Smith v. State , 14 Okla. Crim. 250 ( 1917 )

Among other things, it is contended that the trial court erred in excluding certain relevant and competent evidence offered by the defendant to his prejudice.

The evidence referred to, according to the offers of proof thereof, related entirely to certain alleged threats made by the deceased against the defendant and other alleged misconduct on the part of deceased against the defendant, which, it is claimed, was competent to go to the jury, because at the time of the homicide the defendant claims that he was in imminent danger of death or great bodily harm at the hands of deceased, and evidence of threats either communicated or uncommunicated and other misconduct on the part of deceased towards the defendant was competent in order to throw light upon the question of who was the aggressor, and to explain the deceased's state of mind toward the defendant, and also to explain defendant's viewpoint at the time of the killing.

If the element of self-defense entered into the homicide, there could be no doubt but that the position taken by the defendant is correct; and if there were a question of doubt as to who was the aggressor in the fatal encounter or whether the defendant acted in self-defense, then it would be the duty of the trial court to submit evidence of threats and other misconduct on the part of the deceased to the jury under proper instructions covering the law of self-defense. On the other hand, it is equally true that threats and misconduct on the part of the deceased toward the defendant occurring prior to the fatal encounter form of themselves no justification or excuse for the taking of human life.

While it is of the utmost importance that the courts of this state in the trial especially of homicide cases be very careful to safeguard the constitutional and statutory rights of the accused, it is equally important that the taking of human life be not excused or justified except in strict accordance with the established law.

Necessarily, therefore, in the trial of every criminal case the occasion will arise where it will become necessary as a question of law for the trial court to determine whether or not upon the state of the record certain proposed evidence is admissible or inadmissible. If this were not true, there would be no necessity for a presiding officer of the court who is learned in the law. Our trials would retrograde into mere controversies surrounded by confusion and full of hearsay, and other incompetent evidence greatly detrimental to the fundamental rights of the accused.

So that in this instance it was the proper function of the trial court to determine under the state of the record at the time the offer was made whether or not the proposed evidence was competent. And this court is clearly of the opinion that it was just as much the duty of the trial court to exclude incompetent evidence, where there was no question or doubt in his mind as to its incompetency, as it was necessary that he should permit the introduction of all evidence where there was no doubt as to its competency, or even where he had a reasonable doubt as to whether or not it was competent. In order that justice may be administered, it is important in jury trials that the minds of the jury be directed to those matters which are competent and material, and not be confused by side issues occasioned by the admission of incompetent and irrelevant evidence.

In this instance this court is called upon to decide the question of whether or not there was any element of self-defense in the record in this case at the time the trial court excluded this evidence. If there was an element of self-defense, then the evidence should have been admitted; if not, the trial court is to be commended in confining the issues of fact to the law of the case.

It is our firm conviction that the trial court did not commit error in excluding this proffered testimony: First, because there is no doubt, under all the evidence introduced, including the defendant's own testimony, that at the time of the killing he was the aggressor, and that his own unlawful conduct placed him beyond the pale wherein he could claim he acted in self-defense; second, if it be admitted that the defendant was without fault in bringing on the killing, still under his own statement of facts surrounding the killing there is no evidence of any overt act on the part of the deceased such as would justify the admission of evidence showing previous threats and misconduct on the part of the deceased against the defendant.

In the case of Morris v. Territory, 1 Okla. Crim. 617, 641,99 P. 760, 769, this court said:

"The case of Mealer v. State, 32 Tex. Crim. 102,22 S.W. 142, is in point as to this question. The evidence in that case disclosed the fact that at the time the fatal shot was fired the deceased was engaged in a scuffle with and was being held by a third party. The defendant came up and killed deceased. The defendant sought to justify his action by offering evidence of threats made against him by the deceased. This evidence was excluded by the trial court. Upon appeal the court said: `There was certainly no error in the refusal of the court to permit appellant to prove threats against himself on the part of the deceased. The defendant was in no possible danger when he shot deceased.'

"In the case at bar the defendant was in no possible danger from P.W. Cassidy when he fired the shot that killed Finis Cassidy. Therefore defendant could not have a reasonable apprehension or fear of death or great bodily harm from P.W. Cassidy on account of anything that he may have said or done."

