Opinion
No. A-9476.
October 14, 1938.
(Syllabus.)
1. Appeal and Error — Continuance — Discretion of Trial Court as to Granting Continuance Because of Absent Witnesses. Applications for a continuance on the ground of the absence of witnesses are addressed to the discretion of the trial court; and unless it clearly appears that there has been an abuse of such discretion the judgment of conviction will not be reversed because a continuance was denied.
2. Continuance — Continuance not Granted Merely for Delay. A continuance should be granted only that justice may be done, and not merely for purpose of delay.
3. Same — Refusal of Continuance not Error Where Defendant's Affidavit Shows Testimony of Absent Witness Would Be Merely Cumulative. It is not error to refuse to grant a continuance on the ground of the absence of a witness, where the affidavit of the defendant as to what the absent witness will testify to is merely cumulative.
4. Appeal and Error — Error Never Presumed — Burden on Appellant to Show Prejudicial Error. Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed.
5. Same — Requisite Record of Proceedings Where Error Alleged in Overruling Challenge to Special Venire of Talesmen. When a defendant seeks a reversal in this court on account of error of the trial court in overruling defendant's challenge to a special venire of talesmen, the record must show the proceedings upon which the alleged error is based.
6. Homicide — Criminal Responsibility for Accelerating Death of Diseased Person by Inflicting Unlawful Injury. One who unlawfully inflicts an injury on another, and thereby accelerates the death of such other, is criminally responsible therefor, although the injury so inflicted was not necessarily fatal and the wounded person probably would have recovered but for his diseased condition.
7. Appeal and Error — Reduction of Sentence Where Punishment Excessive. When in the opinion of this court, after considering the evidence, punishment assessed appears excessive and in part the result of passion and prejudice, judgment will be modified by reducing the sentence.
8. Homicide — Sentence of 45 Years' Imprisonment for First-Degree Manslaughter Held Excessive and Reduced to 25 Years. Judgment and sentence of 45 years' imprisonment held excessive, and sentence reduced to 25 years' imprisonment in the penitentiary.
Appeal from District Court, Cotton County; Cham Jones, Judge.
Don Baker was convicted of manslaughter in the first degree, and appeals. Judgment modified, and, as modified, affirmed.
The plaintiff in error in this case was convicted of manslaughter in the first degree and his punishment fixed by the jury at 45 years in the state penitentiary. In the information filed in the district court of Cotton county, September 7, 1937, Don Baker and Mike Malone were jointly charged with the murder of one Lawrence Rich, alleged to have been committed in said county on or about the 29th day of September, 1936, by making an assault upon the said Lawrence Rich with a certain blunt and dangerous weapon, identity unknown, and with the premeditated design to effect the death of said Lawrence Rich, strike in and upon his head, then and there and thereby inflicting certain mortal wounds, of which the said Lawrence Rich did on the 26th day of December, 1936, die.
The evidence shows that Lawrence Rich was a farmer living eight miles west and about three south of Walters; that sometime after midnight, September 29th, a tan colored sedan stopped at his home, he was called out and an assault made upon him, and head injuries inflicted, which caused his death, December 26, 1936.
A substantial statement of the evidence is as follows:
H. E. Crow, the first witness for the state, testified that he lives in his filling station, eight miles west and two south of Walters, a little over a half a mile north of where Lawrence Rich lived. That the night Lawrence Rich was injured, a light tan colored car stopped at his place and the car lights were thrown on the window where he was sleeping, and the horn was honked, but he did not open up, and after a while the car backed out and went south; that he usually closes his filling station between 9 and 10 o'clock and does not open up for any one unless he knows who it is.
