FURMAN, P. J.
(after stating the facts as above.) First. Counsel for appellant with great earnestness insist that the
verdict of the jury is contrary to the evidence. If the state was bound by the evidence offered by the appellant, and if nothing else could be considered, this contention would be correct, and the killing would not be more than a mere misadventure. But when we come to consider all of the evidence in the record, we think that the testimony' offered by appellant is not only unreasonable, but that it is absolutely incredible.
The first witness for appellant, John Rudell, claimed that the gun was in his hands when the fatal shot was fired, and he testified that when he reached for the gun he was standing at the side of the middle’of the wagon, between the first and hind wheels; that his right elbow was on the hind wheel; that as he turned the gun over, getting it off of the bottom of the bed, the gun was discharged, and he does not know how it came to be fired. He also .testified that the deceased was sitting on the front seat of the wagon bed, and was looking backward. The deceased was shot in the mouth. The shot went directly backward and broke his neck. If the gun was fired, as Rudell says, just as he was getting the gun off of the bottom of the wagon, the shot, after entering the mouth of the deceased, would not have gone back and broken the neck, but would have torn out the roof of his mouth and penetrated his brain, because the mouth of deceased must have been several feet above the muzzle of the gun when it was fired, if Ru-dell’s statement was true. There is no proof that any shot took this direction. ’ The fact that the shot went back through his mouth and broke his neck shows that the gun must have been on a level with the mouth of the deceased when it was fired, which would have been above the bottom of the wagon bed. This is not a matter of expert testimony, but something that is within the experience and knowledge of all men. Ru-dell’s statement as to how the gun came to be discharged is contradicted by the statement made by appellant to Dr. Burfield in Byars; for appellant said that Rudell picked up the gun and pointed it at deceased before it was fired. If the deceased was sitting in the spring seat on the wagon bed looking back
ward when he received the fatal shot, every one knows that a spring seat of a wagon is over and a little behind the axle of the front wheels; and if the witness was standing between the first and hind wheels the muzzle of the gun when it was discharged must have been within a few inches of the face of the deceased. Under these conditions, the face of the deceased would have been powder burned, yet there were no powder-burned spots found on his face or moustache. If the gun was in the middle of the wagon, and was pointing toward the rear of the wagon, as was testified to by appellant’s witnesses, and was accidentally discharged as they contend, how was it possible for the shot, after leaving the muzzle of the gun, to turn back and strike deceased in the mouth; deceased being in the front part of the wagon? This destroys the testimony of appellant, and stamps it as being a fabrication. The testimony of appellant is that only one shot was fired, yet the state’s witnesses testified that they heard two shots. The gun was a Winchester pump shotgun. If the killing was the result of an accidental shot, how does it happen that an empty cartridge was found some fifteen feet from where the wagon stood, and that a loaded cartridge was found in the barrel of the gun? These facts entirely destroy the credibility of the testimony for appellant. They conclusively show that the shooting did not occur as testified to by his witnesses. Because witnesses may have testified to a statement does not necessarily establish the truthfulness of such testimony. The Roman soldiers swore that while they were asleep the disciples came and stole the body of Christ. This evidence impeached itself, because it would be impossible .for them to know what became of the body of ■Christ, if they were asleep.
It is equally impossible to reconcile the evidence of appellant with the indisputable facts in this case, and we think the jury was entirely justifiable in rejecting the testimony for appellant. The testimony of the state is strongly suggestive of the guilt of appellant, and we think would have warranted a conviction for murder. It is utterly immaterial as to who fired
the fatal shot, when the parties are all acting together. The conduct of appellant and those acting with him at the time of the killing indicates conscious guilt. It is hard to believe that innocent men would have conducted themselves in this manner. Appellant cannot say that they acted in ignorance of the fact that deceased had been shot, because, he was the first person who announced this fact at the town of Byars, and because he stated that the gun was pointed at deceased when it was fired. The language testified to as having been used by appellant when he was riding his horse away from the scene of the homicide cannot be explained consistently with his innocence. The truthfulness of this testimony was for the jury to determine. The fact that the testimony introduced by appellant is manifestly untrue is also a strong circumstance against him. If a mistake was made by the jury, it was in finding appellant guilty of manslaughter, instead of murder. The jury having found that the testimony for the state was true and the testimony for appellant was false, we cannot say that their verdict is contrary to the evidence. The universal rule of this court is that, whenever there is any evidence in the record from which the jury could legitimately draw the conclusion of the appellant’s guilt, the verdict will not be disturbed upon the ground that it is contrary to the evidence.
