135 P. 445 | Okla. Crim. App. | 1913
The plaintiff in error was convicted of manslaughter on an indictment charging murder, and appeals to this court for a new trial.
There is no dispute whatever with respect to the fact that on the 10th day of September, 1907, at the place charged in the indictment, the defendant shot and killed Jim Goodson with a double-barrelled shotgun, having deliberately fired two shots at him, both of which took effect, killing him almost instantly. The defense was self-defense. Aside from the testimony of the defendant and his codefendant, the state's evidence is undisputed that the defendant followed the deceased for the purpose of assassinating him.
Two assignments of error are relied on for a reversal of the judgment: First, the court erred in rejecting evidence; second, the court erred in giving instructions.
It is contended that the court erred in sustaining an objection to the following question propounded on cross-examination of the witness. R.L. Rollins:
"Q. I will ask you to state if he did not also make a statement there that Mr. Goodson's gun hung on him? By Mr. Wimbish: Objected to because it is incompetent, irrelevant, and immaterial. By the Court: Objection sustained. By Mr. Bolen: The defendant excepts and expects the answer to be in the affirmative."
It is apparent that this was an attempt to prove a self-serving declaration. It formed no part of the res qestae, and was not admissible as original evidence on behalf of the *167 defendant. If the state had called out a part of the conversation in which this formed a part, it may be the defendant would have been entitled to show all of the conversation, but there was no testimony from this witness in chief as to any statement having been made by the defendant at the time. We think the court very properly sustained the objection.
On the trial the defendant offered as a witness Emma Birdwell, who stated that she was the wife of the defendant, Tom Birdwell. Thereupon the state objected to the witness testifying, because as the wife of the defendant she was incompetent. The objection was sustained, and exception allowed. Of this ruling the defendant complains. The offense charged was committed before statehood, in the Indian Territory. Section 1974, subd. 4. Ind. T. Ann. St. 1899, provides that the husband and wife shall be incompetent to testify for or against each other, or concerning any communication made by one to the other during the marriage. In the amendment to Enabling Act, sec. 3 (section 438, Williams' Ann. Const.), it is provided that:
"All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory."
Under this provision of the Enabling Act the law in force in the Indian Territory at the time the indictment was returned and the rules of evidence as they existed at that time controlled in this case.
Various criticisms are made upon the charge of the court in the defendant's brief. The record shows that only a general exception was taken to the charge, and that after the instructions were read to the jury. It is as follows: "Comes now the defendant and excepts to each and every instruction given by the court to the jury from No. 1 to 22, inclusive." While it is undoubtedly true that this court, in the interests of justice, even where no exceptions are taken, has the right to reverse for erroneous instructions, yet this court will not encourage the practice of counsel not calling the attention of the trial court *168 to the instructions excepted to at a time when they could be corrected. We have often held that the charge of the court must be considered as a whole; and, from a careful examination, we find that the charge of the court in this case, considered as a whole, contains a full and fair presentation of the defense, and the criticisms made thereon are not well founded. The only error apparent in the charge was in the defendant's favor. The court on its own motion instructed the jury "that the defendant has been acquitted of the charge of murder, and now stands charged of the crime of manslaughter, which is embraced and included in the charge of murder, and to which charge the defendant has entered his plea of not guilty."
It is well settled by decisions of the Supreme Court of the United States that a defendant who procures a judgment against him upon an indictment to be set aside, if a new trial is granted, may be tried anew for the same offense. The verdict of manslaughter rendered by the jury on the defendant's first trial was not equivalent to an acquittal of the defendant of murder, and was not a bar to a second trial for murder as charged in the indictment.
We find nothing in the record of which the defendant has any just complaint, and there seems to be no reason to doubt that the verdict of the jury was entirely in harmony with the interests of justice.
The defendant committed a wanton, cruel, and deliberate homicide, and a verdict of murder, if that issue had been submitted, would not have been unwarranted by the evidence.
The judgment is affirmed, and it is directed that the mandate be transmitted forthwith.
ARMSTRONG, P.J., concurs. FURMAN, J., absent and not participating. *169