White v. State

• Decision Date: 21 November 1910
• Citation: 111 P. 1010,4 Okla.Crim. 143,1910 OK CR 174
• Parties: WHITE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

111 P. 1010

4 Okla.Crim. 143, 1910 OK CR 174

WHITE v. STATE.

Court of Criminal Appeals of Oklahoma

November 21, 1910

Syllabus by the Court.

(a) All objections as to the sufficiency of an indictment should be presented by proper motions before the defendant pleads thereto. When the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn and then for the first time questions the sufficiency of the indictment by objecting to the introduction of testimony, on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the indictment can be sustained.

(b) For an indictment for murder held to be good as against the objection, after the jury had been sworn, that it did not allege facts sufficient to constitute an offense, see opinion.

For the purpose of impeaching a witness, he may be asked on cross-examination if he has ever been convicted of a felony or of any crime which involves a want of moral character, but it is improper to ask him if he has ever been indicted arrested, or imprisoned, before conviction, for any character of offense.

Although a witness may have been improperly impeached, yet such error will not be ground for reversal when the witness has not testified to any fact favorable to the defendant, upon the ground that the reception of incompetent evidence, which it appears was not prejudicial to the defendant, is not ground for reversal.

Same syllabus as under second section.

(a) When threats are admissible in evidence, the fact that they were communicated to the defendant may be testified to by the defendant or any other person who heard them so communicated and it is not necessary for the defendant to prove that as a matter of fact such threats were actually made.

(b) When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced, for the determination of this court the record must contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine as to whether the defendant has been injured by the ruling of the trial court.

(c) When counsel desire to incorporate in the record what they expected to prove by a witness, if he had been permitted to answer a question to which objection had been sustained, it is improper for counsel to make an oral statement in the presence of the jury as to what they expect the testimony to be; they should reduce the statement of such testimony to writing and hand it to the trial judge, and, if he is in doubt as to its admissibility, the jury should be withdrawn and the court should hear what the actual testimony of the witness would be, and this should appear in the record.

(d) Threats made by the deceased against a defendant are not admissible in evidence when there is no testimony presenting the issue of self-defense.

Although the instructions of the court may be subject to criticism yet when taken as a whole they are substantially correct, and present the law as favorably for the defendant as he could claim, the judgment will be affirmed as far as the instructions are concerned.

Appeal from District Court, Alfalfa County; M. C. Garber, Judge.

Lowry White was convicted of manslaughter, and appeals. Affirmed.

O. D. Hubbell, for plaintiff in error.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

First. Upon the trial of this cause counsel for the defendant objected to the introduction of any testimony upon the following ground: "That the indictment does not allege that the homicidal act itself was done feloniously or without authority of law and with the premeditated design to effect the death of the deceased--that the mortal wound was so inflicted."

The charging part of the indictment in this case is as follows: "That in said county of Garfield, in said state of Oklahoma on the 3d day of March in the year of our Lord one thousand nine hundred and eight, Lowry White and May White, persons then and there being, did then and there unlawfully, willfully, feloniously, without authority of law, and with the premeditated design to effect the death of one Fred Haunstein, shoot off and discharge leaden bullets into the body of him, the said Fred Haunstein, from a certain loaded shotgun then and there handed to the said Lowry White by the said May White, and which he, the said Lowry White, then and there had and held in his hand, then and there and thereby inflicting upon the body of him, the said Fred Haunstein, a mortal wound, of which wound he, the said Fred Haunstein, then and there on the 3d day of March, 1908, did die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say and find that the said Lowry White and May White, in manner and form aforesaid, did kill and murder the said Fred Haunstein. Contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma."

It will be observed that the indictment charges that Lowry White and May White unlawfully, willfully, feloniously, without authority of law, and with the premeditated design to effect the death of one Fred Haunstein, did shoot off and discharge leaden bullets into the body of him, the said Fred Haunstein, from a certain loaded shotgun which he, the said Lowry White, then and there held with his hand, and thereby inflicted upon the body of him, the said Fred Haunstein, a mortal wound, from which wound he, the said Fred Haunstein, on the 3d day of March, 1908, did die, and so the grand jurors aforesaid upon their oaths aforesaid do say and find that the said Lowry White and May White in manner and form aforesaid did kill and murder the said Fred Haunstein. In our judgment it clearly charges that the homicidal act itself was feloniously committed without authority of law and with a premeditated design to effect the death of deceased, and that the mortal wound was so inflicted.

Our statute provides that all persons who are concerned in the commission of an offense are principals. The indictment charges joint intent and action on the part of both of the defendants. It was therefore immaterial as to which one fired the fatal shot. The allegation in the indictment that the gun was then and there handed to said Lowry White by the said May White was altogether unnecessary and may be treated as surplusage; but, be that as it may, the said May White not being now before this court, this allegation could not in any manner injuriously affect the defendant Lowry White.

In the case of Blair v. State (decided at this sitting of the court) 111 P. 1003, Judge Richardson, speaking for the court, said: "It is next urged that the information was defective, for the reason that it did not allege that the killing itself was committed by the defendant with a premeditated design to effect the death of the deceased, citing Holt v. Territory, 4 Okl. 76, 43 P. 1083. The information charges, however, that the act of shooting which resulted in death was committed by the defendant with a premeditated design to kill, and that was sufficient. The defendant did nothing further. Death resulted from the physical effect upon the deceased of the shot thus fired, and not from any further act of the defendant; and the shooting resulting in death constituted the killing. Holt v. Territory, supra, does not sustain the defendant's contention, and would not be a correct statement of the law if it did."

Motions of this kind coming after the jury had been impaneled are not looked upon with favor. If the indictment was defective, this matter should have been called to the attention of the trial court by proper motions before the defendant entered his plea. This is the reason why the defendant is allowed by statute one day in which to plead. If the defendant enters his plea and waits until the introduction of the evidence to object to the sufficiency of the indictment, the objection should be overruled, if by any possible construction or intendment the indictment can be sustained. We are therefore of the opinion that the court did not err in holding the indictment in this case to be good.

Second. Upon the trial of this cause, the defendant being upon the witness stand on cross-examination, the record discloses the following questions propounded to him and answers thereto "Q. Lowry, were you ever tried on a complaint by your foster father, Columbus White, your adopted father, in the probate court of Garfield county, Okl. at Enid, on a charge of threatening to do him bodily harm, and upon that trial placed under a peace bond to keep the peace toward him and found guilty of the charge? By Mr. O. D. Hubbell, of counsel for the defendants, and each of them, herein: The defendants, and each of them, object to that question for the reason that it is incompetent, irrelevant, and immaterial, and it is objected to for the further reason that it is not proper cross-examination of this witness. By the Court: The objection is overruled. By Mr. O. D. Hubbell, of counsel for the defendants, and each of them, herein: To which ruling of the court, overruling said objection, the defendants, and each of them, at the time except. A. I was brought up before--Q. Now wait. Answer the question that has been asked you, Lowry. By Mr. O. D. Hubbell, of counsel for the defendants, and each of them herein: Let him answer that question in his own way. Q. Answer it in your own way. I am willing for you to do that. A. What was the question now? Q. Were you ever tried on a complaint by your stepfather, Columbus White, your adopted father, in the probate court of Garfield county, Okl., at Enid, on a charge...