190 P. 276 | Okla. Crim. App. | 1920
The first assignment of error relates to the action of the trial court in permitting the county attorney, in his opening statement of the case to the jury, to state that the evidence would show that one Jess Kirk told the officers, at the time he (Kirk) was arrested, that the wheat in the automobile belonged to Mr. Clifton, and that the parties who jumped *507 from the car were Frank Mayfield and Leonard Mayfield. The record relative to this assignment is as follows:
"That they arrested Mr. Kirk, who, I believe the evidence will develop, was the driver of the car, and they found this car contained about 16 1/2 bushels of wheat; that Mr. Kirk told the officers who made the arrest that the wheat belonged to Mr. Clifton and that it was taken that night, and as a part of the statement he voluntarily made the statement that the parties who left the car was Frank Mayfield, Leonard Mayfield — (interrupted by counsel for the defendants).
"By Counsel for Defendants: Wait a minute — we object to that statement because if the evidence is offered it will be incompetent, irrelevant, and immaterial and cannot be used against these defendants.
"By the Court: Overruled.
"By Counsel for Defendants: Exception.
"By Counsel for the State (continuing): That they took this party in charge and I think the evidence will show that they took the wheat to Vera and unloaded it, and immediately went to Mr. Clifton's residence and thereupon told him of the incident and he went down, and discovered that the wheat was missing."
It will be noted that, while objection was made to the statement of the county attorney relative to what Kirk had said to the arresting officers concerning the Mayfield boys having jumped from the automobile, there was no request made to the trial judge to withdraw said remarks from the consideration of the jury. While it is apparent that the court erred in not sustaining the objection of defendants' counsel to this statement of the county attorney, in view of the fact that it was not made to appear that either of the Mayfield boys was within hearing distance at the time *508 Kirk is alleged to have made this remark, it is also clear from the entire record in this case that the statement was not made by the county attorney maliciously and purposely with the intent to prejudice these defendants, but was made by him under a misconception of the admissibility of this evidence. Later, in the progress of the trial, the county attorney offered to prove by these officers that Kirk had made the statements attributed to him in the opening statement, and the trial court at that time very promptly and correctly sustained the objection of defendants' counsel to the admission of this evidence, because the testimony of the officers then developed that the defendants Mayfield were not within the hearing of Kirk at the time the remark was made. After the trial court had ruled upon the admissibility of this evidence, no further attempt was made by the county attorney to draw from any witness any statement of Kirk's relative to the Mayfield boys.
While this court is of the opinion that the trial court erred in not sustaining the objection of defendants' counsel to the statement of the county attorney, we do not think the error complained of sufficiently prejudicial to authorize a reversal of this judgment under the circumstances of this case. It is not the rule that error presumes injury, and the foregoing assignment of error rests upon the same basis as would the improper admission of evidence. An application must be made in this instance of the provisions of section 6005, Revised Laws 1910, which prohibits this court from reversing any judgment of conviction in such an instance, "unless * * * after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." *509
The trial court also, over objection and exception by defendants' counsel, gave an instruction defining the term "reasonable doubt." This court has repeatedly urged trial courts not to attempt to define the term "reasonable doubt," as an instruction that it is incumbent upon the prosecution to prove the guilt of the defendant beyond a reasonable doubt is held to be sufficient without further explanation. Oftentimes an attempt to define such term results in confusion which tends to create doubts instead of removing them. Hence the admonition against giving such instruction. Gransden v. State,
The instruction given in this case was as follows:
"You are instructed that, by the term `reasonable doubt' is meant a real, substantial doubt of the guilt of the defendant, existing or arising in your minds after a fair consideration of all the evidence in the case. It is more than a mere surmise, conjecture, or fanciful doubt. It is such a doubt as would cause a reasonably prudent man to pause or hesitate before acting on matters of grave importance to himself. If, after considering all the evidence in the case, your judgment and understanding are convinced and satisfied of the guilt of the defendants, or either of them, and you have a fixed abiding conviction, amounting to a moral certainty, that the defendants, or either of them, are guilty, then you have no reasonable doubt, and must convict such defendant; otherwise, if your minds and understandings are not so convinced and satisfied, then it will be your duty to acquit the defendants."
It is to be noted that the trial court, in the foregoing instruction, told the members of the jury that their judgment and understanding must be convinced and satisfied from a consideration of all the evidence of the guilt of the defendants, or either of them, to the extent that they have *510 a fixed abiding conviction, amounting to a moral certainty, before they would be justified in convicting either of the defendants.
In the case of Hopt v. Utah,
"The word `abiding' here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence. It is difficult to conceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs. Out of the domain of the exact sciences and actual observation there is no absolute certainty. The guilt of the accused, in the majority of criminal cases, must necessarily be deduced from a variety of circumstances leading to proof of the fact."
In the case of Thompson v. State,
The practice of trial courts in attempting to define "reasonable doubt" is not approved, and the foregoing instruction is not incorporated in this opinion for the purpose of giving the same the unqualified approval of this court. On the other hand, the court is satisfied from an examination of the record that this alleged error did not affect the substantial rights of the defendants in this case, and is not such as should result in a reversal of this judgment. *511
It is also contended that the evidence in the case is not sufficient to support the conviction. The court is not impressed with the cogency of the argument advanced in support of this assignment. It is sufficient to say that there is ample competent evidence in the record which would authorize the jury to conclude that the crime was committed as charged in the information, and that the defendants were participants therein.
For the reasons stated, the judgment of conviction as to each defendant is affirmed.
DOYLE, P.J., and ARMSTRONG, J., concur.
