Osborn v. State

• Decision Date: 17 March 1948
• Docket Number: A-10799.
• Citation: 194 P.2d 176,86 Okla.Crim. 259
• Parties: OSBORN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

194 P.2d 176

86 Okla.Crim. 259

OSBORN v. STATE.

No. A-10799.

Court of Criminal Appeals of Oklahoma

March 17, 1948

Appeal from District Court, Kay County; Roy R. Carver, Judge.

James Osborn was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

BAREFOOT P.J., dissenting.

Syllabus by the Court.

1. In every criminal prosecution it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.

2. The 'corpus delicti' means, when applied to any particular offense, the actual commission by some one of the particular offense charged.

3. A conviction cannot be had upon a defendant's extrajudicial admissions alone, unless the state proves in some way the corpus delicti, independent of the defendant's admission. Direct and positive proof is not essential to establish the corpus delicti, and it may be proved by circumstantial evidence. When it is proved by circumstantial evidence, the question should be submitted to the jury along with other questions of fact in the case, as to whether or not the state has established the corpus delicti beyond a reasonable doubt.

4. Where a dead body is found with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant's confession, establishes the corpus delicti in a murder case.

5. Where the corpus delicti is established by independent evidence, a conviction based upon defendant's voluntary confession is warranted.

6. In prosecution for murder, a copy of the death record of the deceased filed by examining physician with State Bureau of Vital Statistics, and duly certified by State Registrar, is competent prima facie evidence of what caused the death. 63 O.S.1941 § 581.

7. As a general rule an accused is entitled to a discharge where he is charged with an offense which is not barred by limitation but is convicted of a lesser included offense which is so barred.

8. There is no limitation of time within which a prosecution for murder may be instituted, 22 O.S.1941 § 151, but a prosecution for manslaughter must be commenced within three years after its commission. 22 O.S.1941 § 152.

9. A limitation of the time within which a prosecution for manslaughter may be instituted, is tolled during the period when the defendant is not an inhabitant of or usually resident within the state. 22 O.S.1941 § 153.

10. The statute of limitations does not negative a single element of the crime with which a defendant may be charged. It does not put in issue the guilt of the defendant. It therefore is not necessary for the prosecution to prove that the defendant was not an inhabitant or usually resident within the state for a period of time which would have tolled the statute of limitations.

11. A defendant is not entitled to his discharge on the ground that limitation has barred the commencement of a prosecution for manslaughter, merely because information charges the offense to have been committed at a time more than three years prior to the filing of the information, but in order for the accused to be entitled to a discharge the record must affirmatively disclose that during the period of time from the alleged commission of the crime to the commencement of the prosecution, the accused was an inhabitant or usually resident within the state.

12. It is not error for the trial court to refuse requested instructions where the subject matter contained in the requested instructions is substantially covered in the instructions which are given by the court.

13. Record examined, instructions approved, and judgment of conviction for manslaughter in the first degree is affirmed.

John L. Dunn and John L. Ward, Jr., both of Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant was charged by information filed in the District Court of Kay County on April 6, 1946, with the crime of murder allegedly committed on March 18, 1929; was tried, convicted of manslaughter in the first degree, and pursuant to the verdict of the jury was sentenced to serve twenty-five years in the State Penitentiary.

For a reversal of this case it is first contended that the evidence is not sufficient to sustain the conviction. To properly discuss this question, a short statement of the evidence will be given.

