Irby v. State , 18 Okla. Crim. 671 ( 1920 )

This appeal is from a judgment of conviction for manslaughter in the first degree, the punishment having been assessed at imprisonment in the penitentiary for a term of four years. The information charged the defendant, Herbert Irby, of having committed the crime of murder by killing his wife, Ruby Irby, by shooting her with a pistol. The theory of the prosecution appears to have been that the killing was an assassination. The defendant sought an acquittal of the charge against him on the ground that he had no connection whatever with the shooting, and as a witness in his own behalf testified that his wife shot herself. One of the grounds for a new trial and assigned as error and now urged for a reversal of the judgment is that the evidence was insufficient to establish his guilt, and this insistence called for the foregoing extended synopsis of the testimony. It is obvious that upon the evidence it was a question for the jury to determine as to whether or not the defendant shot Ruby Irby, or whether the fatal shot was self-inflicted. Carefully considering the whole testimony in the case, we feel constrained to say that we have seldom read a record of conviction where there was less palliating circumstances in behalf of the defendant than this case presents. On the contrary, the defendant's conduct from the beginning to the end shows "a heart regardless of social duty and fatally bent on mischief."

The evidence on the part of the state discloses that the defendant deliberately shot and killed his wife, and the physical facts show that the denial of the defendant is wholly incredible. However, it was for the jury to judge of the weight of the evidence and the credibility of the witnesses.

The next assignment is based on exceptions reserved to the admission of evidence of experiments made in regard to the effect of powder fired from the pistol which killed the deceased upon a napkin and upon tissue paper at distances ranging from 3 to 10 feet. The undisputed evidence was that there was no powder burns on the head or neck near where the bullet entered, and this evidence was admitted as tending to show the distance of the pistol from the deceased's head when the fatal shot was fired.

In Ruling Case Law, vol. 10, § 189, it is said:

"Evidence of experiments made out of court, and not in the presence of the jury, is admissible upon the same principle that the experiments themselves may be conducted in the jury's presence. * * * An expert in gunshot wounds who has conducted a series of experiments with pistols of the same caliber as that with which a homicide was committed, as well as of the pistol in question, as to the nature and effect of wounds inflicted thereby and of the manner in which they are produced, may be permitted to testify as to the result of such experiments, nor is his testimony to be excluded as ex parte and manufactured evidence."

As a general rule an experiment introduced for the purpose of proving that the alleged result is obtained by a certain act or operation considered as existing in the case, should not be permitted unless the conditions and circumstances under which the experiment is made are similar to those shown actually to have existed in the case. However, if the evidence shows that the experiment was made under circumstances similar, or approximately similar, to those which surrounded the original transaction, and such experiment would serve to shed any light upon that transaction, it would be admissible, although such experiment might not have been made under exactly similar conditions as attended the original transaction. The want of exact similarity would not exclude, but would go to its weight with the jury. 1 Michie on Homicide, p. 832, and cases cited. Where the competency of evidence of experiments depends upon similarity of circumstances and conditions, the question is one for the court to determine. We are satisfied that the court did not err in admitting evidence of the experiments as tending to shed some light on the firing of the fatal shot, and its weight was for the jury to determine.

The next assignment is that the court erred in permitting the jury to take with them to their room certain exhibits. The record shows that on request of the jury the court permitted them to take the cap, letter, and revolver. We have decided this question adversely to the defendant's contention in the case of Hopkins v.State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736, wherein it is held:

"Where the jury in open court request permission to take with them to the jury room, to inspect during their deliberations, articles introduced in evidence, the granting or refusal of the request is within the discretion of the trial court, the exercise of which will not be reviewed on appeal without an affirmative showing that the discretion was abused."

The only remaining assignment is, "Error of the court in submitting to the jury the question of manslaughter." The record shows that the defendant reserved exceptions to the instructions submitting the issue of manslaughter in the first degree. It is contended that under the evidence the defendant should either have been convicted of murder or acquitted, and that no instructions for manslaughter in the first degree should have been given. In support of this contention we are cited by counsel for defendant to Leseney v. State, 15 Okla. Cr. 217,163 P. 956, in which it was held reversible error to instruct on manslaughter in the first degree when the evidence tended to show that the defendant was guilty of murder alone, and there was no evidence to support the charge of manslaughter in the first degree. In all other cases it has been uniformly held by this court that, even if the evidence did not warrant an instruction for manslaughter, it is an error in the defendant's favor of which he has no cause to complain. Under the provisions of the Code of Criminal Procedure —

"The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." Section 5923, Rev. Laws.

In the case of Lytton v. State, 12 Okla. Cr. 204,153 P. 620, it is said:

"It is sufficient answer to the contentions made to say that we think after a careful survey of the facts in evidence, that there was no element of self-defense in this case. Considering the testimony of all the witnesses in the case excepting that of the defendant, there is no doubt in our minds that the homicide was a deliberate and premeditated murder; and, while the defendant's account of the killing differs somewhat from that given by the other witnesses, he is, we think, guilty of murder upon his own statement. It would seem that the demands of justice and the protection of society clearly required in this case that the penalty prescribed by the law for the punishment of the crime of murder should have been imposed upon the defendant. However, the court submitted the question of manslaughter in the first degree, and the jury found the defendant guilty of this lower degree. It is the province of the jury, if the defendant is found guilty, to determine and fix the degree by their verdict, and it has been uniformly held by this court that if the jury in a homicide case find the defendant guilty of a lower degree, where the law and the facts make it murder, it is an error in favor of the defendant of which he cannot complain." Cannon v. Territory,1 Okla. Cr. 600, 99 P. 622; Reed v. State, 2 Okla. Cr. 589,103 P. 1042; Atchison v. State, 3 Okla. Cr. 295, 105 P. 387;Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L.R.A. (N.S.) 1121; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; Jones v.State, 8 Okla. Cr. 576, 129 P. 446; Steward v. State,9 Okla. Cr. 327, 131 P. 725; Moutry v. State, 9 Okla. Cr. 623, 132 P. 915; Robinson v. State, 15 Okla. Cr. 456,177 P. 925.

From a full consideration of all the evidence we are convinced that the jury would have been fully justified in convicting the defendant of murder, and he has cause to congratulate himself that the jury found him guilty of manslaughter in the first degree only, and assessing the minimum punishment. However, upon the record our duty is performed by an affirmance of the judgment. The judgment of the district court of Tillman county is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.