York v. State
| Decision Date | 07 July 1928 |
| Docket Number | A-6302. |
| Parties | YORK v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An instruction of the court to the jury, which instruction leaves out of consideration the question whether such testimony was willfully and knowingly given, is erroneous.
Where a defendant is on trial and the evidence raises the defense of an alibi, and the defendant does not request an instruction upon such defense and does not except to the action of the court in not instructing on such point, a conviction will not be reversed on that ground, unless it clearly appears from the record that the defendant was injured thereby.
Appeal from County Court, Kiowa County; J. S. Carpenter, Judge.
Luther York was convicted for selling intoxicating liquors, and he appeals. Reversed and remanded.
Geo. L Zink, of Hobart, for plaintiff in error.
Edwin Dabney, Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as the defendant was tried in the county court of Kiowa county, on a charge of selling intoxicating liquor, was convicted, and sentenced to pay a fine of $400 and cost, and to be imprisoned in the county jail of Kiowa county for a period of 120 days. Motion for new trial was filed and overruled, exceptions saved, and the defendant has appealed to this court. The date of the alleged sale was given as July 12, 1925.
The testimony on behalf of the state, in substance, is as follows: Edward Hummingbird testified that he was acquainted with Luther York, on the 12th day of July, 1925; that he is 21 years of age; that on the 12th day of July, 1925, which was Sunday, he went to Saddle Mountain store and post office about 8 or 9 o'clock in the morning; that David Tonemah was with him; that he wanted to cash a check, but did not get the check cashed, but he did buy a half quart of whisky from defendant; that he and David Tonemah were traveling on horseback. David Tonemah does not appear in the record as a witness to the alleged sale. Witness claims that he, together with some other Indians, went back to the store in a Ford car about noon and got some whisky; that they drove around back of defendant's store.
The record discloses that witnesses attended a ball game at Craterville, about 30 to 32 miles from Saddle Mountain store the day of the alleged sale, and that they returned that night, and at a well near the store the witness Hummingbird was arrested on a charge of being intoxicated. The record shows that Hummingbird, after he was arrested, filed a complaint against Follie Smith, charging him with selling the whisky to the witness Edward Hummingbird that was found in his possession at the time of his arrest; later Hummingbird told several parties that he did not get the whisky he had from Mr. York.
Isobel Spottedbird called as a witness on behalf of the state stated she knew Edward Hummingbird, David Tonemah, James Auchchiah and Susie Yeague, and the defendant, Luther York; that she was at the York place of business on Sunday last July; they were traveling in a car; defendant put some whisky in the back seat of the car; I could not see it when he brought it out but he put it in the back seat.
L. R Moulder testified for the state that he knew the defendant, Luther York; that he knew Edward Hummingbird and David Tonemah; that he saw Susie Yeague and James Auchchiah on Sunday, the 12th of July, with some other Indians in a Ford car; that he saw them in front of Mr. York's store on that day.
This is, in substance, the testimony introduced by the state. The defendant called Edward Hummingbird for further cross-examination and shows that Edward claimed he got the whisky outside of the fence running along the section line; that the fence was right back of the store.
Clyde Posten, testifying for the defendant, identified a warrant that had been issued for Follie Smith upon an affidavit of Edward Hummingbird, stating that Smith was the one who sold him the whisky.
G. E. Woodberry testified on behalf of the defendant that he resided at Lawton on the 11th and 12th day of July, 1925; that he was in the hotel business running the Ramsey Hotel and knew the defendant; a sheet of the hotel register was identified by the witness; witness stated he was not present when the name was written there; the sheet showed that Luther York was registered in room 110 on the 11th day of July, 1925; witness stated that he saw the defendant, York, at the hotel Saturday evening July 11, 1925, and on Sunday until in the afternoon; "the first time I noticed the register sheet as to Mr. York being registered, they asked me about it, and I looked it up and found that he was."
M. L. Jones testified for the defendant that he was in Lawton on the 12th of July, 1925; that he knew the defendant, Luther York; that he saw the defendant in Lawton on the 11th and 12th of July, 1925; that he came to the hotel about dark on the 11th, and stayed in the same room with him that night, and they were together until about 12 or 1 o'clock on the 12th of July, the day being Sunday. Witness further stated that he was selling snuff on the road and defendant was a customer of his; that the last time he saw the defendant on the 12th of July was about one or 1:30 in the afternoon, in the city of Lawton.
D. E. Brutton testified that he lived at Lawton; that he sold groceries wholesale to retailers; that he was acquainted with the defendant, Luther York; that he saw the defendant on both the 11th and 12th of July, 1925; that defendant was at his house in Lawton; he and Mr. Jones came together; afterwards he saw him down at the hotel; the last time about 12 or 1 o'clock; witness gave as his reason for saying it was the 12th of July by other engagements he had.
The defendant testified in his own behalf that he knew Edward Hummingbird; had seen him a few times; that he was not at home on July 12, 1925, until late in the afternoon; that he was in Lawton, Okl., on the 11th and 12th of July; that he went to Lawton the forenoon of July 11th; that he spent the night in Lawton at the Ramsey Hotel, and remained in Lawton until about 2 o'clock in the afternoon of the 12th of July; that he arrived home about dark; that he saw Mr. M. L. Jones in Lawton some time about 5 or 6 o'clock on July 11, 1925; that he and M. L. Jones occupied the same room that night at the hotel; had breakfast together the next morning; that they drove from the hotel to Mr. D. E. Brutton's home and returned to the hotel; that he had never at any time sold Edward Hummingbird whisky.
On cross-examination defendant stated that he left his home on the 11th of July, in the forenoon on Saturday; when I am at home I see a number of Indians most every day; I did not drain the crank case of Susie Yeague on the 12th of July, 1925.
The affidavit then was read to the jury by the defendant, wherein the witness Edward Hummingbird charged Follie Smith with having sold him intoxicating liquor on the 12th of July, 1925; also the criminal warrant for the arrest of Follie Smith.
M. G. Jones and a number of other witnesses testified as to the previous good character of the defendant.
Irvin DeMarcus testified that he was at Saddle Mountain store on the day of July 12, 1925, about sundown, and that the defendant waited upon him at the store; witness admitted he had been applicant for the post office to which the defendant had been appointed; that he did not know the date he bought the lunch at defendant's store where defendant had served him.
Ralph Dodd, a rebuttal witness, stated that he was in the store that evening late; about 30 minutes before sundown; that he saw the defendant there at the time; that he heard of the Indian being arrested in the month of July, but he could not tell what date it was and he did not know whether this was the only time Edward Hummingbird was arrested or not.
David Tonemah testified he was acquainted with the defendant; that he heard Edward Hummingbird had been arrested; he was at the Saddle Mountain store on the same day he heard Hummingbird was arrested that night; that he saw Luther York there, but he did not know whether this was the only time Edward Hummingbird had been arrested; that he did not know of his own personal knowledge whether he had ever been arrested there.
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