The evidence of the State showed that one George Standford was living on the outskirts of the city of Newkirk in Kay County, Oklahoma, in the month of March, 1929. He was last seen alive by the members of his family about 6:00 p. m. on March 18, 1929. His general physical condition at that time was good. Early the next morning he was found lying in the yard of his residence on his face, with his hands spread out with a 38 Caliber Smith and Wesson pistol near his right hand. The gun was fully loaded. An examination showed that it had not been recently fired. There was a pool of blood under the body of the deceased. A further examination disclosed that a bullet from a 22 Caliber gun had entered his body in the chest and had not quite penetrated the body to where it was easily extracted. There were no other marks or scratches visible on the body of the deceased, but the evidence showed that the gunshot wound was the cause of his death. On cross-examination of the officers by counsel for defendant, it was shown that the deceased was engaged in the illicit whiskey traffic. Three empty 22 Caliber shells were found in front of the house of the deceased within a radius of six feet of each other. A bullet fired from a 22 Caliber gun had lodged in the door of the house of deceased and was imbedded about one-half inch.

The Sheriff of Kay County testified that he was notified in the month of January, 1946, that the defendant had been arrested in Phoenix, Arizona, and had given a statement to an agent of the Federal Bureau of Investigation in which he confessed to having killed the deceased Stanford in Newkirk in 1929. The Sheriff pursuant to the call from Phoenix, went to Phoenix, Arizona, and returned the defendant to Newkirk. At Phoenix, Arizona, the Sheriff was given a long typewritten statement by the authorities there which was allegedly signed by the defendant, detailing the facts surrounding the death of the deceased. This statement was offered in evidence by the County Attorney, but upon objection being interposed by counsel for defendant that it was hearsay, the objection was sustained. However, the Sheriff testified that on the return trip to Newkirk, he discussed the alleged crime with the defendant in which the defendant said that he and Barney Buchanan were in Bell Plain, Kansas, and decided to go to Wichita and get a couple of guns and highjack George Stanford who was a whiskey dealer in Newkirk. That in accordance with their plans, they drove to Wichita, got two 22 Caliber pistols, one an automatic and the other a single shot. That they then hitchhiked to Oxford, Kansas, where they stole an automobile and drove it to Newkirk. The defendant Osborn and Buchanan each had a pistol when they went to Stanford's house. A conversation occurred between Stanford and Buchanan, and the defendant heard a shot and saw Stanford walking back toward his house. That Buchanan jumped into the automobile and they left Newkirk in a hurry. That they abandoned the car which they had stolen and hid their pistols.

The County Attorney also placed a witness on the stand who identified a written statement taken from the defendant in question and answer form which was subscribed and sworn to by the defendant before the Deputy Court Clerk of Kay County. In this written statement, the defendant, among other things, swore that he was a brother-in-law to Barney Buchanan. That in the early part of 1929, he and Buchanan were in Bell Plain, Kansas; that they were acquainted with a bootlegger living in Newkirk by the name of George Stanford. That they had bought liquor from him. That he and Buchanan had a conversation in which they decided on the morning of March 18, 1929, to go to Newkirk and highjack the deceased, Stanford. That they hitchhiked to Wichita, Kansas, where Buchanan obtained two 22 Caliber pistols. That they then caught a ride to Oxford, Kansas, where Buchanan stole an automobile. That they drove the automobile to Newkirk to the house of deceased, which was out in the northeast part of town. That the house faced south. That it was after dark when they arrived. That Buchanan hollered for Stanford and he came out. That Buchanan told him he wanted some whiskey. That Stanford went in the house and then came out again. That while Stanford was in the house, Buchanan got over on the edge of the seat next to the house. That the door of the automobile was open. That a conversation occurred between Buchanan and deceased and a shot was fired by Buchanan. That they then drove away in a hurry and returned to Bell Plain, Kansas, where they borrowed the car of defendant's mother, took the stolen car back to Udall and abandoned it and returned to Bell Plaine, Kansas. That the guns were hidden in a hay stack. That later the guns were returned to the house of Buchanan's brother in Wichita where he had borrowed them. That he first learned of the death of Stanford when he read it in the paper. That he mentioned it to Buchanan and Buchanan told him to shut up and not say anything about it. That shortly after that he left for California.

After the State had rested, the defendant interposed a demurrer to the evidence which was overruled. The defendant then rested without offering any evidence in his own behalf.

In Gorum v. State, 60 Okl.Cr. 248, 63...