Stouse v. State , 6 Okla. Crim. 415 ( 1911 )

The assignments of error and the questions presented thereon in so far as they seem to warrant discussion and decision will be considered in the order of time upon the trial.

The indictment was returned and filed in open court on March 12, 1909. The defendants were arraigned March 15th, and were then enlarged on bail. June 30th the case was called for trial. The state and the defendants announced ready, and, after the jury had been impaneled and sworn, the defendants interposed an objection to proceeding further with the trial for the reason that they had not been served with copies of the indictment as required by the Constitution and laws of the state.

The state called the clerk of the court, who testified that he furnished copies to the defendants' attorneys, but did not remember who received them; that he made no record of the delivery or receipt of such copies; that he also offered copies to the defendants, and they refused them, saying they had attorneys to attend to their case. Each of the six attorneys appearing for the defendants testified that he had not received a copy of the indictment. The court, after hearing the testimony, overruled the objection, and the ruling is assigned as error.

Our Constitution (section 20, Bill of Rights) prescribes:

"In all criminal prosecutions the accused * * * shall be informed of the nature and cause of the accusation against him and have a copy thereof. * * *"

The defendants had a constitutional right to have copies of the indictment. It follows that there was error as contended by counsel, unless the defendants could and did waive this right. A defendant in a capital case is not to be presumed to waive any of his constitutional rights, but that he may waive such rights has often been judicially determined. In the case of Starr v. State,5 Okla. Cr. 440, 115 P. 356, it was said that where a constitutional right in a criminal cause is largely for the benefit of the accused, or in the nature of a personal privilege, the law is well settled that an accused may waive such right. Mr. Bishop says:

"Any right given by statute or otherwise to the defendant for his benefit, such as to have a copy of the indictment, or a list of the jurors, or of the witnesses against him, at a particular time or before trial, may be waived, either in words, or by omitting to apply for the thing. And if, for example, the copy of the indictment furnished him is incomplete, he cannot first object after trial." (Bishop's New Crim. Proc. par. 126.)

That there was a waiver by the defendants of this right can be neither doubted nor denied. It appears from the record that the defendants were enlarged on bail more than three months preceding the trial, and they could at any time have demanded copies of the indictment. The record shows no application for the benefit of such privilege. On the other hand, it shows that the clerk tendered the defendants copies of the indictment which they refused to accept. The language of the provision is permissive, "The accused shall have a copy thereof;" that is, he may have if he request. If he does not request, then he cannot complain that a copy was not forced upon him. It was held in the case of Blairv. State, 4 Okla. Cr. 359, 111 P. 1003, that, unless the defendant demands a copy of the accusation before announcing ready for trial, his right to a copy is waived.

The objection was properly overruled.

Objections were made and exceptions taken to rulings in admitting and rejecting evidence. These rulings are collectively assigned as error.

The first is error in admitting evidence that the defendants were drinking intoxicating liquor shortly before the homicide. We have no difficulty in determining that the ruling of the court was undoubtedly correct. Prof. Wigmore says:

"Intoxication, as a mental condition of temporary stupefaction, may be evidenced circumstantially in the same general modes that are available for mental capacity or condition in general. (1) It may be evidenced by the person's conduct. (2) It may be evidenced by predisposing circumstances; i.e., by the drinking of intoxicative liquor. (3) It may be evidenced by his prior or subsequent condition of intoxication within such a time that the condition may be supposed to be continuous."

"Intoxication, if it is of such a degree as to deserve the name, involves a numbing of the faculties so as to affect the capacity to observe, to recollect, or to communicate; and is therefore admissible to impeach." (Wigmore on Evidence, §§ 235, 933.)

It is said by the Supreme Court of Illinois in the case ofMiller v. People, 216 Ill. 309, 74 N.E. 743 (this was a murder case; Miller as village marshal shot and killed a man, and his plea was self-defense):

"In order to arrive at a just and proper conclusion as to the reasonableness of the acts of the plaintiff in error on the occasion in question, we think it not at all improper that the jury should have known that he was intoxicated, if such was the fact. His ability to see and comprehend what was occurring, and to form therefrom a reasonable and well-grounded belief that he was in danger of losing his life or suffering great bodily harm, would be affected, in a greater or less degree, by intoxication. A man in a state of intoxication may, because therefrom, misconceive his situation and surroundings, misapprehend the acts and conduct and purposes of others, and arrive at a wholly unfounded, irrational, and unjustifiable belief of personal danger which would not find lodgment in his mind if his mental faculties were not in an abnormal condition."

The defendants claim that as peace officers they were preserving the peace when the deceased made a murderous assault upon them, and in necessary self-defense they killed him. It is a matter of common knowledge that the effect of intoxicating liquor upon the human mind is to magnify grievances, whether real or imaginary, and this evidence was competent for the purpose of aiding the jury in determining whether the defendants acted under the influence of a well-grounded and reasonable belief that they were in imminent danger of losing their lives or receiving great personal injury, or whether the killing was the result in whole or in part of a drunken disregard for human life.

J.M. Wilson, as a witness for the defendants, testified that he was a justice of the peace in and for Coalgate township, Coal county; that the defendant Kennedy was constable and marshal of Coalgate township and city, and the defendant Stouse was his deputy at the time of the homicide; that Kennedy was a prudent officer, and never drew his gun in making an arrest; that he chided him on different occasions for not using his gun enough; that he had known Kennedy for three years, and knew his general reputation and character for peace and quiet, and as being a law-abiding citizen, and that it was good. On cross-examination he was asked to state if he ever heard any person or persons talking about Kennedy and his mistreatment of his wife, and saying that he had handcuffed her, and whipped her with the belt of his pistol, and he answered, "I have heard it from one or two persons."

