Newby v. State

• Citation: 188 P. 124,17 Okla.Crim. 291
• Decision Date: 15 March 1920
• Docket Number: A-3160.
• Parties: NEWBY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

188 P. 124

17 Okla.Crim. 291

NEWBY v. STATE.

No. A-3160.

Court of Criminal Appeals of Oklahoma

March 15, 1920

Syllabus by the Court.

Where there is slight evidence which tends to reduce the degree of the homicide from murder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct the jury upon the law of each degree which the evidence tends to prove.

The trial court is not required, however, to delve into the realms of conjecture or speculation in order to instruct upon some chimerical theory of the law of the case not reasonably supported by the evidence.

The refusal to give manslaughter instructions in a prosecution for murder is not error, if there is no evidence tending to reduce the degree of the crime from murder to manslaughter in either degree.

Where a deputy sheriff, who was a witness for the state in rebuttal was duly sworn and placed in charge of the jury, together with another duly sworn bailiff, during a recess in the trial, without objection being made by the defendant, and there is no showing that the said bailiff communicated with any member or members of the jury concerning the case, or permitted others to do so, or that the jury was in any way tampered with or subjected to any improper influences during said recess, the judgment of conviction will not be reversed on such ground.

Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and there must be a showing of manifest abuse of such discretion before the judgment will be reversed on this ground.

Appeal from District Court, Delaware County; John H. Pitchford Judge.

Harry Newby was convicted of murder and sentenced to life imprisonment, and he appeals. Affirmed.

This is an appeal from the district court of Delaware county in an action commenced in said court on the 19th day of March 1917, by information duly filed by the county attorney of said county, charging the defendant with the murder of one Ben Price by shooting him with a 45 Colt's revolving pistol on the 18th day of December, 1916. Death resulted from a bullet wound in the head, which entered near the left temple and had its exit above the right ear.

The killing occurred on a public street in the town of Jay, said county, between the hours of 8 and 9 o'clock at night. The state introduced witnesses who testified that on said day the defendant had driven in an automobile to the town of Southwest City with his brother, Teenie Newby, and two young ladies, one of whom was the sister of the deceased. After shopping some in Southwest City they returned to their homes in Jay, traveling by automobile, which was owned by the defendant. The evidence also discloses that the defendant had been drinking some, a fact which he admits, but testifies himself that he was in full possession of his mental faculties and knew everything that occurred prior to and at the time of the alleged homicide.

According to the state's witnesses, the defendant was seen a short time prior to the commission of the homicide carrying some whisky in quart bottles in his pockets, also an open knife, the blade of which was protruding from his coat pocket on the left side, and in addition he was armed with a 45 Colt's revolving pistol. The state introduced two witnesses, full-blood Indians, who testified through an interpreter that they were eyewitnesses to the killing, standing a short distance away with a lighted lantern at hand, and that the defendant shot the deceased with a pistol; that they were quarreling; that the deceased at the time said to the defendant "Don't"; and that after the defendant had shot deceased and deceased had fallen to the ground the defendant ran away from the scene and made no effort to ascertain the result of the shot.

If the witnesses for the state are to be believed, the killing was a willful, deliberate, and malicious one, and constituted, under the statutes of this state, the crime of murder.

The defendant, however, took the witness stand in his own behalf and admitted that he had on that evening a 45 Colt's pistol, but stated that the deceased wanted to look at it, and that just a short time before the shot was fired the defendant handed the pistol to the deceased, and the deceased after taking it into his hands wanted to fire it, but that the defendant told him not to do it as it would cause them trouble; that "somebody was getting sore about shooting around at night"; that thereupon the defendant asked deceased to return the pistol; that defendant was walking slightly behind the deceased but close to him, and that the boy apparently started to hand the defendant the pistol and it became discharged some way unknown to the defendant; that it was purely accidental; that he (the defendant) did not shoot the deceased or have hold of the gun at the time it was discharged; that after deceased fell the defendant became very much distressed and excited over what had happened, and walked up to deceased and spoke to him and undertook to pick him up; that deceased was making some kind of a distressing noise, and that defendant became confused and excited to such an extent that he did not remember what happened after that; but that he (defendant) finally made up his mind what he ought to do after having picked up the pistol when he started to leave the body of the deceased; and that he took the pistol to the home of deceased's parents and stated to members of the family of the deceased who were assembled at the home, after leaving the pistol there, "This is the gun Ben killed himself with."

