122 P. 941 | Okla. Crim. App. | 1912
On June 25, 1909, an information was filed in the district court of Jefferson county, charging the defendant with the crime of assault with intent to kill. On February 17, 1910, an amended information was filed. The charging part reads as follows:
"The said Walter Deen, then and there being, did then and there, unlawfully, willfully, feloniously and of his malice aforethought, and with a premeditated design then and there existing in the mind of him, the said Walter Deen, then and there to effect the death of one W.M. Isaac, and without authority of law, with a certain gun which gun then and there being a deadly weapon, did then and there make an assault upon the person and body of the said W.M. Isaac, and the said Walter Deen then and there in the manner and form as aforesaid and with the intent as aforesaid did shoot off and discharge at and towards the said W.M. Isaac the aforesaid gun with the intent of him, the said Walter Deen, then and there feloniously and of his malice aforethought, and with a premeditated design then existing in the mind of him, the said Walter Deen, then and there to effect the death of him, the said W.M. Isaac, and without authority of law to kill and murder him, the said W.M. Isaac, contrary to," etc.
Upon arraignment the defendant filed a general demurrer to the information, which was overruled and exceptions allowed. Upon his trial he was found guilty. March 3, 1910, judgment and sentence was entered in accordance with the verdict, fixing the defendant's punishment at two years' imprisonment in the state penitentiary. From the judgment he appeals.
The first objection presented by counsel for the defendant is that the information does not state facts sufficient to constitute a public offense. As it was said by the Supreme Court of Oklahoma Territory in the case of McHugh v. Territory,
"The only answer that is necessary to make to this contention is to refer to the decision of this court in the case of Heatleyv. Territory, reported in
The proof on the part of the state tended to show that the defendant sent word by his little boy to Isaac to come over to his house and get some cattle that he had herd-lawed; that the prosecuting witness was caring for cattle that belonged to J.W. White; that he rode over to the defendant's house; the defendant was standing in his horse lot. Isaac said, "Where is them cattle?" And the defendant answered, "Isaac, I thought I sent for you to come up here and fix that fence." Isaac said, "I have fixed it." Defendant said, "You are a God damned lying son of a bitch. Fall off that horse. I am going to kill you." Isaac said, "I guess not." Defendant said, "Fall off of that horse. I am going to kill you." And Isaac said, "I do not have to fall off the horse"; and the defendant said, "You God damned son of a bitch, you beat me up one time, and I am going to kill you." After making this threat several times, the defendant with a Winchester shot at Isaac, who had jumped off the horse on the other side from the defendant. The second shot struck the horse, going through his body, but missing Isaac. There was a seven-wire fence between them. As Isaac ran away, the defendant fired another shot at him. Isaac at the time was in J.W. White's pasture. The second shot killed the horse. Isaac was unarmed. Henry Salmon testified that while he was a half a mile away he witnessed the shooting, and saw the defendant follow Isaac and shoot at him. The motion to direct a verdict was very properly overruled. The defendant testified on his own behalf, and his testimony alone is sufficient to sustain the verdict and judgment.
The instructions of the court were fair, and no good purpose would be served by reviewing the objections to them, further *154 than to state that we find no error in any of the matters complained of in the assignments pertaining them.
From our examination of the record in this case, we are clearly of opinion that the defendant had an impartial trial. The judgment of the district court of Jefferson county is therefore affirmed.
FURMAN, P.J., and ARMSTRONG, J., concur.