Turner v. State

• Decision Date: 03 September 1912
• Citation: 126 P. 452,8 Okla.Crim. 11,1912 OK CR 370
• Parties: TURNER ET AL. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

126 P. 452

8 Okla.Crim. 11, 1912 OK CR 370

TURNER ET AL. v. STATE.

Court of Criminal Appeals of Oklahoma

September 3, 1912

Syllabus by the Court.

(a) All defects or imperfections in the matter of form of an indictment or information which do not tend to prejudice the substantial rights of a defendant upon the merits are immaterial, and do not affect the validity of such indictment or information.

(b) An indictment or information which alleges that a number of different persons who were concerned in the commission of an unlawful homicide held the pistol in their hands and fired the fatal shot is sufficient without stating which one of said defendants held the pistol and fired the fatal shot.

(a) In a capital case, where the extreme penalty of the law is inflicted, we will investigate the record carefully, and, if any material error appears therein which contributed to the injury of the appellant, it will be considered by this court whether excepted to or not.

(b) The policy of this court in liberally construing penal statutes and in rejecting the common-law doctrine that error presumes injury is explained in this opinion.

(c) An indictment for murder which charges that the homicide was unlawfully committed with a premeditated design to effect the death of the deceased includes every character and degree of unlawful homicide, and a conviction, if warranted by the testimony, will be sustained under such an indictment for murder, manslaughter, assault with intent to murder aggravated assault, or simple assault. Jewell v Territory, 4 Okl. 53, 43 P. 1075, and Holt v Territory, 4 Okl. 76, 43 P. 1083, explained and reaffirmed.

(d) In its last analysis murder in Oklahoma consists in the unlawful killing of a human being with a premeditated design to effect his death, or the death of some other person. This premeditated design to effect death must be established either by direct evidence as a matter of fact, or it arises as a conclusive presumption of law in the class of cases mentioned in paragraphs 2 and 3 of section 2268, Comp. Laws 1909. These paragraphs do not state a rule of pleading to be followed in an indictment, but they establish a rule of evidence for the trial judge in the admission of testimony and in his instructions to the jury.

(e) It is made the duty of the Criminal Court of Appeals to modify a judgment whenever in its opinion this should be done, in order to secure justice.

Appeal from District Court, Oklahoma County; W. R. Taylor, Judge.

Elijah Turner and others were convicted of murder, and they appeal. Affirmed.

Wm. Harrison and A. W. Turner, both of Oklahoma City, for appellants.

Smith C. Matson, Asst. Atty. Gen., and E. G. McAdams, of Oklahoma City, for the State.

FURMAN, P.J. (after stating the facts as above).

This is a companion case to that of James Holmes v. State, 6 Okl. Cr. 541, 119 P. 430, 120 P. 300. The material facts of the case will be found stated in Holmes' Case. It is therefore not necessary to repeat them here.

First. When this case was submitted, counel for appellants delivered an able, earnest, and instructive oral argument in their behalf, in which he attacked the sufficiency of the information. The first proposition was that the information was invalid and insufficient because it did not allege the name of the defendant who fired the fatal shot, but charged in general terms that the pistol was held in the hands of all of the defendants, and was fired by all of them. In support of this position he cites the case of State v. Gray, 21 Mo. 492. This case is as stated by counsel for appellants, but the reverse view of this question is taken by the same court in the case of State v. Dalton, 27 Mo. 13, in which an indictment was sustained which charged that an assault was made "with a certain knife of the length of six inches, and of the breadth of two inches, which they, the said John Dalton and Michael Gaughy, then and there in their right hand had and held," etc. In the latter case the court said: "The averment, however, of the manner in which the instrument is held by which the injury is inflicted is not material; and, if it was so, according to the common-law rules of criminal pleading it is cured by the sweeping provision of our statute which declares that 'no indictment shall be deemed invalid on account of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.' " Section 6705, Comp. Laws 1909, is as follows: "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."

From this it is seen that all defects or imperfections in the matter of form in an indictment which do not tend to the prejudice of the substantial rights of the defendant upon the merits become immaterial, and do not affect the sufficiency of the indictment. This is the plain mandate of the law, and by it we are bound.

If appellants were all concerned in the commission of the crime charged, the act of one would be the act of all, and it would be utterly immaterial as to which one of the appellants held the pistol and fired the fatal shot. The manner of charging this would be purely a matter of form, and would not in any manner affect the substantial rights of any of the appellants. We therefore cannot sustain this contention of counsel.

Second. Upon the trial of this cause the court, among other things, instructed the jury as follows:

"(10) All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aided and abetted in its commission, though not present when the offense is committed, are principals, and may be prosecuted and convicted as such.

(11) When two or more persons agree and confederate together to commit a crime under such circumstances as may, when tested by human experience, specifically result in the taking of human life, either in the execution or resistance of their unlawful plans, then each party to such common understanding or conspiracy will be held responsible for the consequences which might be reasonably expected to flow and which do flow from carrying into effect their unlawful combination, and for the taking of human life, if any, to accomplish the object of the conspiracy, even though such consequences were not specifically intended as a part of the original plan. The law is that, if two or more persons conspire to commit a felony and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in the furtherance of the original design, in contemplation of law, is the act of all. And if such conspiracy and agreement is to do or perform an unlawful act constituting a felony, and in the prosecution of such unlawful act constituting a felony an individual is killed or death ensued, such killing is murder, as to all who are parties to such agreement and conspiracy, or who participate in such unlawful act constituting a felony. And if in this case you find from the evidence beyond a reasonable doubt that the defendants, Bob Johnson, Charlie Posey, and Elijah Turner, entered into a conspiracy or common design among themselves, or with John Henry Prather and James Holmes, to rob the deceased, W. H. Archie, or if they in conjunction with each other, or the said John Henry Prather and James Holmes, did rob the deceased, W. H. Archie, such a conspiracy or act upon the part of said defendants would be an unlawful act constituting a felony under and by virtue of the laws of this state, and if, in carrying out such conspiracy or common design, if any, either of the said defendants or any one acting in conjunction with them in committing said act of robbery, if the same was committed, and in carrying out said conspiracy and unlawful act, if any, killed the said W. H. Archie, such killing was murder, and all concerned therein would be guilty of murder, even though they were not present and did not actually assent to the killing of the said Archie. * * *

(13) Now, bearing in mind the foregoing definitions and instructions, if you find and believe from the evidence beyond a reasonable doubt that John Henry Prather, named in the information, in the county of Oklahoma, state of Oklahoma, killed W. H. Archie, and you further find from the evidence beyond a reasonable doubt that said killing was done by the said Prather while in the commission of a felony, and you further find and believe from the evidence beyond a reasonable doubt that the defendants, Bob Johnson, Charlie Posey, and Elijah Turner, prior to such killing, entered into a conspiracy or design with the said Prather to commit said robbery or unlawful act, or that the defendants, in conjunction with themselves and the said Prather, did rob the said W. H. Archie, and that during the commission of said unlawful act the said Prather, or any other person connected with the defendants, in the commission of such conspiracy or common design, if any, killed the said W. H. Archie, then and in that event you will find the defendants guilty of murder, and so say by your verdict."

Exceptions were not reserved to these instructions; but, as the extreme penalty of the law has been pronounced against appellants, we think that, if there was material error in the instructions which contributed to the injury of appellants, we should consider them as though excepted to. See Vickers v United States, 1 Okl. Cr. 452, 98 P. 467. The question involved is as to whether or not, where an information or indictment charges that the homicide was committed with a...