Rochel v. State , 21 Okla. Crim. 37 ( 1922 )

MATSON, J.

(after stating the facts as above). It is •first contended that the trial court erred in failing and refusing to give an instruction on the law of circumstantial evidence as applied to the guilt of the defendant Cecil Turnbull.

Counsel for the defendant requested the following instruction on this subject:

“In this case the state relies upon circumstantial evidence to convict the defendant, Cecil Turnbull, and in this connection you are instructed that to warrant a conviction, the facts necessary to establish the guilt of the said Cecil Turnbull must be proved by competent evidence beyond a reasonable doubt, and the facts and circumstances proven should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of guilt to produce in your minds a moral certainty that the accused committed the offense; and if they fail to so establish the guilt of the accused, then you should acquit him. ”

The foregoing instruction was refused and proper exceptions saved, and the trial court failed to give an instruction on the question of circumstantial evidence as applied to the defendant Cecil Turnbull.

The prosecuting witness testified, in chief, that one of the men who robbed him and who threw the gun down on him was Cecil Turnbull. Further, prosecuting witness testified that about his only means of identifying Turnbull was by his size; that he couldn’t swear positively about Turnbull; that he had seen him that afternoon, but had not spoken to him or heard him talk. In addition to the foregoing testimony of the prosecuting witness, the state introduced a number of circumstances tending strongly to connect defendant Turnbull with the commission of the crime.

In support of the contention that it was error for the trial court to refuse to give the foregoing instruction, it is argued that the direct evidence of the prosecuting witness, as to the identification of Turnbull, is so weak and unsatisfactory that, unsupported by tbe circumstantial evidence in tbe case, it practically amounts to no incriminating evidence against Turn-bull, and tbe court should have, for that reason, given tbe requested instruction.

Tbe fact remains, however, that part of the evidence was direct and part circumstantial. This court has never held it to be reversible error to refuse to give instruction on circumstantial evidence unless tbe prosecution was based solely upon circumstantial evidence. Had tbe trial court instructed tbe jury that tbe evidence against Turnbull was wholly circumstantial, it would have been an incorrect statement; and, while the direct evidence as to bis identification may not have been as positive and convincing as it was to the identity of tbe defendant John Rochel, yet tbe weight of this evidence was exclusively for the jury, and we do not concur in the view entertained by counsel for tbe defendant that tbe unconvincing nature of tbe direct evidence against Turnbull required tbe trial court to give an instruction on circumstantial evidence as to him. This was a joint trial and tbe evidence as to each of tbe defendants was to a considerable extent based upon circumstances. As we view it, it would have been unfair to tbe other defendants to have singled | out either of the defendants and told tbe jury that as to him tbe evidence was wholly circumstantial.

It is also contended that the court erred in giving tbe following instruction:

"The defendants John Rochel and Cecil Turnbull contend as a part of their defense herein that they were not present at the time and place of the alleged robbery in question, and that they were at other and different places, and that therefore they could not have been and were not the parties who robbed the witness Simmons, if you find he was robbed. You are therefore charged that if you believe from the evidence that these two defendants were at other and different places than the place of the alleged robbery at the time thereof, or if you have a reasonable doubt thereof, then and in that event you. should find said defendants not guilty, and so say by your verdict.”

In support of this assignment the following argument is advanced:

“Instruction No. 7, heretofore quoted, was incorrect. The court was requested, as shown in the record at pages 299 and 300, to instruct the jury as to the alibi of Cecil Turnbull, and as to the alibi of John Rochel, and each one was entitled to a separate and distinct instruction on this proposition; or if combined, as the court attempted to do, then the jury should have been told that this applied to each of the said defendants.

