Wright v. Territory Oklahoma

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

1897 OK 46

47 P. 1069

5 Okla. 78

JOHN WESLEY WRIGHT v. TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 12, 1897

Error from the District Court of Kingfisher County.

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

Syllabus

¶0 1. ALIBI--Burden of Proof. 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; following Shoemaker v. Territory, 4 Okla. Rep. 118, 43 Pac. 1059.

2. INDICTMENT FOR MURDER--Sufficiency, Defects Waived. 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, 4 Okla. Rep. 76, 43 Pac. 1083; Jewell v. Territory, Ibid. 1075, 4 Okla. Rep. 53; 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.

W. A. McCartney, E. O. Taylor and Buckner & Sons, for plaintiff in error.

C. A. Galbraith, Attorney General, for the Territory.

KEATON, J.:

¶1 While the record filed 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.

¶2 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."

¶3 To the giving of which instruction the defendant duly excepted.

¶4 This court, on February 13, 1896, in the case of Shoemaker v. Territory, 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 confine us, more firmly, that the law, as announced in said decision, is correct.

¶5 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 contention, nor does the record filed in this court disclose that any such objection was made to said indictment in the district court as to entitle appellant to have the sufficiency of same passed upon by this court, as it is not shown to have been challenged by a motion to...