(The Court refused to read Defendant's proposed Instructions to the jurors.)
The defendant, N. L. Miller, through his attorneys, L. T. Wilson and Charles Swindall, filed a Motion & Request with the Woodward County Court to move and request the Court to incorporate in his charge to the jury, special instructions from "A" to "K" inclusive.
Instruction "A"... The Court instructs the jury that the information in this case is not any evidence whatever, but simply a formal charge upon which the defendant is placed upon trial, and you are instructed to so consider it. Requested by Deft (defendant).
Instruction "B"... You are instructed that the opening statement of counsel for the state and defendant is just an outline of the fact that the respective parties intend to offer evidence in support of and is not evidence and when you retire to deliberate upon your verdict in this case you will not consider the same as evidence.
You should listen to the argument of counsel for the state and the defendant and not form any opinion in the case until the argument is completed, but the statements of counsel for the state and defendant should not be considered by you in any way as any evidence but are simply made in explaining their respective theories of the case and aiding you in arriving at a fair and impartial verdict in the case. Requested by Deft (defendant).
Instruction "C"... The Court instructs the jury that the verdict in this case must be based upon the testimony which the court has permitted to go before the jury, and the law applicable to this case as contained in these instructions, aided by such general knowledge and experience as the jurors may possess in common with all persons of ordinary intelligence.
Instruction "D"... Where a conviction depends upon circumstantial evidence alone, each fact necessary to establish the guilt of the accused must be proven by competent evidence beyond a reasonable doubt and the facts and circumstances proved should not only be consistent with the guilt of the accused but must be inconsistent with any other reasonable hypothesis than that of his guilt. The circumstances of suspicion, no matter how grave or strong, are not evidence of guilt, and the accused must be acquitted unless the fact of his guilt is proven to your satisfaction by the evidence beyond a reasonable doubt. Requested by Deft (defendant).
Instruction "E"... You are instructed that in the application of circumstantial evidence to the determination of this case the utmost caution and vigilance should be used. It is always insufficient when, assuming all to be proved which the evidence tends to prove, some other reasonable hypothesis arising and growing out of the evidence in the case than the one sought to be established by the evidence, may be true..... Requested by Deft (defendant).
(page 664 of the transcript was missing. Page 665 followed 663 with the last part of Instructions "G".)
Instruction "G"... is the opinion of such a witness, based upon the fact in the case as shown by the evidence, but it does not even tend to prove any fact upon which it is based and before you can give any weight whatever to expert testimony you must first find from the evidence that the facts upon which it is based are true, and that all of the facts relating to the appearance, physical condition and drugs or medicines are covered by the expert in the facts upon which he bases his opinion. The opinions of a medical expert are to be considered by you in connection with all the other evidence in the case, but you are not bound to act and should not act upon them to the exclusion of other testimony. Taking into consideration these opinions and giving them just and proper weight, you are to determine for yourselves from the whole evidence whether the defendant did or did not on the 9th day of November, 1910 kill Mabel Oakes by strangling her to death by then and there winding a scarf about her neck as charged in the information. Requested by Deft. (defendant). Rejected by the Court. Excepted to by Deft. (defendant) at the time.
Instructions "H"... Bearing upon the question as to how the deceased, Mabel Oakes, came to her death, or what was the cause of her death, certain witnesses have been called upon to ..... Such witnesses are called to testify, not because they were present or witnessed any fact about which they are here to tell you, but because they are supposed to have given this particular branch of science more study and attention than you, the court, or the attorneys, and hence they come here to give you their opinion or their judgment. Now, gentlemen, that evidence, in the end, is subject to your supervision and to your judgment. They give you their opinion, as I have said before, upon a supposed state of facts, - supposing certain things to exist as shown from the evidence, and determine whether the facts which are supposed to exist in the hypothetical question that is asked of the doctors, to actually exist, - whether the facts supposed to exist are true or not, - because if one fact supposed to be true, included in in the question, is untrue, not supported by the evidence, then the opinion of the doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and wwe do not know what his opinion would be if one of those facts were withdrawn. Requested by Deft. (defendant). Rejected by the Court. Excepted to by Deft. (defendant). at the time.
Instructions "I"... The Court instructs the jury that they cannot convict the defendant of the crime charged in the information unless the fact of the killing of the deceased by the defendant and the death of the deceased, Mabel Oakes, are each established as independent facts beyond a reasonable doubt, and if you have a reasonable doubt as to the means employed in producing the death of Mabel Oakes, or if you have a reasonable doubt as to the manner of her death, that is to say, whether it was produced by strangulation by the hands of the deceased or some other person than the defendant, or produced by the defendant wearing a scarf drawn tightly about her neck, and while in such position that she fainted and become strangled accidentily in that manner, or if she by mistake or intentionally took poisons in such quantities as to produce her death, or in the event that she died from poisons administered by any person and not by strangulation as charged in the information, then it is your duty to give the defendant the benefit of such doubt and find him not guilty. In other words, you cannot convict the defendant for the crime charged unless you believe from the evidence beyond a reasonable doubt that Mabel Oakes is dead and that she was strangled to death by the defendant winding a scarf about her neck with the premeditated design to effect her death, and that she died from such cause alone unaided by any other agencies whatever. Requested by Deft. (defendant).
Instructions "J"... You are instructed that the court has permitted some evidence to go before you for your consideration that the deceased, Mabel Oakes, was pregnant with child, and that the defendant discussed with certain witnesses about producing an abortion upon said deceased, which was permitted to go before you for the purpose only of showing a motive or lack of motive on the part of the defendant in committing the crime charged in the information, and that this evidence was admitted for that purpose only, and not for the purpose of showing that the defendant is guilty of any other crime; for if he was it should have no weight in this case. He is not to be of the crime charged because he might possible be guilty of some other crime, and you should be careful in your deliberations in this case not to consider such evidence as tending to connect the defendant with any other crime, and if you should believe that said defendant has committed some other crime or attempted some other crime, that fact should have no weight or consideration in your deliberations in this case for the defendant cannot be convicted for any offense except the one charged in the information, and not of that offense unless you believe by the evidence beyond a reasonable doubt, that he strangled Mabel Oakes with a scarf by winding the same about her neck, as charged in the information, and by such strangulation caused her death on or about the date laid in the information. Rejected by the Court. Requested by Deft. (defendant). Excepted to by Deft. (defendant). at the time.
Instructions "K"... The court further instructs the jury that it is your duty in this case to entirely disregard and altogether dismiss from your minds any and all offers or evidence made by counsel which the court refused to admit, and any and all questions asked by attorneys which the court refused to allow the witnesses to answer, and also any and all arguments or inferences made or drawn therefrom by counsel, if any, upon the courts ruling upon such admission or exclusion of evidence. In making up your verdict in this case, you are instructed that you must not allow your minds to be influenced in the least by any such offers of inferences.
Requested by Defendant (deft.)
Rejected by the Court.
Excepted to by Deft. (defendant) at the time.
Judge.
714 - In the District Court, Woodward County, Oklahoma.
State of Oklahoma, Plaintiff, vs N. L. Miller, Defendant.
Motion and Request for special instructions by defendant.
Filed Sept. 11, 1911. Jerry Coover, Clerk.
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