Page 343

Page 344

Page 345

Page 346

Page 347

Page 348

Page 349

Page 350

Page 351

Eva Briggs: On the Wednesday evening when Watson was supposed to have been hurt I was at home; the defendant was there; he came home about 7; there is a front porch on my house with vines over it; I left the house about half past 7 and got back about half past 9; did not see the defendant on the front porch; he was in his room about 7 o'clock and I gave him some medicine, and a little while afterward I went to church; did not see him after that time.

Jeff Morgan: I do not know Tom Fritz; never gave Tom Fritz a watch and chain to be pawned; never told him my name was Tom Williams; never saw the watch and chain in my life; never went with Tom Fritz to the First National Bank to get change for a $10 gold piece; never gave him a $10 gold piece to get changed.

Charles A. Cook: Was a clerk for the Muskogee Drug Company in 1909 when the defendant worked there; I do not remember any occasion when the defendant found a pocketbook in a show case; I don't remember his ever calling my attention to it.

B.A. Randel, teller at First National Bank: Do not have any recollection of two colored men coming to the bank and getting change for a ten dollar gold piece flattened on one edge; if the gold piece had been cleaned off and had no peculiar mark on it, it might have been passed, and I might have changed it without noticing it; I am testifying only because I understand this gold piece had some peculiar mark on it.

C.R. Mills, bank teller in First National Bank: I do not know Tom Fritz or Jeff Morgan. I have no recollection of their coming to my window to get a ten dollar gold piece changed; I took no $10 gold piece that had any unusual mark on the edge of it; if the gold piece had no special mark on it, this negro or somebody else might have brought the $10 gold piece, and got it changed, and I might have changed such a gold piece. All I am testifying to is that, if the $10 gold piece had been handed to me with an unusual mark on it, I would probably have known it.

N.F. Hancock: Was one of the proprietors of the Muskogee Drug Company in 1909, when the defendant worked there; I do not recollect having a pocketbook like the one in evidence in stock, but my partner, Mr. McLaurin, did the buying; I would not say positively that we did not have such a book in stock, but it is my opinion that we did not.

A.A. Davidson and Galen Nichols (C.W. Bliss and James Allen, of counsel), for plaintiff in error.

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, J. (after stating the facts as above). Thomas Fritz, the plaintiff in error, was tried, convicted and sentenced to be executed for the crime of murder committed upon one Walter R. Watson September 14, 1910. The information was presented and the defendant duly arraigned in the district court of Muskogee county on September 24, 1910, and was by the court given until September 28th to enter his plea thereto. September 27th, on application of the defendant, the court appointed counsel to conduct his defense. September 29th, the defendant having entered his plea of not guilty, and the state and the defendant having announced ready for trial, a jury was empaneled to try the case. October 1st the jury returned the following verdict:

"We, the jury in the above-entitled action, duly and legally empaneled and sworn upon our oaths, find the defendant guilty of murder, and assess his punishment at death."

October 3, 1910, a motion for a new trial was overruled, and the court pronounced and entered judgment and sentence in accordance with the verdict, fixing November 18, 1910, as the time for execution. From the judgment, sentence, and the order overruling motion for new trial the defendant appealed by filing in this court November 4, 1910, his petition in error with case-made attached. An order was made staying execution of sentence, and the defendant as by law provided was committed to the state penitentiary pending the determination of his appeal.

This appeal involving, as it does, the life of a human being, presents the gravest question which can occupy the attention of a

judicial tribunal. To fulfill the duty here imposed upon us, we have patiently read the evidence and examined the record with that care and deliberation which its importance to the defendant and to society demands. Counsel for plaintiff in error contend that:

"The verdict is against the law and the evidence, in that the crime proved on the trial was not murder as charged in the information, and as defined by statute, and by the court in its instructions to the jury, but which crime, if any, was manslaughter as defined by the statute."

Our Criminal Code defines murder and manslaughter as follows: Section 2268 (Compiled Laws 1909.):

"Homicide is murder in the following cases: (1) When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or any other human being. (2) When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. (3) When perpetrated without any design to effect death by a person engaged in the commission of any felony."

Section 2269:

"A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed."

Section 2276:

"Homicide is manslaughter in the first degree in the following cases: (1) Where perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor. (2) When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide. (3) When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed."

The information charges the defendant with murder as defined by subdivision 1 of section 2268; that is, that the defendant committed the homicide without authority of law, with malice aforethought, and with a premeditated design to effect the death of the deceased. In the trial of the case the evidence introduced by the state disclosed that the homicide was committed by the

defendant, if committed by him at all, in the perpetration of a robbery. The third subdivision of section 2268 provides that homicide is murder when perpetrated without any design to effect death by a person engaged in the commission of any felony. Section 2269 provides that a design to effect death is inferred from the fact of the killing, unless the circumstances raise a reasonable doubt whether such design existed. In his charge to the jury the court made no reference whatever to murder as defined by subdivision 3. His instructions related wholly to the crime of murder as defined by subdivision 1 of said section 2268.