In order that a more definite understanding may be obtained of exactly what occurred at the precise time of the shooting, the following excerpts from the testimony of the eyewitnesses is incorporated herein. Blossom James testified in part:

"Q. Which side of town is the doctor's drug store on? A. North. Q. Did you see Harry Newby that night? A. Yes, sir. Q. Did you see Ben Price also? A. Yes, sir; I saw him, too. Q. Where were they? A. They were standing near a telephone pole. Q. Where is that from Dr. Marshman's drug store? A. It is west. Q. How far from the drug store? Indicate by pointing out the distance. A. About 17 feet. Q. What did you see take place there? I will ask you if the shot was fired while you were there at the drug store. A. Yes, sir; we were close to the drug store. Q. Who fired the shot? * * * A. Harry Newby fired the shot. Q. What happened? A. He fell down at the report of the gun. Q. Who fell? A. Ben Price. Q. How far was Harry Newby from Ben Price when the shot was fired? A. About the distance of the length of a broom. Q. State to the jury all that you saw and heard of this transaction? A. I didn't know, only just Harry Newby run and went down towards the barn and down the road leading towards the schoolhouse. Q. How were they standing when the shot was fired, Harry Newby and Ben Price? A. Newby was on that side (indicating) and Ben was on this side (indicating). Q. State the direction that Newby was from Ben Price. A. He was a little bit south. Q. You say a little south--south and what other direction--do you know what is north and south and east and west? A. Yes, sir. Q. Which way is south? Indicate by pointing. A. Back that way (indicating). Q. Which way is west? A. That way (indicating). Q. Now indicate by pointing at some object where Ben Price was and where Harry Newby was when the shot fired. A. One was east a little. Q. Which one was east? A. Ben Price. Q. How did you come to be down there at Dr. Marshman's store? A. My father was sick, and we were sent there for medicine. My mother sent me. Q. Where did you go from the store, where did you come from to the store when you came to town? A. We came from home, where we live. Q. After you came to town, state where was the last place you were before you came down to the drug store. A. I had been at Charley Bowles' store. Q. Did you leave Charley Bowles' store and come direct to the drug store, or did you wait on the road or go any other place? A. We went directly from Bowles' store down to the drug store and hadn't been long there when the shooting occurred. Q. State what was said or what you heard before the shooting occurred, or at any time between Harry Newby and Ben Price, if you heard anything. A. Harry Newby cursed him. Q. Cursed who? A. Ben Price. Q. Could you understand what was said? A. I didn't understand very much of it. I can't understand but very little English. Q. Where did you go after the shooting occurred? A. We were standing out there in front of the drug store. Q. Did you go any place then immediately after the shot was fired? A. We stayed out there in front of the store directly after the shot was fired. Q. Who was with you there, Blossom? A. John Horsefly. Q. Who was the first person you saw after the shooting? A. I saw John Horsefly the first one after the shooting. Q. Who next did you see? A. His brother. Q. Who is his brother? A. That man over there (indicating). Q. Do you mean Teenie Newby? A. Yes, sir. Q. Where was Teenie Newby? A. He was a little bit south of them. Q. How long was that after the shooting? A. Quite a little bit afterwards. That is about all I know. Q. Did you see George Roberts? A. Yes, sir. We went after him. Q. Who went after him? A. John. Q. John who? A. John Horsefly. Q. How long was that after the shooting? A. Right away afterwards. Q. When you saw George Roberts, was that before you saw Teenie Newby or afterwards? A. Think I saw Teenie Newby first. Q. You saw Teenie Newby before you saw George Roberts? A. Yes, sir. Q. How long was that after the shooting? A. Quite a little bit. Q. What was the first thing Harry Newby did

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