Walker v. State

• Decision Date: 01 December 1921
• Docket Number: A-3956.
• Citation: 202 P. 799,20 Okla.Crim. 319
• Parties: WALKER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

202 P. 799

20 Okla.Crim. 319

WALKER v. STATE.

No. A-3956.

Court of Criminal Appeals of Oklahoma

December, 1921

In a prosecution for murder, evidence reviewed and held sufficient to sustain a verdict convicting the defendant of murder, but insufficient under the facts and circumstances of the case to justify the death penalty, and the judgment and sentence of death is modified to imprisonment for life at hard labor.

Additional Syllabus by Editorial Staff.

The Criminal Court of Appeals cannot reverse a conviction because not sustained by the evidence, unless there is no substantial evidence tending to show defendant's guilt, or the evidence so fails as to make a necessary inference that the jury acted from partiality, passion, or prejudice, and the court will not weigh the evidence but will consider it all to ascertain if the conviction is founded on substantial evidence.

If from all the facts and circumstances attending the killing the jury can reasonably and satisfactorily infer the existence of the premeditated design, or intention to kill, they will be warranted in so doing.

One who intentionally uses upon the body of another, at some vital part, a deadly weapon, will in the absence of qualifying facts be presumed to intend the death, which is the probable and ordinary consequence of such act.

Appeal from District Court, Pittsburg County; Harve L. Milton Judge.

Charley Walker was convicted of murder and sentenced to death, and he appeals. Modified and affirmed.

Evidence held sufficient to sustain a verdict of murder, but insufficient under the facts and circumstances to justify the death penalty, so that the judgment and sentence will be modified to imprisonment for life at hard labor.

J. W Crow, of McAlester, and Lewis Morris, of Oklahoma City, for plaintiff in error.

S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

DOYLE P.J.

This appeal is from a judgment of conviction in the district court of Pittsburg county, rendered February 1, 1920, in pursuance of a verdict finding the defendant guilty of murder and assessing his punishment at death. The information in substance charged that in said county on or about the 30th day of July, 1920, the defendant, Charley Walker, did kill and murder one C. L. Harkins, by striking, stabbing, and cutting the said Harkins with a certain sharp instrument, the exact nature of which is unknown.

On the 3d day of January, 1921, the defendant was put upon his trial, which resulted in a disagreement of the jury, and a mistrial was ordered by the court. On the 26th day of January, the defendant was again put upon his trial. The jury returned their verdict on the 28th day of January, 1921, with the result above stated.

The errors assigned are as follows:

That the verdict is contrary to law, and to the evidence; that the punishment assessed by the verdict and judgment is excessive, and was prompted by prejudice and passion, and was unwarranted by the law and the evidence.

The evidence shows that C. L. Harkins, the deceased, and the defendant, Charley Walker, were both convicts. The killing occurred at the prison brick plant, which is located not far from the penitentiary.

The defendant, a negro, was screening sand. He went to the toolhouse and asked for and received a hammer. He then went into a stock car standing in the brickyard. The deceased came along a runway that passed through the car pushing a wheelbarrow, and the affray which resulted in his death started in the car.

W. C. Tidwell testified:

"I went over the runway through the car to get some lumber, about 3 o'clock. The defendant was sitting on some brick in the end of the car. I got some lumber and came back through the runway, and he was still sitting there. I threw the lumber down where I was building another runway. I heard a noise and saw some brick fall. I turned and the defendant had Doc Harkins around the neck or shoulders and Doc was dragging him towards me. Then I heard two shots in quick succession and the defendant turned Doc loose. As he passed me he had a knife in his hand, and was trying to put it up his sleeve. I did not see them when they first came out of the car."

Cross-examined, he stated that he had served several terms in the penitentiary, one for highway robbery, one for horse stealing, two for burglary, one for bank robbery, and one for assault with intent to kill, and is now serving a term for manslaughter.

J. B. McCullough testified:

"I am an inmate of the Oklahoma state prison. I take care of the tools at the brick plant. I saw the defendant standing by a pile of brick and he went into this car. Doc Harkins came along pushing a wheelbarrow along the runway through this car. The defendant motioned to him, and he set the wheelbarrow down and went back to where the defendant was. When he got back there he threw up his left hand. The defendant struck at him with something; I do not know what it was. It was a stock car, and I saw them through the slatting. I could not see which one struck first. Doc was between me and the defendant. Doc wheeled around and the defendant came out with him, holding him by the back of the neck somewhere. They came down the runway and ran against a pile of brick. Doc caught the defendant's arm and told him not to kill him, the defendant said, 'Turn my arm loose.' They scuffled a little bit and he turned Doc loose. They were coming towards me, and the defendant stabbed Doc twice right over the heart. He staggered over towards the kiln. Just then Mr. Williams fired a shot. They were about 17 feet from where I was standing when the gun fired. I heard Doc say: 'Don't kill me. I will give it to you, Charley. Don't murder me.' I ran and got Mr. Mayfield. Doc had walked about 40 feet from where I left them. Mr. Mayfield asked Doc if he was hurt. Doc said: 'I am killed. Charley did it.' He only lived three or four minutes."

J. L. Williams testified:

"I am a guard at the penitentiary. I was in the Northwest tower at the brick plant that afternoon and saw the defendant enter the car. In a few minutes Harkins entered the car. The scuffle started in the car, and I saw the defendant come out with his arm around Harkins' neck, stabbing at him. Harkins was hollering, and I took a couple of shots at the defendant."

Joe Jackson testified:

"I am serving a term for forgery. That evening, after Doc Harkins was killed, the defendant was put in a cell. I asked him, 'Did you kill him?' and his reply was, 'He won't try to bully anybody else any more,' and I asked him then what was the trouble. He said that he had won $1.85 off Doc Harkins and cashed out, and that Doc would not pay him but one dollar, and he told Doc, 'If you do not pay me the 85 cents you won't play any more poker in this world.' "

On cross-examination he stated that he had also served a term in the Kansas Penitentiary.

Wyatt Peavy testified "I am...