Maggard v. State , 9 Okla. Crim. 236 ( 1913 )

FUBMAN, J.

(after stating the facts as above). First. It is contended by counsel for appellant that the -verdict is not supported by the testimony. The record discloses the fact that the deceased, an old man 65 years of age, was attempting to assist one drunk man and one drinking man home, and that he was shot and killed by the negligent act of one of these parties. Appellant testified that the shot which killed Miller was fired by the state’s witness Cooper. Cooper’s testimony is to the effect that the fatal shot was fired by appellant. He is corroborated by the evidence of Bertha and Bhoda Cooper, who testify to conversations between Cooper and appellant after the shooting was over, ’and his statement was further strengthened by the actions of appellant after the shooting. The credibility of the witnesses was a question for the jury, and there is nothing in the record to warrant us in .holding that the jury were influenced by improper motives in accepting as true the testimony of the state’s witness Cooper, and rejecting the testimony of appellant. We therefore cannot sustain the contention that the verdict is contrary to the testimony.

Second. It is contended that the court erred in failing and refusing to instruct the jury on the law applicable to the testimony of an accomplice; it being contended that Cooper was the accomplice of appellant. The act of appellant which the jury found resulted in the death of the deceased was negligently discharging a pistol in.the dark. There was no proof of concerted action between appellant and Cooper in this matter. According to appellant’s testimony Cooper killed Miller, and he, appellant, had nothing to do with it. According to Cooper’s testimony, appellant killed Miller, and Cooper took no part in it. This court should certainly not take a more favorable view of the evidence in behalf of appellant than is disclosed by his own testimony. The mere fact that Cooper was present when the shot was fired would not make him the accomplice of appellant, unless he did some act encouraging, aiding, or abetting the appellant in doing the act which resulted in the death of the deceased.

We therefore hold that the court did not err in failing to give the instruction requested.

No other questions are presented to the court by the petition in error or were discussed in the brief of counsel for appellant. Therefore none other will be considered.

The judgment of the lower court is in all things affirmed.

ABMSTBONG-, P. J., and DOYLE, J., concur.