Morris v. Territory

• Decision Date: 10 April 1909
• Parties: MORRIS v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 111

1 Okla.Crim. 617, 1909 OK CR 17

MORRIS v. TERRITORY.

Court of Criminal Appeals of Oklahoma

April 10, 1909

Syllabus by the Court.

Case of W. P. Price v. Territory of Oklahoma, 98 P. 447 distinguished from case at bar.

On petition for rehearing. Petition denied.

For former opinion, see 99 P. 760.

PER CURIAM.

The third ground relied upon to secure a rehearing is as follows:

"Third. That the judgment of this court in this cause is in direct conflict with the judgment of the court in the case of Price v. State, in which the opinion of the court was rendered by Presiding Judge Furman on the 11th day of November, 1908, in which opinion the court declares that a man can scarcely be supposed within 90 seconds from the fall of his victim to have deliberated with himself and formed a premeditated design to effect death, and in the case at bar the appellant had been acquitted of the charge of killing the father of the deceased, a few seconds before the homicide charged in this cause, and that the appellant was defending himself against the assault of the deceased in this case, and therefore by that finding must have found that he had not effected a premeditated design to kill prior to the killing of P. W. Cassiday, for which the appellant was acquitted, and the record being clear that there was not to exceed 30 seconds intervening between the killing of P. W. Cassiday and Finis Cassiday, the deceased for whose killing the appellant was found guilty in the lower court, this court, by the judgment in this cause, found that the appellant might have been guilty of murder in the first degree, with but one-third of the time to deliberate that was held in the case of Price v. State (Okl. Cr. App.) 98 P. 447, was not sufficient time to effect a premeditated design to commit murder, if the person had been warranted in taking life."

The Price Case (Okl. Cr. App.) 98 P. 447, did not involve the issue as to the sufficiency of time in which the defendant could form a premeditated design to kill the deceased. No such question was presented to or passed upon in that case the issue was as to whether certain declarations, not of the defendant, but made by the deceased, were admissible in evidence as a part of the res gestae. The record in the Price Case disclose that the statements offered in evidence were made within one minute after the fatal shot was fired, and while deceased was lying where he had been shot down, and was unable to get up, with the blood flowing from his wound,...