The learned counsel for the defendant contends that the evidence was insufficient to establish the premeditation and deliberation necessary to constitute murder under the first subdivision. In the case of Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, Furman, Presiding Judge, speaking for a majority of the court, held that:

"Where an indictment or information charges a defendant with murder under the first subdivision of the statute, a conviction can be had, if warranted by the evidence, under and by virtue of the other subdivisions of the statute."

See also, Turner v. State, ante, 126 P. 452; Byars v. State, 7 Okla. Cr. 650, 126 P. 252. This doctrine, although severely criticized by Mr. Bishop, is sustained by ample authority. Mr. Bishop's text has application to cases from jurisdictions where murder is divided into more than one degree. 2 Bishop's Cr. Proc. c. 33.

Says Mr. Wharton:

"At common law it was not necessary to charge in an indictment for murder that the murder was committed in the perpetration of another crime, in order to introduce proof showing that a felony was attempted in committing it. It was sufficient to charge murder in the common form, and then, upon proof that it was committed in the perpetration of a felony malice, deliberation, and premeditation were implied. And statutes defining different degrees of murder, subjecting them to different, punishment, do not render it necessary to alter the form of an indictment for the crime, or to supply such facts as would show the offense to be murder in any particular degree. And an indictment in the common law form is sufficient under

statutes dividing the crime of murder into degrees, and providing that all murder perpetrated in the commission of, or attempt to commit, a felony, or certain named felonies, is murder in the first degree, as a charge of murder thereunder. Nor is it necessary to state in an indictment for murder the grade of the offense, where it was committed in the perpetration of, or attempt to perpetrate, an offense enumerated in the statute; nor to allege an intent to kill. The perpetration of, or attempt to perpetrate, any of the named felonies, during which attempt a homicide is committed, in such case stands for, and is the legal equivalent of, the premeditation, deliberation, etc., which otherwise are necessary attributes of murder in the first degree. The felony in such case is but a link in the chain of evidence to show malice, deliberation, and premeditation, and, where the indictment charges a killing upon express malice only, proof is admissible to show that the killing was committed in the perpetration of a felony, or of one of the enumerated felonies, or that the motive of the accused in perpetrating the murder was to commit such crime. And that a murder was committed in the perpetration of, or attempt to perpetrate, either arson, rape, robbery, or burglary, is admissible as a part of the res gestae under an indictment charging murder by violence upon express malice aforethought. And an instruction as to murder in an attempt to commit a felony in the language of the statute is warranted. And a person indicted for murder in the first degree under a charge of deliberation and premeditation may be convicted of homicide committed in the perpetration of a felony, though its commission while in such perpetration was not specially pleaded. So the same result is arrived at under statutes providing that it shall not be necessary in an indictment for murder to set forth the manner in which, or the means by which, the death of the deceased was caused, and it is sufficient under them to charge a felonious and malicious killing, without charging that it was done in the commission of a felony." (Wharton on Homicide [3d Ed.] p. 875.)

See, also, 1 McClain, Cr. Law. sec. 355.

In State v. Myers, 99 Mo. 113, 12 S.W. 517, it is said by the court:

"The perpetration or attempt to perpetrate any of the felonies mentioned in the statute during which attempt, etc., the homicide is committed, stands in lieu of, and is the legal equivalent of, that premeditation, deliberation, etc., which otherwise are necessary attributes of murder in the first degree."

To the same effect are the following authorities: People v. Giblin, 115 N.Y. 197, 21 N.E. 1062, 4 L.R.A. 757; State v. King, 24 Utah, 482, 68 P. 418, 91 Am. St. Rep. 808; State v. Johnson, 72 Iowa, 400, 34 N.W. 177; Titus v. State, 49 N.J. Law, 36, 7 Atl. 621; Gay v. State, 40 Tex. Cr. R. 242, 49 S.W. 612.

When the murder charged was committed by the defendant in the perpetration of a robbery or any other felony, malice, deliberation, and premeditated design are presumed.

The court refused to instruct the jury upon manslaughter, and its ruling in this respect is assigned as error. The refusal of the court to give the instructions requested on manslaughter was obviously based upon the idea that, under the undisputed evidence, there were no facts shown or suggested which would warrant the jury in finding the defendant guilty of manslaughter in either the first or second degree. Section 6826 (Compiled Laws 1909), Procedure Criminal, provides:

"On the trial of an indictment, questions of law are to be decided by the court, and questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court."

And section 6875 provides:

"The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."

When murder is charged under the first subdivision of section 2268, supra, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests. However, in this case, the defendant was tried for murder committed while engaged in the commission of a felony, and that was the only proof on the part of the prosecution. His defense was that he was not at the place of the homicide and a denial of any participation in the assault or robbery. We do not think that there was anything in this case as shown by the evidence tending to reduce it from

murder to manslaughter. If the defendant was guilty at all, it was of murder; for this reason we think there was no error in refusing to give the requested instructions on manslaughter.

