Saunders v. State
| Decision Date | 23 November 1910 |
| Citation | 111 P. 965,4 Okla.Crim. 264,1910 OK CR 190 |
| Parties | SAUNDERS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where a jury list is made up in conformity with the law in force at the time, and subsequently the law respecting the selection of jury lists is changed, but with a provision that any jury box filled in accordance with the old law should not be affected, the jury list previously made up is valid.
An act which became effective on December 31, 1907 (Laws 1907-08, c 48, art. 2, § 2), provided that the jury commissioners should meet on the first Monday in January and the first Monday in July of each year to select a list of jurors and that the jurors should be selected from the pollbooks of the county. A subsequent act, which became effective on February 20, 1908 (Laws 1907-08, c. art. 48, 3, § 2), repealed the former act and provided that the jurors should be selected from the tax roll, but that any jury box filled under the former act should remain unaffected. On May 11, 1908, defendant filed a challenge to the panel of petit jurors on the ground that they were drawn from a list selected from the pollbooks and not from the tax roll, but did not allege or show when the list was made up. The lower court overruled the challenge. Held, that the challenge and proof thereunder were insufficient, and that the challenge was properly overruled.
A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court.
A duly appointed, qualified, and acting deputy sheriff, having no special personal disqualification, is as competent to serve a venire for jurors as is the sheriff himself; and a defendant has no legal right to require that the sheriff, and not his deputies, serve the venire.
Under section 6801, Snyder's Comp. Laws 1909, the fact that a venire for special jurors was served by a biased, prejudiced or incompetent person should be taken advantage of by a challenge to the special venire.
The argument of attorneys to the jury is a part of the trial, and improper statements made by an attorney in the argument of a cause in open court and in the presence of the trial judge to be reviewed in the appellate court, must be shown by proper recital in the case-made or bill of exceptions, and cannot be shown by affidavits.
The trial judge's certificate to the case-made attests the truthfulness and correctness of everything recited therein as having in fact taken place; but it does not attest the truthfulness of affidavits filed in support of or in opposition to matters alleged in the motion for a new trial.
On a trial for murder, where the plea is self-defense, a coat worn by deceased at the time of the homicide, and which shows the point of entrance of the fatal bullet, is admissible in evidence.
For a correct definition of "reasonable doubt," see opinion.
On a trial for murder, where the plea is self-defense, and where there is some evidence other than threats tending to support the plea, proof of threats, communicated and uncommunicated, is admissible; the latter as a circumstance to be considered in connection with all the other evidence in the case in determining the state of deceased's feeling toward the defendant and who was the probable aggressor in the fatal difficulty, and for no other purpose; the former, not only for that purpose, but also as a circumstance in determining whet the defendant might reasonably have apprehended from the overt acts and demonstrations of the deceased, if he made any, at the time of the fatal difficulty.
Proof of bare threats made by the deceased, either communicated or uncommunicated, will not mitigate a homicide; and such proof is not admissible at all unless there is first introduced some evidence other than that of the threats themselves tending to show that the deceased at the time he was killed was making some over act or demonstration which furnished the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the deceased.
When an allegation in a motion for a new trial, that one of the jurors was intimidated and unduly influenced by his fellow jurors to agree to a verdict of guilty, is supported by affidavits on the one hand and controverted by affidavits on the other, the lower court's determination of the issue cannot be disturbed unless it reasonably appears that the court abused his discretion in the matter, or that his determination of the question was wrong.
Where the court sustains a motion for a continuance filed by the defendant, the fact that the defendant was not present at the hearing thereon is nonprejudicial.
Where a jury bailiff has been duly sworn, it is not necessary that he be resworn when he is directed to take the jury out of the room during an argument to the court on a question of law; no recess or adjournment being taken. An admonition to the bailiff and the jury suffices.
There is no error in allowing the jury to take with them to their jury room a coat worn by the deceased when he was shot, which was introduced in evidence, where the defendant through his attorney in open court consents thereto. And in such case there is no error in some of the jurors putting on the coat in their jury room for the purpose of observing the location of the bullet hole therein.
Appeal from District Court, Stephens County; Frank M. Bailey, Judge.
S. F. Saunders was convicted of murder, and he appeals. Affirmed.
That a venire for special jurors was served by a biased, prejudiced, or incompetent person must be taken advantage of by challenge to the special venire under the express provision of 22 Okl.St.Ann. § 639.
S. F. Saunders was convicted of the crime of murder, alleged to have been committed on one William Edward Carnahan on December 9, 1907, and his punishment was assessed at imprisonment at hard labor in the state penitentiary for and during the term of his life.
The evidence on the part of the state tended to show that the deceased during the year 1907 was a tenant under the defendant on a farm claimed by the latter; that the farm was in litigation, and a few days before the homicide the deceased had entered into a rental contract for the same land for the following year with some parties claiming adversely to the defendant; that this had angered the defendant, and he had declared that the deceased should not stay on the farm. On the morning of the homicide, the deceased was in the field cutting cornstalks with a stalk cutter, a two-wheel implement, drawn by two mules. The deceased's son, a boy about 14 years old, and a hired man, were cutting wood some little distance from where the homicide occurred; but the brow of a hill hid the deceased and the defendant from their view at the particular time of the homicide. They heard some shots in the direction where the deceased was, and on going to the place found the deceased lying on his back dead. This was about 9 o'clock in the morning. The neighbors were notified, the news spread, and large crowds came to view the body during the day. The body remained there until the coroner came, about dark. The evidence shows that the weather was cold, and that the deceased at the time he was shot had on an undershirt, a top shirt, a vest, and two coats; that the under coat was buttoned up and the outer coat was fastened with safety pins. The deceased also had on a pair of heavy leather gloves. All these remained on the body untouched until they were removed by the coroner. The deceased was shot twice; each of the shots taking effect in the back. Although troops of people came to the scene of the killing and examined the surroundings, yet no weapon was found on or near the deceased until just about dark. One Henry Pruitt and one Bone Woolsey had come and gone to and from the body several times during the day, and were there between sundown and dark. While they were standing around close to the body, Bone Woolsey pointed toward Henry Pruitt's feet and said, "Why, there is a pistol!" and the sheriff, who had arrived, stooped and picked up a bright nickle plated 38-caliber pistol. It was shown that the deceased's pistol, and the only pistol which he was known to possess, was at his home, under the pillow at the head of his bed at the time of the shooting. Blood was found on the blades of the stalk cutter and on the lines with which the deceased drove the mules to the cutter, showing that he was shot while seated on the cutter.
The defendant admitted the killing, but contended that the same was done in his necessary self-defense; that he rode up to the deceased, and had some words with him in regard to the possession of the farm; that the deceased got off of the stalk cutter, drew a pistol, and said, "We will settle it right here"; that thereupon the defendant drew his pistol; that the deceased fired first, and then the defendant fired, the shots being very close together; that the defendant fired three shots and the deceased two. The deceased was struck twice; each of the shots going into the back, and neither of them going through the body. The evidence of the sheriff tended to show that the pistol which he picked up near the body had not been fired, and the state contended that it was dropped there late in the afternoon by a friend of the defendant, and that the deceased was unarmed and was shot without warning while he was driving the stalk cutter. The defendant filed a motion for a new trial which was heard and overruled, and he appeals.
Cruce, Cruce & Bleakmore and Gilbert & Bond, for appellant.
Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
RICHARDSON J. (after...
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