Wesley v. State , 11 Okla. Crim. 292 ( 1915 )

The main contention in this case is that the trial court erred in admitting incompetent evidence. Tom Plotner, a witness for the state, testified that he worked at the power house, situated near the Missouri, Kansas Texas Railway, about a quarter of a mile north from the point where the body of John Asbury was found; that on that day about sundown he stepped to the door of the power house, and saw Major Wesley and John Asbury, both holding a post that held a guy wire of the power house smokestack; that they were reeling around and holding to the post, and both seemed to be drunk and mad; that he could not understand their conversation, as it was in the Creek language; that Wesley motioned to Asbury up and down the railroad track and then put his hand up in Asbury's face; that they walked up to him, and Asbury commenced talking to him. Over the objections of counsel for the defendants, he was permitted to testify to the following conversation with John Asbury:

"Q. State what John Asbury said to you? A. Well, he walked up to me there by the door, and said, ``Did you hear what that damn son of b___h was saying to me?' I said, ``No, I didn't understand his language.' ``Well, he said he was going to kill me and put me on the railroad track to-night.' I says to him, ``Johnnie, you had better go home.' And he says: ``I am a pretty good man myself, by God! I have been in the pen.' And he turned and went in the same direction following Wesley. The Court: How long after the other left before he said that? A. He commenced talking to me before the other fellow was out of hearing. Q. How far away had Major Wesley gone when he first — what was your statement about that? A. Major Wesley turned that way, going past the building, and I was standing in the door, and he walked up with Major and commenced talking, and said what Major had said, and Major was passing by. The Court: Objections overruled. Exceptions saved by the defendants."

This conversation was objected to on three grounds: First. That it was a declaration of the deceased not made in point of time and sufficiently connected with the killing as to form a part of the res gestae. Second. That it was not made in the presence and hearing of the defendant. Third. Because the witness Plotner did not understand the language used by Wesley and Asbury, and any attempt to repeat in English any part of such conversation, even in the hearing of the defendant, was incompetent, because the defendant did not understand the English language.

We think that the objections made were not well taken. The previous relations of the parties, their feeling and actions toward each other, and the circumstances immediately surrounding the homicide are admissible, and acts and declarations of the deceased before the homicide which are connected with any act leading up to the homicide so as to form a part of the same transaction are admissible as a part of the res gestae. The testimony shows that the defendant Wesley and the deceased at the time were going towards the place where shortly afterwards the murder was committed, and it is substantially shown that what the deceased said to Plotner was in the hearing of the defendant Wesley. There was no offer to prove that Wesley did not understand the English language, although, later on, the record discloses that when Wesley testified he did so through an interpreter, but that fact of itself would not constitute proof that he did not understand the English language. The court, in its discretion and for the purpose of expediting business, may have, on the defendant's request, permitted this method of examination, where the language usually used by the witness is different from that employed in the court. The presumption must be, unless there is an affirmative showing to the contrary, that a person understands the prevailing language of the country.

It is also contended in behalf of plaintiffs in error that the trial court erred in permitting the county attorney, in the course of the cross-examination of the defendant Major Wesley, to propound to him the following question:

"Q. I will ask you if you wasn't present at the time that John Asbury was killed, and if you didn't assist in the killing, and when you struck him the last lick, you made this remark, ``You accused me of killing another man and putting him on the track, and now they can accuse me of killing you and putting you on the track?"

It appears from the record that no objection was made to this question, and no ruling of the trial court on the question of its propriety was requested, and no exception taken respecting it. Upon the record there is nothing presented to this court for determination. The witness Joe Dick testified as to statements made by the defendant Wesley at the time he says Wesley was striking the deceased with the club. Such declarations on the part of the defendant Wesley were clearly a part of the resgestae, and admissible as such.

It also appears from the record that the defendant Wesley as a witness was asked the following question by his counsel, Mr. Robertson:

"Q. Major, you were charged here two years ago with killing an Indian and putting him on the track and tried before the jury and acquitted, were you not? A. Yes."

Under these circumstances, it cannot be assumed that the defendant Wesley suffered any harm on his cross-examination of which he can now complain.

Finally, counsel for plaintiff in error complain of certain alleged prejudicial remarks on the part of the county attorney. The fourth ground of the motion for a new trial is as follows:

"That error occurred in said trial of said cause, because of misconduct of the county attorney in his closing argument to the jury in referring to the fact that Major Wesley, one of the defendants herein, was in the habit of killing people and putting them on the railroad track, and that the said Major Wesley had been so charged in another and different case, with the commission of the same sort of crime as was charged in this case. A verbatim statement of the county attorney's remarks is not set out herein, for the reason that his argument was not taken by the official stenographer of said court, but that the above and foregoing was the substance of his remarks to the jury, and excepted to by the defendants."

There is no recital in the case-made as to what these remarks were, and the record does not show that any objection was made, or exception taken at the time to any remark made by the county attorney. There is, therefore, nothing before this court to determine.

In Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766, it is said:

"But the statements of attorneys made in the argument of the case in open court in the presence and hearing of the judge cannot be shown to this court by affidavits either on the part of the state or the defendant. The argument of the cause to the jury is a part of the trial, and statements made therein, to be reviewed, must appear by a proper recital of fact in the case-made so that the certificate of the trial judge will be a certificate to the correctness of the recital. The judge must settle the case-made, and thereby determine what was said, so that his certificate will attest the truthfulness and correctness of the recital in the case-made. But the trial judge's certificate does not attest the truthfulness of affidavits offered in support of or in opposition to matters alleged in the motion for a new trial."

It is true, as counsel assert, that the case against the defendants depends in a great measure upon the testimony of an accomplice; but his testimony is sufficiently corroborated upon all material points, and we cannot hold as a matter of law that the evidence, if believed, as it must have been, was not sufficient to warrant a jury of fair-minded men in reaching the conclusion evidenced by the verdict.

We have given this case careful consideration, and, while in some instances the state went to the full limit of the rules of evidence, we are not satisfied that any such error intervened as would justify a reversal of the judgment.

The judgment is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.