Beam v. State , 18 Okla. Crim. 529 ( 1921 )

It is first contended that the trial court erred in not sustaining the motion to quash the information, and the demurrer thereto.

Under these assignments of error it is argued that the trial court never obtained jurisdiction of the subject-matter of the offense, because the charge contained in the preliminary complaint is materially different from that contained in the information filed in the superior court.

The charging part of the complaint is as follows:

"* * * Did unlawfully, willfully and feloniously, and without authority of law and with a premeditated design to effect the death of one Louis Deer, shoot and discharge a leaden bullet into the body of him, the said Louis Deer, from a certain loaded pistol or a shotgun, the exact description of the weapon used being to this informant unknown, which said defendants then and there had and then and there held in their hands; then and there and thereby inflicting upon the body of him, the said Louis Deer one mortal wound. * * *"

The charging part of the information is substantially the same as the complaint, except that it charges the means used to accomplish the homicide as follows:

"From a certain loaded pistol which the said Albert Fisher then and there had and held in his hands, and from a certain pocketknife then and there held in the hands of Isom Beam."

It is evident that the preliminary complaint and the information both charge defendants Fisher and Beam with the commission of the same homicide, the killing of Louis Deer. The only difference between the instruments is in the change of the means employed by defendants to accomplish the homicide — the complaint charged the joint commission of the homicide by the defendants by shooting "a certain loaded pistol, or a shotgun, the exact description of the weapon used being to this informant unknown," and the information charged the joint commission of the identical homicide by the use of a pistol by Fisher and a pocketknife by Beam.

In the case of Weatherholt v. State, 9 Okla. Cr. 161,131 P. 185, this court held:

"The complaint before the committing magistrate averred that the killing was effected by means of a shotgun; and the information in the district court averred that the killing was effected by means of a Winchester rifle. Held that this is a sufficient compliance with the constitutional provision (article 2, § 17, Bill of Rights) as the means by which the offense was committed are not a constituent element of the crime of murder, and that the variance between the averments of the original complaint and the information filed in the district court are not to the prejudice of the substantial rights of the defendant."

The holding in the Weatherholt Case is decisive of the question here involved, but in addition it may be said that there was no waiver of preliminary examination by the defendants in this case, and under such circumstances the county attorney was authorized to file an information in the district or superior court charging the crime committed according to the facts in evidence on the preliminary examination. Where a defendant or defendants are bound by an examining magistrate on the hearing of a preliminary examination to answer a particular felony in the district or superior court, the county attorney is authorized to charge the commission of such felony according to the facts as developed on the preliminary examination and is not limited in such instances to the allegations contained in the preliminary complaint. The pertinent inquiry in the trial court then is: Does the information charge the offense for which defendant was held to answer? If such inquiry may be properly answered in the affirmative, the trial court has acquired jurisdiction of the subject-matter of that offense. Williams v. State,6 Okla. Cr. 373, 118 P. 1006; Ponosky v. State, 8 Okla. Cr. 116,126 P. 451; Tucker v. State, 8 Okla. Cr. 428, 128 P. 313; Agent v.State, ante, p. 281, 194 P. 233.

For reasons stated, the actions of the trial court in overruling the motion to quash and the demurrer to the information were not erroneous.

It is next contended that the evidence is insufficient to sustain the verdict.

The main contention under this assignment of error seems to be that there is no proof in the record that any wound inflicted upon deceased by this defendant caused death.

There is evidence to the effect that both Albert Fisher and defendant wounded deceased — Albert Fisher by shooting deceased with a pistol, and Beam by stabbing deceased with a knife. Peritonitis or septic poisoning set up, and Louis Deer died from the effects thereof.

The testimony of the attending physician is positive to the effect that death was caused primarily from septic poisoning setting up "in this wound." The physician had previously described three wounds on deceased's body:

"One on his left side just under the clavicle, looked like a stab or gash, that had been seared over, dried; didn't look like a gunshot wound; couldn't say positively what produced that wound. * * * Another on his right side, seemed to be right over the liver; seemed to feather out from the front; looked like a gash or stab. (This is the wound state's witness testified was inflicted by defendant.) This wound was from back to front. Never probed it. He wouldn't let me bother the wound at all, said he hurt so all over, complained of aching. Another surface wound on his leg above the knee, I believe a gunshot wound."

