109 P. 295 | Okla. Crim. App. | 1910
This is an original application in this court by M.F. Fraley for a writ of habeas corpus, by which he seeks to be let to bail pending the final hearing and determination of a charge of murder filed against him in Osage County. The writ was allowed, and was made returnable on May 6, 1910, on which day the respondent, R.A. Correll, sheriff of Osage County, filed his return thereto. On said day written stipulations were also filed in this court by the attorneys for the petitioner and the state, stipulating and agreeing that on April 11, 1910, a complaint was filed against petitioner before E.L. McCain, a justice of the peace in and for Osage County, charging petitioner with the murder of one Dan Parker, upon which complaint a warrant of arrest was duly issued and served; that on April 22, 1910, petitioner's examining trial was held before said justice of the peace, upon the conclusion of which petitioner was committed without bail to answer a charge of murder in the district court; that the presence of the petitioner before this court is waived; and that this court shall hear and determine this application upon a transcript of the testimony taken at the preliminary hearing and upon certain affidavits here presented.
Petitioner contends that he should be let to bail, first, because the proof of his guilt of a capital offense is not evident or the presumption thereof great; and second, that if his guilt is *721 evident, the circumstances are such that the court should nevertheless exercise its discretion and admit the petitioner to bail.
Petitioner did not testify in the examining trial, nor were any witnesses introduced in his behalf. The testimony taken, which is uncontradicted in this court, shows that the deceased, Dan Parker, on April 11, 1910, was sitting upon or leaning against a railing in front of a drug store in the city of Pawhuska; that he had been in that position for some ten or fifteen minutes engaged in conversation with some gentleman beside him in regard to the sale of certain walnut timber; that the petitioner came around the corner, walked up in front of the deceased, said "Hello, Dan," and without further warning immediately fired two shots into the deceased in quick succession; that the deceased jumped up, threw up his hands, staggered, and fell off the side walk. The petitioner thereupon walked around an obstruction and fired four more shots into the deceased; that the petitioner then walked off, and after going some distance, turned and came back, and putting his pistol close to the head of the deceased, snapped it a time or two and said: "You damned son of a bitch, I told you I'd kill you; you killed my boy." The substance of the foregoing facts are testified to positively by seven eyewitnesses, and they stand in the record undisputed. It is further shown that after the deceased fell off the side walk his pistol fell out of his pocket; but the evidence nowhere tends to show that the deceased ever at any time had his pistol in his hand, or that he ever made any effort or demonstration to draw it. No previous conversation or difficulty of any kind or character between the petitioner and the deceased was shown or intimated.
The testimony does not show it, but it was stated by counsel for the petitioner in presenting this case, that the deceased, some nine or ten months previously, had shot and killed the son of the petitioner, and that the deceased had been tried for the offense and had been acquitted; and it is urged here that when the petitioner saw the deceased on this occasion, the recollection of that event must have engendered in him a passion which overcame *722
him; that the killing was committed in the heat of such passion, was without premeditation, and therefore not murder. To this we cannot assent, even if we could take the statement of counsel as a proper substitute for testimony tending to prove the facts stated. In Ragland v. State,
Ordinarily one day, or even half a day, is in law much more than a sufficient time for one's passion to cool; and a killing committed upon a provocation given some nine or ten months before is not, on account of that provocation or any passion engendered thereby, reduced to manslaughter. A deliberate killing committed in revenge for an injury inflicted in the past, however near or remote, is murder.
The uncontradicted testimony in this case convinces us that the proof of the petitioner's guilt of a capital offense is evident, and that he is not therefore entitled to bail as a matter of right. The rule was laid down by the Supreme Court of this state in the case of In re Thomas et al.,
The petitioner's next contention, that the circumstances are such that the court should exercise its discretion and admit him to bail, is based upon the written unverified statements of two physicians, which, however, by agreement of the attorneys on each side we here treat as affidavits, and which are as follows:
"I, Ira Mullins, (a regular practicing physician of Hominy, Oklahoma,) have been personally acquainted with M.F. Fraley for the last five years. And knowing his make up both mentally and physically as I do, I think that to keep Mr. Fraley in jail for any length of time will destroy his mind permanently or cause his death. (Signed) IRA MULLINS, M.D."
"I, Thomas M. Berry, (a regular practicing physician) do hereby declare that after being personally acquainted with M.F. Fraley for some time know him to be seriously endangered both mentally and physically by being confined in prison at this time.
"(Signed) THOS. M. BERRY."
Treating these statements as affidavits, they are wholly insufficient upon which to exercise a discretionary power to admit the petitioner to bail. Neither of them undertake to state any facts whatsoever, but state only opinions and mere general conclusions. The facts upon which these opinions and conclusions are based are not before us. They should be stated in order that we may draw our own conclusions. We have a proper deference for the opinion of reputable physicians *725 upon matters pertaining to their profession, but when we are called upon in a judicial capacity to act upon their opinions, we must insist upon having a statement of the facts upon which they are based. We cannot be expected to adopt their opinions without knowing the facts and circumstances which induce them.
Bail is denied, the writ is discharged, and petitioner is remanded to the custody of the sheriff of Osage County to await his trial in due course.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.