Everidge v. State , 17 Okla. Crim. 524 ( 1920 )

The only errors relied on in defendant's brief for a reversal of the judgment are the following:

(1) The admission, against the objection of the defendant, of the testimony of O'Quinn of the statements made to him by Chock Hembree, in the absence of the defendant and after the commission of the offenses charged, that the defendant was a coconspirator with said Hembree and Floyd Aikens in the robbery of the Frisco Depot at Antlers and the killing of the agent, and giving details of such robbery and murder. The admission, against the objection of defendant, of the testimony of — that Floyd Aikens, one of the codefendants, had, in the absence of the defendant and after the commission of the offense charged, made to —, that he (Hembree) and the defendant had robbed the Frisco Station at Antlers and killed the agent.

(2) Giving the jury the following instruction:

"Where parties enter into a conspiracy for the purpose of committing a robbery and dividing the proceeds of such robbery among themselves, such conspiracy continues and such parties are responsible for the acts of their coconspirators incident to or growing out of such conspiracy and done in pursuance thereof, until they have divided the proceeds of such robbery."

The errors insisted upon by the defendant will be considered in the inverse order in which they are above stated.

The correctness of said instruction so seriously complained of by the defendant is not an open question in this jurisdiction, this court, in Holmes v. State, 6 Okla. Cr. 541, 119 P. 430,120 P. 300, having approved an instruction in the identical language of the one complained of, which instruction was doubtless copied from Holmes v. State, supra.

In Grayson v. State, 12 Okla. Cr. 226, 154 P. 334, Judge Doyle, Presiding Judge, speaking for the court, approved the above-cited holding in Holmes v. State, supra, and says:

"And where a conspiracy embraces not merely a series of unlawful acts, but also extends to a division of the fruits and profits of such acts among the conspirators, anything said or done by them, although after the commission of the unlawful acts, but before a division of the profits of such acts, is admissible against all other conspirators" (citing Wishard v. State,5 Okla. Cr. 610, 115 P. 796; State v. Pratt, 121 Mo. 566, 26 S.W. 556;Scott v. State, 30 Ala. 503).

In the case of Grayson v. State, Judge Doyle further says:

"The theory upon which such evidence is admissible is that the conspiracy does not terminate until there has been a division of its fruits and spoils" (citing People v. Opie,123 Cal. 294, 55 P. 989; Wharton's Crim. Ev. [9th Ed.] 698).

Certainly a conspiracy to rob a cash drawer of a depot by three coconspirators authorized the jury to infer that such conspiracy also included a division of the money secured by such robbery.

The evidence in this case, entirely eliminating the statements respectively made by the codefendants Aikens and Hembree as to how said robbery and murder were committed and by whom, shows that there was conspiracy to rob the Frisco Depot at Antlers, and that in the furtherance of said conspiracy Mr. Hearn was most brutally murdered. This leaves but one question for determination: Was the defendant a coconspirator in the commission of said crimes? The peculiar tracks of the defendant's horse being immediately after the commission of said crime found where the defendant's horse had been hitched near the scene of the tragedy, and tracked therefrom some ten miles, going in the direction of Farris, and the defendant seen early on the same morning of the murder going in the direction of Farris riding horseback; that the night of the homicide he borrowed a pistol, giving a false reason for borrowing it; that on the night preceding the murder he was, in company with his codefendants Hembree and Aikens, riding horseback going in the direction of Antlers, and went within ten feet of the said depot and announced that he and others had come to rob the depot, and was dissuaded from so doing, and that he returned to Farris and the next day solicited the witness O'Quinn to join in the robbery, and when O'Quinn declined to join him and others in such robbery the defendant announced that they did not need O'Quinn and intended to rob the depot that night, which was in fact done; that about 8 o'clock of the night of the tragedy he was called out of a home by and went off with the caller, whom the defendant said afterwards was either Hembree or Aikens; that at about 7 o'clock of the morning of the tragedy, which was committed about four hours previous, which gave defendant ample time to come from Antlers, he appeared at Farris in a very nervous condition and looked like he had been up all night; that after the tragedy he was seen with money of the same denominations and kind of which the depot had been robbed; that the day after the murder he stated that he had about $18, the amount of which the depot had been robbed; his conflicting statements as to where he was the night said crimes were committed; the incriminating statements he made to the lady he visited at McAlester a few days after the tragedy, "that he was in Antlers at the time of the tragedy and saw a man killed there, and that he was within ten feet of the man when he was killed, and that the name of the man killed was Hearn" — clearly point to the defendant as an active agent in the commission of the homicide charged. And when to said evidence is added the fact that the defendant did not testify in his behalf, and did not offer evidence in his defense, except evidence of his previous good character, we are of the opinion that, excluding the entire evidence of the statements made respectively by Hembree and Aikens as to how and by whom the deceased was killed, the guilt of the defendant is shown by legal evidence beyond a reasonable doubt.

The statements made by Hembree and Aikens respectively and not made in the presence of the defendant, as to who committed the homicide charged, and the particulars thereof, including the statement that the defendant was a conspirator therein, were certainly not made in furtherance of the conspiracy to rob the depot of the Frisco Railroad at Antlers, were mere confessions on the part of Hembree and of Aikens, and such confessions were improperly admitted in evidence. But the evidence, eliminating therefrom the said confessions, showing that the defendant is guilty of the homicide charged, and, after an examination of the entire record, being unable to say that the admission of said confession has probably caused a miscarriage of justice, or has deprived the defendant of some substantial constitutional or statutory right, we are without authority to reverse the judgment rendered, on account of the errors committed in admitting in evidence said confessions, being prohibited from so doing. Section 6005, Rev. Laws 1910. If said confessions of Hembree and Aikens had been in furtherance of the conspiracy to rob the Frisco Depot at Antlers at the time charged in the information, the said conspiracy not having ended by reason of the fact that the proceeds of said robbery had not been divided among the conspirators, the admission of said confessions would have been free from error.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

DOYLE, P.J., and MATSON, J., concur.