Allen v. State
| Decision Date | 04 September 1940 |
| Docket Number | A-9729. |
| Citation | 105 P.2d 450,70 Okla.Crim. 143 |
| Parties | ALLEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Section 805, O.S.1931, Session Laws of 1937 Chap. 4, Sec. 1, p. 2, 38 Okl.St.Ann. § 10, disqualifies deputy sheriffs from performing jury service.
2. Defendant in criminal prosecution has duty to ascertain, by proper examination on voir dire, the competency of jurors and, if he fails to do so, he waives his challenge notwithstanding that disqualification is unknown to him until after rendition of verdict.
3. Granting a new trial in criminal prosecution for disqualification of juror, which was unknown to defendant until after rendition of verdict, is matter of judicial discretion.
4. In a prosecution for murder, the defendant was not entitled to a new trial where a juror is issued an honorary special deputy sheriff's commission and served on the jury without revealing that fact and the fact was not discovered by defendant or his attorney until after the verdict, since neither the sheriff nor his deputies were witnesses in the trial of said case, and the facts show that the jury would have been justified in returning a verdict assessing a much greater punishment.
5. It is not error for the trial judge to refuse to admit in evidence a certain twelve-gauge shotgun where the proof wholly fails to show any connection between said weapon and the facts and circumstances surrounding the homicide.
6. The record examined, instructions approved as thoroughly covering every theory of the case, and evidence held sufficient to sustain verdict for manslaughter in the first degree.
Appeal from District Court, Garfield County; J. W. Bird, Judge.
Frank Allen was convicted of manslaughter in the first degree, and he appeals.
Judgment affirmed.
Wilson & Wilson, of Enid, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Hugh Conway, Co. Atty., and Luther A. Wells, Asst. Co. Atty., both of Enid, for defendant in error.
The defendant Frank Allen was charged in the District Court of Garfield County with the offense of murder, was tried, convicted of manslaughter in the first degree, sentenced to thirty years and one day in the State Penitentiary, and appeals.
The proof on behalf of the State shows that the defendant and the deceased, Jess Allen, were brothers who lived in the City of Enid at the time of the killing. Jess Allen lived with his wife, Elodie, and one Skeet McClellan at 401 East Willow Street, while the defendant lived with his wife and three step-children a block away at 501 East Willow Street. There were no houses or buildings between these two residences.
The deceased, Jess Allen, had been engaged in the wholesale liquor business in Enid for several years. The defendant being out of employment in Houston, Texas, was solicited by the deceased to come to Enid and help him in his illicit liquor traffic. This occurred several months before the killing.
At the time the defendant came to Enid, he was the owner of a 1930 model Ford coupe automobile. A few weeks after his arrival in Enid arrangements were made for the trade-in of this coupe on a new 1938 model Ford automobile. The cash difference between the values of the two cars was apparently paid by the deceased, but the title to the automobile was taken in the name of the defendant Frank Allen. As quite some little time was spent in the oral argument of this cause on the question as to who actually owned this automobile, we deem it proper to state, that in view of the facts surrounding the homicide, it appears immaterial as to who the actual owner of this automobile was. But for the purpose of this opinion, we are adopting the contention of the defendant that he was the sole owner of said automobile.
The killing occurred at the home of Jess Allen on September 6, 1938, during the noon hour. A few days before that time, the defendant and Skeet McClellan were transporting a load of whiskey from Illinois to Enid and were caught by the officers at Claremore, Oklahoma. The defendant took the full responsibility for having the whiskey, and McClellan was released. Later, the defendant accused McClellan of framing him so that he would be caught by the officers at Claremore, and a bitter enmity between the two arose. The defendant, some weeks previous to that time, had also had some harsh words with Elodie Allen, wife of the deceased. An enmity existed between them, which lasted up to the time of the homicide. She had been married before her marriage with Jess Allen; and prior to her marriage to Jess Allen, she had lived with him as man and wife and as a joint partner in the whiskey business.
