white men, the county attorney in his opening argument referred to the defendant as "this black murderer." On objection being made, the court admonished counsel to be temperate in his remarks. The county attorney in his closing argument referred to the defendant as "this coalblack murderer." Again, objection being made, the court peremptorily overruled the same. The language objected to held to be grossly improper and prejudicial to the defendant, and the refusal of the court to interfere and to properly instruct the jury to disregard the same prejudicial error.

Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.

R. C. Morehead was convicted of murder, and appeals. Reversed.

L. M. Keys, of Hobart, for plaintiff in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

DOYLE P.J.

Plaintiff in error, R. C. Morehead, herein referred to as the defendant, was informed against for the murder of one Clifford Garrison. The trial jury found him guilty of said charge and fixed his punishment at death. His motion for a new trial having been overruled, and sentence of death having been pronounced upon him, the judgment has been brought to this court for review.

The evidence shows or tends to show the following facts: Previous to February 1, 1915, the defendant had been employed in the pressroom of the oil mill at Snyder. Clifford Garrison, the deceased, was the bookkeeper at the oil mill. On Sunday, February 7th, about 1 o'clock p. m., the defendant shot Clifford Garrison. From the effects of the wound he died the following Sunday. The shooting occurred in front of the shack occupied by the negro employés of the oil mill. It appears that the defendant had been discharged for writing some vulgar words on the wall, which he refused to rub out, and that the defendant had some disagreement with the deceased about his pay, and that he said to one of the employés:

"I have just been to the office and settled with the boys at the office and got my check, and I am going to shoot them officeboys off at the pockets."

On the day of the shooting it appears that there was a row among the negroes at the oil company's shack, and Clifford Garrison, with his brother-in-law, Paul Hadley, went from the oil mill to the shack to see what the trouble was. On reaching the place Garrison told the defendant that he had been discharged and had better go back up town before he started some trouble. The defendant said, "I do what I please and say what I please and go when I please," and started towards him, and Garrison said, "Don't come towards me," and picked up an iron bed rail, and the defendant grabbed the rail and took it from Garrison, saying, "Go back to the office and take care of your own damn business," and then pulled a pistol and shot Garrison. There was a conflict in the evidence which it is not necessary to speak of in detail. It is enough to say that the defendant testified that the deceased began the quarrel, and struck him over the head with the iron rail, and he shot him in his necessary self-defense.

The errors assigned will be noticed in the order presented:

The first contention is that the trial court abused its discretion in denying the application for a continuance. The shooting took place the 7th day of February, 1915. On the 20th day of February following the information was filed in the district court. On the 3d day of May the defendant was duly arraigned and entered a plea of "not guilty," and the case was set for the 8th day of May. On that day the case was called for trial, and the state announced "ready," and the defendant presented his motion and affidavit for a continuance. The affidavit is in part as follows:

"That since the said 7th day of February, 1915, affiant has been confined in the county jail at Hobart, Okl., and a part of the time at the reformatory at Granite, in said state.

That affiant is a negro, and the said Clifford Garrison was a white man, and very popular in the community where the difficulty occurred, wherein the said Clifford Garrison was shot and wounded, whilst affiant is a laboring man, wholly without financial means, and practically unknown in said community, save to a few negroes who were laborers there like himself.

That affiant cannot safely proceed to the trial of the above cause at this time because of the absence of witnesses whose testimony is material to his defense in said cause, and who are absent at this time without his procurement and against his wishes.

That the following named persons were eyewitnesses of and were present at the time and place of the occurrences and difficulty between affiant and the said Clifford Garrison and the shooting which resulted in the death of said Clifford Garrison, to wit: P. W. Perkins, Oscar Wilson, and Lizzie Wilson, all of whom are negroes.

That the witnesses above named, P. W. Perkins, Oscar Wilson and Lizzie Wilson, would testify, if present and sworn in court in above case, that they were each present at the time and place of the shooting of the said Clifford Garrison; that said witnesses Oscar Wilson, and Lizzie Wilson were having trouble between themselves; that defendant endeavored to pacify them by asking said Wilson not to strike Mrs. Wilson, whereupon the said Wilsons went outside the house and were in the yard, and the defendant also went into the yard with them; that thereupon the said Clifford Garrison appeared and asked defendant if he and Wilson were having trouble; that defendant answered said Garrison that they were not; that thereupon the said Clifford Garrison said to defendant, 'You are a God damned liar,' and reached down and picked up a piece of an iron bed rail from four to five feet in length and of weight and strength sufficient to have easily crushed defendant's skull with a slight blow therefrom, and struck with it at the head of defendant; that defendant partly dodged the blow, but received a considerable blow therefrom upon his head; that at the same time that said Garrison struck at defendant, but, as the iron struck defendant's head the shot was fired which wounded the said Garrison, and that, had same not been fired, the blow by Garrison would have killed defendant; that defendant did not have the firearm in his hand and did not draw same until after said Garrison was striking at defendant with said iron bar; that defendant had but a few minutes before taken said pistol from the house of Mr. and Mrs. Wilson with the stated purpose of preventing the said Wilsons from using same in the trouble between them.

That after said shooting of said Garrison the friends of said Garrison and white persons residing at the town of Snyder scared said witnesses and caused them to at once leave said town by threatening them that if they did not leave they would kill them; that, in fear of the carrying out of said threats, said witnesses, with the exception of said Perkins, left said town,

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