Second. The next proposition submitted by counsel for appellant is in the following language:
“The indictment in this case is drawn under the first subdivision of our statute, and charges that Will Byars murdered Snapp without authority of law, and with a premeditated design to effect the same. Had the murder been committed under any of the other subdivisions, the question of the premeditated 'design would have cut no figure in the case, and the state would not have been required to prove the same, either by direct or inferential evidence. The statute has drawn these distinctions, and we believe the courts will require the pleadings in cases of this character to conform to the reasonable rule that the defendant shall be informed of the charge that is lodged against him.”
Among other things, the court instructed the jury as follows :
Free access — add to your briefcase to read the full text and ask questions with AI
FURMAN, P. J.
(after stating the facts as above.) First. Counsel for appellant with great earnestness insist that the
verdict of the jury is contrary to the evidence. If the state was bound by the evidence offered by the appellant, and if nothing else could be considered, this contention would be correct, and the killing would not be more than a mere misadventure. But when we come to consider all of the evidence in the record, we think that the testimony' offered by appellant is not only unreasonable, but that it is absolutely incredible.
The first witness for appellant, John Rudell, claimed that the gun was in his hands when the fatal shot was fired, and he testified that when he reached for the gun he was standing at the side of the middle’of the wagon, between the first and hind wheels; that his right elbow was on the hind wheel; that as he turned the gun over, getting it off of the bottom of the bed, the gun was discharged, and he does not know how it came to be fired. He also .testified that the deceased was sitting on the front seat of the wagon bed, and was looking backward. The deceased was shot in the mouth. The shot went directly backward and broke his neck. If the gun was fired, as Rudell says, just as he was getting the gun off of the bottom of the wagon, the shot, after entering the mouth of the deceased, would not have gone back and broken the neck, but would have torn out the roof of his mouth and penetrated his brain, because the mouth of deceased must have been several feet above the muzzle of the gun when it was fired, if Ru-dell’s statement was true. There is no proof that any shot took this direction. ’ The fact that the shot went back through his mouth and broke his neck shows that the gun must have been on a level with the mouth of the deceased when it was fired, which would have been above the bottom of the wagon bed. This is not a matter of expert testimony, but something that is within the experience and knowledge of all men. Ru-dell’s statement as to how the gun came to be discharged is contradicted by the statement made by appellant to Dr. Burfield in Byars; for appellant said that Rudell picked up the gun and pointed it at deceased before it was fired. If the deceased was sitting in the spring seat on the wagon bed looking back
ward when he received the fatal shot, every one knows that a spring seat of a wagon is over and a little behind the axle of the front wheels; and if the witness was standing between the first and hind wheels the muzzle of the gun when it was discharged must have been within a few inches of the face of the deceased. Under these conditions, the face of the deceased would have been powder burned, yet there were no powder-burned spots found on his face or moustache. If the gun was in the middle of the wagon, and was pointing toward the rear of the wagon, as was testified to by appellant’s witnesses, and was accidentally discharged as they contend, how was it possible for the shot, after leaving the muzzle of the gun, to turn back and strike deceased in the mouth; deceased being in the front part of the wagon? This destroys the testimony of appellant, and stamps it as being a fabrication. The testimony of appellant is that only one shot was fired, yet the state’s witnesses testified that they heard two shots. The gun was a Winchester pump shotgun. If the killing was the result of an accidental shot, how does it happen that an empty cartridge was found some fifteen feet from where the wagon stood, and that a loaded cartridge was found in the barrel of the gun? These facts entirely destroy the credibility of the testimony for appellant. They conclusively show that the shooting did not occur as testified to by his witnesses. Because witnesses may have testified to a statement does not necessarily establish the truthfulness of such testimony. The Roman soldiers swore that while they were asleep the disciples came and stole the body of Christ. This evidence impeached itself, because it would be impossible .for them to know what became of the body of ■Christ, if they were asleep.
