Rea v. State

• Citation: 105 P. 381,3 Okla.Crim. 269,1909 OK CR 158
• Parties: REA v. STATE.
• Decision Date: 07 December 1909
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 381

3 Okla.Crim. 269, 1909 OK CR 158

REA v. STATE.

Court of Criminal Appeals of Oklahoma

December 7, 1909

Syllabus by the Court.

When an assignment of error that the evidence does not support the verdict is overruled, and the cause remanded on errors of law, the court will not discuss the evidence.

Section 5351, Wilson's Rev. & Ann. St. 1903, which provides that when a charge has been submitted to a grand jury, and no bill has been returned, it cannot be again submitted without direction from the court has no application to charges presented by information.

A defendant should be tried on the facts of the particular case before the court. Evidence of other trials, indictments, or convictions not connected with the matter then on trial should not be received.

(a) The burden of proof is on the prosecution to establish the guilt of the defendant by legal evidence beyond a reasonable doubt and, if this is not done, he is entitled to be acquitted.

(b) The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and unless the jury are so satisfied, it is their duty to acquit the defendant.

Section 5518, Wilson's Rev. & Ann. St. 1903, makes the jury the exclusive judges of all questions of fact. It is therefore error for the trial court to instruct the jury that they are bound to accept and act upon the testimony of an impeached witness if it has been corroborated.

Appeal from Pontotoc County Court; Joel Terrell, Judge.

Will Red was convicted of unlawfully selling intoxicating liquor and he appeals. Reversed and remanded.

Crawford & Bolen, B. C. King, and Galbraith & McKeown, for appellant.

FURMAN P.J.

First. The first assignment of error is: "The court erred in not granting a new trial, because the verdict is contrary to the law and the evidence." We cannot agree with this contention; but, as the judgment will have to be reversed and remanded for a new trial on account of errors of law committed during the trial, we do not deem it necessary to discuss the evidence."

Second. The second assignment of error is as follows: "The court erred in overruling the motion of the defendant to quash the information, to which action the defendant at the time excepted and still excepts." This motion was based upon an affidavit to the effect that this identical offense had been previously investigated by the grand jury, and that they refused to find an indictment against the defendant thereon, and that the offense had not been again referred to the grand jury by the court, and that no leave had been granted by the court to file the information herein. Section 5351, Wilson's Rev. & Ann. St. 1903, is as follows. "The dismissal of the charge does not, however, prevent its being again submitted to a grand jury as often as the court may direct. But without such direction it cannot be again submitted." This statute has no application to offenses prosecuted by information, and the court did not err in overruling the motion to quash the information upon this ground.

Third. The court erred in forcing the defendant to testify as to previous prosecutions against him, and as to any promises which he may have made to the people of Roff growing out of such prosecutions. The defendant should have been tried on the facts of the particular case then before the court. The question submitted to the jury was as to the guilt of the defendant on the charge then upon trial, and any reference to any former trial, indictments, or convictions was improper. Slater v. State, 1 Okl. Cr. 275, 98 P. 110.

Fourth. The defendant complains of the action of the trial court in giving the following instructions: "(7) The defendant as a defense, claims that he did not sell said intoxicating liquor at the time and the place as charged in said information; and, if you are satisfied from the evidence that the statements are true, your verdict should be a verdict of not guilty, because the defendant cannot be convicted in this case unless you are satisfied from the evidence beyond a reasonble doubt that the defendant is guilty of unlawfully disposing of intoxicating liquor. (8) As regards the question as to the guilt or innocence of the defendant, the jury are instructed that the defendant is not required to prove his innocence beyond a reasonable doubt to entitle him to an acquittal, but it is sufficient if the evidence upon that point raises a reasonable doubt as to his guilt." In the seventh instruction the jury are informed that, if they are satisfied from the evidence that the defendant did not sell intoxicating liquor at the time and place charged in the information, their verdict should be not guilty. This instruction squarely placed the burden of proof on the defendant, and is the exact reverse of the law. Under our system the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by the state, by legal evidence beyond a reasonable doubt; and, if the state fails to do this, the defendant should be acquitted, whether the jury believe him innocent or not. The instruction complained of states under what conditions the defendant could be acquitted, viz., that the jury must be satisfied from the evidence that the defendant did not sell the intoxicating liquor as charged in the information. It then goes further, and informs the jury that they cannot convict the defendant unless they are satisfied from the evidence beyond a reasonable doubt that he is guilty, but the instruction does not inform the jury what their action will be if they fail to reach either of these conclusions. The eighth instruction informs the jury that the defendant is not required to prove his innocence beyond a reasonable doubt to entitle him to an acquittal, but is sufficient if the evidence upon that point raises a reasonable doubt as to his guilt. The first error in this instruction is that it suggests the idea that the burden is on the defendant to prove his innocence, and then it proceeds: "It is sufficient if the evidence upon that point raises a reasonable doubt as to his guilt." We must confess that we are unable to understand just what the learned judge means by this...