Wright v. Territory

• Decision Date: 12 February 1897
• Citation: 47 P. 1069,5 Okla. 78,1897 OK 46
• Parties: WRIGHT v. TERRITORY.
• Court: Oklahoma Supreme Court

47 P. 1069

5 Okla. 78, 1897 OK 46

WRIGHT v. TERRITORY.

Supreme Court of Oklahoma

February 12, 1897

Syllabus by the Court.

1. An instruction to the jury that, when the defense of alibi is interposed by the defendant, it is incumbent upon him to establish same by a preponderance of the evidence held erroneous, and a sufficient ground for reversing the case. Shoemaker v. Territory (Okl.) 43 P. 1059, followed.

2. An indictment which does not charge that the acts by which the killing was accomplished, and the killing itself, were perpetrated by the accused with the premeditated design or intent to effect the death of the person killed, is insufficient to support a conviction of murder (following Holt v. Territory [Okl.] 43 P. 1083; Jewell v Territory, Id. 1075); but this court is not required to examine, and pass upon the validity of, an indictment unless the same has been challenged by some proper proceeding in the trial court.

Appeal from district court, Kingfisher county; before Justice John L. McAtee.

John Wesley Wright, the defendant below, was indicted, tried, and convicted of murder, and appeals. Reversed.

W. A McCartney, E. O. Taylor, and Buckner & Sons, for appellant.

C. A Galbraith, Atty. Gen., for the Territory.

KEATON J.

While the record in this court by appellant is very voluminous, and a number of errors have been assigned thereon, but two are urged by his counsel, which we shall consider in their order.

In the eighth assignment of error appellant complains of the giving of certain instructions among them being the following, relating to the defense of an alibi, which he interposed at the trial of the cause: "(31) The burden is upon the defendant to prove this defense for himself, by the preponderance of the evidence; that is, by the greater and superior evidence. The defense of alibi, to be entitled to consideration, must be such as to show, at the very time of the commission of the crime charged, the accused was at another place so far away or under such circumstances as, with all means of travel within his control, to reasonably exclude the possibility that the defendant could have reached the place where the crime was committed, so as to have participated in the commission thereof,"--to the giving of which instruction the defendant duly excepted. This court, on February 13, 1896, in the case of Shoemaker v. Territory, 43 P. 1059, held an instruction in the identical language of the one under consideration to be erroneous, and the giving of same a sufficient ground for reversal. We have carefully reviewed said decision, and the authorities therein cited and relied upon, and find no reason for changing or modifying the conclusion there reached. On the contrary, a re-examination of the authorities upon this question has tended to convince us more firmly that the law, as announced in said decision, is correct. Under the tenth assignment of error, which is as follows: "Said court erred in rendering judgment on the verdict of the jury," appellant's counsel endeavor to attack the indictment returned against him in the court below. We do not believe that the above assignment can be so construed as to support their...