Ryan v. State
| Decision Date | 08 February 1913 |
| Citation | 129 P. 685,8 Okla.Crim. 623,1913 OK CR 35 |
| Parties | RYAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where decisions of the Supreme Court of Oklahoma or of this court are relied upon, the brief should cite the page and volume of the state reports upon which such decisions can be found.
The failure of the record to show arraignment and plea does not constitute a fatal defect, where the record shows that the defendant, without objection, announced ready, and that the case was fairly tried.
(a) Where the proof shows that the deceased was shot in the stomach between 5 and 6 o'clock p. m. and died that night, and that immediately after being shot he fell down and was unable to get up again, and that he stated to persons who saw him soon after he was shot that he was a dead man and could not live, that he was going to die, such proof sufficiently shows that the deceased apprehended the certainty and imminence of his impending death, and is in itself a sufficient predicate for the admission of his statements of the circumstances of the homicide as "dying declarations."
(b) Where a person mortally wounded and without hope of recovery under a solemn conviction of impending death, makes several statements at different times of material facts concerning the circumstances of the homicide, all of said statements are admissible in evidence.
(a) It is always the duty of the trial court to instruct on the law of manslaughter if there is any reasonable evidence that the alleged crime might have been done under circumstances that would reduce the crime from murder to manslaughter.
(b) This court will not reverse a conviction for manslaughter where this issue has been submitted to the jury by the trial court, upon the ground that, in its judgment, the defendant should have been convicted of murder.
It is not error for the trial court to refuse to submit a special instruction, although it may be a correct statement of the law, where such instruction is not applicable to the evidence, or where the law governing the question presented has already been correctly stated to the jury in the general instructions.
In the absence of exceptions to instructions given, they will only be examined for fundamental errors.
A motion for a new trial upon the ground of newly discovered evidence is fatally defective, where it does not state fully the circumstances which make it appear that such evidence, as a matter of fact, was newly discovered and could not have been discovered earlier by the exercise of proper diligence.
Additional Syllabus by Editorial Staff.
The term "injury," used to describe an error for which a reversal may be had, means an error which affects the result.
Appeal from District Court, Coal County; A. T. West, Judge.
Ed Ryan was convicted of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary for eight years, and he appeals. Affirmed.
It is the duty of the trial court to charge on manslaughter if there is any reasonable evidence that the killing might have been done under circumstances that would reduce the crime to manslaughter.
Appellant Ed Ryan, and the deceased, George Smith, were neighbors engaged in the occupation of mining, and lived in the vicinity of Coalgate, in Coal county, Okl. This homicide was alleged to have been committed on or about the 2d day of January, 1910; and it appears from the record that prior to the commission thereof the appellant and the deceased had had some trouble, and there existed, perhaps on the part of both of them, certain ill will and bad feeling toward the other. This had manifested itself on various occasions, as testified to by witnesses; some witnesses for the defendant testifying as to alleged threats which amounted to nothing more than the application of epithets by the deceased towards the defendant, by which he called him vile names, etc. On the day of the killing, whch was Sunday, it appears that both the deceased and the defendant had been to the town of Coalgate, and had been drinking some on that date. The defendant went home an hour or so earlier than the deceased, and says that during that time he was engaged in carrying water to his house from the well of a neighbor by the name of Committie. The Committie well was located northwest of the defendant's house about 300 yards, and in going to this well it was necessary for the defendant to cross the highway that led from the town of Coalgate to the deceased's house; the evidence showing that the deceased lived about a quarter of a mile further north on this road than the defendant. The killing occurred in this public highway, and there were no witnesses to the transaction except the defendant and the deceased.
The first people upon the scene testified that the deceased was lying on the ground from five to ten steps north and east of the gap in the fence surrounding the Committie land, and on the path towards the well, and that the defendant was standing in the public highway some eight or ten steps south of the deceased. The witnesses for the defendant testified that there was a knife in the road a foot and a half or two feet from the right hand of the deceased, and that this knife was open. Some of the witnesses for the state testified that when they got up to where the deceased was that the deceased told them that Mrs. Ryan, the wife of the defendant, had taken his knife out of his pocket. The testimony in this case is conflicting. The deceased said that the defendant waylaid him and shot him down while he was unarmed and was making no attempt to attack him. The defendant claims that he shot him in his necessary self-defense from an attack then being made upon him by the deceased with an open knife.
George Trice, of Coalgate, for appellant.
Smith C. Matson, Asst. Atty. Gen., for the State.
FURMAN, J. (after stating the facts as above).
First. Counsel for appellant has filed a lengthy brief in this cause, in which he has cited a number of the decisions of this court, but he has not cited the volume and page upon which these decisions will be found in the published reports of this court. We have no objection to counsel citing the Pacific Reporter, but where any decisions of the Supreme Court of Oklahoma or of this court are relied upon the brief should cite the page and volume of the state reports upon which the case can be found. This will greatly expedite our work. We trust that the lawyers of Oklahoma will comply with this request in the future.
Second. Counsel contend that the judgment should be reversed in this cause because a plea was not entered to the indictment until after the jury had been impaneled and sworn to try the case. The record discloses that on the 5th day of April, 1910, defendant was duly arraigned and given 24 hours in which to plead, and that thereafter, on the 11th day of April, 1910, the case was regularly called for trial, and that the defendant appeared in person and by his attorneys and announced ready for trial, and that thereafter, on the 12th day of April, 1910, after the jury had been impaneled and sworn, the defendant refused to plead when the county attorney made his opening statement to the jury, and that the court thereupon ordered that a plea of not guilty be entered for him.
The general tendency of appellate courts now is to disregard mere technical objections which do not in any manner prejudice the substantial rights of the defendant. It appears that the defendant announced ready for trial without any objection being entered to his not having pleaded to this indictment; the record clearly showing that he was arraigned thereon. Some of the courts hold that where the record shows either an arraignment or a plea, but is silent as to the other, it may be presumed. Steagald v. State, 22 Tex.App. 464, 3 S.W. 771; Wilson v. State, 17 Tex.App. 525. Other cases also hold that the omission of the record to show arraignment and plea is not fatal, where the record shows that the issue was joined and a fair trial had without objection by the defendant. Hayden v. State, 55 Ark. 342, 18 S.W. 239; State v. Bowman, 78 Iowa, 519, 43 N.W. 302; Commonwealth v. McKenna, 125 Mass. 397; Territory v. Shipley, 4 Mont. 468, 2 P. 313; Allyn v. State, 21 Neb. 593, 33 N.W. 212; State v. Brown, 33 S.C. 151, 11 S.E. 641; People v. Weeks, 165 Mich. 362, 130 N.W. 699; State v. Bunker, 7 S. D. 639, 65 N.W. 34; State v. Reddington, 7 S. D. 368, 64 N.W. 170.
In State v. Reddington, the Supreme Court of South Dakota, from which state our statute was taken, had the following to say:
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