Gransden v. State , 12 Okla. Crim. 417 ( 1916 )

This case comes up on petition for rehearing. There is one proposition raised by the petition for rehearing which deserves, and has received, our most careful consideration. This is the failure of the court to instruct the jury specifically, upon the defendant's theory as to why he shot his fleeing adversary in the back.

(7) The difficulty which resulted in the shooting occurred in a building which faces west. Four feet in front of this building were two brick pillars, which supported a protruding roof. These pillars were each 17 inches square and located one to the north and the other to the south of the front door. The defendant testified: That when the difficulty arose the deceased advanced upon him and slapped him on the face with his left hand, and was at the same time tugging a pistol in the right hip pocket with his right hand. That he stepped back and drew his pistol and snapped it at deceased. That deceased then hastily retreated, going out the front door and toward the north pillar in front of the building, still tugging at his pistol with his right hand, trying to get it out of his right hip pocket. That he believed deceased was retreating for the purpose of taking shelter behind the brick pillar, and intended to shoot at him from that place of vantage. That he stepped out upon the sidewalk to the southwest of the front door, and before deceased had reached the pillar he saw the handle of his pistol, and instantly fired the fatal shot, believing it was necessary to do so to protect his own life. The fatal bullet struck the deceased in the back, about midway between the shoulder blades, and he instantly fell to the pavement.

The defendant requested the court to instruct the jury as follows:

"If the jury believe that the deceased at the time of the homicide intended and endeavored to take the life of the defendant, or do him serious bodily harm, or that the defendant, from all of the evidence and all the facts and circumstances surrounding him at the time, viewed from his standpoint, had reasonable ground to believe that his life was in imminent danger from the deceased, or that the deceased intended and was attempting to do him serious bodily harm, the defendant was justifiable in shooting the deceased to repel the attack. And in such case the defendant was not compelled to retreat, but had the right to pursue his adversary until he found himself out of danger, and if in the conflict between them, under the circumstances described, the defendant killed the deceased, such killing is justifiable."

This requested instruction was refused; and the defendant insists that he was entitled, under his own evidence, to this instruction or a similar one, which would tell the jury that if they believed that the defendant thought the deceased was retreating to take cover behind this brick pillar, and from that vantage ground shoot him, that he was justified in pursuing him and shooting him to prevent such action on the part of deceased. This proposition was very skillfully and ably argued by counsel for defendant, in an oral argument on the petition for rehearing; and we were strongly impressed that it might not be without merit. But a careful examination of the record shows that the unimpeachable physical facts so squarely contradict the testimony of defendant that the court was justified in refusing to give this instruction.

The evidence shows that the deceased passed out the front door, and went between the wall and the brick pillar to the north of the door, and was shot down northwest of this pillar. He had passed between the wall and this pillar, which necessitated his going on the east side of the pillar, and as he emerged from the northwest side of the pillar, and was going north, with his back toward defendant, defendant fired the fatal shot. If the defendant surmised in the first instance that it was the purpose of deceased to take shelter behind this pillar as a vantage ground, that supposition vanished, or would have vanished in the mind of a reasonable man, when he saw the deceased pass by this pillar and emerge to the northwest of it, still retreating, with his back toward him.

Besides, it developed in the evidence, and stands undisputed, that the deceased was left-handed. And it is a matter of common knowledge that a left-handed man would carry his gun in a left-hand pocket, accessible to the dextrous hand, and would use that hand in drawing his gun, and when engaged in a deadly combat. There were others who saw deceased strike defendant with his left hand, but none of them saw him tugging at a pistol with his right hand; and that he would be doing this, under the undisputed evidence that he was a left-handed man, is contrary to the common experience of men. No pistol was found upon the body of deceased; and the attempted explanation of defendant that the son of deceased took a pistol from his hand is absurd, since all the witnesses, including the defendant himself, testified that, the instant deceased fell, defendant covered the son with his revolver, and refused to allow him to administer to or touch the body of his dying father. And we believe the doctrine to be sound that when the unimpeachable physical facts squarely contradict the words of the defendant on the witness stand, and show the theory of his testimony to be absurd, that "courts are not required to ignore such physical facts and give instructions not in harmony with them," but absolutely subversive of the theory they mutely and unalterably declare. State v. Gilmore,95 Mo. 554, 8 S.W. 359, 912.

(8) A court by its instructions is not required to invite a doubt, where nothing can be so unreasonable as to suppose that one can exist. A court is not required to stultify itself by basing its instructions upon the defendant's words in preference to his acts. "The latter are the true exponents of his intention, and they furnish the only safe key to his motives." State v.Bryant, 102 Mo. 24, 14 S.W. 822; State v. Turlington,102 Mo. 642, 15 S.W. 141; State v. Anderson, 89 Mo. 312, 1 S.W. 135. And in the language of the court in State v. Tucker, 232 Mo. 1, 133 S.W. 27:

"It seems to us that this is, if there ever was, a case in which a court and jury could say that the statements of the defendant so contradict the physical facts, and his conduct is so unreasonable and inconsistent with the experience of mankind, that the court was not bound to believe him and instruct the jury on his testimony."

And yet the court in this case, out of an abundance of fairness and precaution, instructed the jury that:

"When an unlawful attack has been made upon a person by another, and the person making the attack is killed, in determining whether the killing was necessary and in self-defense, the nature and apparent purpose of the attack, the intention with which it is made, the existence of appearance of danger, and the extent thereof, the amount or degree of force necessary and sufficient to be used to avoid the apparent or threatened danger, and all the facts and circumstances in the case must be viewed and considered by the jury from the standpoint of the person doing the killing at the time thereof, and from no other standpoint, and if, when viewed from his standpoint, it appears that he might reasonably have believed the killing, or the act which resulted in death, was necessary to prevent death or great bodily harm to himself, the killing will be justifiable."

Under the facts in this case we do not believe that the defendant was entitled to more. The defendant bases his right to the special instruction requested on the doctrine of this court as announced in former cases, and cites Courtney v. State, 10th Okla. Cr. 589, 140 P. 163; McIntosh v. State, 8th Okla. Cr. 469, 128 P. 735; Payton v. State, 4th Okla. Cr. 316,111 P. 666, and Douglas v. Territory, 1st Okla. Cr. 584, 98 P. 1023. But the doctrine above announced is not in conflict with the holding in the above-cited opinions. In Courtney v. State, supra, the holding is that:

"The accused, in a criminal case, is entitled to instructions defining the law applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate such theory."

And this is in substance the holding of each of the above cases cited, and is sound, and is in no way in conflict with what is said in this opinion.

The petition for rehearing is denied.

DOYLE, P.J., and ARMSTRONG, J., concur.