It is equally impossible to reconcile the evidence of appellant with the indisputable facts in this case, and we think the jury was entirely justifiable in rejecting the testimony for appellant. The testimony of the state is strongly suggestive of the guilt of appellant, and we think would have warranted a conviction for murder. It is utterly immaterial as to who fired
the fatal shot, when the parties are all acting together. The conduct of appellant and those acting with him at the time of the killing indicates conscious guilt. It is hard to believe that innocent men would have conducted themselves in this manner. Appellant cannot say that they acted in ignorance of the fact that deceased had been shot, because, he was the first person who announced this fact at the town of Byars, and because he stated that the gun was pointed at deceased when it was fired. The language testified to as having been used by appellant when he was riding his horse away from the scene of the homicide cannot be explained consistently with his innocence. The truthfulness of this testimony was for the jury to determine. The fact that the testimony introduced by appellant is manifestly untrue is also a strong circumstance against him. If a mistake was made by the jury, it was in finding appellant guilty of manslaughter, instead of murder. The jury having found that the testimony for the state was true and the testimony for appellant was false, we cannot say that their verdict is contrary to the evidence. The universal rule of this court is that, whenever there is any evidence in the record from which the jury could legitimately draw the conclusion of the appellant’s guilt, the verdict will not be disturbed upon the ground that it is contrary to the evidence.
Second. The next proposition submitted by counsel for appellant is in the following language:
“The indictment in this case is drawn under the first subdivision of our statute, and charges that Will Byars murdered Snapp without authority of law, and with a premeditated design to effect the same. Had the murder been committed under any of the other subdivisions, the question of the premeditated 'design would have cut no figure in the case, and the state would not have been required to prove the same, either by direct or inferential evidence. The statute has drawn these distinctions, and we believe the courts will require the pleadings in cases of this character to conform to the reasonable rule that the defendant shall be informed of the charge that is lodged against him.”
Among other things, the court instructed the jury as follows :
“You are instructed that, if from the evidence you find, beyond a reasonable doubt, that the defendants named in the indictment entered into a common design to seize and take from the deceased any intoxicating liquors or other property, and in the carrying out of said common design one of such persons fired the shot that killed the deceased, Hampton Snapp, and if you further find from the evidence, beyond a reasonable doubt, that it was a part of the common design between all of said persons to take such property or intoxicating liquors by force from the presence of Hampton Snapp, against his will and by means of placing said Snapp in fear of unlawful and immediate injury to his person or property, then, if you should further find from the evidence, beyond a reasonable doubt, that all such persons were acting together, and trying to take such intoxicating liquors or other property with such intention, and under such circumstances, and one of such persons fired a gun at the said Hampton Snapp, then you should find the defendant, Will Byars, guilty of murder; and, unless you so find that such common design was formed, and the defendant was a party in such design and aided or abetted same, you should 'find the defendant not guilty, as instructed in this instruction. * * *
“Gentlemen of the jury, you are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant, Will Byars, and the other persons named in the indictment, entered into an agreement to take and carry away intoxicating liquor or other property from the deceased, but not by force, as set forth in the preceding instruction, but with the felonious intent of appropriating it to their own use, and of depriving the deceased thereof against his will, then, if you should find from the evidence, beyond a reasonable doubt, that in the taking of such property with such intent one of such persons accidentally discharged said gun, which inflicted a mortal wound upon the said Snapp, from which he died, as alleged in the indictment, then, if you find that the defendant was present and aiding and abetting in the execution of such design, you should find him guilty of manslaughter in the first degree; and, unless you so find that such an agreement was made, and that the defendant, Will Byars, was a party thereto, and was aiding or abetting the same, your verdict should be not guilty, as hereinabove instructed.”
Our statutes upon the subject of murder and manslaughter are as follows:
“Sec. 2268, Comp. Laws 1909. Homicide is murder in the following cases: 1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being. 2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. 3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”
“Sec. 2276. Homicide is manslaughter in the first degree in the following cases: 1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor. 2. When-perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide. 3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such an attempt shall have failed.”
The fact that appellant was not convicted of murder eliminates from the case and renders it unnecessary to discuss the objections made to the instructions given upon the subject of murder, in the absence of a showing that appellant was injured thereby.
Morgan v. Territory,
16 Okla. 530, 85 Pac. 718. Even if appellant had been convicted of murder, the instruction given-would not have been erroneous. See
Holmes v. State,
6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. We think that the instructions upon the subject of manslaughter are more favorable to appellant than the law provides. Under the circumstances mentioned in the instruction, such taking might have been a felony, and in that event the killing would have been murder. But it is not necessary to discuss this question, because, as it inured to the benefit of appellant, he cannot be heard to complain thereat. But it is insisted by counsel for appellant that a conviction cannot be had for manslaughter, where the indictment or information charges that the homicide was unlawfully committed with a premeditated design to effect the death of the deceased.
