Betterton v. State

DOYLE, P. J.

(after stating the facts as above). The plaintiff in error, Monroe Betterton, herein referred to as the defendant, was convicted, awarded the death penalty, and was sentenced to be electrocuted for the murder oí his wife, Elzadah Betterton. The homicide was committed on the 9th day of July, 1919. The information was filed in the district court of Craig county on the 3d day of November, and on the same day, it appearing that the defendant .was unable to employ counsel, the court appointed C. MeGary as counsel to defend him; Mr. MeGary having represented the defendant in the preliminary examination. He was duly arraigned on the 4th day of November, ana on the following day entered his plea of not guilty. The case was tried at the November term, 1919. He was found guilty of murder, and his punishment assessed as stated. Motion for new trial was duly filed. The motion was overruled on the 17th day of November, and on the same day judgment of death was by said court pronounced upon him. January 23, 1920, was the day appointed for his execution. He appeals from said judgment to this court, but there has been no appearance in his behalf on his appeal. However, the importance of the case in its results has demanded and we have given careful examination and consideration to the record and all questions involved therein to ascertain whether reversible error was committed on the trial.

The first alleged error is in overruling the defendant’s motion to set aside the information.'

It appears from the record that when the case was called for trial leave wad granted to the defendant to withdraw his plea of not guilty and interpose a motion to set aside the information on the ground that the committing magistrate was disqualified from holding the preliminary examination, for the reason that he had theretofore presided and. held the inquest on the body of Elzadah Betterton, the deceased; that therefore he was biased and prejudiced against the defendant and was unable to give him a fair and impartial examination; that the defendant did not know that said magistrate had held said inquest, and therefore did not make application for a change of venue.

It is sufficient to say that the motion to set aside the information was without merit and was properly overruled.

The next assignment is that the court erred in admitting irrelevant, incompetent, and immaterial testimony, and in refusing to admit competent and material testimony offered by the defendant.

Upon a careful examination of the transcript of the testimony we have been unable to find a single ruling of the court on the admission of evidence or in the rejection of evidence upon which error could be predicated, and it appears that during the course of the trial no exception was taken to any such ruling of the court.

Another assignment of error is that the court erred in giving to the jury instructions numbered 4 and 5.

The instructions of the court have been examined carefully, and we find that the jury was fully instructed as to the presumption of innocence and their duty to acquit if they entertained a reasonable doubt of the defendant’s guilt, and we have failed to find any error in the instructions which the court gave to the jury prejudicial to the substantial rights of the defendant. It further appears 'that no objections or exceptions were taken to the instructions as given by the court, and that no instructions were requested to be given by the defendant.

The remaining assignments of error .are, in substance, that the verdict of the jury was contrary to the law and to the evidence.

Upon a careful review and considering all the evidence in the case, the conclusion which we reach is that the guilt of the defendant is established beyond a doubt, and we feel constrained to say that there is not a single palliating feature in the case which even tends to reduce the crime of the defendant below murder. It appears that the case was one of premeditated deliberate murder, as the jury very properly found, and we find nothing in the record tending to show that death is an undue punishment. Upon consideration of the entire record the court is satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law occurring in the trial, and we cannot avoid the conclusion that the defendant had a fair and impartial trial, with every right accorded to him that the law justifies or requires. For the reasons stated, the judgment appealed from should be, and it accordingly is, affirmed.

The day appointed for the execution of the death sentence having passed owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Craig county be carried into execution on Friday, the 9th day of July, A. D. 1920. The warden of the penitentiary at Mc-Alester is ordered and directed to cause the sentence to he executed according to law. ,

ARMSTRONG and MATSON, JJ., concur.