151 P. 1074 | Okla. Crim. App. | 1915
The plaintiff in error, Henry Bookman, was informed against for the murder of one Rich Hardin. The trial jury found him guilty of said charge and fixed his punishment at death. His motion for a new trial having been overruled and sentence of death having been pronounced upon him, the judgment has been brought to this court for review. The errors assigned are as follows:
First. That there was error in overruling the defendant's demurrer to the information.
Second. That there was error in overruling the application for a change of venue.
Third. That there was error in overruling the defendant's motion for a continuance.
Fourth. That there was error in overruling the defendant's demurrer to the evidence.
We are satisfied from an examination of the entire record that the assignments of error are destitute of merit.
The information charges that the defendant unlawfully, wilfully and feloniously and without authority of law and with a premeditated design to effect the death of Rich Hardin, did on the day named make an assault with a shot gun and then and *60 there unlawfully, feloniously and with a premeditated design to effect the death of said Rich Hardin, did fire, shoot and discharge said shot gun at, into and upon the said Rich Hardin, and with said weapon beat, bruise and wound the said Rich Hardin, then and there inflicting certain mortal wounds in and upon the said Rich Hardin, of which said mortal wounds the said Rich Hardin then and there instantly died.
Where an information charges that the injuries to the deceased were inflicted by the defendant with the premeditated design to effect death, and alleges the means with which the homicide was committed, it is sufficient. The demurrer was properly overruled.
The application for a change of venue does not conform to the requirements of the statute. It consists only of the affidavits of the defendant himself and his attorney. Our procedure criminal provides that:
"Any criminal cause pending in the District Court may, at any time before the trial has begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegation in such petition be supported by the affidavits of at least three credible persons, who reside in said county." Section 5811 Rev. Laws.
It will be noticed that the language of this statute is:
"Whenever it shall appear in the manner hereinafter provided:" The application for the change of venue in this case wholly fails to meet the statutory requirements. It was therefore properly overruled.
The application for a continuance was based on the absence of certain witnesses. Defendant set forth in his affidavit that his father I.L. Bookman, and his two brothers, John and *61 Terry Bookman, and his maternal uncle, Willis Williams and two white men, namely: E. Keezler and Bud Sanders if present would testify as character witnesses. That I.L. Bookman resides somewhere in the state of Oklahoma, not known to the defendant; that the other witnesses reside in Grimes county, Texas, and had promised him they would be present in September, 1915, if the case be continued to that time.
It is not claimed that any of the persons named could testify to any of the facts in the case, nor does he aver in his affidavit that he cannot prove the same facts by other witnesses. There was no error in overruling the motion for a continuance.
There can be no doubt as to the sufficiency of the evidence. That the defendant killed the deceased, he did not deny. His defense was that he killed the deceased in his necessary self-defense. It is enough to say that whatever there was of that defense, no one can reasonably claim that it was not properly submitted to the jury, and the jury by their verdict have found that that defense was untenable. We cannot see how, under the evidence in the case, the jury could have reached any other conclusion. We are satisfied from an examination of the record and upon a consideration of the proceedings upon the trial with respect to its fairness, that the defendant had a fair and impartial trial and has been convicted upon evidence that should satisfy the fairest mind of his guilt. There appears to be nothing in the case that would justify this court in interfering with the execution of the judgment and sentence. The judgment appealed from is therefore affirmed.
It is further ordered by this court that the warden of the penitentiary proceed to carry into execution the judgment of the District Court of McIntosh county in this case and the 10th day of December, A.D. 1915, is designated as the date for executing the sentence pronounced.
FURMAN and ARMSTRONG, JJ., concur. *62