Again, in the case of Reed v. State, 2 Okla. Crim. 51,103 P. 1054, this court held:

"While the necessity of taking human life need not be one arising out of real, actual, or imminent danger, in order to justify the slayer, as he may act upon the belief arising from appearances, which gives him reasonable cause to apprehend danger of death or of great bodily harm, although there may be no actual danger, and his guilt must depend upon the circumstances as they appear to him, but the danger must not be brought on by the wrongful conduct or unlawful acts of the slayer. * * *

"Where it is clearly and unequivocally shown that the defendant was the aggressor, and there is no pretense that the deceased was about to carry the threats into execution, or that the defendant had reasonable grounds to believe, and did believe, that such was the case, evidence of such threats by the deceased, although they were communicated to the defendant, is inadmissible."

In the body of the opinion the court, speaking through Judge Doyle, says:

"The eighth assignment is that: `The court erred in sustaining the objection of the state to the deposition of Ely Horton.' In this deposition an attempt was made to show by this witness that the deceased had used threatening language toward defendant and his family, about six months prior to the homicide. It will be conceded that threats made by the deceased, when communicated to defendant, are sometimes competent evidence in his behalf, and in some cases they are admissible, although never communicated. Price v. United States, 1 Okla. Crim. 291,97 P. 1056. The deposition was offered for the purpose of proving a case of justifiable homicide in self-defense, and its admissibility depends upon the facts and circumstances of the homicide. If A. threaten the life of B., this fact will not of itself justify B. in killing A. There must be some overt act on the part of the person making the threat, from which it appears that there is real or apparent danger of the execution of the threat."

Mr. Wharton, in his work on Criminal Evidence, par. 757, says:

"Can evidence to the effect that the deceased prior to a homicide threatened the defendant's life be received? And, if so, is it a prerequisite to the proof of such threats that they should be shown to have been communicated to to the defendant? Certainly, if such evidence is offered to prove that the defendant has a right to kill the deceased, there being no proof of a hostile demonstration by deceased, then it is irrelevant. If A. threatens B.'s life, and this threat is known to B., B.'s duty is to have A. arrested by due process of law, not to shoot him; the right of self-defense being conditioned on an apparent attack. On the other hand, if the question is as to which party in the encounter is the assailant, then it is admissible to prove by the prior declarations of either that the attack was one he intended to make. Threats to this effect by the defendant are always, as has been seen, admissible; and it is properly held that there is equal reason, supposing a collision between the deceased and the defendant to be first proved, for the admission of threats by the deceased."

And Kerr on Homicide, p. 423, says:

"Where it is clearly and unequivocally shown that the defendant was the aggressor, and there is no pretense that the deceased was about to carry the threats into execution, or that the defendant had reasonable grounds to believe and did believe that such was the case, evidence of such threats by the deceased, although they were communicated to the defendant, is inadmissible. While justice and the law demand that no competent or material evidence favorable to the defendant shall be excluded, under the conceded facts in this case, the court properly sustained the objection to said deposition."

And in Hunter v. State, 7 Okla. Crim. 300, 123 P. 564, it was held:

"When, in the trial of a homicide case, instructions on the law of self-defense are given which are erroneous and prejudicial as abstract propositions of law, a judgment of conviction will not be reversed when the record clearly discloses that there is no element of self-defense involved."

In Rollen v. State, 7 Okla. Crim. 673, 125 P. 1087, it was again held, in substance, that any error in an instruction defining the law of self-defense was not prejudicial to the defendant where the evidence did not justify an instruction on self-defense. The court called attention to the facts surrounding the shooting in that case, and held that the evidence of the defendant of what occurred at the time of the shooting did not raise an issue of self-defense.

Prof. Wigmore, in his work on Evidence, in vol. 1, sec. 111, states the rule as follows:

"The evidence of threats is inadmissible where there is clear evidence that the defendant was the aggressor. Most jurisdictions adopt this rule, and none seem to negative it. (b) Furthermore, it is only admissible (as most courts provide) where there is some other evidence of an aggression by the deceased. This is usually expressed by saying that there must have been some `demonstration of hostility,' or more shortly, some `overt act,' by the deceased. It is difficult to say whether this limitation originated in the res gestae notion (infra) or in a rule of criminal law that an overt act is a necessary element of the justification of self-defense, or merely in a general policy of preventing the abuse of this evidence. At any rate, it seems a satisfactory limitation, provided the multiplication of quibbles as to `overt acts' is avoided by leaving the whole matter in the hands of the trial judge; for it prevents the defendant from trying to use the threats as a mere pretext for justifying the killing of one who was making no actual attempt to injure him."

