Wratislaw v. State

Citation194 P. 273,18 Okla.Crim. 150
Decision Date04 January 1921
Docket NumberA-3132.
PartiesWRATISLAW ET UX. v. STATE.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court.

Where a written dying declaration, for the admission of which in evidence a proper predicate has been laid, contains recitals of transactions had and statements made which do not shed light upon the homicide and are not res gestæ in the strict sense, such recitals of transactions and statements are not admissible in evidence.

Where a written dying declaration contains matter that is admissible in evidence and also matter that is objectionable, it is not error to overrule a motion to exclude such entire declaration.

Where a written dying declaration contains matter that is admissible and also contains matter that is objectionable, the objector must specifically point out the parts that are objectionable and not make a general objection to the entire declaration if it is desired to have the exception to the ruling of the court available on appeal.

It is reversible error for the court, where a written dying declaration contains matter that is admissible in evidence and also contains matter that is objectionable, and which objections are specifically pointed out by an objector, to admit such entire declaration in evidence, where the objectionable matter is prejudicial to the substantial rights of the defendant.

Additional Syllabus by Editorial Staff.

Where it appeared by undisputed evidence that a homicide was committed with a pistol, an instruction that defendants might be found guilty of manslaughter in the second degree held erroneous in view of Rev. Laws 1910, § 2332, defining manslaughter in the second degree.

Appeal from District Court, Jefferson County; Cham Jones, Judge.

Fred Wratislaw and Martha E. Wratislaw were convicted of manslaughter in the second degree, and they appeal. Reversed and remanded, with instructions.

Bridges & Vertrees, of Waurika, for plaintiffs in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

ARMSTRONG J.

The plaintiffs in error, Fred Wratislaw and Martha E. Wratislaw, were, together with Alcie Waldon, informed against jointly for the murder of C.J. McCarty. Alcie Waldon was tried separately, convicted of manslaughter in the first degree, and his said conviction recently affirmed by this court. The said plaintiffs in error, hereinafter styled defendants, were tried jointly, convicted of manslaughter in the second degree, and each sentenced to imprisonment in the penitentiary at McAlester for four years. To reverse the judgment rendered, they prosecute, jointly, this appeal.

The evidence in this case is very voluminous and has not been, as required by the rules of this court, abstracted in defendants' brief. We deem it unnecessary to incumber this opinion by a detailed statement thereof, and will only state such parts of the evidence as we deem necessary to an intelligent understanding of the case, from the court's viewpoint.

The uncontradicted material evidence is: That on the 31st day of January, 1916, Alcie Waldon, who was the son and stepson respectively of the defendants, shot O. J. McCarty in the town of Ringling, in Jefferson county, Okl., who from the effects of the wounds so inflicted died in June, 1916; that the said Alcie Waldon was tried for the homicide, convicted of manslaughter, and sentenced to imprisonment in the penitentiary for 30 years; that for about one year prior to the said homicide the defendants had resided in New Mexico, to where they had gone from Oklahoma, and from where they had returned to near Ringling, Okl., a few days before the homicide, doing so in compliance with a request so to do contained in a letter written by request of deceased to Mrs. Wratislaw, one of the defendants, and that on the day of the homicide, and prior to the homicide, the defendants and Alcie Waldon came together in a wagon to Ringling; that Fred Wratislaw, one of the defendants, was not present at the scene of the homicide, and that neither one of said defendants took any active part in said homicide; that the deceased kept a small store about 4 1/2 miles from Ringling; that on Thursday preceding the shooting of deceased on Monday Alcie Waldon and his brother and the defendants went to the store of the deceased, where the deceased at the time was, remained there some time, and, together with the deceased, went from said store to a law office in the town of Ringling, and there the deceased executed to Martha E. Wratislaw, one of the defendants, a deed to certain lands and a bill of sale for some live stock, which said deed was left in the said office to be sent to the wife of the deceased, who was in Texas, to be executed, and a letter was written by deceased to her requesting that she execute the said deed; that the day after executing the said bill of sale the deceased caused to be issued a warrant for the arrest of the defendants and the said two stepsons of Fred Wratislaw for robbery, they having, since the execution of the said bill of sale, acquired possession of the said live stock; that the said Fred Wratislaw was arrested and held to bail on said charge on Saturday preceding the homicide on Monday; and that the deceased also instituted an action of replevin against them to recover said live stock.

