Wood v. State

• Decision Date: 08 March 1910
• Citation: 107 P. 937,3 Okla.Crim. 553,1910 OK CR 64
• Parties: WOOD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

107 P. 937

3 Okla.Crim. 553, 1910 OK CR 64

WOOD v. STATE.

Court of Criminal Appeals of Oklahoma

March 8, 1910

Syllabus by the Court.

It is well settled in this state that a person charged with a felony may be tried in a court having jurisdiction of such offense by information, having first had a preliminary examination before an examining magistrate, or having waived such preliminary examination.

It is not necessary for an information charging a felony to allege that defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await final trial thereon, or has waived such examination.

A charge in an information that W., on the 4th day of April 1908, had a preliminary examination on said charge before T a duly elected, qualified, and acting magistrate of Roger Mills county, state of Oklahoma, and he, the said W., was by said T., on the 4th day of April 1908, committed and held in the common jail of said county and state to await the action of the district court on said above charge, is not in conflict with that portion of article 7, § 19, of the Constitution of the state, which provides, "All indictments, informations and complaints shall conclude 'Against the peace and dignity of the state,"' but is a matter wholly foreign and irrelevant to the information, and may be treated as surplusage.

A challenge to a petit jury panel must be predicated on facts from which defendant has suffered material prejudice.

While it is the duty of a trial court, when a challenge to a petit jury panel is presented to it, to try the issue of fact when the same is properly denied, yet it is not error for the court to overrule such challenge where it fails to state facts sufficient to justify the court in discharging the jury, if true.

If W provokes an altercation between himself and H., or challenges H. to a mutual combat, without intending to kill H., but intending an ordinary battery merely, and H. assaults W., or by some act done gave W. reasonable apprehension of loss of life or great bodily harm, and W. kills H. to protect himself from the apprehended danger, the killing under such circumstances would not be justifiable, but would be manslaughter.

Remarks of counsel in the course of their arguments objected to as improper shall be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must be such as to influence the verdict. Section 6957, Snyder's Comp. Laws, requires this court to "give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." The letter and spirit of the statute is that, if the court can say, after carefully considering the entire record, that the conviction is sufficiently supported by competent evidence, and that the verdict was not reached by error or as a result of passion and prejudice, the conviction should be affirmed.

(Additional Syllabus by Editorial Staff.)

"Surplusage" means allegations of matter wholly foreign and impertinent to the case; all matter beyond the circumstances necessary to constitute the action.

A charge that, if the killing was not justifiable, as justification and self-defense are explained in the instructions, the jury should determine the degree of the felonious homicide, and that if it was done in the heat of passion, with a dangerous weapon, accused should be found guilty of manslaughter in the first degree, was not erroneous as practically directing the jury to find that, if accused killed decedent in the heat of passion and with a deadly weapon, they should find him guilty of manslaughter in the first degree, where in connection with the other instructions the jury were given the proper rule.

In a murder case a charge that, if accused overtook decedent and rode with him, without intention of provoking the difficulty until they arrived at the place of killing, when accused heard decedent using insulting words towards him, if such words were used, and accused was angered thereby, halted, and challenged decedent to mutual combat without deadly weapons, when he discovered a pistol in decedent's hands and drew his own pistol and fired at decedent, having reason to believe, and believing, that decedent was about to kill him, he would be justified did not make the right of accused to self-defense depend upon the absence of any intention to provoke a difficulty, but was more liberal to accused than the law demands.

Appeal from District Court, Roger Mills County; James R. Tolbert, Judge.

Ran Wood was convicted of murder, and he appeals. Affirmed.

While the trial court, when a challenge to a petit jury panel is presented and properly denied must try the issue of fact, it is not error for the court to overrule such challenge, where it fails to state facts sufficient to justify the discharge of the jury, if true.

On the 9th day of June, 1908, W. H. Mouser, the duly qualified and acting county attorney of Roger Mills county, Okl., filed in the district court of said county his information, charging Ran Wood (who is hereinafter called defendant) with murder, which information, omitting the caption, is as follows:

"Comes now W. H. Mouser, county attorney for the said county of Roger Mills, in the name and by the authority of the state of Oklahoma, and information makes that one Ran Wood, late of the county aforesaid, on or about the 29th day of March, 1908, in the county of Roger Mills and state of Oklahoma, did then and there unlawfully, purposely, willfully, deliberately, maliciously, feloniously, and of his deliberate and premeditated malice, and without authority of law, and with a premeditated design to effect the death of one Jesse Hungate, with a dangerous and deadly weapon, to wit, a pistol, then and there charged and loaded with gunpowder and leaden balls, which said pistol he, the said Ran Wood, then and there had and held in his hand, and with which said pistol so held and had, he, the said Ran Wood, did shoot the said leaden balls into the body and person of said Jesse Hungate, and so inflicted and so made a mortal wound in the body and person of the said Jesse Hungate, of which mortal wound, so inflicted and so made upon the said Jesse Hungate in manner and form and for the purpose aforesaid, he, the said Jesse Hungate, on and from the 29th day of March, 1908, until the 30th day of March, 1908, in the said county and state, did languish, and languishing did live, on which said 30th day of March, 1908, he, the said Jesse Hungate, in the town of Elk City, Beckham county, Okl., of the mortal wound aforesaid did die, as was intended by the said Ran Wood that he, the said Jesse Hungate, should do; and so the said Ran Wood in manner and form aforesaid did purposely, willfully, deliberately, maliciously, feloniously, and with malice aforethought, and without authority of law, and with a premeditated design to effect the death of the said Jesse Hungate, him, the said Jesse Hungate kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma. The said defendant, Ran Wood, having on the 4th day of April, 1908, had a preliminary examination on said charge before E. E. Tracy, a duly elected, qualified, and acting examining magistrate of Roger Mills county and state of Oklahoma, and he, the said Ran Wood, was by said E. E. Tracy on the 4th day of April, 1908; ordered committed and held in the common jail of said county and state to await the action of the district court on said above charge. W. H. Mouser, County Attorney."

This information was properly subscribed and sworn to by one J. M. Evans, before W. P. Madden, clerk of the district court, on the 9th day of June, 1908. To this information the defendant filed his motion to set the same aside, which was by the court overruled, and the defendant reserved an exception. The defendant thereupon filed a demurrer to said information, which was also overruled by the court, to which ruling the defendant reserved an exception. On June 10th, 1908, defendant was duly arraigned upon said information, and entered his plea of "Not guilty."

On September 21, 1908, defendant filed his challenge to the panel of jurors, which challenge, omitting caption, is as follows:

"Comes now the defendant in the above-entitled action and challenges the panel of the jury returned for service at this term of the court for material departures from the forms prescribed by law in respect to the selection, drawing, and return of the jury, from which the defendant has suffered material prejudice, and alleges: (1) That Joe Moad, one of the jury commissioners who selected the names from which this jury panel was made up, was at the time of selecting the names for use as jurors herein interested in this case, and was by law disqualified to act in respect to this case as jury commissioner. (2) That the said Joe Moad, one of said jury commissioners, lives in the immediate vicinity of the alleged offense charged against this defendant, and lived in said vicinity at the time of the alleged offense; that he from the first took a prominent and active part in the prosecution of the defendant herein; that he took part in employing Henry Furman as counsel to assist in the prosecution of this case, himself sending the telegram that brought the said Henry Furman to this county, and himself meeting the said Henry Furman at Elk City, Okl., and bringing him to the scene of the alleged offense with a view to his employment to prosecute in this case; that he, the said Joe Moad, jury commissioner as aforesaid, assisted the state by conference with the witnesses for the

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