Tolbert v. State
| Citation | 245 P. 659,34 Okla.Crim. 110 |
| Decision Date | 16 April 1926 |
| Docket Number | A-4947. |
| Parties | TOLBERT et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
When two or more defendants are jointly charged for a misdemeanor they may be tried separately or jointly, in the discretion of the court.
When there is evidence of an acting together of persons engaged in the commission of a misdemeanor, the acts and declarations of any one of them before the offense is fully accomplished is competent against any of the others.
In a prosecution upon a criminal charge, evidence of another offense than that charged is admissible, if a part of the same transaction, or forms part of the res gestæ, or if there is a clear connection between the two offenses, and the evidence tends to shed light upon the offense charged.
When a reversal is sought on account of exclusion of evidence, the record must show an offer of such evidence so that this court may determine whether or not it was material and proper, and whether or not the defendant was injured by its exclusion.
The term "reasonable doubt" does not require defining. It is as well understood as any definition of it. It is not error for a trial court to fail to define, whether requested to do so or not.
Upon an examination of the whole record, the court finds that the evidence is sufficient to sustain the judgment, and that no prejudicial error sufficient to warrant a reversal appears.
Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
Jeff Tolbert and Charlie McArthur were convicted of transporting intoxicating liquor, and they appeal. Affirmed.
M. D Hartsell, of Muskogee, for plaintiffs in error.
Geo. F Short, Atty. Gen., for the State.
The plaintiffs in error, Jeff Tolbert and Charles McArthur hereinafter called defendants, were convicted in the county court of Muskogee county on a charge of transporting intoxicating liquor, and each sentenced to pay a fine of $250, and to serve a term of 90 days in the county jail.
An examination of the record discloses that about 4:30 a. m. of the night of the 30th day of August, 1923, certain officers of Muskogee county, upon information received, went upon the public highway about four miles from Muskogee, and attempted to stop a car driven by the defendant Tolbert, in which was his codefendant McArthur and two other persons named Sherman Williams and Earl Hickerson. The car of the defendant refused to stop at the hail of the officers, and they pursued it, and twice attempted to pass, but were crowded off of the road by the defendant's car. The testimony is that they then fired at the casings, and some of the occupants of defendant's car stuck their heads out, and the officers thereupon fired at them and shot Sherman Williams and Charlie McArthur. It is not disclosed in the record, but stated in the briefs, that Sherman Williams later died from the wounds received. The defendant's car then stopped, and the officers came up and arrested the occupants, and searched the car, and found a gallon container which had been overturned, but which still contained about a half pint of whisky. In the back of the car they found a still. The defendant testified that about 10 o'clock on the night in question (the arrest took place about 4:30) he, with McArthur, went some miles in the country to figure on a job of carpenter work. In returning to Muskogee they overtook Williams and Hickerson carrying some bulky object in a sack, and permitted them to put it in the car and ride with them. This bulky object was the still in question. The defendant disclaimed any interest in it or knowledge that it was a still. They explained the long delay from the time they went out to see about the job of carpenter work and the time of the arrest by stating that they had tire trouble which occasioned the delay. The defendants present various assignments of error.
The defendants first complain that, since they were jointly charged with Sherman Williams and Earl Hickerson, and were tried without Williams and Hickerson being present, and without any application for severance by either the state or the defendants having been made, the court exceeded its authority to their injury, citing Payne v. State, 136 P. 201, 10 Okl. Cr. 314. That case is not authority for the contention here made. That was a prosecution on a charge of felony, and without any application for order of severance, and, over his objection, the defendant Payne was separately tried. This case is a prosecution for a misdemeanor, and, even if an objection on account of the separate trial would have availed, the defendants made no such objection. The record does show that, after the jury had been impaneled and sworn, and the county attorney was reading the information, the defendants' attorney objected, for the reason that the codefendants were not present and available as witnesses, but not on the ground that they were not being jointly tried. Section 2695, Comp. Stat. 1921, governs. It is:
Under this section it is clear that in misdemeanor cases the trial court, where more than one defendant is charged, may permit or require the trial to be separate or joint, in its discretion.
Upon the second assignment, i. e., the insufficiency of the evidence, it is argued that the...
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