Wells v. Territory Oklahoma
| Citation | 1904 OK 127,14 Okla. 436,78 P. 124 |
| Parties | RALPH WELLS v. TERRITORY OF OKLAHOMA. |
| Decision Date | 03 September 1904 |
| Court | Supreme Court of Oklahoma |
¶0 1. GRAND JURY--Selection. The provisions of the statutes in regard to the mode of obtaining jurors are directory, and a substantial compliance with the requirements of the law is sufficient. The court will not reverse the ruling of the district court overruling a motion to set aside an indictment on the grounds that the grand jury were not chosen, selected and drawn according to the provisions of the statute, and overruling an objection to the manner in which the list of persons from which the panel was selected, was made up, when such objections are purely technical, and do not affect the substantial rights of the parties, and where it does not appear that any material right has been lost thereby. (Sharp v. U. S., 76 P. 177, 13 Okla. 522.)
2. HOMIClDE--Evidence--Expert Testimony. Where a witness, who has qualified as a medical expert, as coroner, had made a careful examination of the body of the deceased, and the surroundings, shortly after the homicide, and after having described the wound, the points of entrance and exit, and direction of the bullet through the body, and all of the surrounding facts and circumstances in detail, was permitted to give his opinion as to the position of the deceased at the time that the wound was inflicted; and where the defendant admits the killing, and there is no issue on which the testimony could operate against him, Held, If error, was harmless, and would afford no ground for reversal.
3. SAME--Evidence--Non-Expert Testimony. It is not error to permit a witness who is not shown to be an expert, to state facts with reference to an examination made by him of the body and of the wound, where such facts are not such as require the opinion of an expert, but only such as any person of ordinary intelligence could testify to from examination and observation.
4. CONSPIRACY--Evidence--What Admissible. Where evidence has been offered tending to show a conspiracy, the acts and conduct of any one or more of those shown to have been engaged in pursuance or execution of a common design and purpose, are admissible in evidence in the trial against either of the parties connected with the conspiracy. And it is not error for the trial court to first permit evidence of the acts and transactions of the alleged conspirators upon the assurance by the county attorney that such evidence will be made competent by proof of a conspiracy later.
5. SAME--Slight Evidence Sufficient. Slight evidence of collusion is all that is required.
6. EVIDENCE--Harmless Error. Where testimony of a witness is erroneously admitted, and it is clear that if such testimony had any weight with the jury, it must of necessity have been beneficial to the defendant, such error would be no cause for reversal.
7. SAME--Homicide--Motive--How Proven. Ill treatment and previous assaults are admissible to prove motive in cases of homicide.
8. SAME--Harmless Error. Where a witness was not permitted to answer a question, the form of which the court thought objectionable, and was permitted to answer the question when in proper form, this could in no way prejudice the defendant, for even though the court erred in the first instance, such error was rendered harmless.
9. CRIMINAL LAW--Misconduct of Prosecuting Counsel--No Ground For Reversal, When. A case will not be reversed on the ground of alleged misconduct of counsel for the Territory unless, in the light of all the facts as disclosed by the record, this court can say that the prosecuting officer was not only guilty of misconduct, but that such conduct might have in some degree, influenced the verdict against the defendant.
10. SAME--Intent. The presumption of law is that a person intends all of the natural, probable and usual consequences of his act; and this presumption of law will prevail, unless from a consideration of all the evidence, the jury entertain a reasonable doubt whether such intention existed.
11. SAME--Homicide--Justifiable, When. A homicide is justifiable, by one without fault, who is attacked by another, where the circumstances furnish reasonable ground for apprehending a design to take his life or do to him some great bodily harm, and for believing the danger imminent, and that such design will be accomplished though it may turn out that the appearances were false, and that there was in fact no such design, nor any danger of its being accomplished. But the facts must be such that the jury in the light of all the facts and circumstances known to him at that time or by him then believed to be true, can see that as a reasonable man he had ground for such belief.
12. SAME--Self Defense. The law of self defense does not mean or imply the right of attack, nor will it permit of acts done in retaliation, or for revenge.
13. SAME--Murder--Verdict--Lesser Degree--Instructions. Where, on a trial of an indictment for murder, the evidence however slight, would warrant the jury in returning a verdict for a lesser degree included in the charge, it is the duty of the court to instruct the jury as to such lesser degree, and if after considering all of the evidence, the jury entertain a reasonable doubt as to which of two or more degrees the defendant is guilty, they can convict of the lowest of such degrees only, and of which they have no reasonable doubt of guilt.
14. SAME--Evidence of Good Character of Accused. In criminal cases proof of good character is competent to show that the defendant would not be likely to commit the crime charged against him, and proof of good character may in many cases be sufficient to create a reasonable doubt of guilt, although no such doubt could have existed except for the good character, but evidence of good character can only be considered in connection with all the other evidence, facts and circumstances appearing in the trial; and if after considering all of the evidence, including that as to good character, the jury entertain no reasonable doubt of guilt, they should convict, notwithstanding the evidence of former good character.
15. SAME--Instructions Offered by Parties--Statute. By the provisions of section 5230, Statutes of 1893,
16. SAME--Instructions--Not Error to Refuse, When. Instructions requested by the defendant and refused by the court. Examined and found to have been fully covered by the instructions given by the court in each and every material matter. It is not error for the court to refuse a request for instructions, even though such request correctly states the law, where it is fully covered in instructions given.
STATEMENT OF FACTS.
Ralph Wells, the plaintiff in error, was indicted by the grand jury at the December, 1901, term of the district court of Noble county, charged with the murder of one James M. Powell. Trial was had at the November, 1902, term of that court; verdict was returned finding him guilty of manslaughter in the first degree; motion for a new trial heard and overruled by the court, and exceptions saved; and he was sentenced to a term of eight years in the penitentiary, and that he pay a fine of one hundred dollars and costs; he appeals, and brings the case here by petition in error and case made for review.
Error from the District Court of Noble County; before Bayard T. Hainer, Trial Judge.
S. H. Harris, for plaintiff in error.
H. S. Johnston, County Attorney, J. C. Robberts, Attorney General, and C. H. Woods, Assistant, for defendant in error.
¶1 The first error assigned is the order of court overruling challenge of plaintiff in error to the grand jury, and the order of the court overruling the motion of plaintiff in error to set aside the indictment. The ground for the motion is the alleged illegal organization of the grand jury which returned the indictment. The same questions involved in this assignment were presented to this court in the case of Sharp v. United States, 13 Okla. 522, 76 P. 177, and as this court in that case has determined the questions raised adversely to the contention of the plaintiff in error, it is unnecessary to give them further consideration here.
¶2 The provisions of the statute in regard to the mode of obtaining jurors are directory, and a substantial compliance with the requirements of the law is sufficient. The court will not reverse the ruling of the district court overruling a motion to set aside an indictment on the grounds that the grand jury were not chosen, selected and drawn according to the provisions of the statute, and overruling an objection to the manner in which the list of persons from which the panel was selected was made up, when such objections are purely technical, and do not affect the substantial rights of the parties, and when it does not appear that any material right has been prejudiced thereby.
¶3 In the trial, Dr. Watson, a witness on behalf of the Territory, after having fully qualified as a medical expert, who as coroner had made a careful examination of the body of the deceased and the surroundings shortly after the homicide, after having described the wound, the points of entrance and exit, and direction of the bullet through the body, the holes in the clothing worn by the deceased, the position of the body when first observed by him, and all of the surrounding facts and circumstances in detail, was, over the objection and exception of the defendant, permitted to give his opinion as to the position of the deceased at the time that the wound was inflicted, his answer being:
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