“Under instruction No. 7 the first error we wish to call attention to is that the defendants are joined so that the jury was not advised that they could acquit Cecil Turnbull, if they had a reasonable doubt of his presence at the commission of the offense, and convict Rochel. Neither were they told that they could acquit Rochel and convict Turnbull; but the instruction states emphatically that they must be considered together, and if the alibi failed as to one, it failed as to both. This is the only conclusion you can reach after carefully reading paragraph 7 of the court’s charge. They are referred to as ‘they,’ ‘these two defendants,’ and ‘said defendants,’ using the plural all the way through the instruction's. This was done in the face of the fact that each of said defendants had requested a separate instruction. The injury done by this charge can readily be seen by reading the evidence of the defendant’s witnesses, Grimes, McPherson, Ozmont, and Maxwell, all shown in this record, pages 194 to 223, inclusive. Of these witnesses every one was positive that Turnbull was in the drug store at the time Maxwell saw Walter Rochel and the prosecuting witness drive out of town. None of these witnesses named John Rochel as having been present at that time. However, the court’s charge required the jury to find that John Rochel was with. Cecil Turnbull at that time and place, otherwise they could not acquit Cecil Turnbull.”

We think the instruction is not open to the criticism lodged against it. Apparently the court did not tell the jury that these two defendants, claimed to have been together at another place at the time of the commission of the robbery, but “that they were at other and different places.” Neither the defendant John Rochel nor the defendant Cecil Turnbull took the witness stand in his own behalf. There is some evidence by three or four witnesses that Cecil Turnbull was in the town of Achille about 7 or 7:30 o’clock in the evening prior to the commission of the robbery, about three-quarters of a mile southeast of that town about 8 o ’clock that evening. This is the only evidence on the question of alibi as to the defendant Turnbull. It was not such as to preclude his presence at the time and place of the robbery, neither was there any evidence of alibi as to John Rochel such as would preclude his presence at the time and place of the robbery. Walter Rochel, the other defendant, was in the automobile with the prosecuting witness at the time the robbery took place, and claims that he was also robbed. His testimony in many respects corroborates that of the prosecuting witness, especially as to the circumstances under which the robbery was committed;- and, while he says that it was not Cecil Turnbull and John Rochel who robbed the prosecuting witness, he did admit on cross-examination that the two parties who held up the prosecuting witness answered the description of John Rochel and Cecil Turnbull as to height and general appearance. And the acts and conduct of the defendant Walter Rochel immediately before, at the time of, and immediately subsequent to the robbery were such as to convince an unprejudiced person that he had knowledge that the robbery was going to take -place, and knew who would execute it.

Further, we believe it is apparent from a consideration of tbe court’s instructions as a whole the jury could not have •been misled into believing that the alleged alibi of Cecil Turn-bull depended upon that of John Rochel, or vice versa, and that they could not acquit one of such defendants without acquitting the other, because, subsequently, the trial court in his general charge gave the following instruction:

“The defendants, and each of them, are presumed to be innocent until his guilt is established by the evidence beyond a reasonable doubt, and the burden is upon the state to so establish their guilt. If, therefore, after a careful consideration of all the evidence in the case you believe beyond a reasonable doubt that the defendants, or either of them, are guilty, then you should so say by your verdict, but if after such consideration of the evidence you entertain a reasonable doubt as to their guilt, or either of them, you should acquit him or them.”

The instruction given on the subject of alibi was not such as to operate in a reversal of the judgment. Spess v. State, 20 Okla. 94, 201 Pac. 395. And the instructions as a whole were sufficient to inform the jury that they could acquit either of the defendants as to whom they might entertain a reasonable doubt.

If Walter Rochel was a conspirator in the commission of this robbery, and the jury so found by the verdict, and it is practically admitted in the brief of counsel for plaintiff in error that as to Walter Rochel and John Rochel the evidence is sufficient to convict, there can be no doubt but that a third party was also involved in it. The jury reached the conclusion from the evidence that this third person was Cecil Turn-bull. We are impressed with the belief, from an impartial consideration of all the evidence in this ease, that as to the guilt of Turnbull the jury reached the right conclusion. We find no error committed against either defendant sufficiently prejudicial to authorize a reversal of the judgment, and the same is affirmed.

DOYLE, P. J., and BESSEY, J., concur.