Smith v. Territory Oklahoma

• Decision Date: 17 July 1902
• Parties: FRANK SMITH v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1902 OK 44

69 P. 805

11 Okla. 669

FRANK SMITH v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: July 17, 1902

Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge.

Syllabus

¶0 1. CONTINUANCE--Denied, When. It is not error to overrule an application for a continuance in a trial for murder, where it appears that the defendant has sufficient time to prepare for trial, and to procure the attendance of resident witnesses, and to take the depositions of non-resident witnesses, had he exercised reasonable diligence.

2. SAME. Where it appears that an application for a continuance of a cause is not made in good faith, but merely for vexation and delay, the court should deny the application.

3. EVIDENCE ON MURDER TRIAL--What Admissible. On a trial for murder, statements and declarations by the defendant concerning the deceased a short time before the homicide, and immediately thereafter, are admissible and competent as evidence on behalf of the prosecution, where they tend to show the feeling and state of mind of the defendant towards the deceased.

4. SAME. On a trial for murder it is competent for the prosecution to show that the deceased a few hours before the homicide had a large pocket-book in his possession and on his person, and that immediately after he was killed it was found missing, for the purpose of establishing or tending to establish a motive or purpose for the commission of the crime.

5. SAME--Photographs. Where photographs are proven to be a true and correct representation of whatever they purport to reproduce, they are admissible and competent as evidence as an appropriate aid to a jury in elucidating the evidence; and this rule applies to persons, places and things.

6. SAME. On a trial for murder where it is shown by the prosecution that certain photographs were accurately, taken and were true representations of the location of the wounds upon the head of the deceased, they were admissible in evidence.

7. RES GESTAE--What Constitutes. Declarations to become a part of the res gestae, must accompany the act which they are supposed to characterize and explain; and to make such declarations competent as evidence they must exclude the idea of a narration of past occurrences or events. To constitute a part of the res gestae two things must occur, namely: (1,) the accompanying acts, and, (2,) the declarations attending the whole transaction.

8. SAME. Declarations of a defendant subsequent to the commission of the crime, if wanting in spontaniety and instinctiveness, are but a person speaking concerning the transaction, and not the transaction speaking through the person who committed the act, and hence they form no part of the res gestae, and were properly rejected as self-serving and hearsay declarations.

9. SAME. Hence on a trial for murder declarations made by the defendant a few minutes subsequent to the killing as to what was said and done at the time and place of the homicide, and after the defendant had gone two or three hundred yards in the night time and from the scene of the homicide, form no part of the res gestae and are therefore inadmissible and incompetent as evidence.

Newell & Jackson, for plaintiff in error.

J. C. Strang, Attorney General, and Charles H. Woods, for defendant in error.

HAINER, J.:

¶1 The plaintiff in error, Frank Smith, was indicted, tried and convicted of the crime of the murder of Edward L. Cotney, and sentenced to the penitentiary at hard labor for life. From this judgment he appeals and assigns a number of errors. It is first claimed by the plaintiff in error that the court erred in overruling defendant's application for a continuance. It appears from the record that the indictment in this case was returned in the district court of Cleveland county on May 21, 1900; the defendant was arraigned on May 23, and interposed a demurrer to the indictment; on the following day the demurrer was overruled, and a plea of not guilty entered; on May 25, the cause was set for trial for May 31; on May 30, the defendant filed an application for a continuance on the ground of absent witnesses, and that counsel for defendant did not have sufficient time to prepare for trial; and on May 31, the cause was continued by the court until the next regular term. On October 15, 1900, being the next regular term of the district court of Cleveland county, this cause was called for trial, and the defendant made a second application for a continuance on the ground of absent witnesses. The county attorney, on behalf of the territory, consented that the affidavit for continuance may be treated and considered as the deposition of the absent witnesses, and thereupon the application was denied. The defendant then made application for a change of venue from the county, supported by the affidavit of two witnesses, that he could not have a fair and impartial trial in said county, on account of the bias and prejudice of the people against him. The application was granted, and the cause was removed to Canadian county. On December 3, 1900, the cause was called for trial in the district court of Canadian county, and a third application for a continuance was filed, alleging as a ground therefor the absence of certain witnesses, which defendant claimed that he was unable to procure. This application was denied by the court, and the cause proceeded to trial. We think the application was properly denied. The defendant had sufficient time to prepare for trial, and to procure the attendance of the witnesses who resided in the territory, and as to those witnesses who did not reside in the territory, he had ample time to secure their depositions, had he exercised reasonable diligence. In Hyde v. Territory, 8 Okla. 69, 56 P. 851, it was held by this court that a continuance of a cause rests largely within the sound discretion of the trial court, and will not be held as reversible error by this court, unless there is clear abuse of discretion.

