# Armstrong v. State

> Court of Criminal Appeals of Oklahoma · August 23, 1909 · 2 Okla. Crim. 567

URL: https://www.frixlaw.com/law-library/cases/3826893

## Case

- **Full name:** Henry T. Armstrong v. State.
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** August 23, 1909
- **Citations:** 2 Okla. Crim. 567; 103 P. 658; 1909 OK CR 85; 1909 Okla. Crim. App. LEXIS 170
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Judge
- **Judges:** Furman, Owen
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3826893

## Opinion text

DOYLE) Judge,
(after stating tlie facts as above). As viewed in the light of the evidence before us, this was a crime of appalling atrocity. The main features of ■ the evidence may be succinctly stated as follows: The deceased, with his wife and three children of tender years, resided on a rented farm, known as the “Mossman Place,” about 10 miles northeast of Perry and two miles west of Otoe Station in Noble county. In the spring of 1908, the deceased and defendant put in a cotton crop on this farm upon the shares, and the defendant stayed at the home of the deceased until some time in July of that year. They also had a joint interest in some live stock, which was heavily mortgaged. The crop was destroyed by cattle, and the defendant departed without a settlement or division of the partnership property. C'odefendant, Albert Mitchell, worked for the deceased 28 days during the months of June and July, and left without receiving his wages. The evidence shows that the deceased in the month of December, 1908, was working near the Arkansas river, about 20 miles northeast of his home, and with him were three Ward brothers, who when at home lived with their father, Andy Ward, a near neighbor of the deceased. A few days prior to the murder, the defendant visited the home of the deceased, and asked his wife where her husband was, and where his team was, and .then inquired if he had taken his shotgun with him.
The evidence further show's: That on the night of December 16th the defendant and Mitchell, codefendant, stayed at Andy Ward’s place, about one mile south of the home of the deceased. That on the evening of Thursday, December 17th, they drove to where Fell ivas working, and camped that night with Ephriam and George Ward, in a tent near by a tent occupied by Fell and Fred Ward, and while there defendant stated to the Wards that he was going to have that team of Mr. Fell’s or kill him. Early
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the next morning, with Fell’s team and Ward’s wagon, Fell and Fred Ward drove to Red Rock with a load of corn. Fell then went to his home. The defendant and Mitchell drove back to Andy Ward’s that evening, and there again met Fell. The next morning defendant and Mitchell drove from Andy Ward’s to the place of a man named “Breckenridge,” about one4ialf a mile east of Fell’s home. They were driving a team of ponies to a top buggy, and stated that they were waiting to go with Mr. Fell to where he was working on the Arkansas river. About 11 o’clock Fell drove by in a farm wagon, and the defendant and Mitchell, leaving Breekenridge’s, drove after him, overtaking him near Otoe Station. Soon after the defendant, driving his top buggy, returned to Fell’s home with an order written and signed by Fell for a set of harness, and presented it to Mrs. Fell, and took the harness. Fell had with him that morning in the bottom of his wagon a shotgun in a gun case. The evidence shows that Fell was held a prisoner at a point about one mile southeast of Otoe Station until about 4- o’clock that day, at which time he was murdered by being shot in the temple and through the top of the head.
The defendant, testifying on his own behalf, stated: That he was 59 years old, admitted that he had called at the home of Mr. Fell a few days before the murder was committed and inquired of his wife if he had his shotgun with him, and that he and Mitchell went to the com camp near the Arkansas river on the 17th day of December, stating they went there for the purpose of collecting the wages due Mitchell, and that they stayed at Andy Ward’s on the night of the 18th of December, and had ■stopped at Breckenridge’s on the morning of December 19th, from 8 o’clock until 11 o’clock, waiting for Mr. F'ell to come along. When Mr. Fell drove by, that he and his eodefendant, Mitchell, followed, overtaking him near the Otoe switch. That Mitchell got in the wagon with Fell and took his shotgun out of a gun ease and compelled Fell and the defendant to drive to a hollow in the prairie and there compelled Mr. Fell to write an
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order as follows: "Let IL T. Armstrong have this harness. W. I. Fell”— and ordered defendant to return to Mr. Fell’s home with the order and get the harness. That defendant went and did as he try an indictment, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers. The officers, must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with 'the trial, and to return them, into the court at the next meeting thereof.”
Under this provision the segregation of the jury in felony cases, before the cause is finally submitted, is left in the discretion of the trial court, yet we believe that in the exercise of sound judicial discretion the trial court in a capital ease should not refuse a request from either party to place the jury in charge of sworn officers during the progress of the trial, The legal
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presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that, during the adjournments of a trial, the jurors were permitted to separate. The defendant must 'affirmatively show that by reason thereof he was. denied a fair and impartial trial, or that his substantial rights were prejudiced thereby.
Construing a statute identical in its language, the Supreme Court of California, in the ease of
People v. Chaves, 122
Cal. 134, 54 Pac. 596 , say:
“While the jury was being empaneled, and during the progress of the trial, the court took a recess several times, and at each of such times, after properly admonishing the jurors, permitted them to separate, without the consent of defendant or his counsel. -No .objection to the separation was made; but it is now claimed for appellant that it was error for the court to permit the jurors to separate, and that section 1121 of the Penal Code, which authorized the court in its discretion to permit the separations, is unconstitutional because it is inconsistent with that provision of the Constitution which declares that: ‘The right of a trial by jury shall be secured to all, and remain inviolate/ Article 1, par. 7. The section of the Code referred to is not unconstitutional. It in no way violates or interferes with the right that every one has to a fair trial by jury. The matter rested in the discretion of the court, and, as no abuse of that discretion appears, its action was justified and proper.”