From a careful consideration of the evidence, we are of the opinion that the verdict, in so far as it responds to the issues of guilty or not guilty of the crime of murder, is sustained by the evidence. While the jury might have had a reasonable doubt, they might also with propriety regard the evidence as sufficient to exclude every reasonable doubt of the defendant's guilt.

The learned counsel contend that the extreme punishment assessed by the jury in their verdict is the result of passion and prejudice. By the law of this state, the punishment to be inflicted for the crime of murder is left to the determination of the jury. Section 2275 (Compiled Laws 1909) of the Penal Code provides:

"Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court court shall be in accordance therewith."

Under the statutes, the findings of the jury are conclusive upon the trial court, and the court below is without power or authority to render judgment and sentence except in accordance with the verdict. On appeal, however, our Criminal Procedure Act provides that:

"The appellate court may reverse, affirm, or modify the judgment appealed from, and may if necessary or proper, order a new trial." (Section 6955.)

Under this statute, this court, exercising its revisory jurisdiction, has the power and authority to modify any judgment appealed from by reducing the sentence. However, that power should not be exercised unless it is apparent that injustice has been done.

The inculpatory evidence was circumstantial, except the testimony of Thelma Morgan, a negro prostitute who had herself been in custody on the same charge. Her testimony is not entitled to much credit, not because of her character simply, but because

her statements are contradictory. Briefly stated, her testimony is that she and Sadie King were street walking, and were accosted by Watson, the deceased, and, after agreeing on a price, she and Watson went to a vacant lot, leaving Sadie King waiting on the sidewalk; that, while in the act of intercourse, she heard something strike Watson, and, turning her head, she saw the defendant Fritz; that she screamed for help, and yelled "murder" several times; that Fritz came up to where she was and pulled her from under the wounded man, and searched her, and then robbed him; that she then went back to Sadie King, and then met Jeff Morgan, her husband, and went home with him; that she told two or three people about it, but did not mention the affair to Sadie King or to her husband.

Sadie King testified that, while waiting on the sidewalk for Thelma Morgan to return from the assignation, she heard no noise or outcry of any kind, and did not know that Watson had been hurt until three days later. Jeff Morgan denied that he gave to the defendant the watch and chain and $10 gold piece, the property of the deceased.

The credibility of these witnesses and the weight to be accorded their testimony were matters for the jury to determine. However, we think that under the circumstances, as shown by all the evidence, Thelma and Jeff Morgan were accomplices to the defendant, and when we consider the fact that the murder of Watson occurred on September 14th, and in 14 days from that time the defendant was put upon trial, and that the order appointing counsel to defend him was made only two days before the trial, and the fact that the deceased was a white man and the defendant a negro, and the further fact that although Watson, the deceased, lived until the following day, he failed to make any statement or declaration as to how his injuries were received, it is our opinion, taking all these circumstances of the case into consideration, that it would be an injustice, the Morgans having been allowed to go free, to affirm the judgment and sentence, and this court, without the power given under the statute to modify the judgment, would be compelled to reverse the case and remand it for a new trial.

The power to pardon, parole, reprieve, or commute is vested in the chief executive of the state (Const. art. 6, sec. 10 [159 Williams']), and this, it is suggested, is the source from which relief must be obtained in such cases as this, and that, as it is the settled policy of the present governor to commute in all cases where the death penalty is imposed, no exception would be made by him in this case. The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice, and the other is an act of grace. Commutation is a matter of discretion, and may be refused. Justice is imperative, and must not be denied. The fact that the governor has the power to commute does not abridge the defendant's right to appeal to this court for relief. In other words the provision of our criminal procedure act makes it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.

In this case we think that the judgment and sentence should be modified to imprisonment for life at hard labor. In reaching this conclusion, we do not wish to be understood as being in favor of abolishing capital punishment as a penalty for murder. We think that capital punishment, at the discretion of the jury, as the penalty of murder, is essential to the security of society, and we have no sympathy with that sentimental humanitarianism which, in the exercise of a mawkish sympathy for a heartless, unfeeling, felonious assassin, forgets and wholly ignores the innocent murdered victim and the necessary safeguards of society. If capital punishment should be abolished, without some limitation of the pardoning power in convictions of murder and manslaughter, and the indiscriminate exercise of the pardoning power in this

character of conviction should continue, it cannot be doubted that convictions of murder and manslaughter in this state would then in many cases be but a mere mockery of law and justice.

For the reasons stated, the judgment of the district court of Muskogee county will be modified to the extent that the sentence will be changed from the infliction of the penalty of death to that of imprisonment in the state penitentiary at hard labor for life, and, as thus modified, the judgment is affirmed.

FURMAN, P.J., and ARMSTRONG, J., concur.