Murphy v. State

• Decision Date: 09 April 1941
• Docket Number: A--9708.
• Citation: 112 P.2d 438,72 Okla.Crim. 1
• Parties: MURPHY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

112 P.2d 438

72 Okla.Crim. 1

MURPHY v. STATE.

No. A--9708.

Court of Criminal Appeals of Oklahoma

April 9, 1941

Syllabus by the Court.

1. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion this court will not reverse the judgment for refusal to grant a continuance.

2. An application for continuance based on the mental or physical condition of defendant at the time of the application therefor is addressed largely to the discretion of the trial court, and the court may properly deny a continuance asked on such ground in the absence of a showing that proceeding with the trial will operate to the substantial prejudice of defendant or injure his life or health.

3. An application for a continuance on account of sickness of defendant is addressed to the sound discretion of the trial court, and the overruling of such application is not error unless it appears that there is an abuse of such discretion.

4. A person indicted or informed against is presumed to be sane until his present sanity is called in question in some manner which shall cause a doubt to arise in the mind of the court. It then becomes the duty of the court to make a record that a doubt has arisen as to the present sanity of defendant and to proceed to impanel a jury and to try the question of present sanity under the provisions of section 3212, O.S.1931, 22 Okl.St.Ann. § 1162.

5. If counsel for a defendant are of opinion defendant is not mentally competent to make a defense, the question of present sanity should be called to the attention of the court by affidavit or motion.

6. The only issue presented at a preliminary trial of present insanity is whether defendant has sufficient soundness of mind to appreciate the charge against him and the proceedings thereon, and to enable him to make a proper defense, and therefore whether or not he may be compelled to proceed with the trial of the main issue of guilty or not guilty; and the evidence should be confined to defendant's mental condition at the time of trial, except as far as his mental condition at other times may aid in determining his present condition.

7. The proceeding prior to murder trial to test defendant's sanity was a collateral issue, and hence an order finding defendant to be sane was not an "appealable order" since the only effect that the proceeding could have had on the murder trial would have been to postpone it had defendant been found insane. Sec. 3189, Sts.1931, 22 Okl.St.Ann. § 1051.

8. The statute which provides: "no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him." is not in violation of the constitutional guaranty of the right to trial by an impartial jury. Okl.St.Ann.Const. § 20, Bill of Rights. Sec 3000, O.S.1931, 22 Okl.St.Ann. § 662.

9. The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed or expressed an opinion as to the issue to be tried, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by an appellate court, unless it appears upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.

10. Question as to qualification of jurors is usually a question of sound discretion of trial court, and, unless abuse of such discretion is clearly shown, reversal cannot be had.

11. A juror who states on his voir dire examination that he has an impression, not amounting to an opinion, from the reading of a newspaper account of the tragedy, and that his impression did not amount to an opinion, and was not such that would in any way influence his verdict, is competent, and a challenge for cause by reason of implied bias was properly overruled.

12. The trial court's refusal to sustain a challenge to a juror for cause will not be disturbed by an appellate court, where it appears from the examination of such juror that he had not talked with any one who purported to know about the case of his own knowledge, but had read full accounts of the tragedy in the newspapers, and that he had no opinion other than that derived from reading newspapers, and that he was positive that he could disregard that opinion, and try the case solely upon the evidence, fairly and impartially.

13. When a defendant takes the witness stand in his own behalf, he waives his constitutional privilege of silence in so far as all matters legal and pertinent to the case on trial are concerned.

14. When a defendant takes the witness stand and testifies in his own behalf, the prosecution has the right to cross-examine him with the same latitude as any other witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may be asked any question on cross-examination pertaining to the matter at issue, or that goes to his credibility as a witness.

15. The extent to which a witness may be cross-examined as to matters not relevant to the issue, for the purpose of testing his memory and of affecting his credibility, rests largely in the discretion of the trial court.

16. It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error.

17. On a trial for murder where defendant has laid a proper foundation by evidence tending to show that, in committing the homicide, he acted in self-defense, he may introduce evidence of the turbulent and dangerous character or reputation of deceased.

18. On a trial for murder where the defense is justifiable homicide in self-defense, and there is evidence to support the same, evidence of specific acts of violence on the part of deceased against persons other than defendant, being known to defendant prior to the homicide, is admissible for the purpose of showing the disposition of deceased to become violent without provocation, and as tending to show his condition of mind and violent temper on such occasions and his disposition to use deadly weapons.

19. If it appeared to one charged with murder, at the time of the killing, that it was necessary for him to slay his assailant in order to save his own life or prevent receiving great bodily harm, he had a right to act upon such appearances and slay his assailant, although he was in no actual danger.

20. Knowledge of defendant derived from personal observation of deceased's propensity to attack persons without cause is an important circumstance in determining from the standpoint of defendant the reasonableness of the danger apparent to him, and from which defendant might estimate the character of the attack upon him, and what he might expect from his assailant, as well as that which he might at the moment deem necessary to guard himself against.

21. Defendant as a witness in his own behalf testified relative to specific acts of violence which deceased had told defendant he had committed on other persons, and several other specific acts which he had knowledge of, derived from personal observation, upon which he had acted on in part for his belief of imminent danger to himself when attacked by deceased, held, that the trial court did not commit error in refusing to permit defendant to call the alleged third persons to testify as to said acts of violence on the part of deceased, which they had witnessed.

22. Under Code of Criminal Procedure, Sec. 3204, O.S.1931, 22 Okl.St.Ann. § 1066, this court exercising its supervisory jurisdiction, has the power to modify any judgment appealed from in furtherance of justice by reducing sentence.

23. The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.

24. In a prosecution for murder, evidence held sufficient to warrant a verdict convicting the defendant of murder, but insufficient to warrant the extreme penalty of the law, and the judgment and sentence is modified from death to imprisonment at hard labor in the state penitentiary for life.

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Roy Murphy, convicted of murder and death penalty assessed, appeals. Conviction affirmed and sentence modified to imprisonment at hard labor for life; as so modified, judgment affirmed.

This was an information filed in the District Court of Garfield County, April 18, 1939, wherein Roy Murphy and W. E. Murphy were jointly charged with the crime of murder, alleged to have been committed in said county on the 13th day of January, 1939, by shooting Harry Murphy with a 32 caliber Automatic pistol.

The record in this case shows a severance was granted. Upon his arraignment, April 19, defendant Roy Murphy entered a plea of not guilty. Thereupon the case was set for trial May 10; on that date defendant filed an application for a continuance. After hearing the evidence and the argument of counsel the...