No reasonable inference other than that the wound inflicted by defendant contributed in some measure to bring about the death of Louis Deer, can be drawn from the evidence of the attending physician. Apparently all these wounds contributed in a greater or lesser degree to the death of Deer.

While there is no direct showing of a conspiracy entered into on the part of Fisher and Beam to kill Deer, and that the homicide was the result thereof, there is evidence of concert of action on their part. According to the state's evidence, after Fisher, in the presence of Beam and with his knowledge, had assaulted Deer two or three times by striking him with a pistol, and when Deer and Fisher were struggling on the bed, Deer attempting to take the pistol from Fisher, Beam rushed in and stabbed Deer in the right side with a knife, after which Fisher and Beam got together, and Fisher then shot Deer with the pistol.

Under such circumstances, this defendant will not be held alone to criminal responsibility for death caused solely by the wound inflicted by him; but having voluntarily entered into an assault wherein his codefendant was attempting to use a deadly weapon, and having himself, in that encounter, used with telling effect a sharp and dangerous weapon in a place close to a vital organ in deceased's body, inflicting thereby a very serious wound, defendant by his conduct in thus rushing to the support of another assailant must be held to assume criminal responsibility for a death the result of any of the wounds inflicted in the assault, whether by himself or his coassailant.

It is not necessarily essential to the guilt of the defendant of homicide that he directly commit the act resulting in the death; it is sufficient if he aid and abet another in its commission.

There is sufficient evidence in this record to authorize the conclusion that Beam and Fisher acted in concert in assaulting Deer, and that one aided and abetted the other in the infliction of wounds, in one or more of which septic poisoning set up resulting in death. They were both principals to the commission of the homicide, and it was immaterial which wound directly caused the death. Defendant was responsible criminally, not only for the wounds inflicted by him, but also those inflicted by Fisher after he (defendant) voluntarily entered into the assault upon deceased.

It is also contended that the trial court erred in permitting the witness Betty Barnett (Deer) to testify that Albert Fisher shot at and wounded her.

This evidence was admissible as part of the res gestae, the record disclosing that the shooting of the witness Barnett by Fisher was so interwoven with the assault made by Fisher and Beam upon the deceased, Deer, as to form merely a part of an integral transaction, covering a very limited period of time, without definite interruption, so that proof of the nature of the assault made upon Deer could not have been fully made without developing the fact that the witness Barnett was injured by one of the bullets fired from a pistol in the hands of Fisher.

Under such circumstances, we deem the evidence complained of part of the res gestae, and for that reason competent. The following cases are in point: Tempy v. State, 9 Okla. Cr. 446,132 P. 383; Tudor v. State, 14 Okla. Cr. 70, 167 P. 341.

Further, it is contended that the trial court erred in giving, over the objection and exception of defendant, the seventh, eleventh, and thirteenth paragraphs of the general charge to the jury. Counsel contend that there is no evidence of "acting together" shown by Albert Fisher and defendant Beam in assaulting Deer, and that the trial court should not have given the instructions complained of because the jury was thereby permitted to find Beam guilty, although the jurors may have believed that Fisher's acts caused the death of Deer.

We have heretofore pointed out in this opinion evidence which the court believes to have been a sufficient basis for the giving of the instructions Nos. 7, 11, and 13. There is no contention that the law is incorrectly or even inaccurately stated in the instructions, the only contention being that such instructions were not applicable to the evidence. For reasons stated above, we conclude that defendant was not prejudiced by the court's action in this respect.

Finally, it is contended that the trial court erred in refusing to give certain requested instructions.

These instructions were properly refused. The court fully and fairly covered the law of the case in the general charge. The requested instructions were based upon the theory that there was an entire absence of the proof of concert of action between Fisher and Beam, while the view this court takes of the evidence results in the contrary conclusion.

Finding no substantial error in the record before us, the judgment of the superior court of Okmulgee county, finding the defendant guilty of manslaughter in the first degree and assessing his punishment at imprisonment in the state penitentiary for a term of four years, is affirmed.

DOYLE, P.J., and ARMSTRONG, J., concur.