Taylor v. State, A-11635

• Decision Date: 06 August 1952
• Docket Number: No. A-11635,A-11635
• Citation: 96 Okla.Crim. 1,247 P.2d 749
• Parties: TAYLOR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 749

247 P.2d 749

96 Okla.Crim. 1

TAYLOR v. STATE.

No. A-11635.

Criminal Court of Appeals of Oklahoma.

Aug. 6, 1952.

Rehearing Denied Sept. 10, 1952.

Syllabus by the Court.

1. Preliminary examination before magistrate on felony charge is not a 'trial.' Okla.Const. Art. II, §§ 17; Tit. 22 O.S.1951 §§ 262, 264.

2. Evidence on preliminary examination before magistrate on felony charge need not be sufficient to support conviction, but only to show that offense has been committed, and that there is sufficient reason to believe defendant guilty thereof. Tit. 22 O.S.1951 § 171.

3. Where a preliminary examination is held in a felony case in compliance with the Constitution and statutory provisions, Const. Art. II, § 17, Tit. 22 O.S.1951 § 264, and the defendant is ordered held to answer in the district court, and thereafter an information is filed and defendant interposes a motion to quash and dismiss on ground of insufficiency of the evidence adduced, and on hearing the district court overrules said motion, but orders the case remanded to the examining magistrate to hear further evidence on specific point as to cause of death of person allegedly murdered; which is done, and papers are returned to trial court and a second motion to quash is overruled and demurrer is overruled, and accused is arraigned on the charge of murder:

Held, that the transcript of the evidence from the first hearing sufficiently showing that a named person was killed and that there was probable cause to believe the accused guilty thereof, that the unauthorized procedure questioned amounted to mere surplusage, and by reason of the facts developed on trial and the provisions of Tit. 22 O.S.1951 § 1068, such error was not sufficient to cause the verdict and judgment rendered to be set aside.

4. A defendant's general good character or reputation as to the trait involved in the charge against him is always admissible in his favor to evidence the improbability of his doing the act charged, and, where a defendant offers testimony to show his previous good character, the State may in rebuttal offer evidence of his bad character.

5. On cross-examination of witnesses as to defendant's character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to the knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased. This is especially true as to offenses of the same character with which he stands charged. This is permissible, not for the purpose of establishing the truth of such facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.

6. The extent of such cross-examination is a matter resting in the sound discretion of the trial court, and a judgment of conviction will not be reversed because the trial court permitted such a cross-examination unless a clear abuse of such discretion is shown

Judd L. Black, O. P. Estes, Oklahoma City, for plaintiff in error.

Mac. Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Edgar Thornton Taylor, referred to here as defendant, as in the lower court, was charged by information filed in the district court of Oklahoma County with the crime of murder. The jury returned a verdict of second degree manslaughter, and left the punishment to be fixed by the trial court, who sentenced defendant to three years imprisonment in the State Penitentiary. Appeal has been duly perfected to this court.

There is no complaint as to the sufficiency of the evidence to sustain the conviction of defendant of second degree manslaughter, with sentence of three years in the penitentiary. There is ample evidence in the record to have supported a conviction of murder, as charged, had the jury fully believed the testimony given by the witnesses for the State. But the problem was not easy or simple for the jury, or for the court in fixing sentence.

Defendant operated a beer parlor and was an accessary in bootlegging whiskey in the suburbs of Oklahoma City known as 'Mulligan Flats', and this place and his home appear to have been the rendezvous for ex-convicts, prostitutes, thieves, bootleggers and various and sundry shady characters. The deceased had a long record of convictions for various crimes and at the time of his death was an escapee from jail and a fugitive, having felony prosecutions pending against him in Oklahoma and Texas. Still, defendant feels that he should not pay any penalty for the killing. And above everything, if it developes from the record, even though the grounds interposed may be said to be technical, that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right, relief must be granted.

For reversal counsel interpose and argue two propositions, and being:

'Proposition I: It is jurisdictional that the statutory provisions be complied with in instituting and prosecuting a criminal action.

'Proposition II: It is error to admit evidence of the commission of another crime which forms no part of the res gestae in the case.'