Henry Rupe testified that his home is a quarter of a mile north of where Lawrence Rich lived; that the night Mr. Rich was injured, he was aroused by some night callers who drove up to his place, a little after midnight, in a light colored sedan or coach; a man stood by the door of the car and wanted to know which way it was to Oklahoma City. The man said he had been hi-jacked, that he looked out the window and saw the car go north; that he saw the same man the next morning, and he was Mike Malone; that immediately after the car left, Mrs. Lawrence Rich came to his house and wanted to get a doctor for her husband; that he went to Mr. Rich's house and found him in bed, with a wound on his head; that he went after Mr. Rich's brother-in-law and sister, who lived two miles south; that it was a bright moonlight night.
H. A. Martin testified that in the month of September, 1936, he was living seven miles west of Walters, at his filling station; that on the night Mr. Rich was injured a car drove up to his place, somewhere around midnight, the horn was sounded, then a man got out, came to his window and talked to him through the window; that the man was Mike Malone, who was tried with this defendant in the preliminary trial; that he thought another man was in the car, but would not be positive; that the car came from the west and went back west.
Dennis Denham testified that he lived eight miles west and a half south of Temple; that a man came to his place the night of September 29th, last year, and woke him up; that he next saw the man in jail, and it was the defendant, Don Baker; when he went to the door the man wanted to know if he had a telephone; that he wanted to call Oklahoma City, he told him he did not have one, then he wanted to stay all night, and he refused; Baker said that the man that was driving him from Ft. Worth to Oklahoma City had a gun and put him out of the car when they had a falling out. When he refused to let him stay all night Baker said that he would go if he could get a gun; that he had been to the penitentiary and would go again if he could get a gun; that he was standing in his door with his gun in his hand and Baker wanted to buy the gun; Baker said he had some whisky in his suit-case and offered to give him a drink, and he told Baker to leave the place. While this conversation was going on a car came along, going north, Baker said that it was the car he was put out of, the car went north to a curve in the road, turned and came back, passing the house, and he heard the engine stop, then the car came back again from the south, and he told Baker to leave. The car stopped about 150 yards from the house, and picked Baker up, then went north.
L. C. Henderson testified that he was sheriff in 1936, and on the night of September 29th, he arrested both defendants about three miles this side of Comanche, they had been in a car wreck; that Claud Herron and George Beach were with him at the time; that he made an examination of the car tracks that had come in and backed out from the Lawrence Rich home, and they corresponded with the tracks of the car the defendants had when arrested.
George Beach testified that he is now sheriff of Cotton county, and was night marshal of Walters September, 1936, that the first time he saw the defendants was here in the town of Walters, September 29th, they were in a light tan sedan, going west on Colorado street, and he got in his car and followed them, they parked at Smith's cafe, and he parked his car, went into the cafe and talked to both of them; that Malone was too drunk to drive and he told this defendant to drive the car, that when they left the cafe, got in the car he followed them in his car to the northeast corner of the town on the highway; that he returned to Smith's cafe and Sheriff Henderson, Claud Herron and Jonathan Rich were there, looking for some parties, and he gave them the description of the two men that had left town. Then they started in pursuit of them, that he next saw this defendant, Baker, about three miles this side of Comanche and the defendant Malone was with him, that he would judge it was 1:30 in the morning when they left Walters.
A. B. Rich, brother of the deceased, testified that both had lived in that community about 30 years; that after the injury his brother received on September 29th, he complained that his head bothered him, and at times he had dizzy spells; that on Monday before Christmas he became suddenly worse, and they took him to Dr. Baker at Walters, then took him home where he remained a few days, and on Christmas day they took him to the University Hospital, at Oklahoma City, and he stayed with him until the next day when he died.
Jonathan Rich testified that he was a brother-in-law of the deceased; Henry Rupe came to his house that night and told him of his brother's injury, that he, after stopping 15 or 20 minutes to see his brother, went on to Walters and notified the officers; that he had known the deceased 30 years, and lived in the same community with him. That he saw him at least once a week; from and after his injury, and he always complained of his head hurting him; that when he was taken to the hospital at Oklahoma City, he went with him and was with him when he died.
