Moody v. United States , 2 Okla. Crim. 662 ( 1909 )

ON MOTION FOR REHEARING.

Denied. With a single exception the motion for a rehearing is but a repetition of the brief originally filed in the case. All of the questions presented were carefully considered by the court in the original opinion. Nothing has been suggested which alters the conclusions there arrived at. The new matter suggested is that as this case arose under the laws of Arkansas, then in force in Indian Territory, it was improper for this court to affirm the conviction when technical error appears in the record. The doctrine of harmless error, or error without prejudice, did not originate with this court. Practically all courts recognize the principle, while but few enforce it. It is as old as our American system of law.

In 12 Cyc. 910 the law is stated as follows:

"As a general proposition appellant or plaintiff in error, to obtain a reversal, must show not only that error occurred, but that he was substantially prejudiced thereby. Technical and nominal errors, therefore, and mere irregularities, not substantially prejudicing the accused, may be disregarded on review by the appellate court."

This is supported by an overwhelming weight of authorities. It is in harmony with the statutes of Arkansas in force in the Indian Territory when the offense was committed. Section 2468 of the Statutes of Arkansas is as follows:

"The judgment shall only be reversed for errors of law, apparent in the record to the prejudice of the appellant."

According, then, to the laws of Arkansas, there must be prejudice, injury, or harm from a technical error before it could be ground for a reversal. This is our position precisely. There is nothing new or revolutionary about it. We are simply resetting the ancient landmarks and enforcing a principle which cannot be disputed, without doing great violence to justice, but which is too often lost sight of and disregarded by appellate courts. We are going to rigidly adhere to the views expressed in the Byers case, 1 Okla. Cr. 677, 100 P. 261, where it appears from the record that the defendant has been properly indicted and fairly tried and the evidence supports the verdict.

If counsel who represented the defendant on the trial of the case in the court below had been vigilant, a very different condition might have presented itself. The case was tried upon the idea, on both sides, that the twenty dollar bill was United States currency. There was no dispute upon this point. The evidence was admitted, without objection, upon this theory. The facts and circumstances of the case show conclusively that the lawyers on both sides and the witnesses themselves understood that they were testifying with reference to United States currency. In the light of the entire record the jury were warranted in so finding. In justice to the attorney who appears for the defendant in this court, we desire to state that we have his assurance that he did not participate in the trial of this case in the court below; therefore no responsibility or blame attaches to him for the condition of the record.

The evidence amply warranted the jury in the verdict rendered. The motion for a rehearing is therefore denied.