Shoemaker v. State

• Decision Date: 10 January 1936
• Docket Number: A-8940.
• Citation: 53 P.2d 1133,58 Okla.Crim. 394
• Parties: SHOEMAKER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

53 P.2d 1133

58 Okla.Crim. 394

SHOEMAKER v. STATE.

No. A-8940.

Court of Criminal Appeals of Oklahoma

January 10, 1936

Rehearing Denied Jan. 31, 1936.

Syllabus by the Court.

1. Under the provisions of section 3527, O.S.1931, the Governor has power to employ counsel to protect the rights and interest of the state in any action or proceeding, civil or criminal, and the counsel so employed by him may, under the directions of the Governor, plead in any cause, matter, or proceeding in which the state is interested or a party, may prosecute offenses against the law of the state, and may institute and conduct proceedings before grand juries.

2. When the proof shows that an original document has been lost or destroyed, parol evidence may be admitted showing the contents of the lost or destroyed document.

3. The evidence is sufficient to sustain the judgment.

4. The defendant was accorded a fair and impartial trial.

Appeal from District Court, Payne County; Freeman E. Miller, Judge.

W. P Shoemaker was convicted of assault to do bodily harm, and he appeals.

Affirmed.

David Tant, of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.

DAVENPORT Presiding Judge.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of shooting with intent to kill; was tried and convicted of the crime of assault to do bodily harm; and sentenced to imprisonment in the county jail of Payne county, Okla., for a term of one year.

The facts in brief, as disclosed by the record, show the defendant is a man of about 73 years of age; the boy the defendant is charged with shooting is a school boy, and was about 12 years of age at the time of the shooting. The home of the defendant is located near the schoolhouse, where the party injured, Arthur Lewis, was attending school. Near the road that Lewis passed going to and from school the defendant had a fruit orchard on his farm. On the 26th day of October, 1934, after school was out Arthur Lewis and some other children were passing the orchard, and Arthur went in through the fence, as he stated, for the purpose of getting some apples. After he had gotten through the fence Arthur states he discovered the defendant a short distance from him with his gun pointed at him, and the gun fired, hitting him, and he fell to the ground; the other children ran for help and Lewis was taken to the hospital. The doctor said some of the shots had punctured a lung and intestines, but as they were so small it did not develop any serious condition.

There is no denial that the defendant fired the shot that injured the prosecuting witness Arthur Lewis, and there is no denial by the prosecuting witness that he had gone into the defendant's orchard for the purpose of picking apples from one of the trees.

The defense made by the defendant is that he had a dog that was gun shy and he had been out that day shooting rabbits, and when he fired the shot it was for the purpose of training the dog and breaking him from being gun shy; that he had not shot at the prosecuting witness and did not know he was in the orchard.

The record further discloses that there had been some contention by the defendant that the children had been coming into the orchard and picking some of his fruit, and the defendant had sent to the school teacher, Mr. Earnest Arnold, a note, some time prior to the date of the shooting, stating to Mr. Arnold, as follows:

"Mr. Arnold.

Dear sir:

Do not send the boys for your mail unless you watch and time them. They come over and steal my fruit. I shot at the Bickel boys yesterday. They have been in my orchard every day last week. Make them go around the road, then they won't get into trouble.

Wm. Shoemaker."

James Bickel was a witness in the case against the defendant, as he was returning from school with the prosecuting witness at the time he entered the orchard of the defendant.

The defendant has assigned ten errors alleged to have been committed by the trial court, which he insists is sufficient to warrant a reversal. The first assignment discussed by the defendant is: "The trial court erred in overruling the motion of the defendant to set aside the indictment."

The defendant insists that the indictment upon which he was tried was not found or indorsed, presented, or filed, as prescribed by the statutes and laws of the state of Oklahoma; that persons were permitted to be before the grand jury to advise them, the same being contrary to law.

Testimony was taken on the question raised by the defendant as to the indictment, argument presented, and the court overruled the defendant's contention, holding that the indictment was properly returned and indorsed by the grand jury. The main argument presented by the defendant as ground for setting aside the indictment is that the record affirmatively shows upon its face that the same was signed by J. M. Stringer special attorney appointed by the Governor. It was not denied by the state that J. M. Springer was present in the grand jury room at the time the grand jury was hearing evidence against the defendant. The record further shows that Mr. Springer was not in the grand jury room while the jury was considering its vote or voting. The record discloses that Mr. Springer was duly and regularly appointed by Wm. H. Murray, Governor of the State of Oklahoma. The appointment of Mr. Springer has by...