Old Opera House Mystery

Chapter VII - The Apeal
Filed 7 March 1913 with W. H. L. Campbell, Clerk,
In the Criminal Court of Appeals State of Oklahoma

Appeal - No. A-1618

17 July 1912 Letter
Letter from Sandor J. Vigg, county Attorney
To Charles West, Attorney General, Okla. City, OK

Hon. Charles West, Attorney General, Oklahoma City, OK

Dear Sir:

In re N. L. Miller vs. State A-1618
Criminal Court of Appeals

The reciept of the letter of Mr. Matson (SCM-D) of the 13th instant relative the above case is hereby acknowledged.

I am giving you herein a few suggestions and a few citiations of authorities that I have in answer to the points raised and argued in the brief of appellant in the above mentioned case.

The plaintiff in error does not seem to have argued his first and second assignments of error in his brief. (pp. 3 and 4 of his brief).

The third assignment of error as set forth and discussed on pages 4, 5, 6, 7, 8 and 9 of the brief of plaintiff in error is not properly a part of the record and case made in this case and the same is not before the higher Court in such a shape as to be reviewed for the reason that the trial court says, according to the case made and according to the brief of plaintiff in error, that he made no such statements as alleged by plaintiff in error under this assignment of error. See brief and case made.

It seems strange that the plaintiff in error under this assignment or alleged assignment of error insists that he should have been given an opportunity to intruduce (sic) evidence while the State was arguing its case to the jury. Where is there anything in this record and case made, properly or improperly presented to this Court, which goes to show that any one tried to make the jury believe that J. C. Snoddy and E. W. Snoddy were the same person, as claimed on page 9 of the brief of plaintiff in error?

Assignment number 6 is stated and discussed by the plaintiff in error in his brief on pages 10 to 40, inclusive, and relates to to admission of evidence.

We insist that the province of the jury was no where invaded by the admission of the evidence of the physicians.

"A surgeon may give an opinion as to the probabea cause of death, and may state when, in his opinion, death occurred, and that is was not suicidal." Underhill on Criminal Evidence (2nd Ed.) pages 544, and 545 and authorities there cited.

"An experienced physician, who held an inquest on the body of the women with whose murder the defendant was charged, was properly permitted to testify that, in his opinion, she could not have inflicted on herself the wound of which she died." - Miera vs. Territory of New Mexico 81 Pacific Rep. 586.

"The pregnancy of the deceased, an unmarried woman, may be shown as evidence of motive." See 6 Ency. of Evidence page 725 and authorities there cited.

"Evidence of the illicit relations existing between the parties the parties previous to the homicide is comptetent to show motive." - 6 Ency. of Evidence page 714 and authorities there cited; 21 Cyc. 1007 and authorities there cited.

"Any fact is admissible in evidence which tends to shed light upon the intention of the defendant in the commission of an act for which he is upon trial, even though it may prove a separate and independent crime." - Williams vs. State of Oklahoma 4 Okla. Cr. R. 523, 114 Pac. R. 1114.

As I have not the case of State vs. Hyde 136 S. W. 316, cited by plaintiff in error in his brief, I am unable to say whether that case is in point here. As you have the Hude case in your library, I leave its examination to your office.

There is another assignment No. 6, on pages 41 to 58 of the brief of plaintiff in error, where complaint is made of some instructions refused and given by the Court and also of the testimony of Dr. DeBarr.

The instructions given by the Court covered the entire case under the evidence, and a careful examination will show that they were certainly favorable to the plaintiff in error, consequently he cannot complain. See the instructions given by the Court.

On page 53 of his brief plaintiff in error says that it is difficult to understand why the testimony of Dr. DeBarr was admitted. Let us see. Dr. DeBarr testified that he found certain drugs and WHISKEY in the stomach of the deceased. The defendant himself testified that on the day of the homicide about noon he gave the deceased WHISKEY. W. M. Bickel testified, and properly so, that the defendant told him that he (the defendant) studied medicine and understood the effect certain drugs would produce. All this evidence was introduced to show that the defendant used the WHISKEY and the drugs to produce a state of stupor or intoxication in the deceased, and then the defendant strangled her to death with the scarf as alleged in the information. Suppose that the hands of the deceased had been tied together before she was strangled to death and that she was found in that condition. Could the State not show that her hands were tied? May not such fact go to the jury to show that the power of defense and protection was taken from the deceased and when that was done she was strangled? So it is in the case at bar, the defendant gave the whiskey and the drugs to the deceased to produce a state of stupor and intoxication in her, and then while the deceased was in that helpless condition the defendant strangled her to death with the scarf she wore.

Assignment of error 7 and 8 are not argued in the brief of plaintiff in error and are therefore abandoned.

Assignment No. 9, is stated and discussed by plaintiff in error on pages 58 and 59 of his brief. His brief shows that the question asked by his counsel of the witness Lawhon is incompetent, irrelevant and imaterial; and besides the record and case made on page 254 show that the question was absolutely answered by the witness, therefore, the dialouge between Court and counsel has no bearing on this case and the incident is harmless.

Assignment 10 and 11 are not presented by the plaintiff in error in his brief and are therefore abandoned.

Assignment No. 12 on page 60 of the brief of plaintiff in error is not worthy of consideration. The Pickrell case cited by plaintiff in error to support his said alleged assignment of error is not in point; and further there is nothing in this that shows that the plaintiff in error ever objected to the saving of exceptions by the State, or that he has presented the matter to the lower Court in his motion ofr new trial.

The record does not show in so many words, but it was the practice of Judge Cullison to instruct the court stenographer to save exceptions to every ruling of the Court whether for or against the defendant or the State, and many times when in fact no exceptions were saved by the State the record, under the practice of the trial Court, notes the exception. The record proves this. Observe the exception saved both by the State and the defendant. Notice the language of the case made and record, which is as follows in most cases, "To which ruling of the court the defendant then and there duly excepted at the time." "To which ruling of the court the Sate then and there duly excepted at the time."

Such language is not the language of attorneys for the State. They say, "The State excepts." The time has not yet arrived in the State of Oklahoma, and I hope it never will arrive, when county attorneys are not permitted to save exceptions to the rulings of Courts, when such exceptions are put into the record in good faith, as was done in the case at bar.

Assignments number 13, 14 and 15 do not appear to be presented by the plaintiff in error in his brief, and they are therefore abandoned.

Assignment number 16 stated and discussed in pages 60 and 61 of the brief of plaintiff in error deals with the question of the sufficiency of evidence. To this assignment of error we reply that the Criminal Court of Appeals of the State of Oklahoma is a court of law, and not a Court of fact.

The evidence on behalf of the State in this case shows conclusively and beyond a reasonable doubt that the defendant is guilty of the crime charged against him, and a jury has so declared by its verdict. Read all the evidence in the case and note the testimony of both the defendant and of the State. The defendant took the witness stand in his own behalf and his testimony amounts practically to a confession of guilt, and under the evidence there is not escape from the awful fact that the defendant strangled the deceased to death by means of the scarf as alleged in the information.

I believe that the judgment and sentence should be affirmed. Hoping that these suggestions may be of some service to you in preparing the brief on behalf of the State in this case, I am,

Respectfully yours,
Sandor J. Vigg,
County Attorney.

Old Opera House Mystery

Okie Legacy

Old Opera House Mystery

Chapter VII - The Apeal Filed 7 March 1913 with W. H. L. Campbell, Clerk, In the Criminal Court of Appeals State of Oklahoma

Chapter VII - The Apeal
Filed 7 March 1913 with W. H. L. Campbell, Clerk,
In the Criminal Court of Appeals State of Oklahoma