This question has long since been settled adversely to the contention of counsel for appellant. It was first passed upon in the case of
Tom Jones v. Territory,
4 Okla. 45, 43 Pac. 1072. Judge Burford, speaking for the court, there said:
“The appellant, Tom Jones, was prosecuted in the district court of Payne county for the crime of murder, tried by a jury and convicted of manslaughter in the first degree, and sentenced to fifty years in the territorial penitentiary at Lansing, Kansas. He brings the case to this court upon certified copies of the indictment and journal entries embracing the trial, verdict of the jury, judgment, and sentence of the court. No other parts of the record or proceedings of the trial court are before this court.
“The assignment of error contains thirteen alleged errors. The first of which is as follows: ‘The verdict of the jury find^ the defendant guilty of two offenses, both of murder and manslaughter in the first degree.’ The verdict as set out in the journal entry is as follows: ‘Territory of Oklahoma v. Tom Jones. Verdict of Jury. We, the jury, in the above-entitled cause, do upon our oaths find the defendant guilty in manner and form as charged in the indictment of manslaughter in the first degree. N. S. Davis, Foreman.’ There is no merit in the contention that this verdict finds the defendant guilty of two crimes. The indictment charged murder in the usual form, and embraces within its terms the charge of manslaughter in the first degree. It was proper, on a trial of the charge of murder, for the jury to find the defendant guilty of any charge necessarily embraced within that contained in the indictment, and the jury in their verdict make certain that which they intended to do by finding the defendant guilty of manslaughter in the first degree in manner and form as charged in the indictment.”
Judge Burford thought so little of the position assumed by counsel that he did not refer to the allegations of the indictment. We have examined the original record of that case now on file in the office of the clerk, of this court, and find that the indictment did charge that the homicide was committed with a premeditated design to effect the death of the deceased, just as is charged in the information in this case.
This question has also been passed upon by this court in the case of
Rhea v. Territory,
3 Okla. Cr. 230, 105 Pac. 314. This court there said:
“From this it is seen that our ‘statute divides felonious homicides into two degrees, namely, murder and manslaughter. While in one sense they are separate , and - distinct crimes, yet in a broader'sense they both involve but one offense, and that is a felonious homicide; in other words, they are simply different degrees of one and the same crime. There is therefore no necessity of including in an indictment for murder a separate count charging manslaughter; for the rule of criminal pleading is universal that an indictment for the highest degree of a crime includes all of the lower degrees of the same crime. If a.defendant is acquitted on an indictment for murder, who will contend that he can afterwards be indicted and convicted for manslaughter for the same homicide? This alone demonstrates that manslaughter is included in an indictment for murder. Every proper indictment for murder informs the defendant that he is charged with the felonious killing of a human being. This certainly gives him full notice of the nature and cause of •the accusation against him. He cannot be heard to complain if he is found guilty of a lower degree of the very crime with which he is accused than that stated in the indictment.
“We could fill volumes with quotations from authorities sustaining these views. Mr. Wharton, in his great work on Homicide (section 653, on page 1043), says:, ‘On an indictment for murder, the jury may find a verdict of manslaughter or of murder in the second degree; so, also, on an indictment for murder in the second degree, there can be a conviction for manslaughter. Different defendants may be convicted of different degrees, and a verdict in a prosecution for murder of guilty as charged of manslaughter is sufficiently certain to warrant a judgment, and does not find the accused guilty of two offenses. This rule applies to a verdict in a prosecution for murder of involuntary manslaughter, consisting of a killing in the commission of an unlawful act, not amounting to a felony, or of a lawful act done in an unlawful manner, or without due caution or circumspection. And a person charged with murder may be convicted of negligent homicide. And a conviction of involuntary manslaughter, consisting of the killing of á white person, though it does not apply where the involuntary manslaughter has special statutory ingredients which may be alleged, and which are not included in a general charge contained in the indictment, 'or where such manslaughter is regarded as a misdemeanor only. And a verdict for manslaughter may be returned in a prosecution for murder under a statute declaring an attempt to produce an abortion, which causes death, to be
murder, as well as in the case of an indictment for any other kind of murder.”
The other propositions submitted by counsel for appellant are either not sustained by the record, or do not
go
to the substantial merits of the case. It is therefore not necessary to discuss them.
We have read the entire record containing over five hundred pages, and have carefully considered all of the propositions presented in the brief of counsel for appellant, and we fail to find wherein the defendant has been deprived of any substantial right to his injury. From the record it appears that appellant was fairly tried. We cannot say that the verdict is' contrary to the evidence. The jury were the exclusive judges of the credibility of the witnessss, and we see nothing in the record to cause us to believe the jury were influenced by improper motives in arriving at their verdict. We therefore regard it as our duty to affirm the judgment of the trial court; and it is so ordered.
ARMSTRONG and DOYLE, JJ.,'concur.