Dr. Baker testified that Lawrence Rich was brought to his office with a wound on his head, and an examination was made at that time for a possible fracture, but did not find that there was, that he was the family doctor; that he saw him again on December 21, 22 and 24; that he was suffering intense pain and loss of consciousness, and on his advice was taken to the Oklahoma City University Hospital.
Dr. Hugh Jeter testified that he was pathologist at the University Hospital, at Oklahoma City; that he made an autopsy on one Lawrence Rich, who was brought to the hospital December 25th, and produced a copy of the report of the autopsy as made by him the day the patient died; that he made a complete examination of all the organs of the body, as well as the head and brain, and the principal thing found was an old hemorrhage of the outer covering of the brain; that this condition was caused by trauma, and probably this condition resulted from a blow on the head some three months before; that he found nothing that should have contributed to his death, except the brain condition.
As a witness in his own behalf, Don Baker testified that his age was 27 years, that he first met Mike Malone in Ft. Worth, Tex., on September 29, 1936, when he drove to the hotel to take him to Oklahoma City; that another fellow was a passenger to Wichita Falls; that they left Ft. Worth in the afternoon, around 2:30, and arrived at Wichita Falls just before dark, stayed there about 45 minutes, then went on to Burkburnett, and stayed there about 30 minutes; the next stop was at Randlett, stayed there about an hour; there he drank one bottle of beer. The next place they stopped was at a service station, where they turned the corner going east to Walters, Malone honked the horn, a fellow came to the window, and Malone went to the window and talked to him, Malone came back to the car and said, "I want some more money to take you to the city," and he said, "I paid you the required amount, and I have not got any more money." Malone said, "I am going back to Wichita Falls," and they had a few words. Malone stopped the car, put him out, and drove south; that he started walking back north and had gone a mile when Malone passed him in the car. He then went to a house on the east side of the road and asked if he could stay all night, or if they had a 'phone he could call for some one. It was Mr. Denham's place; Mr. Denham stood in the door with a gun in his hand and told him he had better go on. While they were talking the car passed, going north; that he told Mr. Denham that he had been in the penitentiary; the car came by again, going south, then the car drove by and stopped. That he went to the car and Malone said, "I will take you on to Oklahoma City if you will pay expenses." He said that was satisfactory with him, that he told Malone he had bought a gun off the fellow at the house and did not want any more foolishness out of him, that he was going to protect himself. They came on to Walters, stopped and went into a restaurant. While there night marshal, George Beach, came in, and asked them where they were from and where they were going. Malone told him that he was from Ft. Worth, going to Oklahoma City, Mr. Beach walked out to the car with them, and told Malone that he was a little too drunk to drive, and if we wanted to leave town for me to drive the car; that he drove about 15 miles east and the car hit and killed a mule, and wrecked the car; that he went to a nearby filling station to report the accident, while there Sheriff Henderson, Claud Herron and George Beach came up, arrested them and brought them back to Walters and put them in jail; that the first time he knew that Mr. Rich had been assaulted was the next day, about noon, the wife of a fellow in jail with him came to see him and said that they had two men in jail that had hit a man on the head. The next morning Lawrence Rich and a lady came to the jail and looked at him; Dennis Denham and Jonathan Rich were with them; that he talked to the officers and told them that he had served a term in the penitentiary and had a case pending in Oklahoma county against him at that time; that he did not hit Lawrence Rich, and did not know who did hit him. That first he entered a plea of guilty because the county attorney told him he was going to see that he went to the penitentiary for 10 or 15 years, but if he would plead guilty he would let him off for five years; that his case pending at Oklahoma City was second degree burglary; that the county attorney informed him if he would plead guilty here and in the Oklahoma City case the two sentences could run concurrently; that later he did enter a plea of guilty in the court at Oklahoma City, and was sentenced to serve a term of two years, and was taken to the penitentiary October 9th from Oklahoma City, and brought back to Cotton county on February 2, 1937.
