Rutherford v. State, A-11552

• Decision Date: 07 May 1952
• Docket Number: No. A-11552,A-11552
• Citation: 95 Okla.Crim. 311,245 P.2d 96
• Parties: RUTHERFORD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 96

245 P.2d 96

95 Okla.Crim. 311

RUTHERFORD v. STATE.

No. A-11552.

Criminal Court of Appeals of Oklahoma.

May 7, 1952.

Rehearing Denied June 11, 1952.

Syllabus by the Court.

1. Where the evidence is conflicting or different inferences may be drawn therefrom, it is the jury's province to weigh the evidence and determine the facts, and their determination will not be disturbed unless it appears that such determination was not sustained by competent evidence or was influenced by passion and prejudice.

2. A trial court, at every separation of the jury and at each adjournment in criminal trial, should give the statutory admonition to the jury, § 854, Tit. 22 O.S.1951, and at least an abbreviated admonition referring to the previous full admonition should be given at each temporary cessation of proceedings, but where it appears as here that at the first adjournment, and before any separation of the jury was had, the court had given the statutory admonition, and that the admonition was duly given at each adjournment thereafter, and the record shows a trial otherwise fair and impartial, the judgment will not be reversed simply because during the session of the court a temporary intermission or recess (while the attorneys retired with the judge to his chambers to consider the admissibility of certain documentary evidence offered by defendant) took place without the admonition being given as a preliminary thereto.

3. Where the record shows that during trial at the time of a temporary cessation of proceedings and at the time the court overlooked re-admonishing the jury that counsel for defendant was aware of such oversight, but refrained from advising the trial judge of such irregularity and contented himself with the dictation of an objection to the court reporter, which never actually came to the attention of the court, Held, that the oversight complained of was waived.

John W. Porter, Muskogee, for plaintiff in error.

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

POWELL, Judge.

Floyd Rutherford, hereinafter referred to as defendant, was charged in the district court of Muskogee County with the crime of murder, was tried before a jury, convicted, and his punishment was by the jury fixed at life imprisonment in the State Penitentiary. Appeal has been duly perfected to this court.

For reversal counsel for defendant has assigned five specifications of error, and being:

'1. The court permitted the jury to separate overnight on October 10, 1950, during the trial of the cause after hearing a great portion of the evidence, when it was evident to the court in the trial court room and in the hallway immediately outside thereof that there were many hostile witnesses and persons to the defendant.

'2. The court permitted the jury to separate upon taking a recess by the court without addressing the jury in any way or manner or placing the jury in the custody of any officer of the court during such recess.

'3. The verdict is not sustained by sufficient evidence.

'4. The verdict is excessive and not justified by the evidence, and is contrary to the evidence.

'5. The verdict is contrary to law.'

Counsel argues the last three specifications together, and for convenience we shall consider them first, as an examination of the evidence is required.

The State used thirteen witnesses in making out its case. The defendant testified in his own defense, and used six additional witnesses, and thereafter the State used nine witnesses in rebuttal.

The evidence discloses that the defendant had about two years prior to the difficulty here involved moved from California to Boynton, Oklahoma, and had established a retail grocery. He had two women clerks, Della Liest, who had lived in and around Boynton since 1927, and a Mrs. Vincent Sager, who had lived near Boynton for about two years. At the time of trial she had gone to California, and her evidence given at time of preliminary hearing was read to the jury at the instance of counsel for defendant.

Defendant's wife also clerked at the store, and there were living quarters in the rear, but the wife was away from Boynton at the time of the shooting.

The evidence is undisputed that Floyd Spencer, whom defendant was charged with shooting, was the town marshal of Boynton, and had been for about two years prior to his death; that he had prior thereto been the town marshal at Fort Gibson for a number of years, and had lived in and around Fort Gibson the greater portion of his life.

Della Liest, one of defendant's clerks, testified that the morning of January 21, 1950, when she came to work defendant told her that he had been drunk the night before, and asked her not to tell his wife, who was away. She stated: 'I would say that he was drinking or was just about drunk at that time. He wasn't drunk but he was full, or tight, or whatever you would call it.' She was asked on cross-examination: 'Did he have any difficulty in walking around there in the store? A. No, but he didn't do very much in the store that day. He was just in and out. I think he did deliver some groceries to somebody that morning, but I don't remember now who it was.'