In the case of Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450, the Supreme Court of Alabama, speaking by Chilton, C.J., said:

"The law of self-defense, so far as the proof set out in the record shows the transaction, had nothing whatever to do with the case. Harrison, in the first instance, brought on the difficulty, by a most unneighborly and malicious act, in stopping the ditch, thus injuring himself in order to overflow the growing crop of the deceased. When it was attempted to be opened, he was there, throwing in the dirt, as the wife and children were engaged in throwing it out; he inflicts personal violence upon one of the children with his hoe, and when the child left, he flies to his gun; and without necessity, and in the absence of any attempt or demonstration of an intention to injure him, on the part of the deceased, other than having his gun upon his shoulder, he deliberately shoots him down while in the act of speaking to his wife. It was (so) calculated to mislead the jury, to charge on the law of self-defense under such circumstances, for they might well have inferred that the court would not give a charge which was abstract, and hence that merely having a gun upon his shoulder, without more, put the life of the prisoner in imminent peril, justifying him in what he did. Such is not the law.

"It was correctly said by Ruffin, C.J., in State v. Scott, 4 Ired. (26 N.C.) 409, 42 Am. Dec. 148, that `the belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or at least is in an apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immediately.' The `situation' spoken of is, not that he has the means at hand for effecting a deadly purpose, but that, by some act or demonstration, he indicates at the time of the killing a present intention to carry out such purpose, thereby inducing a reasonable belief, on the part of the slayer, that it is necessary to deprive him of life to save his own. Pritchett v.State, 22 Ala. 39, 58 Am. Dec. 250; Whart. Crim. L. 260."

See, also, State v. Reed, 137 Mo. 125, 38 S.W. 574; State v.Byrd, 121 N.C. 684, 28 S.E. 353; State v. Jackson, 33 La. Ann. 1087; State v. Labuzan, 37 La. Ann. 489; Pritchett v. State,22 Ala. 39, 58 Am. Dec. 250; Myers v. State, 33 Tex. 525; Evans v.State, 44 Miss. 762; State v. Tolla, 72 N.J. Law, 515, 62 A. 675, 3 L.R.A. (N.S.) 523; United States v. Leighton, 3 Dakota 29, 13 N.W. 347; State v. Wiggins, 50 La. Ann. 330, 23 So. 334;Andrews v. State 134 Ala. 47, 32 So. 666; Ellis v. State,152 Ind. 326, 52 N.E. 84.

It will be noted from the foregoing excerpts of the testimony in this case that as soon as the defendant heard that the deceased was on the premises visiting his (defendant's) widowed sister he ran out into the yard and ordered him to leave. There is no evidence as to whether or not the deceased heard the defendant ordering him from the premises, but it is uncontroverted that if he did hear such order he paid no attention to it, and did nothing that would indicate to the defendant any hostility on the part of the deceased toward the defendant. The undisputed evidence is that at the time he was ordered to leave the premises he was in the kitchen taking a drink of water; that the defendant saw him there, and went and got a Winchester rifle, and while deceased was taking the drink of water fired a load from the rifle into the room where the deceased then was. The defendant claims that he did not fire this shot to injure the deceased, but only for the purpose of frightening him so that he would leave the premises. It is immaterial, so far as the question here involved is concerned, as to whether the defendant intended to kill the deceased at that time, or whether he merely intended to frighten him. His act in procuring a deadly weapon and firing it in the direction of the deceased was unlawful. Under the most favorable view we can take for the defendant the deceased was a trespasser upon his premises, unarmed and making no effort to injure a living soul. He was conducting himself in a perfectly lawful and orderly manner, and the use of such means to eject him from the premises without any hostile demonstration of any kind on the part of the deceased was at that time unnecessary and unlawful. This clearly made the defendant the aggressor, and according to his own statement he continued to be the aggressor until the fatal shot was fired. This was sufficient to deprive him of his right of self-defense.