¶2 And in the case of Kirk v. Territory, 10 Okla. 46, 60 P. 797, this court held that it is no abuse of discretion to overrule an application for continuance where no diligence is shown to procure the attendance of resident witnesses, or to take the depositions of non-resident witnesses.

¶3 We think that the record not only shows that the defendant failed to exercise any reasonable diligence, but we are warranted in holding that the second and third applications for a continuance were not made in good faith, but for vexation and delay.

¶4 The next error assigned of which the plaintiff in error complains is, that the court erred in admitting incompetent, irrelevant and immaterial testimony on behalf of the territory, prejudicial to the defendant. This objection is addressed to certain testimony given by the witnesses, Eaton, Trice and Sharp, concerning certain remarks made by the defendant immediately before the killing, and a short time thereafter. We think that these statements and declarations made by the defendant were clearly competent for the purpose of showing the feeling and state of mind of the defendant towards the deceased. There was no error in admitting the testimony of the witness, Maxwell, concerning a conversation that he had heard between the defendant and Kitty McIntyre. The defendant stated to this witness that he had killed the deceased. And this was certainly competent evidence as declarations against his interest; and in order to make such declarations admissible, it was necessary for the prosecution to show the place where and the person to whom they were made. The fact that this house was a place of assignation would not be sufficient to exclude the testimony on the ground that it might be prejudicial to the defendant.

¶5 It is also claimed that the court erred in admitting testimony on behalf of the territory concerning a pocket book that had been on the person and in the possession of the deceased a short time prior to the time that he was killed, and that said pocket book could not be found on the person of the deceased or any other place immediately after the killing. It appears from the evidence that the deceased was in the town of Lexington in the afternoon prior to the killing, and that he had on his person and then in his possession a large pocket book. Mrs. Campbell testified that about four hours before the commission of the crime she saw the deceased examining the pocket book, and that she had seen it before, and that he was in the habit of carrying it in plain view of everybody. It further appears that the defendant met the deceased about midnight on October 28, 1899, in a restaurant in the town of Lexington, and that he was introduced to the deceased, Edward L. Cotney, by Will Elkins; that the defendant in company with Will Elkins and the deceased started on foot in the direction of Purcell, and after they had gone about a half a block Will Elkins, the companion of the defendant, stated he was sick, and could not go any further, and then Cotney and the defendant proceeded on their journey down the river toward Purcell. The defendant testifies that as they were approaching the bridge between Lexington and Purcell, the deceased grabbed him and commenced to strike at him with a knife, and then the defendant drew a revolver and attempted to strike him with it. He further testifies that he could not knock him down and he then shot him. The defendant says that he shot two or three times. There was no eye witnesses to the tragedy. The fatal shots were fired and the deceased was killed about an hour and a half after the defendant had met the deceased in the restaurant at Lexington. Soon after his death his person was carefully examined and the pocket book was missing and no trace of it could be found. In these circumstances we think the court properly admitted this testimony for the purpose of establishing or tending to establish a motive or purpose for the commission of the crime.

¶6 The plaintiff in error...