Dr. H. A. Calvert testified that he had been engaged in the practice of surgery 25 years, that he had occasion to examine the report of the autopsy in this case, and was acquainted with the medical side of the case, and heard a part of the testimony of Dr. Jeter; that hemorrhages of the brain are caused by anything that disturbs the walls of the blood vessels; that the condition set out in the report of the autopsy as to the cranial cavity he would say that the deceased had a hemorrhage of the brain, that caused the hematoma, which might result from disease or from a blow.
Walter Hubbell, of Walters, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
This appeal is from a judgment of conviction for manslaughter in the first degree, and sentence of imprisonment in the penitentiary for a term of 45 years.
Plaintiff in error sought an acquittal of the charge against him on the ground that he had no connection with the felonious assault resulting in the death of the decedent.
The first assignment is that: "The court erred in overruling the defendant's motion for a continuance."
When the case was called for trial the defendant moved for a continuance, because of the absence of Claud Herron, deputy sheriff.
"That said witness if present would testify that he arrested the defendant at a filling station about 16 miles east of Walters, near a point where the defendant had a collision with and killed a mule with his car, and that at the time of his arrest the defendant was trying to call the sheriff of Cotton county to report said wreck."
In the motion it is also stated that Dr. Kent G. Latham of Oklahoma City had been subpoenaed and was absent, who if present would testify that he helped perform an autopsy on the deceased, Lawrence Rich; that it was impossible to ascertain from said autopsy what caused the death of said deceased, but that in his opinion his death was not caused by the blow received by said deceased on the head, as described by Dr. Baker.
In reviewing the refusal of a continuance on account of absent witnesses, the record will be examined, and the evidence adduced on the trial will be considered by this court for the purpose of determining whether the showing made was such as made it the duty of the court to grant a continuance.
A continuance should be granted only that justice may be done, and not merely for purposes of delay. Ross v. State, 34 Okla. Cr. 363, 246 P. 645.
As a general rule, a continuance will not be granted for the purpose of procuring testimony that is merely cumulative. Petty v. State, 11 Okla. Cr. 438, 147 P. 782.
It has been uniformly held by this court that an application for continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of such discretion, this court will not reverse the judgment for a refusal to grant a continuance.
Upon the record before us, we are of the opinion that it was not error for the court to overrule the motion for a continuance.
Error is assigned on overruling the defendant's challenge for cause of a juror, and refusing to restore to the defendant an additional peremptory challenge after exhausting all his peremptory challenges by reason of having to challenge said juror.
The record shows that on October 11, 1937, a jury was drawn.
Only the ruling of the court is set forth in the record. It does not contain the voir dire examination of said juror. However, it appears the court allowed the defendant one additional challenge. On the record before us we cannot hold that the court erred.
The third assignment is:
"That the court erred in ordering and directing the special venire of jurors to be summoned by Homer Jones, deputy sheriff, after the regular panel had been exhausted, for the reason the sheriff of Cotton county was a material witness against the defendant."
None of the proceedings had upon the trial of this challenge are set forth in the record. The record merely shows the following recital of proceedings had October 12th:
"The bailiff was sworn to take charge of the jury. The defendant requests that the special venire be drawn from the regular jury panel. Which request is by the court overruled. Exceptions taken.
"Deputy sheriff Jones was ordered by the court to pick up six talesmen. Defendant now objects to deputy sheriff Homer Jones selecting six additional talesmen as jurors in this case, for the reason that the sheriff of this county is a material witness against the defendant, and is biased and prejudiced against him.
"By the Court: Overruled. Exceptions taken.
"Thereupon both sides announce ready for trial."
Counsel for plaintiff in error in his brief states:
"This question has been passed upon many times by this court, and it has continuously held: 'It is essential to a fair administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias or prejudice.' " Citing Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A.L.R. 405. Lyde v. State, 21 Okla. Cr. 426, 209 P. 226; Welch v. State, 36 Okla. Cr. 298, 254 P. 503; Hammock v. State, 52 Okla. Cr. 429, 6 P.2d 16.