But let it be admitted that up to the time of the firing of the fatal shot the defendant was without fault. Where is there in this record any evidence that would justify the court in permitting the jury to receive evidence of previous threats by the deceased against the defendant? Where is the overt act or hostile demonstration which this court, and all courts, hold is necessary before such evidence may be admitted? There is no such overt act or hostile demonstration in evidence. Take the evidence of the defendant himself, both on direct and cross examination, viewing the matter as he viewed it, can it be said that the fatal shot was justifiable?

The defendant said that after he fired the first shot into the house he backed around southeast opposite the window to the kitchen. He said that he expected the deceased after the first shot was fired to come out of the rear or west door of the house. Backing to the southeast, therefore, would have placed the defendant in a position where he would have been to the left and rear of the deceased had he come out of the back door. But the deceased did not leave the house, and the next thing that attracted the attention of the defendant was the remark of the sister, Mrs. Moffett, to the deceased, "You had better leave; he will kill you," and the defendant says that upon hearing said remark he looked through the south window into the kitchen and saw the deceased facing the east or front of the house (apparently going out the front way) with his right hand in the front pocket of his overalls, and facing the window into which the defendant was looking, and he heard the deceased say to Mrs. Moffett that he would not leave; that he was going to kill the defendant; that the defendant immediately again raised his Winchester and fired a bullet into the body of the deceased which caused his death.

The deceased was dressed in a white hat and shirt and a pair of striped overalls. He had on no coat or vest. There was no hostile demonstration or overt act on the part of the deceased toward the defendant at the time this shot was fired. If the statement of defendant be true, the deceased merely threatened his life. Deceased did nothing to indicate a present intention to take life. The killing was the act of a coward, and not that of a person who honestly believed himself in danger of death or great bodily harm. The record clearly discloses, even the conduct of the defendant's four year old son, that it was known in the defendant's household that, should the deceased appear upon those premises, trouble would occur. The wife of the defendant testified that she begged him to leave the gun alone, and not to have trouble with the deceased. Her plea was of no avail. She said herself the defendant was mad. Likewise is the testimony of the defendant's sister, Mrs. Moffett. Clearly, under the state of the evidence in this case at the time of the proffered testimony of threats, there was no error on the part of the trial court in excluding the same.

It is also contended that the court erred in overruling the challenge for cause to certain jurors, among whom was one John Mason, who sat as a juror upon the trial and to whom challenge for cause was urged after all peremptory challenges had been exhausted. The ground of the challenge for cause was for actual bias, which is defined under a second subdivision of section 5858, Rev. Laws 1910, as follows:

"For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias."

It is contended that the juror had formed or expressed an opinion upon the cause to be submitted such as would disqualify him under the foregoing provision of law.

Section 5861, Id., provides:

"In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court."

The latter section has been repeatedly construed by this court. That said section is not in violation of the constitutional guaranty of the right of trial by a fair and impartial jury was held in Turner v. State, 4 Okla. Crim. 164,111 P. 988.

In Gentry v. State, 11 Okla. Crim. 355, 146 P. 719, this court, speaking through Doyle, P.J., said:

"The issue raised upon a challenge for cause to a juror in a criminal case on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial. Ex parte Spies,123 U.S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80; Holt v. U.S., 218 U.S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138."

See, also, Stone et al. v. State, 12 Okla. Crim. 313,155 P. 701.

The juror Mason on his voir dire examination stated that he had formed an opinion of the guilt or innocence of the defendant based solely on newspaper reports and hearsay. He swore that the opinion would yield readily to the evidence, and that he could, notwithstanding such opinion, act fairly and impartially in the case and be guided by the evidence introduced and the law as given by the court. There was nothing to show ill will or hostility on the part of this juror towards the defendant.

An examination of the record discloses no abuse of discretion on the part of the trial court in overruling the challenge for cause to this juror such as would authorize this court to reverse the judgment.

From what has heretofore been said it necessarily follows that the court's refusal to instruct on the law of self-defense was not error. The court instructed the jury on manslaughter in the first degree, and while it is not contended that the instructions given on this subject were erroneous, it is claimed the court should have given others requested by the defendant which were worded in more specific language. With this contention we cannot agree. The instructions given fully defined manslaughter in the first degree, and were not misleading or confusing. They were as favorable to the defendant as the evidence would warrant.

The judgment of the district court of Bryan county is affirmed.

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