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Old Opera House Mystery
Chapter VII - The Apeal
(Filed May 3, 1913 - W. L. Campbell, Clerk
In the Criminal Court of Appeals State of Oklahoma)
Appeal - No. A-1618
N. L. Miller - Plaintiff in Error
vs.
The State of Oklahoma, Defendant in Error
Petition For Rehearing
Comes now said plaintiff in error, N. L. Miller and petitions this court for a rehearing of the same, said cause having been decided adversely (sic) to plaintiff in error by this court on the 26th day of April, 1913.
Said plaintiff in error alleges that in deciding said cause the court overlooked the law as declared by the Supreme Court of this State in the case of Bilby vs. Thomas Gin, Compress Co. and the Criminal Court of Appeals, 1.Okla. Cr. 677, Okla Cr. 449, Pacific reporter at page 1093. Oklahoma, where both Courts hold that the answers of experts in questions identical with the case at bar in effect took from the jury the right to pass upon the questions directly in issue and decisive of the case.
Said plaintiff in error alleges that the Court overlooked the law as declared by the Criminal Court of Appeals of the State of Oklahoma, in case of Spear vs. The State, 123 Pacific, page 852. Okla Crim court of Appeals Vol. 7 page 379, in this, that no decision was rendered in the matter, called to the attention of this court, wherein the trial court refused to allow counsel for plaintiff in error to cross examine a witness for the State, to wit Judge Lawhon, case - made page 253-4, Brief of counsel for plaintiff in error at page 58-9. The law as declared by this court is follow, "The right of cross-examination has always been considered, and as a matter of fact is, one of the most important rights guaranteed to a defendant in the trial of a criminal cause. It is just as important to him as the right to introduce testimony in chief is to the State. If we were to affirm this conviction we would disregard the statures and Constitution of the State which we are sworn to uphold and support."
The court overlooked the fact that there was no evidence tending to show that Miller had administered a drug to stupefy deceased, also that it had been shown that deceased was in the habit to taking drugs.
The Court overlooked the fact that the so-called experts testified to a matter about which all persons of common understanding are as capable to testify as the so called experts, and that the injury inflicted upon deceased did not require expert testimony to determine its character. The court overlooked the fact that the so called experts did not give opinions properly but testified positively and took case from jury.
The court overlooked the fact that the prejudicial remarks were excepted to and such exceptions are properly given and in the record at page 654 case made.
The court overlooked the fact that the refusal to give instruction "G" requested by Miller's counsel deprived Miller of the right of trial by jury.
The court overlooked the evidence in behalf of plaintiff in error fully explaining all the inculpating circumstances introduced in evidence for the State.
The court overlooked the fact that the testimony wholly fails to establish the guilt of the defendant according to the standards of evidence laid down by this court.
Wherefore plaintiff in error prays that a rehearing may be granted in this cause by this court.
L. T. Wilson and Charles Swindall
Attorneys for N. L. Miller, Plaintiff in Error
handwritten note signed at the bottom:
Service of copy of the above petition for rehearing is hereby acknowledged
this 3rd day of May, 1913.
Chas. West, Atty Gen'l.
by C. J. Davenport