Waller v. State

It is first contended that the trial court erred in permitting the state, over the objection and exception of defendant, to introduce evidence in rebuttal to the effect that when the search was made at the scene of the homicide immediately thereafter no weapon of any kind was located at the place where the single-bladed, spring-back knife was found the next morning.

The state in chief had introduced a number of witnesses who testified that immediately after the commission of the homicide, a search was made of the scene of the homicide with the aid of flash lights and lanterns; that this search covered a space approximately in a radius of 25 feet surrounding the place where the body lay; that no articles were found as a result of that search except certain empty pistol shells and the pipe of deceased.

The defense thereafter introduced witnesses who testified that on the morning following the commission of the homicide, at about six o'clock a.m., a single-bladed, spring-back knife was found in the street near the gutter not very far from where deceased's head lay after he fell on the sidewalk. Thereafter, the court permitted the state in rebuttal to introduce witnesses who testified that the search made the night before covered the particular place where this knife was found the next morning, and that there was no knife at that place when the search was made the night before.

In introducing evidence in chief to the effect that no knife was found when the first search was made, the state anticipated what the defense would be, and that the defense would likely introduce evidence that a knife had been found at a later time. This evidence was permitted to go to the jury in chief without objection on the part of defendant. Strictly speaking the evidence was rebuttal, and perhaps would have been excluded from the state's evidence in chief had objection been made thereto. Further evidence along this line, however, was, in our opinion, proper to be admitted in rebuttal of defendant's evidence as to the finding of the knife, to make more definite and certain that the search which was made immediately after the homicide covered the exact spot where the knife was found, as it did not clearly appear from the evidence admitted in chief that a close and thorough search had been made at the exact place where the knife was thereafter found.

However, had this been exclusively evidence in chief, it was discretionary with the trial court, in the furtherance of justice, to permit it to have been introduced in rebuttal. Tingley v. State, 16 Okla. Cr. 639, 184 P. 599.

Under the issues in this case, this evidence was competent, and the order of its admission did not constitute such error as should result in a reversal of this judgment.

It is also contended that the trial court erred in overruling the motion for a new trial on the ground of newly discovered evidence. The evidence alleged to have been newly discovered is attached to the motion for a new trial in the form of affidavits of three parties, who claim that about three or four months prior to the commission of the homicide they saw deceased in possession of a single-bladed, spring-back knife of the description found at the scene of the homicide.

Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and the ruling of the trial court on such a matter will not be disturbed unless a manifest abuse of discretion appears; the presumption being that the discretion was properly exercised. Noel v. State, 14 Okla. Cr. 548, 174 P. 293.

In the trial of this case defendant introduced evidence of at least one witness who testified positively that he had seen deceased in possession of the knife found at the scene of the homicide or one exactly like it. The alleged newly discovered evidence, therefore, was cumulative. It appears from the record that the evidence was not newly discovered but that new witnesses were discovered to the same evidence of which defendant was possessed at the time of the trial. It is almost incomprehensible that defendant could, within nine days after his conviction, discover these three new witnesses, all of whom lived in the vicinity of where the crime was committed, although for a period of seven months prior to the trial he was unable to discover them.

Deceased had lived in the immediate vicinity of the commission of the homicide for over 20 years; he was well known to practically all the inhabitants of that community. It must have become a matter of public notoriety, where the parties involved were as prominent in the community as deceased and defendant were in this case, that on the morning immediately following the commission of the homicide a very unusual spring-back, large-bladed knife was discovered. Certainly had this knife been the property of deceased, with his wide acquaintance in the community, defendant by the exercise of ordinary diligence would have before the trial discovered more than one witness who would have been able to identify this particular knife as the property of deceased. Especially is this conclusion forced upon the court in view of the fact that within nine days immediately after his conviction, defendant was able to discover three other witnesses whom he claims would, if a new trial were granted, testify that they had seen deceased in possession of a knife similar to the one found at the scene of the homicide.

We are of opinion, therefore, that there was no abuse of discretion upon the part of the trial court in overruling this motion for a new trial on the ground of newly discovered evidence, (1) because the evidence was cumulative; (2) because there is no showing of any reasonable diligence used to discover the particular witnesses; and (3) in view of defendant's own testimony, the court is clearly of the opinion that had these alleged newly discovered witnesses been introduced upon the trial of this case, no honest and intelligent jury could arrive at a result different than the conviction of this defendant, either for murder or manslaughter. Howey v. State, 9 Okla. Cr. 453,132 P. 499.

We have copied full excerpts of defendant's testimony in the statement of this case, and it is clear from defendant's testimony itself that an acquittal should not have resulted. As the court views the evidence, defendant was extremely fortunate that the result of the trial was a conviction of the lesser degree of felonious homicide than murder.

The petition in error contains assignments not presented in the brief. This being a felony conviction, the court has taken occasion to examine these assignments also. The instructions given fairly and fully covered the law of the case as applicable to the evidence. The substance of the law contained in the requested instructions was covered by the court in the general charge in a manner as favorable to defendant as the evidence warranted. The trial court was very liberal to defendant in the admission of evidence in his behalf, and in our opinion accorded defendant a fair and impartial trial in every respect.

Judgment affirmed.

DOYLE, P.J., and BESSEY, J., concur.