Washington v. State

• Decision Date: 23 May 1945
• Docket Number: A-10402.
• Citation: 159 P.2d 278,80 Okla.Crim. 300
• Parties: WASHINGTON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

159 P.2d 278

80 Okla.Crim. 300

WASHINGTON v. STATE.

No. A-10402.

Court of Criminal Appeals of Oklahoma

May 23, 1945

Appeal from District Court, Pottawatomie County; Kenneth Jarrett Judge.

Walter Washington was convicted of manslaughter in the first degree and he appeals.

Modified and affirmed.

Syllabus by the Court.

1. The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes. 22 O.S. 1941 § 815.

2. An order dismissing an action upon motion of the county attorney for lack of sufficient evidence to convict is not a bar to any other prosecution for the same offense.

3. There is no limitation on the time within which a prosecution for murder may be instituted.

4. Order of court dismissing a prosecution for murder in 1935 is not a bar to the institution of a prosecution for the same offense in 1942, where jeopardy had not attached.

5. When defendant takes the witness stand, he may be subjected to cross-examination the same as any other witness and in that connection, he may be asked concerning any conviction for crime he may have sustained for the purpose of affecting his credibility as a witness.

6. In prosecution for murder where punishment of 20 years imprisonment upon conviction for manslaughter in the first degree is assessed and record discloses that 11 years passed from the time the homicide was committed until defendant was brought to trial, the punishment will be modified to 10 years imprisonment in the State Penitentiary, where record discloses that principal witness who testified for the defendant in former trial 10 years before had died and court reporter was unable to find shorthand notes in order to transcribe them for presentation of testimony of absent witness and other factors show that ends of justice require modification.

Emmons Arrington, of Shawnee, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant, Walter Washington, was charged in the District Court of Pottawatomie County with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 20 years in the State Penitentiary, in accordance with the verdict of the jury.

The defendant, a full-blood Indian, shot and killed the deceased, William Tyner, another Indian, on the farm of the defendant on August 23, 1931. Claudius Tyner, father of the deceased, had separated from his wife and had been living with the defendant for a few weeks prior to the homicide. On the date of the homicide, the deceased, accompanied by some other Indians, came from his home near Cushing, to a stomp dance near Shawnee. There they met the defendant. Their relations were friendly. The deceased inquired of the defendant about his father who did not come to the stomp dance, but had remained at the home of the defendant. Later in the day, the deceased, the defendant, and some other Indians, who were eyewitnesses to the tragedy, drove to the home of the defendant so that the deceased could talk to his father and try to persuade him to return home with the deceased. When they arrived at the home of the defendant, all of the parties commenced drinking home brew which the defendant had made. According to all of the evidence, both the deceased and the defendant showed the effects of the drinking. Some scuffling occurred between deceased and his father.

According to the evidence of the witnesses for the State, while the deceased and his father were scuffling, the defendant joined in the scuffle on behalf of the father, and got the deceased on the ground. While the deceased was lying on the ground, the defendant told him he was going to kill him. That the defendant got up from the ground, went to his house, returned with a shotgun, went to where all of the parties were standing, and said, 'Stand back, or I'll shoot.' That he then fired the shotgun. striking the deceased, from the effects of which shot he died in about an hour.

The testimony of the State showed that at the time the shot was fired, the deceased and his father had stopped their scuffling and were standing drinking another bottle of home brew, when the defendant returned with his shotgun. That the deceased was making no overt act towards defendant or any other person at the time the shot was fired.

The defendant testified to substantially the same facts related by the witnesses for the State down to the point where the scuffle occurred between the deceased and his father. The defendant testified that he and Bill Grass, another Indian, separated the deceased and his father, and that he told the deceased to leave his premises. That the deceased then picked up a tooth from a buck-rake and struck him over the head with it. That he again told the deceased to leave, that he was going to get his gun. In this connection, the defendant testified on direct examination as follows:

'I said, 'William, you'd better leave. You came down here and raise trouble.' I told him that about three times and he didn't leave, so I told him I was going after my gun. I got so mad so I went and got my gun and he met me out there, and I told him to get back. He didn't stop, so I thought I'd shoot and scare him. About that time, he threw a rock, and I think it knocked my hat off. About that time I fired the gun, but I didn't think I hit him, so then I went back down to the house and sat down, and after a while the women folks drove up. Then, I guess they loaded him up and took him off. I didn't know I hit the fellow until the next morning when Mother came down and told me I had killed William Tyner.

'Q. Is that the first you knew that you had killed him? A. Yes.

'Q. Walter, did you go get that gun to kill him? A. Yes, I went down * * *'

There is no contention that the evidence is insufficient to sustain the conviction. The foregoing brief summary of the case is presented for the reason that the evidence should be considered in determining one of the propositions presented by the defendant that the unnecessarily long delay in trying him for this alleged crime prevented him from fairly presenting his case and was a denial of justice.

Two propositions of law are presented for a reversal of this case. (1) Error of the court in overruling defendant's motion to dismiss the case for laches on the part of the State in presenting the prosecution. (2) Error of the court in overruling objections by counsel for defendant to questions asked defendant on cross-examination.

In connection with the first proposition, it was shown that shortly after the homicide was committed in 1931, that an information was filed in case No. 3523, in the District Court of Pottawatomie County. That on November 27, 1932, the case was tried, and a jury disagreed as to the guilt of the defendant. That said cause was never reset for trial, and that on January 5, 1935, the case was dismissed on motion of the County Attorney for lack of evidence by the District Court. The information under which this conviction was secured was filed on August 28, 1942. The case was regularly set for trial on September 23, 1942. Prior to the date of trial, the defendant filed a motion to dismiss and presented evidence in support of said motion, showing the facts in connection with the alleged delay in the trial as herein above recited. This motion was overruled, and the case proceeded to trial, resulting in the conviction of the defendant.

The Statutes pertaining to a dismissal involved in this action are as follows:

'If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.' 22 O.S. 1941 § 812.

'If the court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.' 22 O.S.1941 § 814.

'The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.' 22 O.S.1941 § 815.

'An order for the dismissal of the action, as provided in this Article, is not a bar to any other prosecution for the same...