When a defendant seeks a reversal in this court on account of error of the trial court, the record must show the proceedings upon which the alleged error is based. Ables v. State, 35 Okla. Cr. 26, 247 P. 423.
In the case at bar the alleged error complained of is not properly presented by the record. While there is a recital that: "Deputy sheriff Jones was ordered by the court to pick up six talesmen," it does not appear that any talesman was sworn as a juror or served upon the jury.
In the case of Dumas v. State, 19 Okla. Cr. 413, 417, 201 P. 820, it is said [page 823]:
"It has been repeatedly held by this court: 'On appeal the burden is upon the appellant to establish both error and prejudice resulting therefrom.' Cardwell v. State [ 20 Okla. Cr. 177, 201 P. 817].
"As plaintiff in error has not brought before this court the record of the hearing had upon the challenge to the special venire of talesmen, and, further, it not appearing that the sheriff was a material witness against defendant, it cannot be said that the trial court, in the absence of such a showing and proof, committed error prejudicial to the substantial rights of defendant in overruling the challenge to the special venire."
It is not the policy of the law to permit courts to reverse a conviction for crime upon mere technicalities alone, but to limit them to reversals for errors which are prejudicial to some substantial right of the accused.
The Legislature has specifically provided in section 3206, Procedure Criminal, St. 1931, 22 Okla. St. Ann. § 1068, that no judgment of conviction shall be reversed in any matter of pleading, or procedure, unless, in the opinion of the court, 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.
One of the grounds for a new trial and assigned as error, and now urged for reversal of the judgment, is that the evidence was insufficient to establish his guilt, and this insistency called for the extended statement of the testimony in the case.
It is urged that the evidence was insufficient to show that the injury inflicted on the decedent caused his death.
The rule that one who unlawfully inflicts an injury upon another and thereby accelerates the death of such other is criminally responsible therefor, although death would not have resulted from the injury but for the diseased condition of the person so injured, is one of general application.
The rule upon this subject as stated in Ruling Case Law is:
"One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that other causes contributed to the death does not relieve the actor of responsibility. So the physical condition of the slain man at the time when the act was done, will not excuse or minimize its consequences, if the causal connection between it and the fact of death is made to appear. On the other hand, if an injury is merely a condition which does not contribute to produce death, the law does not hold the actor criminally responsible." 13 R.C.L. par. 53, p. 748.
"The law declares that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor, although death would not have resulted from the injury but for the diseased or wounded condition of the person so injured." 13 R.C.L. par. 55, p. 750.
The rule is thus stated by Bishop in his work on Criminal Law, vol. 2, sec. 638, subsec. 3:
"Though the person would have died from some other cause already operating, it is enough that the wound hastened the termination of life; as, for example, if he had already been mortally wounded by another. And if the one attacked was enfeebled by disease, and what was done would not have been mortal to a well person, still, whether the assaulting person knew his condition or not, if he did what was mortal to the other, the offense is committed."
Carefully considering the testimony in the case, we find that the evidence on the part of the state, both direct and circumstantial, if believed by the jury, was sufficient to sustain the conviction.
Upon an examination of the instructions given by the court to which no exception was taken, we find they fully and fairly presented all matters of law to the jury which were pertinent to the case.
Upon consideration of the whole case we are satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law appearing in the record.
Another ground of the motion for a new trial is that the punishment assessed by the jury is excessive, and was the result of passion and prejudice.
In the defendant's motion for a new trial, it is averred that codefendant, Mike Malone, was placed upon trial during the interim between the return of the verdict in this case and the judgment rendered thereon, was convicted of manslaughter in the first degree, and was sentenced to serve a term of five years in the state penitentiary.
Our conclusion is that the punishment assessed by the jury is excessive, and that justice requires a modification of the judgment and sentence of 45 years to a term of 25 years' imprisonment in the state penitentiary. The judgment of the district court of Cotton county herein is so modified. As thus modified, the judgment is affirmed.
DAVENPORT, P. J., and BAREFOOT, J., concur.