Considering the first proposition, a chronological history of the proceedings in institution and prosecution is required.

It appears that the prosecution was commenced by the filing of a preliminary information in the justice court of Elmo McCallister, in which it was charged that the defendant did commit the crime of murder by fatally shooting one Terrell Baxter Meshew in Oklahoma County.

Thereafter, and on October 13, 1950, a preliminary hearing was held, at the conclusion of which the justice of the peace ordered the defendant held to answer in the district court for the crime of murder, and denied bond for defendant. This court, in Ex parte Taylor, Okl.Cr.App., 224 P.2d 611, held that defendant was entitled to bail in the sum of $20,000.

Following the preliminary hearing and on October 17, 1950, the State filed an information in the district court of Oklahoma County, in which defendant was charged with the crime of murder, alleging that defendant unlawfully shot and killed Terrell Baxter Meshew.

On October 23, 1950, the defendant filed a motion to quash and dismiss, asserting that the proof was wholly insufficient to charge him with the offense and to hold him to answer the charge of murder, and alleging that the proof failed to show such crime was in fact ever committed within the jurisdiction of the court and that there was probable cause to believe the defendant guilty thereof. Attached to this motion was a certified copy of the testimony which had been offered at the preliminary. Following a hearing on the motion on November 3, 1950, the clerk's minutes show that entry was made as follows:

'Ent. Comes on for hearing on def.'s Motion to Quash and Dismiss. Deft. present and by counsel. Motion overruled. Case remanded to Justice Elmo McCallister for taking of additional testimony as to cause of death of Terrell Baxter Meshew (Morris).'

The District Judge, Glen O. Morris, thereafter signed a journal entry reflecting his action, which was filed in the case on November 6, 1950. It reflected the above minute, setting out in part:

'* * * the court finds that said motion to quash and dismiss should not be sustained, but that said cause should be remanded to said justice court for additional testimony concerning cause of death of Terrell Baxter Meshew, * * *. It is further ordered that said cause be and the same is hereby remanded to the Justice of the Peace Court of Elmo McCallister for the taking of additional testimony concerning the cause of the death of Terrell Baxter Meshew, after which, on sufficient showing to said Justice of the Peace, said cause shall be returned to this court under present style and number and said defendant shall be again arraigned in this court.'

The orderly consideration of the points raised under the propositions interposed and heretofore set out, indicates that we consider the validity of each step taken (and here claimed to be erroneous) as taken. So at this point we shall study the evidence introduced by the State at the preliminary hearing, mentioned above, and held on October 13, 1950.

Claris Lee Tilton, alias Claris Lee Burns, who testified to being an eye witness to the shooting, testified to the shooting taking place in Oklahoma County in the home of the defendant, who was shown to have been for several days harboring an assortment of friends in his home, in the absence of his wife. There had been considerable drinking of whiskey by the parties, and the shooting occurred in the early morning hours of September 28, 1950. Testifying to the facts of the shooting, witness was asked and answered as follows:

'Q. (By Mr. Holbird) What was done next? A. We had got into the front room to get into the car to go down to my mother's.

'Q. What happened then? A. Ed [the defendant] called Smokey [deceased] back, and said, 'Smokey, come here.' Smokey turned around in the front room, walked back to the foot of the bed.

'Q. To the foot of the bed? A. Yes.

'Q. Where was Ed at that time? A. He was standing by the table in the kitchen.

'Q. In the kitchen? A. Yes.

'Q. Is that near the door? A. Yes.

'Q. Did you see Ed standing in there in the door? A. Yes, sir.

'Q. What took place when he went back there? A. Smokey turned around, walked to the foot of the bed, and Ed was standing at the end of the table, and when Smokey came back there and stood in the door, he said, he said, 'You are a thieving son of a bitch.'

'Q. Then what? A. 'You stole my whiskey.' I said, 'If he got a pint of your whiskey I will pay you.' By the time I started to reach in my slack pocket to get the money, Ed shot him. * * *

'Q. Did you observe any wounds on his body? A. I could see the blood.

'Q. Where was it? A. Along in here (indicating).

'Q. Along in his stomach? A....