115 P. 819 | Okla. Crim. App. | 1911
Of the various assignments of error alleged in the petition, the first is the only one presented in the brief. We therefore assume that the other assignments are abandoned. "Assignments of error not presented in the brief or orally argued will be deemed abandoned." Rea v. State,
Counsel for plaintiff in error contend that: "The verdict is not supported by the evidence and is contrary to law."
Section 2045, Snyder's Sts., provides:
"All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."
While the statute makes an accessory before the fact a principal, yet the evidentiary facts by which such accessory is to *656 be incriminated may materially differ from those which are necessary and sufficient to convict the actual perpetrator of the crime. In this case, to incriminate the plaintiff in error, his codefendant Shorty Jones having entered a plea of guilty, proof of the commission of the crime charged having been made, it was only necessary for the evidence to show that plaintiff in error aided and abetted his codefendant Jones in the commission thereof.
Upon a careful reading of the evidence in this case, there can be no doubt but that the verdict of the jury is abundantly supported, if they believed the evidence given on the part of the state. That the jury did believe the evidence on the part of the state is clearly established by the fact that they found this defendant guilty. This court has guarded with jealous care the province of the jury in criminal cases and has often declared its aversion to interference with verdicts.
"Where there is any evidence in the record from which the jury could legitimately draw the conclusion of guilt a conviction will not be set aside upon the ground that the verdict is not supported by the evidence." (Lumpkin v. State,
"Under our system of jurisprudence, it is the exclusive province of the jury to determine whether the evidence tending to prove the guilt of the defendant is so lacking in convincing force as to leave an intelligent and discriminating mind to doubt as to the truth of the charge contained in the indictment, and in reviewing questions of fact upon appeal to the Criminal Court of Appeals, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion or prejudice." (Ingram v. State,
Section 528 of the Code of Criminal Procedure of the State of New York authorizes the Court of Appeals, when the judgment is of death, to order a new trial, "if it be satisfied that the *657 verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below." In the case of Peoplev. Fish, 8 N.Y. Cr. 129, the Court of Appeals said:
"This section has been under consideration in this court several times (People v. Driscoll,
In the case of People v. Cignarale (supra), Andrews, J., said:
"It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse or opposing inferences."
This court will only set aside a verdict because it is contrary to the evidence, in a case where the jury have plainly decided against the evidence, or where the verdict is without evidence.
Counsel in their brief say there is not one scintilla of evidence in the record tending to show that there was ever any suspicion of a conspiracy between plaintiff in error and his codefendants. Upon his own testimony plaintiff in error was guilty as an accessory under the statute. Section 2046, Snyder's Sts., provides: *658
"All persons who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories."
A conspiracy may be defined, generally, as a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.
"It is not necessary that the prosecution establish beyond peradventure that the acts, declarations, or conduct of the alleged conspirators were based upon the conspiracy or in reference to the crime charged. It is sufficient if they harmonize with and tend to confirm the charge of conspiracy or show motive for the crime." (Starr v. State,
"In cases of crimes perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator, or accomplice in the prosecution of the enterprise, is considered the act or declaration of all, and therefore imputable to all. All are deemed to assent to, or command, what is said or done by any one in furtherance of the common object. A foundation, however, must first be laid aliunde, by proof sufficient, in the opinion of the court, to establishprima facie the fact of conspiracy between the parties; the question of such conspiracy being ultimately for the jury." (Wharton's Cr. Ev. [9th Ed.] sec. 698.)
"The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all."(State v. Anderson,
A conspiracy may be and is usually shown inductively from circumstances. The incriminating circumstances which the evidence on the part of the state tends to prove was the defendant Wilson's criminal relations with his codefendant, the wife of Prickett. This would certainly establish motive, and the evident design of the defendant and Mrs. Prickett, for this reason, to get Mr. Prickett out of the way. Their common purpose is evidenced by her letters to this defendant. The letters disclose a common design as directly indicated by the expression in one letter: "I wish old Shorty would ring off; he makes me tired; if we want him we will invite him to assist us." Letters written *659 in prosecution of the common design, even if not delivered, are admissible. However, one of the letters evidently is in answer to a letter from the defendant. Also the fact that Mrs. Prickett harbored Shorty Jones against the objections of her husband after her husband tried to drive Jones away. It would also seem that Shorty Jones relied on this understanding, and after committing the crime immediately returned to the home of his victim and disclosed the particulars of the crime to the defendant Wilson, who thereupon proposed to assist him in concealing evidence of the crime. Wilson then in his night clothes went to Mrs. Prickett's room and talked with her. The fact that the three defendants held a consultation the following morning and Mrs. Prickett as a part of the conversation was heard to say that she would swear that Shorty Jones came home at nine o'clock the night before, and Shorty Jones said, "We want to keep quiet about what I have done."
There are numerous other circumstances disclosing the common purpose and design to get rid of Prickett and defendant's connection with the crime that cannot be explained consistent with his innocence or the innocence of Mrs. Prickett, and while the jury by their verdict acquitted Mrs. Prickett, that was their peculiar province. We cannot tell what considerations enter into a verdict returned by a jury where a woman is on trial. All natural impulses tend to favor her; here, perhaps, more for the purpose of protecting her children of tender years from disgrace. Nevertheless, if the jury made a mistake as to her, that is no reason why this defendant should not suffer the just penalty of the law.
We see no error in the record, and believing the accused had a fair and impartial trial, and that this verdict was in accordance with the evidence, the judgment of the court below is hereby affirmed.
FURMAN, PRESIDING JUDGE, and ARMSTRONG, JUDGE, concur. *660