People v. Bishop

RICHARDS, J.

This is an appeal from the judgment upon conviction of the defendant upon a charge of murder in the second degree.

[1]

The appellant’s first contention is that the trial court was in error in overruling the defendant’s demurrer to the information.

The form of the information was unusual in that its drawer did not content himself with following the language of the statute in relation to the charge of murder, but undertook to set forth the details of the homicide which was committed by one Walter Lee Smith upon the decedent, the murder of whom by said Smith the defendant was specifically charged with having aided and abetted. We think the objection which the defendant urged to the information in this form was hypercritical and unsustained by the cases which are cited by him in its support. The information expressly charges that at a certain time and place the said Walter Lee Smith did kill and murder the decedent in the defendant’s presence, and that he then and there aided and abetted the commission of the crime. The defendant was thus informed in a much more precise and detailed and definite manner than he would have been had the charge been general and in the language of the statute just what the accusation was which he was expected to meet, and the information was to that extent more favorable to him than it might have been had it been drawn in the language of the statute. His demurrer to it was, therefore, without merit, and was properlv overruled.

[2]

The appellant’s next contention is that the trial court improperly overruled the defendant’s objection to certain testimony offered by one J. A. Cornett. This testimony related to the acts and conduct of the defendant when, shortly after the crime and the detention of said Smith and himself upon suspicion of being the perpetrators, said Smith in a statement to the officers of the law

[131]

made in the presence of the defendant stated that he, the defendant, had participated in the commission of the crime. The defendant sat silent when this statement was being made; and his act and conduct in so doing was the subject of Cornett’s testimony to the admission of which the defendant objected. In support of his said objection the defendant’s counsel asked and was accorded permission to examine the witness as to the circumstances immediately preceding and attending the statement of Smith, from which it appeared that the defendant a few minutes previous to the taking of said Smith’s statement had been separately questioned by the officers of the law as to his knowledge of and part in the homicide, and had therein denied that he had aided and abetted Smith in the perpetration of the crime. Immediately thereafter Smith was questioned in his presence and in the presence of some twelve or fifteen other people, and then made the incriminating statements above referred to. After bringing out these facts by his examination of the witness Cornett the defendant objected to his testimony, and now urges error in the trial court in overruling said objection.