Perkins v. Territory Oklahoma

CourtSupreme Court of Oklahoma
Writing for the CourtIRWIN, J.
Citation1900 OK 98,10 Okla. 506,63 P. 860
Decision Date05 September 1900

1900 OK 98
63 P. 860
10 Okla. 506


Supreme Court of Oklahoma

Decided: September 5, 1900

Error from the District Court of Pottawatomie County; before B. F. Burwell, District Judge.


¶0 1. RULING OF THE TRIAL COURT IN REJECTING OR ADMITTING EVIDENCE. When the ruling of the trial court is upon matters resting within his discretion, and when the ruling calls for the exercise of sound discretion on the part of the trial judge, this court will not disturb the findings, unless it is apparent from the record that there has been a clear abuse of discretion.

2. INDICTMENT. If the charge in the indictment is substantially in the language of the statute it is sufficient, and the language used should receive its common and ordinarily accepted meaning.

G. A. Outcelt, L. G. Pitman, and B. B. Blakeney, for plaintiff in error.

J. C. Strang, Attorney-General, and Keaton & Kearful, for defendant in error.


The plaintiff in error was indicted in the district court of Pottawatomie county on the 11th day of April, 1898, charged with the murder of one John Blackwell, in Pottawatomie county, on February 22, 1898. The plaintiff was arraigned on the 12th day of April, 1898, and he filed his demurrer thereto on April 5, 1899, and same was by the court overruled, and the plaintiff at the time excepted, and the court set the case down for trial on May 11, 1899. On May 12, 1899, plaintiff filed his motion for a continuance for the term on account of the absence of testimony and the court overruled said application for a continuance for the term, but postponed the trial of same until May 18, 1899. On the 18th day of May, 1899, the case was called for trial, and over the objection of plaintiff the court placed the plaintiff on trial. That the jury was examined and sworn, and the court discovering that the plaintiff had not pleaded to the indictment, ordered a plea entered of not guilty, and had the jury resworn, overruled the plaintiff's second motion for a continuance, to which plaintiff excepted, and on May 27, 1899, the jury returned their verdict, finding the plaintiff guilty of manslaughter in the second degree. On August 1, 1899, the court overruled the plaintiff's motion for a new trial, to which plaintiff excepted, and sentenced the plaintiff to imprisonment in the Territorial prison for a period of three years. The defendant below, plaintiff here, has appealed to this court.


¶1 The first contention of plaintiff in error is that the court erred in putting the defendant on trial for the crime of murder, for the reason that the indictment did not charge murder under the statutes of Oklahoma, and that the court erred in excusing jurors on account of conscientious scruples against capital punishment, and in overruling defendant's motion for a new trial on the grounds stated above. And in support of this position the counsel for plaintiff in error cite the court to the case of Jewell v. The Territory of Oklahoma, 4 Okla. 53, 43 P. 1075, and Holt v. The Territory, 4 Okla. 76, 43 P. 1083, and a number of other authorities. We think an examination of these cases will show that they are not analogous to the case at bar, and that the language used, or the meaning expressed in the indictments in those cases, are in no way similar to the indictment in the case under consideration. In the Jewell case the conviction was had under the first count of the indictment, and the remarks of the court are confined to that count; and in passing we would say that had the verdict been a general one of guilty, instead of "guilty as charged in the first count of the indictment," the decision of the supreme court would in our judgment have been different, as we are strongly of the opinion that in the Jewell case the third count of the indictment contains a sufficient charge or murder under our statute, but, as the verdict of the jury was based upon the first count, and the reasoning of the supreme court in that case was confined to the first count, there is no necessity of our going into or discussing other parts of the indictment. The charging part of this count of that indictment is as follows:

"Oliver P. Jewell, late of the county of on the with force and arms in and upon the body of one James McGuinn, in the peace of the Territory then and there being, feloniously, wilfully, premeditatedly and of his malice aforethought, did make an assault, and that the said Oliver P. Jewell, a certain pistol then and there charged with gun-powder and leaden bullets, which said pistol, he, the said Oliver P. Jewell. in his right hand then and there held, and then and there feloniously, wilfully, premeditatedly, and of his malice aforethought, did discharge and shoot off, to, against and upon the said James McGuinn;" then follows the statement that with the same intent, and deliberation and malice, the said Jewell did strike, penetrate and wound the said McGuinn. Then follows the description, of the wound inflicted, and the allegation that of said wound the said McGuinn did die. Now it will be observed that nowhere is it alleged in words or substance that the assault was committed with the premeditated design to effect the death of the deceased or of any other person, which, by the terms of our statute is a material and necessary allegation in the definition of murder when alleged to have been committed under the circumstances described in this indictment. And as the supreme court well says:

"In fact it is no where alleged that the shooting complained of was with any intent to effect death, except in so far as the same may be inferred from the words, 'wilfully, premeditatedly and with malice aforethought,' and these elements might all occur in an aggravated assault."

