Starr v. State

• Decision Date: 01 May 1911
• Citation: 115 P. 356,5 Okla.Crim. 440,1911 OK CR 100
• Parties: STARR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 356

5 Okla.Crim. 440, 1911 OK CR 100

STARR v. STATE.

Court of Criminal Appeals of Oklahoma

May 1, 1911

Syllabus by the Court.

The information by a reference back to its preceding allegations sufficiently alleged the time and place of death.

On an application for a change of venue, the affidavit of the defendant in support thereof must not only aver "that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein," but it must also set forth the facts rendering a fair and impartial trial there improbable.

The granting of a change of venue is by statute made discretionary with the court, and the appellate court will not reverse the ruling of the trial court denying an application for a change of venue, unless it is made to clearly appear that there has been such an abuse of discretion as to amount practically to a denial of justice.

By "abuse of discretion" is meant a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.

In a trial for murder, any evidence which fairly tends to prove a conspiracy between persons to commit murder and a motive for the murder is admissible, although not tending directly to prove the murder charged, where such testimony tends to corroborate and render more credible the testimony tending directly to prove the murder charged.

Where there is testimony of a conspiracy to commit a crime, and of its subsequent commission, the state may, in support and corroboration thereof, show any act, declaration, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy or reasonably indicates preparation or motive to commit the crime.

Where facts dehors the proceedings in the trial of a criminal cause, which may affect the regularity of such a proceeding are alleged in the motion for a new trial, the personal knowledge of the trial judge may be relied upon in the court below, but such grounds for a new trial must be supported by competent evidence showing the facts, and such evidence must be incorporated in the record, otherwise the action and ruling of the trial court in relation thereto cannot be reviewed upon appeal.

Where upon the trial of a capital case a view of the place where the crime is alleged to have been committed is directed by the court upon the request of the defendant, and no demand or expression of a desire upon his part to be present at such view is made, his absence from such view is not ground for a new trial.

Where the defendant requested that the jury view the place where the alleged crime was committed, under section 6849 Snyder's Sts., providing that "when in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed," etc., and the court grants this request, he waives all right to object to the order made by the court under the statute, although such right may be a constitutional one.

The provision of the Bill of Rights conferring upon the accused the right to be confronted with the witnesses against him is not disparaged by the statute (section 6849, Snyder's Sts.), Which only confers upon an accused the right to waive this constitutional right or privilege. Where the statute so provides, a constitutional right or privilege may be waived by the accused.

Qu re whether a view by the jury in a criminal case of the place of the crime is the taking of evidence within the meaning of the constitutional provision conferring upon the accused the right to be confronted with the witnesses against him, or is only a means of enabling the jury to better understand and apply the evidence presented in court.

Appeal from District Court, Latimer County; Malcolm E. Rosser Judge.

B. D. Starr was convicted of murder, and he appeals. Affirmed.

Where an information for murder alleged that deceased was fatally shot in L. county, and then charged "of which mortal wound" he "then and there," on, etc., did die, the words "then and there" referred back to the place and time of the firing of the shot, and hence the information sufficiently alleged the time and place of death.

On the 24th day of February, 1909, an information was filed in the district court of Latimer county charging, in substance, that plaintiff in error, B. D. Starr, and C. E. Thames, did kill and murder one W. E. Cordell, and alleging that said defendants have had a preliminary examination. March 4, 1909 the defendants filed a general demurrer, which was overruled, and thereupon each of said defendants entered a plea of not guilty and requested a severance, which was granted. March 17, 1909, the case against the defendant Thames was called, and on March 19, 1909, the jury, having failed to agree, were discharged, and said cause continued. October 4, 1909, with leave of court, an amended information was filed, which omitting the formal parts is as follows: "In the name and by the authority of the state of Oklahoma. Come now W. P. McGinnis, the duly qualified and acting county attorney in and for Latimer county, in the state of Oklahoma, and in his own proper person, and gives the district court of the Fifth judicial district of the state of Oklahoma, held in and for Latimer county, state of Oklahoma, begun and holden at the city of Wilburton, in said county, and state as aforesaid, on the 4th day of October, A. D. 1909, the same being the regular October, 1909, term thereof, to know and be informed, and to understand, that one B. D. Starr, C. E. Thames, and certain other evil-disposed persons who are to the county attorney unknown, did, in Latimer county, and in the state of Oklahoma, on or about the 22d day of December, A. D. 1908, and anterior to the presentment hereof, commit the crime of murder, and that the said defendants B. D. Starr and C. E. Thames have had a preliminary examination before C. R. Hunt, an examining magistrate in and for Wilburton township, in said county and state, and that said crime was committed in the manner and form as follows, to wit: That on the date aforesaid, and in the county and state aforesaid, the said defendants B. D. Starr, C. E. Thames, and other evil-disposed persons whose names are to the county attorney of said county and state aforesaid unknown did then and there feloniously, without authority of law, and with a premeditated design to effect the death of one W. E. Cordell, then and there being, then and there with some kind of gun or pistol which is to the county attorney aforesaid unknown, and then and there in the hands of them, the said B. D. Starr, C. E. Thames, and certain other evil-disposed persons had and held, the same being then and there loaded and charged with gunpowder and leaden balls, shoot and discharge leaden bullets into the body of him, the said W. E. Cordell, then and there, and thereby inflicting upon the body of him, the said W. E. Cordell, a mortal wound, of which mortal wound he, the said W. E. Cordell, then and there, on the 24th day of December, A. D. 1908, did die, and that they the said defendants, B. D. Starr, C. E. Thames, and certain other evil-disposed persons who are to the county attorney aforesaid unknown, in the manner and form and by the means aforesaid, feloniously, without authority of law, and with a premeditated design to effect the death of him the said W. E. Cordell; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma." October 5, 1909, the defendants filed a demurrer, which was overruled and exceptions allowed. Thereupon each of said defendants entered a plea of not guilty. Thereupon plaintiff in error filed his verified application for a change of venue upon the ground "that there is a prejudice existing in this county against the said defendant, but that the same is without any just cause, and that said prejudice prevails generally throughout the county, and especially among such citizens as compose the juries of the said county, that this defendant has considerable acquaintance with the citizens of this county, and this defendant states that a fair and impartial trial of the said defendant by a jury cannot be had by the said defendant herein in the county of Latimer by reason of such prejudice existing against the said defendant in said county. Wherefore your petitioner prays that an order be made removing said cause to some other county in the Fifth district for trial." Attached to said motion was a notice to the county attorney and proof of service of the same on the 4th day of October, 1909. The application was supported by 12 affidavits wherein each affiant states: "I verily believe and know that the defendant, B. D. Starr, cannot have a fair and impartial trial in the said county of Latimer, because the minds of the inhabitants of said county in which said cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein." The county attorney introduced seven controverting affiants. October 5th a hearing was had and the motion for a change of venue was overruled. The cause was set for trial October 11th, and the court ordered a special venire of 40 jurors. October 11th the defendant filed a motion to set aside the special venire of jurors summoned to try the case, which motion was overruled by the court, and thereupon the defendant renewed his motion for a change of venue, which was overruled, and the defendant, Starr, thereupon demanded a...