On the Sunday prior to the homicide on the following Tuesday, the defendant, together with the deceased and Skeet McClellan, was transporting some whiskey. An argument between the defendant and McClellan arose; the automobile was stopped; these two gentlemen got out of the automobile and proceeded to engage in a fist fight. Jess Allen then got out of the automobile with a tire tool and struck the defendant several times with this weapon, causing severe bruises and some lacerations on the arms and body of the defendant. After he was struck by the deceased with the tire tool, the deceased, Jess Allen, and McClellan drove off and left the defendant wounded and bleeding in the road. He was picked up by a passer-by and taken to the hospital where his wounds were dressed. The defendant spent a large part of his time on Monday trying to procure a gun, stating to the people he contacted that "he had never had a fair break in a fight." Finally, he bought a twelve-gauge pump shotgun from a pawn shop and secured five shotgun shells at a hardware store.
The deceased had possession of the automobile in controversy; and the defendant on Monday sought unsuccessfully to find the automobile and take it into his custody.
The proof shows that on Tuesday morning, the day of the fatal shooting, an automobile salesman drove up to the home of Jess Allen. The defendant was seen a few minutes later coming from his home across the vacant lots towards the Jess Allen home. He was armed with the twelve-gauge shotgun. When the defendant got up close to the home of the deceased, he turned and went back to his own residence. In his trial, the defendant stated that he had taken his shotgun and started over that way to shoot a stray cat; but the theory of the State, which seems reasonable in the light of what happened a short time later, was that the defendant thought the automobile salesman driving into the yard was Jess Allen returning to his home and that when he got close enough to see that it was not Jess Allen and not his automobile, that he returned to his own home. A short time after this occurrence, Jess Allen and his wife drove up in the automobile in controversy, parked the same about three feet from the rear door of the deceased's house and went into the house. In the house at that time were Mr. and Mrs. Harlan McClellan, Skeet McClellan, and Mr. and Mrs. Jess Allen.
In a few minutes the defendant came by in an automobile, traveling with one Ray Parsons. He still had his twelve-gauge pump shotgun with him; and when he saw the automobile parked at the rear of the Jess Allen house, he asked Ray Parsons to stop his car, and the defendant got out and went over and got into the Ford automobile. About that time, Jess Allen came out of the back door of his house and got into the automobile on the left side. Jess Allen was unarmed. There appears to be some little dispute as to just what occurred inside the automobile; but it appears that the two brothers started an argument, and suddenly both of them got out of the automobile, Jess Allen getting out on the left-hand side of the automobile and Frank Allen getting out on the right-hand side. Both men walked back towards the rear of the automobile. At that time, Frank Allen fired the first shot. This shot apparently tore off the thumb of Jess Allen's left hand; but the most of the shot entered the porch.
Across the street from the Jess Allen house was a barbecue stand, known as Charles Barbecue Stand. As this shooting happened about 12:30 P. M., there were several disinterested people eating at the barbecue stand, who looked across the street when the first shot was fired. Their testimony, in substance, was that they looked up after the first shot was fired and saw Jess and Frank Allen standing to the rear of Jess Allen's house; that Jess Allen was just close to the back-end of the Ford automobile, near the southeast corner of the car, and Frank Allen was about twenty or twenty-five feet west of Jess Allen; that they saw Frank Allen fire two more shots at Jess Allen; that after the second shot was fired, Frank Allen picked up a brick and threw it at Jess Allen. That after the third shot was fired Frank Allen walked across the street to the barbecue stand and called the sheriff's office and told them to come and get him.
The evidence further shows that at about the time the altercation started, Jess Allen yelled for Skeet McClellan, and Skeet ran out on the screened-in back porch and fired at the defendant with a .410 gauge shotgun. This charge tore a small hole in the screen, and pieces of the screen and two or three of the pellets struck the defendant in the face, causing only slight injury.
The officers arrived in a few minutes, took Frank Allen into custody, and made an investigation of the premises where the shooting occurred. They found a large pool of blood near the southwest corner of the Ford automobile and a trail of blood leading from that pool into the house where Jess Allen had gone. The officers found a small, closed pocketknife near the pool of blood in the...
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