The wife of the defendant Kennedy was next called as a witness for the defendants, and was permitted to testify, over the objection of the state, that the deceased and his family caused her to leave the defendant, her husband, on two occasions, and that the defendant was a good husband to her, and that he did not whip her. On cross-examination she was asked if on one of the occasions of leaving her husband she went to the home of the deceased, and exhibited bruises on her body to her sister, the wife of the deceased, and her mother, Mrs. England, and told them that her husband had whipped her with a pistol belt, and she answered, "No, sir." We cannot conceive upon what theory the testimony of Mrs. Kennedy was admissible. The inquiry upon the cross-examination of Wilson, the only character witness testifying, was directed to the witness hearing reports of acts of misconduct, and not of the fact of misconduct.

As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of a character witness to show the sources of his information, and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of these facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.

The state in rebuttal was permitted to introduce the testimony of Mrs. Bunch, the wife of the deceased, and Mrs. England, the mother of Mrs. Kennedy, to the effect that Mrs. Kennedy on the occasions of leaving her husband came to their home and exhibited bruises on her body, and said they had been made by her husband whipping her. Counsel insist that the court erred in admitting this rebuttal testimony. We believe that, in view of the fact that the collateral issue was raised by the evidence introduced on the part of the defendants, they cannot now he heard to complain of an erroneous ruling of the court thereon.

It is also insisted that the court erred in refusing to permit the defendants to introduce material evidence in their behalf. From a careful examination of the record we are led to believe that the rulings of the court on the admission of evidence were more than favorable to the defendants. It is impossible to determine from the record what evidence was intended to be introduced, because no offer to prove was made.

"When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced, for the determination of this court, the record must contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine as to whether the defendant has been injured by the ruling of the trial court." (White v. State, 4 Okla. Cr. 143, 111 P. 1010.)

The record shows that the defendants took no exception to any of the instructions given, and the instructions criticised in plaintiffs in error's brief were not set out in the defendant's motion for a new trial. The instructions as given by the court fully and fairly present the law of the case.

Error is assigned on the refusal of the court to give a requested instruction on the right of a third person, viewing an attack made by one person on a second person, to slay the attacking party, when it appears necessary to save life or prevent great bodily injury. This instruction was properly refused. It was not in the abstract a correct statement of the law, and neither of the defendants claimed or testified that he shot in defense of the other; both testifying that the deceased shot at each of them before either of them shot the deceased.

Error is assigned upon the order of the court refusing to set aside the verdict and denying a new trial. One of the grounds of the motion is:

"That prior to the time of the trial and subsequent to the time that the crime is alleged to have been committed in this case, Sam McCutchen, one of the jurors who tried the case, was heard to say that he wanted to get on the jury that tried this case and hoped that he would be able to get on the jury that tried this case, and that these defendants ought to be hung; that if he was successful in getting on the jury that he would hang the defendants, if possible, or that he would give them 99 years in prison or the most severe punishment that he could cause to be inflicted upon them; that he was very bitter in his remarks against them, and he would endeavor to inflict the punishment aforesaid regardless of what the law or the testimony was; that at the time that Sam McCutchen was accepted on said jury, neither the defendants nor their attorneys knew that he had made such statements, or that he had formed or expressed any opinion, or had any fixed opinion as to the guilt or innocence of the defendants, or that he had ever expressed any desire to be on said jury; that if said juror made the statement aforesaid, and had a fixed purpose in his mind as aforesaid, that he was at the time that he was accepted on said jury an incompetent juror, and that the defendants could not have been tried by a fair and an ``impartial' jury as provided by the Constitution of the state of Oklahoma; that the affidavit of R.O. Parish sustaining the allegations aforesaid is hereto attached, marked ``Exhibit A.'"

In reply to said motion and the affidavit thereto attached, the state filed the controverting affidavit of said juror Sam McCutchen. On the issue of fact thus raised testimony was taken, and the juror Sam McCutchen testified that he had never made any such statements. It is contended by counsel that:

"It is error in a capital case for the trial court to refuse to grant a new trial when it appears that one of the jurors who tried the case had formed and expressed an opinion adverse to accused, when such juror has qualified on his voir dire, and his disqualification is unknown to the accused or their counsel at the time such juror is accepted."

The identical question here presented was considered in the case of Smith v. State, 5 Okla. Cr. 282, 114 P. 350, wherein this court said:

"These affidavits presented a question of fact which was submitted for determination to the trial court. The judge who tried this case for many years had resided in Coal county, and was in a much better condition to determine as to whether the juror or the parties whose affidavits were filed in behalf of the appellant were the most credible. The mere fact that two parties attempted to impeach a juror does not by any means settle the question of credibility as between such parties and the juror. If it did, but few verdicts could be sustained, because in almost any case it would be possible to find two or more persons who would make affidavits impeaching a juror. In passing upon this very question, the Supreme Court of Texas in the case ofGilleland v. State, 44 Tex. 357, said: ``It is true that there are two affidavits in support of the motion and one in rebuttal, but we do not think that the decision of the question presented by the motion should necessarily depend upon the mere number of affidavits on one side over the other.' The question of credibility was one to be determined by the trial court; and, in the absence of a showing that this discretion was abused, it cannot be reviewed here. There is nothing in this record to indicate any abuse of discretion on the part of the trial judge."

It is well settled that, as a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify on a challenge for cause which existed before the juror was sworn, but which were unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case. The juror denies that he made any such statement, and the verdict returned, not only corroborates him, but is almost conclusive of the fact that the defendants were tried by a fair and impartial jury.

Upon a careful consideration of the whole case, we find no error prejudicial to the substantial rights of the defendants.

Wherefore the judgment of the district court of Coal county is affirmed.

FURMAN, P.J., and ARMSTRONG, J., concur.