The state proved the execution of an instrument of writing by the deceased, and that he was conscious and recognized that he was in articulo mortis when the same was read over to, approved and executed by him, and offered said document in evidence as the dying declaration of the deceased. The said instrument of writing is as follows:

"State's Exhibit 1.
Dying statement made by C.J. McCarty on June 25, 1916, at the farm of C. C. Ross, about four miles north of Krebs, in Pittsburg county, Okl., said statement being made in the presence of Carl Monk, county attorney of Pittsburg county, Okl., H. S. Cabell, district court stenographer, Fourth judicial district, state of Oklahoma, and in the presence of Mrs. Lottie Ross, Mrs. Ann McCarty, C. C. Ross, and D. Peacock.
Statement: I realize that I cannot live and appreciate the fact that death is impending and bound to occur in a very short time. I have no hopes at all of living. My death will be caused by pistol wounds inflicted by a pistol in the hands of Aulcie Walden on January 31, 1916, at Ringling, Okl. The constable, George Simon, was present when I was shot. There was also a number of other people close by. There was nothing said to me out on the street on Monday by Aulcie Walden when he shot me. The first I knew of his being anywhere around me on Monday was when he fired the first shot at me, which struck me below the right collar bone and knocked me down. I do not remember hearing any other shots after the first shot, but I was also shot at the same time between the fourth and fifth rib on the left side, and also through the fleshy part of the upper left arm. I had a pistol in my overcoat pocket at the time I was shot, but did not use or attempt to use the same at all. I made no threats or advance or demonstration against Aulcey Walden when he shot me. On Thursday preceding the shooting on Monday Aulcey Walden and Hickman Waldron came to my house, and Aulcey asked me to go down to the store and sell him some tobacco. The three of us went to the store, about 250 wards away. Before we got to the store, Martha E. Wratislaw and Fred Wratislaw came in the store, and we were talking about the cold weather. Mrs. Wratislaw wanted to know if I was going to settle up with her and pay her what I owed her. But that time Fred Wratislaw drew a pistol on me and said to me, 'By God, now don't deny anything she says; we come to settle up and want to know if you are going to give a deed to this land.' I told them I would give the deed. Aulcey went to get a notary and bring him to the store, but couldn't get any on account of the bad weather. Then Fred, Aulcey, and Mrs. Wratislaw took me in their buggy and made me go with them to Ringling. They took me to Brooks & Elder's office in Ringling. Mr. Elder drew the deed at their suggestion, and I signed it and also a bill of sale to three mules and a mare at their demand. All the time I was doing this I noticed that Fred Wratislaw kept his hand on his gun in his pocket. On the way to Ringling Mrs. Wratislaw said to me that if I ever told what they had said and done to me in the store or in Brooks & Elder's office that they would kill me. She said it was all settled satisfactory now if I did what they demanded, and if I said anything about it they would kill me, and Fred Wratislaw spoke up and said, 'Yes; you might as well have your black box ready. After they left I told Mr. Elder what they had done and told him not to deliver the deed and bill of sale and letter, and then I tried to get an officer to arrest them. They were arrested on Saturday morning, January 29, 1916, after I signed the deed. I never saw them any more until I saw them at the office of the J. P. in Ringling on the Saturday they were arrested. On Sunday Aulcie and Hickman came by my house, but I did not speak to them. They sent for me to come out, but they left when I went out. On Monday when I was shot I had gone to Ringling and had gotten out papers to replevy my mules and mare. Ringling is about 4 1/2 miles from my store. I never saw any of them but Aulcey on the Monday I
was shot and I didn't see him except just as a flash when he shot me. I was crossing the street when I was shot. While we were in Brook & Elder's office, Fred and Mrs. Wratislaw told him to write a letter to my wife in Milford, Tex., requesting her to sign the deed, and then she and Fred made me sign the letter. After I told Mr. Elder about what had been done, I
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