¶2 This count of the indictment was, we think, very properly held bad by the court, as we think there was nothing in the contention of the attorney general that this count should be held good under the definition of murder contained in sec. 2078, which provides that homicide is murder when perpetrated by an act imminently dangerous to others.

¶3 It seems to us this position is untenable, for the reason that the defendant must be convicted, if at all, as charged in the indictment, and the indictment in this case contained no language which could be construed as a violation of this section of the statute; and in the case of Holt v. The Territory, above cited, the court says:

"The indictment, stripped of the verbiage, simply charges that William Holt did, of his deliberate and premeditated malice, with intent to kill, assault William Fowler, and that he did unlawfully and of his deliberate and premeditated malice, shoot, strike and wound William Fowler, by which the grand jury conclude that the defendant did kill and murder William Fowler, with his, William Holt's deliberate and premeditated malice."

¶4 And in deciding the case, the court uses this language in pointing out the defects in the indictment.

"It charges an assault with premeditated intent to kill, which as we have said is equivalent to charging premeditated design to effect death, but it does not charge that the shooting was done or that the striking, penetrating or mortal wounding, or the killing of William Fowler was done or accomplished with the design or intent to effect his death or kill him."

¶5 Now a consideration of the language of the indictment in the case at bar will show that it is in no way a parallel case with the Jewell or the Holt case, and that it does not come within the objections on which these cases were reversed. The indictment in the case at bar contains this language in the charging part of the indictment, in addition to setting forth the means whereby the murder was committed

"W. P. Perkins, did purposely, unlawfully, feloniously, and with malice aforethought, and with the premeditated design to effect the death of one John Blackwell, kill and murder him the said John Blackwell."

¶6 And it seems to us that this language clearly and in unmistakable terms meets the objections raised by the court in the case of Jewell v. The Territory, and all the other cases cited, and makes the indictment in the case at bar a sufficient charge of murder, and sustains the trial court in excusing jurors for the reason set forth, and was also sufficient reason for overruling the motion for a new trial on that ground. ( Polson v. State, 137 Ind. 519, 35 N.E. 907.)

¶7 Counsel for plaintiff in error next insist that the trial court erred in overruling his two motions for a continuance but as a postponement of the trial from May 12 to 18 was granted, on the first one, which was based on the absence of a large number of witnesses, most of whom subsequently attended, it is clear that the court committed no error by its ruling thereon. (R. pp. 10 to 19.) The second application is based on the absence of only two witnesses, to-wit: Robert Rutherford and John Finley, (R. pp. 115 to 117.) The testimony of the latter as given by him at the preliminary examination was read in evidence on behalf of the defendant. (R. pp. 454 to 458.) In his first application for a continuance defendant refers to Finley's testimony given at the preliminary and asks that it be made a part of said application for the purpose of showing "the materiality and the nature and character of same." (R. p. 14.) It follows, therefore, that no error can be predicated on the overruling of defendant's second application for a continuance so far as same relates to the testimony of Finley. The only remaining question to be considered so far as defendant's application for a continuance is concerned, is whether or not the lower court committed prejudiced error in overruling same as to Rutherford. The basis of defendant's claim in this regard is stated at top of page 7 in his brief as follows: "The plaintiff (defendant) could not take their depositions because he had not been permitted to plead in...

To continue reading

Request your trial
1 practice notes
  • Wells v. Territory Oklahoma
    • United States
    • Supreme Court of Oklahoma
    • September 3, 1904
    ...the admission of the acts and conduct of these parties. Slight evidence of collusion is all that is required. (Perkins v. Territory, 10 Okla. 506, 63 P. 860.) ¶9 Counsel for plaintiff in error complains that the witness Hamlin was required to state "what he had heard, not from any particula......
1 cases
  • Wells v. Territory Oklahoma
    • United States
    • Supreme Court of Oklahoma
    • September 3, 1904
    ...the admission of the acts and conduct of these parties. Slight evidence of collusion is all that is required. (Perkins v. Territory, 10 Okla. 506, 63 P. 860.) ¶9 Counsel for plaintiff in error complains that the witness Hamlin was required to state "what he had heard, not from any particula......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT