Atchison v. State , 3 Okla. Crim. 295 ( 1909 )

On the morning of the 19th day of October, A.D. 1908, about 9 o'clock, Ruel Anderson was shot and killed by the defendant, David Atchison. At the time deceased was shot, he was near the back door of the house in which the defendant lived. He was shot with buckshot; the charge entering the back of his neck. His neck was broken, and death was instantaneous. It is very clear from the evidence, and the physical indications at the place of the killing showed convincingly, that the defendant, when he fired the fatal shot, was waiting with a formed design to kill and murder the deceased. He had fully prepared himself the evening before to kill, and he shot upon sight. Unquestionably the homicide was a deliberate assassination. The previous preparation and physical facts rebut and absolutely repel the theory of justifiable homicide, in the lawful defense of his wife from an imminent felonious assault.

The defendant complains that there was material error in the trial of said cause to the prejudice of his substantial rights, in that the court erred in excluding material evidence offered by him, and that the court erred in instructing the jury. The defendant, testifying on his own behalf, was asked what efforts he made to avoid trouble with the deceased? He testified about consulting a justice of the peace at Mustang to have the deceased placed under a peace bond, and that the next day he went to a justice of the peace at Yukon and consulted him. On the next day he went to El Reno and stated the matter to the county attorney. He was then asked: "What was your object in applying to these several officers?" Objection being sustained to this question, the court excused the jury. Counsel for the defendant thereupon stated the purpose of the questions propounded, and what was expected to be proved thereby. This was objected to and excluded by the court. The same proof was offered with the wife of the defendant as a witness, and the same objection was sustained. No claim was made by the defendant that he believed himself in danger, or that the killing was in his own necessary self-defense. His plea of justification is that the killing was necessary in the lawful defense of his wife, as he had reasonable ground to apprehend a design on the part of the deceased to do her some great personal injury, and that there was imminent danger of such design being accomplished. If, at the time of the overt act, the defendant did not in fact believe his wife in imminent danger from the deceased, the homicide was murder. The facts went to the jury that he had consulted certain officers for the purpose of securing a peace warrant. This was sufficient. An appellate court should carefully consider and guard against so construing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender. What he said, and what the said officials said to him and his wife, would be merely self-serving declarations and hearsay.

The court instructed the jury as to the crime charged in the indictment, the plea interposed, and that the burden was upon the state to prove beyond a reasonable doubt the material allegations of the indictment and every element and ingredient of the crime charged on the presumption of innocence, and that the indictment was merely an accusation, and no evidence of guilt; defined the phrase, "a reasonable doubt," and the terms, "homicide," "murder," "manslaughter in the first degree," and "manslaughter in the second degree"; also, that homicide is justifiable when committed by any person in either of the following cases:

"First, when resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or, second, when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished."

In all the court gave 19 instructions. On the defendant's objections, exceptions were allowed to instructions numbered 8, 11, 12, 13, 14, and 15, as follows:

Instruction No. 8:

"You are instructed that homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger. (Excepted to by defendant as not being sufficiently full to give the jury a full understanding of the law on that question.)"

Instruction No. 11:

"If you find from the evidence in this case, beyond a reasonable doubt, that in the county of Canadian, state of Oklahoma, on or about the 19th day of October, 1908, the defendant, David Atchison, shot and killed Ruel Anderson with a shotgun, and that he fired the shot which killed Anderson without authority of law and with a premeditated design to effect the death of the said Anderson, you will then find him guilty of murder as charged in the indictment, and fix his punishment at death or imprisonment at hard labor in the penitentiary for life, in your discretion. (Objected to because the instruction ignores the last phrase of the statute defining manslaughter in the first degree and excludes the same from the consideration of the jury under the facts presented by evidence submitted.)"

Instruction No. 12:

"If the killing of Ruel Anderson was not justifiable as defined in these instructions, and you entertain a reasonable doubt as to whether the shooting of the said Anderson was done with a premeditated design to effect his death, and you do believe from the evidence beyond a reasonable doubt that the defendant fired the fatal shot while in the heat of passion, and with no premeditated design to kill the said Anderson, you will then find him guilty of manslaughter in the first degree. (Excepted to as not being sufficiently full to give a complete understanding of the law involved.)"

Instruction No. 13:

"The jury are instructed that no provocation by words only addressed to the person killing or to another in his presence, however opprobrious or insulting, will mitigate an intentional killing, so as to reduce the killing to manslaughter, and although the jury may believe from the evidence that insulting epithets were used by the deceased to the wife of the defendant in the defendant's presence, yet if the jury further believe from the evidence, beyond a reasonable doubt, that the defendant immediately thereafter shot and killed the deceased, then the defendant is guilty of murder, unless the jury shall further believe from the evidence that said killing was reduced to manslaughter, or was justifiable upon other grounds, or by other causes than the use by deceased of such opprobrious and insulting language. And in this connection I instruct you that if you believe from the evidence in this case that the defendant, when he fired the shot which caused the death of Ruel Anderson, was in a heat of passion produced by opprobrious and insulting words directed toward the wife of the defendant, and while so in that heat of passion slew the deceased, then the defendant would not be guilty of murder, but of manslaughter in the first degree, provided that you find further that the killing of the deceased was without design on the part of the defendant. (Excepted to by defendant as not stating fully or correctly the law governing under the evidence submitted.)"

Instruction No. 14:

"I instruct you that, when you have retired to your jury room to consider of your verdict and have selected a foreman, you will first consider as to whether the defendant is guilty of murder as charged in the indictment, and if you have a reasonable doubt from the evidence, facts, and circumstances of this case, or the lack of the same, under the instructions here given you, of the guilt of the defendant on the charge of murder, you will then abandon the consideration of that charge, and ascertain whether under the evidence, facts, and circumstances of this case the defendant is guilty of manslaughter in the first degree. If, after having given this charge of manslaughter in the first degree thorough consideration, you entertain a reasonable doubt of the defendant's guilt of manslaughter in the first degree, it will then be your duty to abandon the consideration of the defendant's guilt of manslaughter in the first degree, and ascertain from the evidence, facts, and circumstances in the case whether the defendant is guilty of manslaughter in the second degree as defined in these instructions; and if, after having given the charge included in the indictment fair and thorough consideration, you entertain a reasonable doubt as to defendant's guilt of manslaughter in the second degree, it would then be your duty to acquit him. (Objected to by defendant because manslaughter in the second degree is not defined; the statute simply being quoted.)"

Instruction No. 15:

"If the jury believe from the evidence in this case that when the defendant shot and killed Ruel Anderson he had reasonable grounds to believe, and did believe in good faith, that his wife was in imminent danger of losing her life or suffering great bodily harm at the hands of the said Ruel Anderson, and that there were no other apparently safe means of escape by his said wife from the impending danger, then the defendant had the right, and it was lawful for him in the exercise of reasonable judgment, to use such force as was reasonably necessary or apparently necessary to save and protect his wife's life or her person from great bodily harm, even to the taking of the life of the said Ruel Anderson. On such grounds, and under such circumstances, the defendant is justifiable under the law in the defense of his wife. The danger to one's life or of great bodily harm to his or her person by which the defendant pleads justification for his acts, as herein indicated, may be real danger or apparent danger; but, before the jury can acquit the defendant on the ground of defense of his wife, three essential elements must concur: First, defendant and defendant's wife must be without fault in bringing on the difficulty, and must not be disregardful of the consequences in this respect or any other wrongful word or act; second, there must have existed at the time either really, or so apparently as to lead a reasonable mind to the belief that there actually existed, a present imperious impending necessity to shoot in order to save himself or his wife from death or great bodily harm; third, there must have been no other reasonable mode of avoiding the necessity of taking the life of the deceased, apparent to the defendant as a person of ordinary prudence and courage (objected to as not correctly stating the law applicable)."

It will be observed that instruction No. 8 above set out is in the exact language of section 2271, Snyder's Comp. St. 1909, except the words, "or voluntary intoxication at the time," are omitted. It is insisted that this instruction is erroneous, and counsel argue that:

"It may not be said that the provision of the statute is bad law, and yet we think there may be prejudicial error in quoting the statute as the law governing the deliberations of the jury. And when the bare provision of a statute is quoted as the instruction to a jury there ought, in connection with it, to be given such explanations as will enable the jury to intelligently consider it. And that anger may arise from a provoked cause, and we think is sometimes intentionally provoked, and when such is the case, and when the evidence shows such possibility, the jury should be given to understand that such heat of passion is not the anger referred to in the statute quoted, but is rather that referred to in the second sub-division of the statutory definition of manslaughter in the first degree."

It is also argued that the first sentence in the thirteenth instruction intensifies the error in giving the eighth without explanatory modification, and that the concluding clause, "provided you find further that the killing of the deceased was without design on the part of the defendant," wholly destroys this instruction. We do not believe that this contention is well founded. These instructions state the law. The latter half of instruction No. 13 covers the objection as made, and the proviso is based upon subdivision 2, § 2276, Snyder's Comp. St. 1909, defining "manslaughter in the first degree," and set forth in another instruction.

It is also insisted that instructions Nos. 11 and 12 are erroneous, and it is argued that the jury should have been advised, in view of the testimony of the defendant, his wife, and daughters:

"That they should consider the question as to whether or not the act of killing was necessary to prevent the commission of a crime, or the act of deceased so threatening as to cause such interference by a reasonably prudent and courageous man who was in that way threatened by the deceased, and that if they found from the evidence that an attempt to commit a crime was at the time being made by the deceased, but that the killing by defendant, acting as a reasonably prudent and courageous man, was unnecessary to prevent it, the verdict in such case should be guilty of manslaughter in the first degree, instead of instructing that, if the act complained of was without authority of law, the jury should find the defendant guilty of murder."

And counsel in their brief further say:

"We desire here to call the attention of the court to the fact that, while there was evidence tending to show that the deceased was at the time of his death in the act of committing a crime, which made it incumbent upon court and jury to pass upon, there was no instruction given covering the phase of the case arising from an unnecessary killing in order to prevent such crime, if the jury found from the evidence that the deceased was at the time so in the act of committing an assault upon Mrs. Atchison. By such failure to so instruct, and instructing that the defendant must be found guilty of murder, if the killing was not justifiable, and was intentional, the defendant was deprived, over his objection, of the right to have the offense charged against him, considered in the light of the third subdivision of the statute defining manslaughter in the first degree. The defendant was not negligent in this respect, for his request to have this instruction modified was explicit, and the request was refused."

The objection made is as follows:

"The defendant, David Atchison, objects to the instructions, and asks that the same be not given to the jury until modified in accordance with the objections thereto as shown by the exceptions indorsed on the instructions and in accordance with objections here stated: First, because the instruction ignores the right of the defendant to have the degree of the crime reduced to manslaughter in the first degree, when the killing is perpetrated unnecessarily while resisting, as shown by defendant's testimony, an attempt by the person killed to commit a crime, to wit, an assault upon the person of the wife of the defendant, or after such attempt should have failed."

It is also argued that the error complained of in the eleventh instruction was accentuated by giving the twelfth instruction.

Section 6857, Snyder's Comp. St. 1909, provides:

"In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon such charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused."

It is well settled that the court in its instructions to a jury in a criminal cause must instruct them upon the law applicable to the evidence adduced upon the trial. This is the purpose of the instructions given by the court and is only properly fulfilled when the jury retire to deliberate fully informed upon the law which is to govern them in their deliberations.

"The charge should state the law in its application to the facts, as already explained, correctly and fully. If, for example, there are different degrees of an offense, the law of each degree, which the evidence tends to prove, should be given, but not of any degree which it does not tend to prove." (Bishop, Crim. Proc. par. 980.)

The theory of the state was that the defendant, with malice, or actuated by the spirit of revenge, deliberately shot the deceased, when there was no necessity for him to do so, to protect his habitation or family, and no circumstances at the time to justify a passion which caused him to shoot the deceased. The theory of defendant was that he shot and killed the deceased to prevent him from committing a felonious assault on the person of his wife, and he and his family so testify. The issue was clearly defined. If the theory of the defendant be supported by the facts, he was not guilty of any offense, but was entirely justified. If the theory of the state was correct, then the crime was murder.

The instructions of the court fully and fairly present the law of the case upon the theory of the defense, and also the law of manslaughter in the first degree by instruction No. 6, as follows:

"Homicide is manslaughter in the first degree when perpetrated without design to effect death, and in the heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide, or when the killing is perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed."

And instruction No. 9, as follows:

"The indictment in this case charges the highest degree of homicide; but the charge in the indictment embraces all the lower degrees of such crime, viz., manslaughter in the first degree and manslaughter in the second degree, as well as that of justifiable homicide. The defendant is presumed to be innocent of the crime charged and of each lower degree of crime embraced in the indictment, until the contrary is made to appear by competent evidence to the satisfaction of the jury, beyond a reasonable doubt; and, if you entertain a reasonable doubt of the guilt of the accused, it is your duty to return a verdict of not guilty."

There were no objections made and no exceptions were taken to these instructions. It is here insisted that they do not go far enough, and are therefore to that extent erroneous. In the absence of a more complete instruction presented to the court on the part of the defendant with the request that it be given, we cannot believe that the failure to explain the instruction defining manslaughter in the first degree constitutes error.

The vice imputed to instruction No. 14 is that "manslaughter in the second degree" is not defined. The question is: Does the evidence in the case show, or tend to show, any of the elements or ingredients of manslaughter in the second degree? Assuming the facts to be as claimed by the defendant in this regard and as shown by the testimony offered on his behalf, there was no such evidence adduced upon the trial. In Cannon v. The Territory,1 Okla. Cr. 600, 99 P. 622, it was held by this court that it is the duty of the court to say, as a matter of law, if there is any evidence that would tend to reduce the degree of the offense to manslaughter in the second degree. Mr. Wharton says:

"The province of the court, on an issue as to the degree of a homicide, is to guide and direct the jury, and keep them within proper bounds. It is its duty to determine whether competent evidence has been introduced, which, if believed by the jury, would furnish the elements or ingredients of any particular grade of homicide." (Wharton on Homicide [3d Ed.] p. 241.)

We are of opinion that, under the facts in this case, there was no evidence which authorized an instruction on the law of manslaughter in the second degree.

Finally, it is asserted that:

"The fifteenth instruction proceeds upon the ground that the jury must believe there was reasonable grounds for the defendant's belief that the wife of the defendant was in danger of suffering great bodily harm at the hands of deceased, and that there was no other apparently safe means of escape, when it should have stated that such fact as viewed from the standpoint of defendant, considering all the facts and circumstances shown upon the trial, was sufficient to justify the act complained of."

There is no merit in this contention. Considering the instructions of the learned trial judge as a whole, we do not find any inadequacy, nor do we find any indication whatever of either prejudice or partiality.

The only remaining assignment of error is that "the verdict and judgment are contrary to the law and the facts offered in evidence upon the trial." The questions presented by this assignment have been fully considered. Our views as to the sufficiency of the evidence to sustain the verdict were stated at the outset. We entertain no doubt on this question. The defendant was well and ably defended in the court below, and his eminent counsel in their brief before this court have learnedly elaborated on the few irregularities which occurred upon the trial; but the day is past in the administration of criminal law in this state for a criminal to escape the just penalty of the law on a mere technicality not involving a fundamental principle or a substantial right. Section 6957, Snyder's Comp. St. 1909, prescribes that:

"On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties."

The letter and spirit of this law is that if the defendant has had a fair trial, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, and the verdict against him was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

We have carefully examined the record, and in connection with the very able and elaborate brief of counsel for the defendant, have fully considered the questions presented. For the reasons herein stated, we are of opinion that the defendant had a fair and impartial trial, and that no error was committed prejudicial to his substantial rights.

The judgment of the district court of Canadian county is therefore affirmed.

FURMAN, PRESIDING JUDGE, and OWEN, JUDGE, concur.