Young v. State
| Decision Date | 09 November 1928 |
| Docket Number | A-6245. |
| Citation | 271 P. 426,41 Okla.Crim. 226 |
| Parties | YOUNG v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Record examined, and held that the evidence sustains the verdict.
The statutes of this state providing for the impaneling of jurors in criminal cases is not in all particulars mandatory. A substantial compliance will be sufficient where the deviation is not material and has not prevented an accused from having a fair and impartial jury, selected by lot from the entire panel.
In a capital case, where a list of witnesses to be used by the state is served as required by article 2, § 20, Bill of Rights, and a trial had which results in a mistrial, the names and addresses of the witnesses contained in such list need not be again served prior to another trial.
Remarks of the trial judge to the panel of jurors, summoned at the beginning of the term of court at which defendant was tried and convicted, examined and held general in their nature and having no special reference to defendant. A request that the court instruct the jury to disregard these remarks of the court, made at the beginning of the term properly denied.
In the trial of a criminal case, as a basis for the exercise of peremptory challenges, it is proper that counsel be permitted to interrogate prospective jurors as to membership in any church or other organization, within reasonable bounds limited by a fair discretion of the court.
Instructions examined, and held that the substance of the requested instructions are sufficiently covered by the charge of the court, and that the instructions as a whole considered and construed together fairly and correctly state the law applicable to the case.
Appeal from District Court, Rogers County; C. H. Baskin, Judge.
C. E Young was convicted of manslaughter in the first degree, and he appeals. Affirmed.
Jno. L. Ward and L. O. Todd, both of Tulsa, and A. W. Kelley, of Claremore, for plaintiff in error.
Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and N. B. Johnson, Co. Atty., and H. Tom Kight, both of Claremore, for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county on a charge of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.
The evidence is conflicting in many particulars; that for the state discloses a state of facts about as follows: On the date charged, defendant with his wife and some children and A. P. Davis, a codefendant, drove from Tulsa in an automobile about 21 miles to a neighborhood in Rogers county known as "Timber Ridge" for the purpose of visiting one Lige Teague. W. E. McMillan, with his family of several children, the oldest being Homer McMillan, a boy of 18 years, lived on a farm about a quarter of a mile from Teague's place. A small church building was just across the section line from the McMillan home. The week before, a daughter of defendant, about 13 or 14 years old, had visited the Teague home. There had been some difficulty among the youngsters of that age, and a boy named Jack Piquet was reported to have struck the girl or to have called her a liar. On the morning of the homicide, when defendant and his party arrived opposite McMillan's home, they encountered Lige Teague, and also some young people who had been to Sunday school. Teague signaled Young, who stopped his car, and Teague then pointed to Piquet and informed defendant he was the boy that had called his daughter a damn liar. Defendant got out of his car, started toward Piquet, but was stopped by some one and a quarrel ensued. McMillan at the time was on a pallet on his porch. Homer McMillan told the persons there they did not want any fussing in front of the home, whereupon Davis, of defendant's party, attempted to assault him. The elder McMillan then got up from the pallet and told the party either to go up the road or down the road, but not to start any fight there. Davis in substance informed McMillan they would not move in either direction. Whereupon McMillan went in the house, got his gun, came out and sat down with it across his lap, and told the Young party to move on. Defendant said, "Let's go let the folks out at Teague's, and we will go get our guns and get the son-of-a-bitch. He and Davis then got in the car and left Teague in front of McMillan's house and drove to Teague's, let out the other members of the party, then drove back by McMillan's house, and Teague asked them how long before they would return. Defendant replied as soon as they could go to Tulsa and get their guns. Defendant and Davis then drove to Tulsa, procured guns, and were joined by two of defendant's sons and the wife of one of them, and two other men who worked with him in an iron foundry at Tulsa. They returned to the McMillan place. In the meantime McMillan, becoming apprehensive, sent to one of his neighbors, Bates Weaver, and asked him to come over, as he anticipated trouble, and asked him to send to Catoose for a deputy sheriff so that trouble might be averted. Weaver came to McMillan's place, and soon the car with defendant and Davis and his party arrived. Defendant alighted from the car and directed his party to alight and walked over to Weaver, who was near his car in McMillan's yard, and demanded what he was doing there. Weaver informed him that he was there to prevent him murdering McMillan. Defendant put his gun into the stomach of Weaver and informed him he would kill him. Weaver caught the gun by the barrel and a scuffle ensued, in which the gun was discharged, but no one was hit. McMillan got up from his bed, took his Colt's pistol and went to the door. Homer McMillan took a shotgun and went to the southwest corner of the house. The two sons of Young were in the road directly in front of the McMillan house, and as McMillan appeared in his door they fired into the door casing with Luger pistols. McMillan thereupon killed both of them, and defendant, by this time having wrested the gun from Weaver, turned and killed Homer McMillan, who was standing at the corner of the house with a gun in his hand, and who had just fired but had missed his mark. During this time Davis was shooting at Weaver. The elder McMillan then shot at defendant and hit the barrel of the gun, knocking it from defendant's hand, fired again, and broke the leg of defendant, who fell. The firing then ceased. When the smoke had cleared away the two sons of defendant were dead, and the son of McMillan died the same day in a hospital at Tulsa. The evidence of the state is contradicted and explained by the evidence of defendant and his witnesses and by the cross-examination of the state witnesses. The testimony of W. E. McMillan in particular was much shaken on the cross-examination. Defendant's evidence supports his theory that one of the Young boys was killed by Homer McMillan and that the killing of Homer McMillan by defendant was in his necessary self-defense and in the defense of relatives. Many details are omitted, but the respective theories and the evidence in support present a question of fact for the jury. They must have believed in large part the evidence of the state.
It is apparent from this recital of facts that this tragedy which resulted in the death of three young men arose without any substantial cause for conflict and was entirely unnecessary, even among persons ready and willing to enter into a combat. It must have appeared to the jury that defendant was willing to enter into a combat with a deadly weapon, and under such view, which is sustained by ample evidence, they were exceedingly lenient in fixing the punishment. The punishment fixed would indicate further that they also considered the elder McMillan at fault in too readily entering into this shooting affray.
The first assignment of error argued is that the trial jury was not drawn and impaneled as provided by law. It appears that the names of the entire panel of the petit jurors were each written on a separate piece of cardboard paper of a uniform size, and these cards, without being folded, were put in a wooden box about four inches wide, eight inches long, and six inches deep, and the box shaken before any names were drawn out. The names were drawn by the court clerk. The statutes applicable to the formation of a trial jury are sections 2643 and 2649, inclusive, Comp. St. 1921. In substance, they provide that the names of the jurors shall be written upon uniform slips of paper, folded, placed in a box, and the box shaken to intermingle the ballots before any names are drawn, and that the clerk shall not look at the slips before drawing them from the box. These provisions of the law were not literally complied with. Upon motion being made, however, testimony was taken and the clerk in part testified:
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