Smith v. Territory Oklahoma

• Decision Date: 09 June 1904
• Citation: 14 Okla. 162,77 P. 187,1904 OK 53
• Parties: PINK SMITH v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1904 OK 53

77 P. 187

14 Okla. 162

PINK SMITH v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: June 9, 1904

Syllabus

¶0 1. CRIMINAL LAW--Indictment, Clerical Error Does Not Invalidate, When. Where an indictment is sufficient in all other respects, a mere clerical error or mistake in the spelling or use of a word, does not render the indictment invalid, unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.

2. SAME--Ruling on Evidence--Harmless Error in, Not Reversible. Errors of the trial court in its rulings upon the admission of testimony, which in no way could prejudice or tend to prejudice or affect the substantial rights of the party complaining, are not sufficient grounds for the reversal of a judgment.

3. SAME--Conviction of Lesser Offense--Degree. The jury in a criminal case may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, and whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty, and when there is a reasonable doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.

T. S. Jones, Jno. Devereux and Lawrence & Huston, for plaintiff in error.

J. C. Robberts, Attorney General, and C. H. Woods, Assistant, for defendant in error.

BEAUCHAMP, J.:

¶1 Plaintiff in error, Pink Smith, was indicted in the district court of Logan county, charged with the murder of William L. Mitchell. At the February, 1903, term of that court, a trial was had, and the jury returned a verdict finding the defendant guilty of manslaughter in the second degree. Motions for a new trial and in arrest of judgment were by the court overruled and exceptions saved, and the defendant sentenced to a term of three years in the territorial penitentiary; he appeals to this court. At the trial the plaintiff in error admitted the homicide but pleaded that the shooting was done in self defense.

¶2 It is urged as a ground for the reversal of the judgment that the indictment in this case does not sufficiently conform to the requirements of the statute, and does not state facts sufficient to constitute a public offense. The indictment reads that the homicide was perpetrated "with the premeditated design to effect" the death of the deceased, William L. Mitchell, while the statute reads "with the premeditated design to effect" the death of the person killed or of any other human being. No motion was made by the defendant to quash the indictment or demurrer interposed but upon the Territory offering its first witness, the defendant objected to the introduction of any testimony, for the reason that the indictment did not state facts sufficient to constitute a public offense, and that the several counts in said indictment were improperly joined. The only objection argued is that the indictment is insufficient for the reason that the design shall be to effect the death of the person killed. This was clearly a mistake of the pleader, a clerical error, and where a defect in an indictment is merely technical, and the indictment being sufficient in all other respects, we are unable to see how the substantial rights of the defendant are affected by such mistake, therefore we cannot reverse the judgment for that reason.

¶3 Wilson's Statutes, section 5366:

"No indictment is insufficient nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

¶4 Section 5801:

"Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or procedure, nor an error or mistake therein, renders it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right."

¶5 People v. Hitchcock, [Cal.] 38 P. 198.

¶6 Upon the trial one W. H. Mills was offered as a witness by the defendant, who testified that the reputation of the deceased for being a dangerous and violent man was bad. Upon cross-examination by the county attorney, the witness was asked whom he had ever heard say Mitchell's reputation was bad. He stated that he had heard Mr. Caldwell say that the deceased had abused him; that the defendant had told him that the deceased abused him before the shooting; that the defendant's father had said the same, and that a neighbor girl had claimed that the deceased had called her a liar or as good as called her a liar and abused her some about the cattle. Upon further examination he was asked:

Q. "You said there was a Jones girl said that Mr. Mitchell's reputation was bad?"

A. "She did not say it direct to me. She didn't say it was bad. She said he talked mean to her and as good as called her a liar or something to that effect."

¶7 After the defendant had offered his evidence, the territory called in rebuttal, Myrtle Jones as a witness, who denied that she had made the statements as stated by the witness Mills, which testimony was allowed by the court over the objections of the defendant, to...