No. A-4264. | Okla. Crim. App. | Sep 29, 1924
There is but one question involved in this appeal; the insufficiency of the evidence to sustain the conviction. For that reason the court has deemed it expedient to set out at considerable length in the statement of the case a detail of the testimony of witnesses in order that a comprehensive understanding may be had of the issues involved, thereby avoiding an extended argument on the sufficiency of the evidence.
It is contended that this conviction is based on the testimony of one Ammon Rowden, an alleged accomplice of these defendants, and that there is no sufficient evidence to corroborate the said accomplice.
The statute of this state requires, and this court has repeatedly held, that one may not be convicted on the uncorroborated testimony of an accomplice, and further that, if there be corroborating evidence, such evidence must go further than to show merely the commission of the offense, and must be such that tends to connect the defendant with the commission thereof. Section 2701, Comp. Stats. 1921; Kirk v. State,
Further, this court has held that when the facts are not disputed it becomes a question of law for the court to say whether a witness is an accomplice. Cudjoe v. State,
On the other hand, where there is a dispute as to whether a witness did certain things which would make him an accomplice, the matter is for the jury. Cudjoe v. State, supra; McKinney v. State, supra. *70
On the questions of accomplices and accomplice testimony the court gave the following instructions:
"No. 3. You are instructed that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, are principals and are punishable under the law.
"You are instructed that by the term "concerned in the commission of a crime" means that one must either commit the crime himself, procure it to be done, or aid and abet in its commission. A mere mental assent or acquiescence in the commission of a crime by one who did not procure or advise its commission, who takes no part therein, gives no counsel or word of encouragement to the perpetrator of the crime, does not in law constitute such a person a participant in the crime.
"You are instructed that `aid and abet,' and `aiding and abetting,' as used in these instructions, means to assist and supplement the efforts of another in the commission of a crime with knowledge of the wrongful purpose of such other person, or giving counsel and encouragement to such other person in the commission of such crime."
"No. 9. You are instructed that the prosecution in this case uses the testimony of a witness who may be culpably implicated in the commission of the crime of which the defendants are accused; that is, he may be one who knowingly and voluntarily co-operated or aided or assisted in the commission of the crime of which the defendants are accused. And whether or not he is such a person is a question of fact for you to determine from the evidence before you. If you believe from the evidence in the case that such witness is implicated in the crime charged in the information as above defined, then in law such witness is an accomplice, and you are instructed that a conviction cannot be had upon the testimony of an accomplice unless such witness be corroborated by such other evidence as tends to connect the defendants with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission *71 of the offense or the circumstances thereof, but such other evidence to be sufficient to corroborate the evidence of an accomplice must tend to connect the defendants with the commission of the crime of which the defendants are accused."
There is a sufficient dispute in the evidence to have authorized the trial court to submit to the determination of the jury the question of whether the witness Ammon Rowden was culpably implicated with Bruce Collins and George Rowden in the commission of the offense. If the jury found that he was not an accomplice (which they could have done under the evidence), then the testimony of Ammon Rowden alone, if believed, is sufficient to sustain this conviction. Dickson v. State,
However, if it be conceded that the jury arrived at the conclusion that Ammon Rowden was an accomplice, there is sufficient corroboration of his testimony in that given by Canfield, and the credibility of these witnesses was a matter solely for the jury.
Evidence corroborating an accomplice need not cover every material point testified to by the accomplice or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that fact infer that he speaks the truth as to all. Moody v. State,
Here the defendants each interposed as their defenses an alibi, and on this phase of the law the court gave the following instructions:
"You are further instructed that the defendants in this case have interposed as one of their defenses what is known in law as an alibi; that is, that the defendants were at another *72 and different place at the time of the commission of the crime alleged and charged in the information herein, and therefore could not have committed the crime. The law is that such a defense is proper and legitimate, and the jury should consider all the evidence bearing upon this point, whether introduced by the state or the defendants, and if, after a careful consideration of all the evidence in the case, you are convinced beyond a reasonable doubt that the defendants were not at another and a different place at the time of the commission of the crime charged in the information, then the defense known in law as an alibi has failed, and you should then consider the case the same as if the defendants had never interposed this defense. But if you entertain a reasonable doubt, after a careful consideration of all the evidence in the case, as to whether the defendants were in such other and different place at the time the crime was committed, then you should resolve that doubt in favor of the defendants and acquit them."
The court also covered the law with respect to conspiracies. The instructions as a whole are intelligent and comprehensive, and cover in an able manner every possible phase of the law of the case disclosed by the evidence. We find no error in them (considered either separately or collectively) prejudicial to the substantial rights of these defendants.
While there is some conflict in the evidence, we think the circumstances surrounding this killing as detailed by the witness Canfield strongly corroborate the testimony of Ammon Rowden and impress an impartial reader of this evidence with the conviction of the truthfulness of Rowden's testimony.
This crime is one of a most horrifying and brutal nature. That the jury did not fix the punishment at death instead of imprisonment for life was due, no doubt, largely to the fact that the deceased himself was and had been a law violator. *73
These defendants were ably defended in the court below by several of the best exponents of criminal law in this state. They were afforded a fair and impartial trial. If any errors were committed, they were of such minor importance as not to deserve serious consideration as having in any degree prejudiced these defendants before the jury. The judgment as to each defendant is affirmed.
BESSEY and DOYLE, JJ., concur.