Rhea v. Territory

• Decision Date: 27 November 1909
• Citation: 105 P. 314,3 Okla.Crim. 230,1909 OK CR 153
• Parties: RHEA v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 314

3 Okla.Crim. 230, 1909 OK CR 153

RHEA v. TERRITORY.

Court of Criminal Appeals of Oklahoma

November 27, 1909

Syllabus by the Court.

(a) An application for a continuance is addressed to the discretion of the trial court, and, unless an abuse of this discretion is shown from the record, a conviction will not be reversed because a continuance was not granted.

(b) An application for a continuance must be complete within and of itself. It cannot be aided by inference or presumption. The presumption will be entertained that the application states the facts relied upon in the strongest possible light in favor of the defendant.

(c) An application for a continuance must not only state the facts expected to be proven by the absent witness, but must go further and state enough of the facts of the case to enable the trial court to understand the materiality of the absent testimony.

(d) It is not enough, in an application for a continuance in a murder case, to allege that the defendant expects to be able to prove by the absent witnesses that the deceased threatened to kill the defendant; but the application should go further and allege that the defendant will be able to prove that at the time of the homicide the deceased, by some act then done caused the defendant to believe that the deceased was then about to carry such threats into execution.

(a) While, in one sense, "murder" and "manslaughter" are separate crimes, yet, in a broader sense, they involve but one crime and are only different degrees of felonious homicide.

(b) The rule of criminal pleading is universal that an indictment for the highest degree of a crime includes all of the lower degrees of the same crime.

(c) Upon an indictment for murder, a defendant may be convicted for manslaughter.

(a) In a case of murder, where it appears from the record that the wife of the defendant is a material witness in the case, it is not improper for the court to instruct the jury that by the laws of this state a wife is not a competent witness against her husband in such case, but that the defendant has the right to call her as a witness if he so desires.

(b) It would be improper for the court to suggest to the jury what inferences might arise from the failure of a defendant to place his wife upon the witness stand in his behalf. These inferences would depend upon the particular facts in each case and would be proper subjects for argument by counsel.

(c) If before a jury has retired and begun the consideration of their verdict, the court thinks that it is necessary for their information to give them additional instructions, it has the power upon its own motion to give such instructions and, in the absence of a showing of an abuse of this discretion, a reversal will not result therefrom. For circumstances not amounting to an abuse of this discretion, see opinion.

(a) It is not error for the court to refuse to give an instruction upon the law of threats in a murder case which omits to state that, before the right of self-defense would arise upon threats, it must appear from the evidence that the deceased was then doing some act indicating a purpose to carry such threats into execution.

(a) While it is true that, as a general proposition, a defendant is entitled to a trial upon legal evidence alone, yet it is equally true that the admission of incompetent evidence which would not have prejudiced the defendant is not ground for reversal and constitutes harmless error.

(b) Although evidence may be improperly admitted against the defendant, on account of which a conviction would be reversed, yet, if the defendant takes the witness stand and testifies to the same thing, the error in receiving the other evidence will become harmless, and then will not be ground for reversal.

Appeal from District Court, Canadian County; C. F. Irwin, Judge.

William H. Rhea was convicted of manslaughter, and he appeals. Affirmed.

J. M. Frame and R. B. Forrest, for appellant.

Charles West, Atty. Gen., and E. G. Spillman, Asst. Atty. Gen., for the Territory.

FURMAN P.J.

The first assignment of error complains of the action of the trial court in overruling defendant's application for a continuance. Section 4504, Wilson's Rev. & Ann. St. Okl. 1903, is as follows: "A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence." This statute governs applications for continuances in criminal as well as in civil cases. From this statute it is seen that an application for a continuance is not sufficient unless it shows upon its face that the evidence sought to be obtained is material. An application for a continuance is addressed to the discretion of the trial court, and, unless an abuse of this discretion is shown, a conviction will not be reversed because a continuance was not granted. This can only be made to appear from the record. It therefore necessarily follows that an application for a continuance must be complete within and of itself. It cannot be aided by inference or presumption. It devolves upon a defendant seeking a continuance to show himself entitled to it by definite, exact, and certain averments. The court will presume that the pleader has stated in the application the grounds relied upon in the strongest possible manner in favor of the defendant seeking the continuance. The statute in mandatory terms requires the application to show "the materiality of the evidence expected to be obtained." This necessarily includes two propositions: First, the application should set forth the facts expected to be established by the absent witness; second, it must also show that such facts are material to the issues to be submitted to the jury upon the trial. Where the facts stated in an application may or may not be material, the facts in connection therewith which would make them material must also be stated. In other words, an application for a continuance, which does not set forth the facts or circumstances of the case sufficiently to enable the court to see that the testimony sought to be obtained is material, is fatally defective. This is the only logical construction which can be placed upon our statute upon the subject of continuances.

The application for a continuance in this case is based upon the absence of three witnesses, by whom the defendant stated that he expected to prove that the deceased had threatened to kill him (the defendant); but the application did not state a single fact or circumstance connected with the case which would render testimony of threats admissible. Is it the law that, if A. threatens to kill B., for this cause alone B. may arm himself and hunt A. up and shoot him down? If so, then fear and cowardice constitute a justification for murder. This is not, and never has been, the law. Even if there were authorities to this effect, we would not tolerate the doctrine that under the influence of mere fear one with legal sanction may become an assassin. In Walter Reed v. State, 103 P. 1053, Carter v. State, 8 Tex. App.

372-375; Logan v. State, 17 Tex.App. 50-58; Allen v. State, Id. 637-644; Miles v. State, 18 Tex.App. 156-171; Brooks v. State, 24 Tex.App. 274-284, 5 S.W. 853; Ellis v. State, 30 Tex.App. 601-604, 18 S.W. 139; Ex parte Taylor, 33 Tex.App. 531-536, 28 S.W. 957. We approve the principle announced in these cases.

The application for a continuance in this case is fatally defective in failing to state facts and circumstances connected with the case, which would have rendered threats admissible and therefore material. The trial court did not err in refusing to grant the continuance.

Second. In their brief counsel for the defendant say: "Plaintiff in error also contends: That it was error for the court to give instruction No. 2 (Record, p. 16). This contention is based upon the grounds: (1) That the indictment upon which the defendant was tried, which was good as a statutory indictment for murder, did not include the elements necessary to constitute the crime of manslaughter in the first degree; (2) that said indictment consisted of a single count which was sufficient in form under the statute as an indictment for murder. That under the statutes of Oklahoma but one offense can be set out or contained in one count, and that while it is permissible to charge the same act in different ways to meet the possibilities of the proof, or where the same act may constitute different offenses, the same may be set out in different counts in the indictment, but it is allowable for one count to contain an allegation of more than one offense."

Sections 2162 and 2163, Wilson's Rev. & Ann. St. 1903, are as follows:

"Homicide is the killing of one human being by another.

"Homicide is either: First, murder. Second, manslaughter. Third, excusable homicide. Or, fourth, justifiable homicide."

From this it is seen that our statute divides felonious homicide into two degrees, namely, murder and manslaughter. While in one sense they are...