Thomas v. State , 13 Okla. Crim. 414 ( 1917 )

It is first contended that the court erred in refusing to direct the jury to return a verdict of not guilty for the reason that the state failed to make out a case against this defendant by sufficient evidence. It is not necessary to enter into a lengthy discussion of the merits of this contention. The foregoing statement of facts, to our mind, discloses evidence sufficient, if believed, to authorize the jury to convict this defendant either upon the theory that Tom Thomas himself fired the fatal shot, or upon the other theory that he was a coconspirator with the one who did kill Gammell and as such aided and abetted in the killing. The rule is well established in this jurisdiction that the weight of the evidence is for the jury, and where there is any evidence in the record which, if believed, is sufficient to authorize a conviction under the law this court will not disturb the judgment because of insufficient or conflicting evidence. It is true that this is a murder case, and the penalty imposed is severe; but the province of an appellate court is to determine questions of law and to establish principles of law by which fair and impartial trials may be had. It is just as essential that courts abstain from invading the province of the jury as it is essential that the jury be guided by the law as given by the court. In no other way can justice be fairly administered. If trial and appellate courts were constantly invading the province of juries in this state, the jury system would become a farce and of no protection whatever to the accused. It is only in cases where this court can say, as a matter of law, that there is no competent evidence supporting the charge, that the judgment of conviction will be reversed.

There is evidence in the record fully sufficient to authorize the jury to conclude that the appellant was guilty. Our investigation need go no further, except to determine whether or not the jury was influenced by improper motives in reaching a verdict. Bishop v. State, 9 Okla. Cr. 175, 130 P. 1173; Maggardv. State, 9 Okla. Cr. 236, 131 P. 549; Caple v. State,3 Okla. Cr. 621, 105 P. 681.

It is also contended that the court erred in admitting incompetent, irrelevant, immaterial, and hearsay evidence offered by the state and duly excepted to at the time, which evidence the defendant requested the court to instruct the jury not to consider, which request was by the court denied, and to which ruling of the court the defendant at the time excepted. This assignment of error relates to certain testimony of one Ed Weisman, a deputy sheriff, who was introduced by the state in rebuttal. It was attempted to be shown by Weisman that the defendant's witness George Cudjo had made certain statements to Weisman at the time of his arrest contradictory to his testimony upon the witness stand, and at the time Weisman was first called to testify the court sustained the objection of defendant's counsel to this testimony on the ground that proper foundation had not been laid for its admission. Thereafter the court permitted the state to place the witness George Cudjo upon the witness stand for further cross-examination, and the state did lay the proper foundation for impeaching Cudjo by Weisman. So that the only question left to be determined is whether or not the statements alleged to have been made were material. George Cudjo in his direct examination testified that John Cudjo, his half-brother, fired the fatal shot that killed Gammill; that he was close to him, and saw the shot fired, and recognized his brother John at the time. For purposes of impeachment he was asked if he did not state to Weisman, in substance, at the time that Weisman arrested him, the following: "I don't know who did the shooting of that boy up there. I did not know anything about that shooting up there, or did not know anybody was shot." He was also asked if at any time the night of his arrest or the next day he told Ed Weisman that John Cudjo did the shooting. It requires no argument to convince a person of ordinary intelligence that this evidence was material. Cudjo at the time of his arrest stated that he did not know who did the killing. At the time of the trial he stated positively that John Cudjo did the killing. It was a material inquiry, according to the theory of the defendant, as to who fired the fatal shot, and it became relevant, therefore, for the state to contradict the only witness who took the stand for the defendant and testified that John Cudjo fired the shot. Counsel for defendant concede that a witness may be impeached by evidence tending to show contradictory statements on material matters, but contend that this evidence was immaterial. With this contention we firmly disagree. It was material to prove that either the defendant or one of his codefendants fired the fatal shot, and where a witness makes contradictory statements as to that fact he may be impeached by showing the same. It is not necessary to cite authorities in support of this principle which has been repeatedly recognized by this court.

It is also contended that the statement made by the witness George Cudjo, and upon which he was impeached, to wit, "I am going to Wewoka for a long long time," addressing his remarks to the people at Gibson Payne's home, at the time of his arrest, was immaterial. We think that it was proper to contradict this witness by showing that he made this statement, which he denied. It tended to discredit him, and was material in disclosing a state of mind on his part at the time of his arrest, shortly after the homicide, which indicated his connection with the homicide and knowledge of its commission, indicating that he was concerned in the conspiracy that resulted in the death of Gammill, and understood why he was being arrested. The defendant had produced this witness, who testified to a state of facts which indicated that neither he nor the defendant was in any way connected with the killing, or had any knowledge that Gammill was to be robbed at that time. It certainly tended to discredit the testimony that he had given to that effect, and for that reason, in our opinion, it was sufficiently material for impeachment purposes.

But the serious question in connection with this evidence is the refusal of the trial court to instruct the jury to limit its consideration of same solely as tending to impeach the witness George Cudjo. Counsel for defendant did not request an instruction directly covering this matter, but did request the court to give the following instruction:

"You are instructed that the state has wholly failed to prove that a conspiracy existed, and in this connection you are instructed not to consider any statements of witnesses, except for the purposes of impeachment of other witnesses, concerning what was said or done, unless the defendant were personally present and heard what was said. And you are further instructed in this connection, a conspiracy not having been proved by the state, that before you can find the defendant guilty you must find beyond a reasonable doubt that he fired the shot that took the life of George Gammill, the deceased."

Said instruction was properly refused because of reasons heretofore given, to the effect that there was evidence before the jury sufficient to submit the question of conspiracy.