Scott Morgan testified that he had lived in Boynton forty-four years and had served as a deputy sheriff in Boynton for eighteen years; that he had not been an officer for about two years and operated a pool hall and beer parlor; that he was acquainted with the defendant and that he went to his store at about eight o'clock the morning of January 21, 1950; that defendant produced a pint bottle of Hill & Hill whiskey which was about half full and asked witness to have a drink, and that he and defendant took a drink. Witness further testified that defendant came to his place of business about ten o'clock that morning and drank some beer. That in the afternoon he came back and wanted some more beer, but witness pretended that he did not have any cold beer at the time. Witness gave as his reason for such refusal that in his opinion the defendant was drunk. Witness asked his wife not to sell defendant more beer, but the evidence showed that she did sell him another bottle while witness was busy in the pool hall in the rear. Witness Morgan swore that defendant said to him: 'You just don't want to sell me any'; and then defendant said, 'Why does everybody think its such a disgrace for me to get drunk?' and witness told him, 'I'd never heard anything about it', and then defendant said, 'Have you ever been hurt?' and witness answered, 'Yes, I've had my neck broke a couple of times', and defendant replied: 'How would you like to eat some hot lead?' Witness said, 'I couldn't digest hot lead', and defendant said: 'Any time they try to put me in that little old jail house they are going to eat some hot lead.' Witness stated that the defendant then left his place and went outside and walked on up the street with Hugh Miller, who had been standing on the sidewalk. Witness stated that a few minutes later he was told about a shooting at defendant's store, a block away, and that he ran down there and found that Floyd Spencer had been shot and was then in Kelly's store next door, and that Spencer told him that the defendant Rutherford had called him in his store and shot him. Witness went in defendant's store and some others took defendant to the back of the store and put him on the bed, and defendant said, 'I sure as hell beat him shooting.'

Hugh Miller testified that he saw the defendant about 2:30 P.M., January 21, 1950, and in his opinion he had been drinking. That Buck Wheeler offered to drive defendant to his store and he refused the offer, but accepted the offer of witness to walk with him to the store. Miller stated that on entering the store defendant walked to the back, took off his overcoat and put it on a broom holder rack, and, quoting witness: 'And then he looked out towards the street and he said, 'That fellow had been following me'--I was facing the other way and I didn't see who it was, so he says, 'that fellow has been following me, I'll go see what he wants', and he walked past me out to the front of the store.' He testified that thereafter Rutherford came in the store, backing up, and that Floyd Spencer was in front of him and that Spencer said, 'Give me your gun' and kept repeating it, and when they got in the store 'made a little heavier suggestion to that effect and Mr. Rutherford said, 'I'll never give you my gun', and the next thing I knew he shot him.' Witness stated that Spencer had drawn his gun after defendant refused to give up his gun, but that he did not fire it until after the defendant had fired two shots; that witness did not know when defendant drew his gun as his back was toward witness; that these shots apparently struck Spencer and he started to fall and seemed paralyzed and said, 'You have killed me.' He then started to shooting at defendant. The gun of defendant showed five exploded shells, and one that was apparently snapped; and the gun of Spencer showed six exploded shells.

Mrs. John Kelly, who with her husband operated the grocery adjoining defendant's store, on the afternoon of January 21, 1950 saw defendant come to the front of her store and motion to Floyd Spencer to come into his store, and that Spencer followed defendant. She was asked: 'How soon after you had seen Mr. Rutherford motioning and then Mr. Spencer walk by until you heard those shots? A. Oh, it would just give them long enough to walk in the door of his store.'

Adeline Howell stated that she had lived around Boynton for thirty years, that on the afternoon of January 21, 1950, she was in the defendant's store near the front door; there were a number of other customers; that she had her back to the door when she heard somebody say, 'Don't pull your gun out', and she looked and saw the defendant throw his coat back and get his gun from his left side and that she ran out and then the shooting commenced.

Walter...