Sturgis v. State

• Decision Date: 19 May 1909
• Citation: 102 P. 57,2 Okla.Crim. 362,1909 OK CR 66
• Parties: STURGIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

102 P. 57

2 Okla.Crim. 362, 1909 OK CR 66

STURGIS v. STATE.

Court of Criminal Appeals of Oklahoma

May 19, 1909

Syllabus by the Court.

(a) Assignments of error which are not presented fully in the briefs of counsel for the appellant will be treated as abandoned by this court, unless they relate to some fundamental question.

(b) It is the policy of this court to pass upon every material question involved in a case which is in good faith properly submitted for decision. The sooner questions of practice are settled in criminal cases the better it will be for the administration of justice in Oklahoma. At present these questions are in a state of utter confusion. This is especially true in prosecutions for the violation of the prohibition law.

(a) An indictment or information must charge but one offense; but when the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information. But in such cases the information or indictment must show upon its face that the separate counts all refer to one and the same transaction. As to how this should be done see opinion.

(b) Selling intoxicating liquor, and shipping or conveying such liquor from one place in the state to another place in the state, are separate and distinct acts, and cannot be joined in the same information or indictment.

(c) An information for transporting or conveying intoxicating liquors from one place in this state to another place in the state must designate the place from which and to which said liquors were so transported or conveyed, if known.

(a) It is not error for the country attorney, as a part of his opening statement of a case to the jury, to read the information and the affidavit upon which it is based.

(b) Nothing said in an opening statement is to be taken by the jury as evidence in the case, and if counsel for the defense have any apprehensions upon this subject he should request the court to so instruct the jury.

(a) The principles of law applicable to and enforced in civil cases as to agency are not a part of criminal jurisprudence.

(b) Our statute abolishes all of the distinctions of the common law in criminal cases as to accessories and principals in the first degree and in the second degree.

(c) All persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, and whether they directly commit the crime or aid and abet in its commission, though not present when it is committed, are "principals," and should be prosecuted, tried, and convicted as such.

(d) There is no such thing in this state, in misdemeanors, as accessories after the commission of the offense.

(e) Anything said or done by any person who is concerned in the commission of an offense, in pursuance of a common design to commit the offense, and before the offense is committed, or during its commission, is competent evidence against any other persons who are concerned in the commission of the offense, whether such act was done or said statement was made in the presence of such other persons or not; but this is not true as to acts done or words spoken after the commission of the offense.

(f) In order to make the acts or words of a person who was concerned in the commission of an offense competent as evidence against other persons who were also concerned in the commission of the offense, it is not necessary to prove beyond a reasonable doubt that said persons were concerned in the commission of the offense. Slight evidence that such parties were concerned in the commission of the offense is sufficient to render such evidence competent.

(g) Before the acts or statements of a person concerned in the commission of an offense are admissible as evidence against other persons, who are also concerned in the commission of such offense, some evidence should be introduced showing or tending to show that such persons were concerned in the commission of such offense.

(h) Before liquor or anything which contains or has contained liquor can be introduced for the inspection of the jury, it must be identified and proven to have been in the possession of the defendant, or under the control of the defendant or of some other person who was concerned with the defendant in the unlawful possession or disposition of such liquor or other article.

(i) A party who places a witness upon the stand thereby vouches for his veracity, or at least vouches that the witness is not so deeply steeped in moral turpitude as not to be worthy of some credence. Therefore such party will not be permitted to impeach such witness by showing his general bad character for truth.

(j) Where a party has been deceived or entrapped into placing a witness upon the stand, having reasonable ground to believe and believing that the witness will testify to facts favorable to such party, and the witness, when upon the stand, testifies to facts injurious to such party and conflicting with previous statements made by such witness, it would be a perversion of justice to deny to such party the right to introduce in evidence statements made by such witness conflicting with the testimony so given which was injurious to such party. This may be done upon the ground of surprise, to explain the action of the party in placing the witness upon the stand, and to destroy the injurious effects of such testimony.

(k) A party cannot impeach his own witness by introducing in evidence conflicting statements made by him, unless he shall testify injuriously to the party placing him upon the stand. The mere fact that the witness does not testify as the party expected him to do will afford no ground for the introduction in evidence of previous contradictory statements made by such witness.

(l) When contradictory statements made by a witness are admissible in evidence for the purpose of impeaching him they must be confined to contradictions of the testimony of the witness which are injurious to the party seeking to impeach him, and it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendant, and that the jury can only consider such contradictory statements for the purpose of affecting the credibility of the witness, if they decide that such statements do have this effect, and that it is unlawful for the jury to consider such statements for any other purpose.

(m) When a party places a witness upon the stand with notice that such witness will testify adversely to such party, he cannot claim surprise at such testimony, and will not be permitted to impeach the witness in any manner.

(a) When counsel for the state goes out of the record and makes remarks injurious to the defendant, it is the duty of the counsel for the defendant to object to such remarks and move the court to exclude them from the consideration of the jury. An objection to such remarks is only a protest against the line of argument being pursued. If this matter is deemed of sufficient importance to be reserved for review by this court, a motion to exclude such remarks from the consideration of the jury must be made, and, if this motion is not sustained, an exception must be taken, otherwise this court is not required to review the question upon appeal.

(b) If the remarks of the prosecuting attorney are of such a character that their exclusion from the jury will not cure the injury done, then no motion to exclude need be made, and the question as to whether they were proper will be properly presented on appeal by a simple objection, without being followed by a motion to exclude.

(c) Our statute is mandatory, and, when the defendant has failed to become a witness in his own behalf, this fact must not directly or indirectly, be mentioned or in any manner referred to or called to the attention of the jury. If such an attempt is made by counsel for the defense, the court must at once intervene and reprimand the counsel making such an attempt, and see that it is not repeated. If such an attempt is made by the prosecuting attorney and a conviction follows a new trial must be granted to the defendant.

(d) It is improper for the court or any other person to refer or in any manner call attention, in the presence of the jury, to the fact that a defendant has failed to testify in his own behalf; but if this matter, in any manner, is called to the attention of the jury, then the court should instruct them that such failure of the defendant to become a witness in his own behalf is not to be considered by them as a circumstance against him, and that the law forbids them from discussing this fact or allowing it in any manner to influence them in considering the case and in arriving at a verdict.

Oral statements made by the court to the jury, with reference to the form or character of their verdict, which do not contain instructions or directions upon some question of law involved in the trial, or comment on the evidence, do not come within the statute which requires instructions to the jury to be reduced to writing, unless waived by the defendant. For illustration, see facts stated in the opinion of the court, which are held not to constitute error.

Appeal from Tulsa County Court; N. J. Gubser, Judge.

Norman Sturgis was convicted under an information charging the selling of intoxicating liquor and the conveying of intoxicating liquor from one place to another in the state, and appeals. Reversed and remanded.

A party cannot impeach his own witness by proof of prior contradictory statements, where the party has not been misled by the witness, and where the witness has not...