But that portion of said instruction which reads, "and in this connection you are instructed not to consider any statements of witnesses, except for the purpose of impeachment of other witnesses, concerning what was said or done, unless the defendant were personally present and heard what was said," certainly directed the court's attention to this impeaching evidence sufficiently to require the court to give a proper instruction covering the purpose for which it should be considered by the jury. This the court entirely failed to do.

It has been held that "where an instruction * * * is not in proper form, but pertains to a material issue in the case as made by the evidence, the court should correct it and give it in proper form, if he has not otherwise instructed upon that issue; and after such request it is error for him to fail or refuse to give an instruction upon such issue." Roberson v. United States,4 Okla. Cr. 337, 111 P. 984; McIntosh v. State,8 Okla. Cr. 469, 128 P. 735; Morris v. Terr, 1 Okla. Cr. 619, 99 P. 760,101 P. 111; Fairgrieve v. State, 10 Okla. Cr. 109,134 P. 837. It was the duty of the court, after this request, to instruct the jury that such contradictory statements could only be considered by them for the purpose of affecting the credibility of the witness George Cudjo, and for no other purpose. These contradictory statements by George Cudjo were in no sense original evidence against this defendant, but the jury was left open to consider them for any purpose it might have seen fit. This was error, and especially prejudicial to the defendant in this case because his entire defense was based upon the testimony of this witness.

In Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57, this court held:

"When contradictory statements made by a witness are admissible in evidence for the purpose of impeaching him, they must be confined to contradictions of the testimony of the witness which are injurious to the party seeking to impeach him, and it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent, substantive evidence against or in favor of the defendant, and that the jury can only consider such contradictory statements for the purpose of affecting the credibility of the witness, if they decide that such statements do have this effect, and that it is unlawful for the jury to consider such statements for any other purpose."

The refusal of the trial court to instruct the jury on the purpose for which alone this testimony was receivable requires a reversal of this judgment.

Other matters are urged in the brief of counsel for defendant in error which appear to be well grounded, especially that the jury was permitted to have access to certain testimony, given at the preliminary examination, of witnesses who were not examined on the trial. It appears that the entire transcript of the testimony given at the preliminary examination was upon request allowed to be taken to the jury room for the purpose of permitting the jury to read certain portions of such evidence introduced upon the trial both as original and impeaching evidence. While it is not clearly shown that the jury considered or read any of this evidence except such as was introduced upon the trial of this case, it is clearly evident that the opportunity to receive and examine other evidence than that received in court was afforded. This should not be permitted under any circumstances.

The second subdivision of section 5937, Rev. Laws 1910, makes it ground for new trial for the jury to receive evidence out of court other than that resulting from a view of the premises. Sections 5912 and 5913, Rev. Laws 1910, provide:

"On retiring for deliberation the jury may take with them the written instructions given by the court, the forms of verdict approved by the court, and all papers which have been received as evidence in the cause, except that they shall not take copies of such parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession."

"After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called."

Had there been a disagreement between jurors as to any testimony introduced other than the documentary evidence, the jury should have been returned into court and the evidence read to them. And where the evidence is written or documentary, and is attached to other such evidence not introduced on the trial, it should be detached from that not introduced before the jury is permitted to take the same to the jury room. The foregoing statutes should be strictly complied with, as it is a substantial right of the defendant to have the jury kept free from any improper influences while considering its verdict as well as during the entire progress of the trial.

Another matter which is complained of, and will, in all probability, likely arise on a retrial of this charge, is that the court erred in admitting that part of the dying declaration of Gammill in which he said, "Those negroes shot me and robbed me." It is contended that this evidence should have been excluded because it was nothing more than the opinion of the deceased, and the deceased, if living, would not have been permitted to testify to such effect. There seem to be two rules upon this question: First, the strict rule which is followed by some courts to the effect that it is indispensable that the dying declaration should consist solely of facts, and not of conclusions or opinions; and, second, the liberal one that opinion rule is not necessarily applicable to dying declarations.

The latter rule is pointed out by this court in the case ofBlair v. State, 4 Okla. Cr. 359, 111 P. 1003. The doctrine is well established in this state that matters like this should be construed liberally. This rule is laid down by Prof. Wigmore in his work on Evidence, sec. 1447, as follows:

"The opinion rule has no application to dying declarations. The theory of that rule (post, sec. 1918) is that, wherever the witness can state specifically the detailed facts observed by him, the inferences to be drawn from them can equally well be drawn by the jury, so that the witness' inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him by questions any more detailed data than his statement may contain, and hence his inferences are not in this instance superfluous, but are indispensable."

Numerous cases are cited in the note to this section which disclose that expressions very similar to the one here made by the deceased have been admitted, such as the following:

"He cut me for nothing." "He killed me for nothing." "I know that one of the two shot me." "You have killed me without cause." "They have murdered me." "He shot me down like a dog," etc.

— all of which contain certain expressions of opinion and conclusion on the part of the deceased. Applying the liberal rule, therefore, which we hold to govern in this state, it is our opinion that the statement aforesaid made by the deceased in his dying declaration was admissible.

The contention that because whisky is contraband property in this state, as against the state and its officers, others are entitled to rob and murder in order to obtain possession of it from one who is using it unlawfully is wholly without merit. Neither robbery nor murder may be justified or excused on such a ground.

For the reasons given the judgment of conviction is reversed and the cause remanded. The warden of the state penitentiary is instructed to surrender the defendant to the custody of the sheriff of Seminole county upon proper demand at said penitentiary.

DOYLE, P.J., and ARMSTRONG, J., concur.