Peck v. State

Court of Criminal Appeals of Oklahoma

Peck v. State

1911 OK CR 43, 113 P. 200, 5 Okla. Crim. 104, 1911 Okla. Crim. App. LEXIS 30

CourtCourt of Criminal Appeals of Oklahoma

DecidedFebruary 6, 1911

DocketNo. A-344.

StatusPublished

Cited by2 cases

This text of 1911 OK CR 43 (Peck v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peck v. State, 1911 OK CR 43, 113 P. 200, 5 Okla. Crim. 104, 1911 Okla. Crim. App. LEXIS 30 (Okla. Ct. App. 1911).

Pincite

Opinion

PER CURIAM.

B. S. Peck, plaintiff in error, was convicted in the county court of Canadian county for 'the crime of conducting a game of poker, was found guilty by a jury, and his punishment assessed at a fine of $125 and imprisonment in. the county jail for a period of 30 days. From this judgment and sentence he appealed by filing in this court on October 29, 1909, a petition in .error with case-made attached.

On September 1, 1910, the Attorney General filed a confession of error, for the reason that the court in his charge to the jury gave the following instruction:

“The defendant having voluntarily offered himself as a witness, the jury has no right to disregard his testimony for the reason, alone, that he stands charged with the commission of the offense set out in the complaint herein. He has a right to testify, and his testimony is to be weighed and considered by the jurors, in the same manner .as the testimony of other witnesses, with the exception that his interest in the case, if any, must be considered by the jury in determining what weight and credit they will give it” —which instruction was duly excepted to. This ground is presented in the petition in error, and 'argued at length in brief of plaintiff in error.

Under the ruling of this court, instructions singling out the defendant personally, and commenting upon the weight to be .given his evidence, have been held to be reversible error in the *105 following cases: Green v. United States, 2 Okla. Cr. 55, 101 Pac. 112; Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100; Price v. United States, 2 Okla. Cr. 449, 101 Pac. 1036; Reed v. United States, 2 Okla. Cr. 652, 103 Pac. 371. Onr conclusion is that the confession of error is well-founded.'

The judgment is therefore reversed, and the cause remanded, with direction to grant a new trial.

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PER CURIAM.

B. S. Peck, plaintiff in error, was convicted in the county court of Canadian county for 'the crime of conducting a game of poker, was found guilty by a jury, and his punishment assessed at a fine of $125 and imprisonment in. the county jail for a period of 30 days. From this judgment and sentence he appealed by filing in this court on October 29, 1909, a petition in .error with case-made attached.

On September 1, 1910, the Attorney General filed a confession of error, for the reason that the court in his charge to the jury gave the following instruction:

“The defendant having voluntarily offered himself as a witness, the jury has no right to disregard his testimony for the reason, alone, that he stands charged with the commission of the offense set out in the complaint herein. He has a right to testify, and his testimony is to be weighed and considered by the jurors, in the same manner .as the testimony of other witnesses, with the exception that his interest in the case, if any, must be considered by the jury in determining what weight and credit they will give it” —which instruction was duly excepted to. This ground is presented in the petition in error, and 'argued at length in brief of plaintiff in error.

Under the ruling of this court, instructions singling out the defendant personally, and commenting upon the weight to be .given his evidence, have been held to be reversible error in the *105 following cases: Green v. United States, 2 Okla. Cr. 55, 101 Pac. 112; Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100; Price v. United States, 2 Okla. Cr. 449, 101 Pac. 1036; Reed v. United States, 2 Okla. Cr. 652, 103 Pac. 371. Onr conclusion is that the confession of error is well-founded.'

The judgment is therefore reversed, and the cause remanded, with direction to grant a new trial.

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Bluebook (online)

1911 OK CR 43, 113 P. 200, 5 Okla. Crim. 104, 1911 Okla. Crim. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peck-v-state-oklacrimapp-1911.

Opinion

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