Young v. State

• Decision Date: 13 June 1962
• Docket Number: No. A-13117,A-13117
• Parties: Ervin Ray YOUNG, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 273

373 P.2d 273

Ervin Ray YOUNG, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13117.

Court of Criminal Appeals of Oklahoma.

June 13, 1962.

Rehearing Denied July 18, 1962.

Syllabus by the Court.

1. Where the trial court has given an instruction defining reasonable doubt, such instruction will be carefully examined with reference to the whole record before the Court of Criminal Appeals, and if it should appear that the effect of such instruction is not one of injury to the defendant, we will not reverse the cause solely on the basis of such instruction.

2. While an instruction containing the phrase 'a doubt that you can give a reason for' is erroneous, an instruction which includes the phrase 'a doubt founded upon reason', is not erroneous per se, because such instruction merely requires that the doubt be founded upon some process of reasoning, no matter how rudimentary or unexplainable it may be, and that such doubt not be a thing of total fancy or whimsey.

3. A reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction, to a moral certainty, of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.

4. Proposition of error not supported by authority or seriously urged by the appellant will not be considered by the Court of Criminal Appeals.

5. It is the duty of the county attorney in his argument to the jury to confine himself to the facts as shown by the evidence, but he has the right to draw his deductions and conclusions, and unless the statement or arguments are such that deprive a defendant of his substantial rights, or are such that would arouse passion and prejudice of the jury to the extent that they would be swayed from arriving at a just verdict, the judgment and sentence will not be set aside on appeal.

6. The Court of Criminal Appeals will not consider on appeal assignments of error which are waived in oral argument before the Court.

7. Where the record does not show that counsel for appellant objected or excepted to the admission of certain evidence complained of, his assignment of error thereon is not reviewable, because not properly preserved.

8. While the defendant in a criminal prosecution has the right to insist that only competent evidence shall be introduced against him, he may waive the right, and he does waive it by failing to introduce proper and timely objections.

9. The reception of hearsay evidence over objection is error, and whether it is reversible error depends upon all facts and circumstances of the case and the prejudicial effect which the reception of such evidence might have had on the jury.

10. A criminal case may be proved by circumstantial evidence and reasonable inferences have the same probative effect as direct testimony.

11. While it is true that, as a general proposition, a defendant is entitled to a trial upon legal evidence alone, yet it is equally true that the admission of incompetent evidence which would not have prejudiced the defendant is not ground for reversal and constitutes harmless error.

12. Evidence which is merely cumulative will not be held reversible error, even though the evidence is inadmissible.

13. The Court of Criminal Appeals will not reverse a case for ruling on evidence occurring at the trial unless the record discloses a miscarriage of justice or that the error relied on constituted substantial prejudice to defendant's rights.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Ervin Ray Young was convicted of the crime of Murder, sentenced to life imprisonment, and appeals. Affirmed.

Jay C. Baker, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Plaintiff in error, hereinafter referred to as defendant, was charged with the crime of Murder in the District Court of Tulsa County, Oklahoma, stood trial, and on the 17th day of March, 1961, was found guilty of said crime and his punishment fixed at life imprisonment in the State Penitentiary.

His motion for a new trial was overruled, and timely appeal was perfected to this court.

From the record, it appears that about 9 P.M. on the evening of December 13, 1959, Dale Ray Jones, and his fiance, Norma Sue Littlefield, were parked at a point approximately 1/2 mile East of Garnett Road on 31st Street in Tulsa County and that an automobile stopped near Jones's car. Miss Littlefield attempted to drive away and as she did so, three shots were fired. She testified that Jones was directed by an unknown person, attired in light colored clothes and carrying a rifle in his hands, to go to the rear of his (Jones's) car.

After Jones arrived at the rear of his car, Miss Littlefield testified that she heard a shot and saw Jones flee from the assailant, who fired several more shots, mortally wounding Jones.

The assailant immediately left the scene in his automobile, which Miss Littlefield later described as being a light colored 1955, 1956 or 1957 Chevrolet.