The Supreme Court of Arkansas, in a capital case
(Hamilton v. State,
62 Ark. 543 , 36 S. W. 1054 ), said:
“It is said that the court, against the objection of the defendant, permitted the jurors to separate before the case w-as finally submitted to them. This also was a matter within the discretion of the court. San. & H. Dig. par. 2'236. But in
Johnson v. State, 32
Ark. 309, it was remarked by this court that ‘such discretion should be exercised, especially in trials for felony, with the utmost caution/ The great interest usually5 taken by the public in .trials for offenses punishable by death, and the danger that either the state or defendant may suffer prejudice ¡from such separation of the jurors, make it, in our opinion, rarely prudent for a court to permit such separation in trials for capital offenses, when either the counsel for the state or defend
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ant objects. It is not always easy in such a case to ascertain the influences to Avhich a separation has subjected the jurors. For this reason, as the defendant objected to the separation of the jurors, we believe that it would have been better to have kept them together; but as the statute leaves this matter to the discretion of the circuit court, and as there is nothing to show that the defendant was prejudiced bj7 the separation, the exception must be overruled, and a new trial on that ground refused.”
The Supreme Court of Oregon, in the case of
State v. Shaffer,
23 Or. 557 , 32 Pac. 546 , said:
“The next objection is that the court allowed the jury to separate during the trial of the defendant. This is a matter within the discretion of the court, who may permit the jury to separate pending the trial upon properly admonishing them touching their duties. It is expressly provided by our Code that the jury may be kept together, in charge of a proper officer, or may, in the discretion of the court, at any time before the submission of the cause to them, be permitted to separate; but in either case they may be admonished by the court that it is their duty not to converse with any other person, or among themselves, on any subject connected with the trial, or to express any opinion therein until the case is finally submitted to them. Section 198, Hill’s Code;
Stephens v. People,
19 N. Y. 549 .”
The Supreme Court of Kansas, in the case of
State v. Hendricks,
32 Kan. 559 , 4 Pac. 1050 , said:
“No error was committed by the court in permitting the jury to separate. The court, in a criminal prosecution for murder in the first degree, as well as in other cases, may permit a separation of the jury after instructions are given, and before the arguments of counsel are fully completed, and, indeed, at any time before .the jury are allowed to retire under the charge of their bailiff for final deliberation upon their verdict.”
The Supreme Court of Minnesota, in the case of
State v. Nelson,
91 Minn. 143 , 97 N. W. 652 , said:
“At the opening of the trial, defendants requested, in view, of the alleged public feeling at Owatonna, the place of holding the trial, that the jury be kept in charge of the sheriff and not permitted to separate. The court denied the request, and this order, also, is assigned as error. The question has frequently
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been before us, and we have uniformly held that it is a matter purely discretionary with the trial court whether to confine the jury or permit them to separate during the trial. No reason is presented in the record in this case to justify us in holding that the court abused its discretion.
State v. Bilansky,
3 Minn. 246 ( Gil. 169 );
State v. Ryan,
13 Minn. 370 ( Gil. 343 ).”
The rule to be deduced from these cases is that, where a statute in plain and unambiguous terms confers a discretionary power upon the court, as to whether or not the jury shall be permitted to separate, during the trial of a capital case, the fact that the court permitted .the jury to separate, without objection on the part of the defendant, is not ground for a new trial. -An appellate court is authorized to say that the trial court erred in a matter of this kind, only when it affirmatively appears from the record that there was such an abuse of discretion as denied the defendant a fair and impartial trial; but where the defendant by affirmative proof shows that, by reason of such separation of the jury, his substantial rights were prejudiced, a new trial should be granted.
This provision of our statute is an ample safeguard over the purity of jury trials. The clear intention of. the lawmaking power' is that the mere separation of the jury during the numerous and necessary adjournments incidental to a criminal trial should not result in delaying or defeating the ends of justice, when there is not the slightest presumption or probability or even possibility of injustice to the defendant. In this case, when viewed in the light of the record, the criticism of the counsel for defendant has no merit. It clearly appears that the defendant suffered no injury by reason of the separation of the jury. While we must at all times guard the rights of the accused, we must not be so technical in procedure as to set aside fair and impartial trials upon mere shadows, thus bringing the administration of criminal justice into endless delay and public derision.
We have carefully examined the record, • independent of the assignment of errors, and have given the case that careful-consideration which its importance and its solemn consequences to
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the defendant demand. We find no error in the proceedings and conviction. The evidence., consisting in part of the voluntary confessions of the defendant, conclusively and beyond any reasonable doubt establishes his guilt of the crime. Upon the testimony of defendant himself, he is guilty. To all appearances a more wanton, cruel, and cold-blooded assassination was never perpetrated, and the jury were clearly warranted in the verdict which they have rendered under the law and the facts of the case. It is the opinion of the court that the defendant has had a fair and impartial trial in accordance with the most rigid rules of the law. By his own deliberate and demoniacal act he has forfeited his life, and the stem but just penalty of the law must be enforced upon him.
■Solemn as is the judgment, for the reasons stated, we are compelled to affirm it. As the day fixed for the execution of the judgment and sentence has passed, and as the order staying the execution of judgment fails to fix a definite date, the cause is remanded to the district court of Noble county, with directions to cause the defendant to be brought before it, and to then and there fix another day for the execution of judgment and sentence.
FURMAN, PresidiNg Judge, and OWEN, Judge, concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3826893. Public record. Not legal advice.