Miss Littlefield sought assistance and shortly thereafter a highway patrolman and a deputy sheriff of Tulsa County arrived at the scene.

Several expended .22 caliber rifle cartridge cases were found on the highway at the scene of the crime and the Deputy Sheriff took them to the sheriff's office where they were marked for purposes of identification and later introduced into evidence at the trial.

On December 28, 1960, Miss Littlefield identified the defendant, in a lineup at the Tulsa County Jail, as the assailant of the deceased. At the trial, she again positively identified the defendant as the person who fired the fatal shots. She testified that she denied being able to identify the assailant prior to the defendant's arrest because she was afraid that she might be harmed.

On direct examination, Mr. Houston Johnson, a Tulsa County Deputy Sheriff, testified that on the 16th day of December, he went to the Girdner farm, near Stilwell, Oklahoma, where he found fifteen .22 caliber rifle cartridge cases. These shells, which were found at a spot where Ervin Ray Young had been shooting a .22 caliber rifle several days prior thereto, were introduced into evidence.

Mr. Richard J. Poppleton, an F. B. I. Ballistics expert, testified that examination and comparison of the cartridge cases obtained at the scene of the crime with the cartridge cases obtained from the Girdner farm revealed that all of the cartridge cases had been fired from the same weapon. The witness testified that the J. C. Higgins automatic .22 rifle made the same impression as that which he found upon the cartridge cases of the shells in question. The witness testified that one of the best methods for identifying and comparing cartridges was the 'rim fire' method.

Witness Jack C. Boatright testified that the defendant had borrowed his J. C. Higgins, Model 29, semi-automatic .22 caliber rifle on December 12, 1959.

Witnesses Bryan Girdner and Frank Girdner testified that on December 13, 1959, the defendant came to their home near Stilwell, Oklahoma, to hunt with Bryan Girdner, and that the defendant was driving a red and white 1957 Chevrolet automobile and was wearing light colored trousers. Both witnesses testified that the defendant fired the said rifle in the barnyard near their home and that no one else had fired a rifle there for some time prior to discovery of the .22 caliber cartridge cases introduced into evidence.

Defendant's witness, Hans Habermehl, who was introduced as a ballistics expert, testified to the effect that examination and comparison of breechblock markings is the only accurate manner in which .22 caliber rim fire cartridges can be determined to have been fired from the same or similar weapon. Mr. Habermehl further testified that a comparison of the marks found on the expended shells disclosed that the shells found at the scene of the crime were fired by two different guns and the shells found on the Girdner farm were fired from two different weapons. The witness identified the said marks as breechblock marks.

On rebuttal, the state introduced, over defendant's objection, unexpended cartridges of the type found at the scene of the crime and at the farm.

Then, Mr. Poppleton identified the marks appearing on the unexpended cartridges as stress marks made in the manufacture of the shells. These marks were similar to the marks appearing on some of the expended cartridges which latter marks had been identified by Mr. Habermehl as having been made by the breechblock at the time of firing of the shells.

Mr. Poppleton further testified that he had never seen breechblock marks that appeared as the marks did on the cartridge cases which he examined.

The defendant seeks reversal on five assignments of error.

As his first assignment of error, the defendant urges that:

'The trial court committed reversible error by defining in its instructions the term reasonable doubt.'

The instruction of the Court upon which defendant bases his contention of error is as follows:

'A 'reasonable doubt' means a doubt founded upon reason. It does not mean a fanciful doubt, or a whimsical or capricious doubt, for anything related to human affairs and depending upon human testimony is open to some possible or imaginary doubt. When all the evidence in the case, carefully analyzed, compared and weighed by you, produces in your minds a settled conviction or belief of the defendant's guilt, such a conviction as you would be willing to act upon in matters of the highest importance relating to your own affairs, when it leaves your minds in the condition that you feel an abiding conviction amounting to a moral certainty of the truth of the charge, then,...