Armstrong v. State

• Decision Date: 05 November 1914
• Docket Number: A-1935.
• Citation: 143 P. 870,11 Okla.Crim. 159,1914 OK CR 138
• Parties: ARMSTRONG v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

143 P. 870

11 Okla.Crim. 159, 1914 OK CR 138

ARMSTRONG v. STATE.

No. A-1935.

Court of Criminal Appeals of Oklahoma

November 5, 1914

Syllabus by the Court.

A man has the right to defend his domicile against every unlawful invasion and to defend himself and those within it against every and all violence, without the necessity of retreat even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent the commission of a felony thereon or therein.

"A man's house, however humble, is his castle; and his castle he is entitled to protect against invasion;" and a man in his own habitation has a right to resist force with force and repel the entrance against his will of one who in a violent manner attempts to enter for the manifest purpose of assaulting or offering violence to him, or to inmates under his protecting care, even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent such unlawful entrance.

Appeal from District Court, Texas County; R. H. Loofbourrow, Judge.

Grover Armstrong was convicted of manslaughter in the first degree and appeals. Reversed.

Harris & Breslin and M. G. Wiley, all of Guymon, and J. O. Lynch, of Texhoma, for plaintiff in error.

Chas West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

This appeal is prosecuted from a judgment and sentence rendered on the 20th day of November, 1912, in accordance with the verdict of the jury finding the defendant, Grover Armstrong guilty of manslaughter in the first degree, and assessing his punishment at imprisonment in the penitentiary for the term of four years.

Upon the trial it appeared: That the defendant, Grover Armstrong, at the time of the commission of the homicide, was living at the home of his brother, Ed Armstrong, in the south central part of Texas county, about 30 miles from the town of Texhoma, and about 40 miles from Guymon, the county seat. The deceased, Elmer Pendergraft, resided in the same community at a distance of about 1 1/2 miles from the Armstrong home. On the night of November 6, 1911, the defendant shot and killed Elmer Pendergraft near the home of Ed Armstrong, who was at that time on a visit with his father and mother in Logan county. At the time there were at the home of Ed Armstrong his wife and their three children, the eldest being a little girl about nine years of age, and the defendant. The Armstrong family lived in what is known as a half dugout. The front entrance had two doors; one a trap or drop door that lifted up with a pulley arrangement; and one at the foot of the steps that opened into the house proper. That on Friday, November 3d, the defendant left home and went to the town of Texhoma, returning the next day. That upon his arrival home Mrs. Armstrong told him that Elmer Pendergraft had been there Friday night and had raped her, and had threatened to kill the whole family if she told any one. That Mrs. Armstrong advised her husband by letter of the outrage that had been committed on her. That on the night of November 6th, about 9 o'clock, the deceased came to the Armstrong home on horseback. When he reached the dugout he made his presence known by hallooing, and then opened the outer door of the dugout. Mrs. Armstrong recognized his voice, and told him to leave or go away. The defendant picked up a double barrel shotgun, and, standing in the door at the foot of the steps, asked the deceased what he was doing there. The deceased replied: "What! you here? you God damn son of bitch, I will fix you." As he said this he threw up his arm. The defendant fired a shot, and, stepping upon the steps, fired the gun again. Mrs. Armstrong and her three little girls and the defendant climbed out of a window and went to the home of a neighbor and reported the shooting. The body of the deceased was found the next morning near the dugout. One load of shot had entered the left breast, except two shot entering the left forearm. Both wounds ranged upward.

From a careful examination of the record the conclusion of the court is that the judgment in this case must be reversed. Of the 50 assignments of error we will notice only those which in the new trial granted will be liable to again arise. Several assignments of error refer to the rulings of the trial court in sustaining objections to evidence offered by the defendant. Mrs. Clara Armstrong, as a witness for the defendant, testified to the circumstances of the shooting. She was then asked the following questions:

"I will ask you what, if any, circumstances between yourself and Mr. Pendergraft happened on the night of November 3, 1911? (Objection sustained.) Q. Did you see Elmer Pendergraft on the night of November 3d at your home? A. Yes, sir. Q. I will ask you if on the night of November 3, 1911, the deceased, Mr. Pendergraft, came to your house, and by force and with a revolver ravished you? (Objection sustained.) Q. Did you communicate the fact of this ravishment, if there was one, which has been excluded by the court, to your brother-in-law, the defendant? (Objection sustained.) Q. Did you, at any time, tell Grover Armstrong, in a conversation which you and he had about the outrage that this deceased had committed upon you on November 3, 1911? A. Yes, sir.

By Mr. Gleason: Object to the question as incompetent, irrelevant, and immaterial and no proper foundation laid, and ask that the answer be stricken out.

By the Court: Objection sustained, and the jury will not regard the answer."

Thereupon the court directed the jury to retire, and the following offer of proof was made:

"Here the defendant offers to prove by the witness, Mrs. Clara Armstrong, that on the night of November 3d, previous to the homicide which is alleged in the information in this case, that the deceased came to the house of Mrs. Armstrong, who is a sister-in-law of the defendant, and where the defendant resided, and was the only male person residing at that place, and that the deceased entered the house with a revolver while the defendant was absent; that at the point of a revolver, and with threats of the life of herself and her family and the life of this defendant should she ever tell it, he forced her to allow him to have sexual intercourse with her; that he ravished her, and that upon the returning home of this defendant this witness, Clara Armstrong communicated these threats to this defendant; that the defendant returned to his home, which was the home of this witness and that of his brother, Saturday, November 4th; that immediately upon his return, which had been the first time she had seen him since the said ravishment occurred, she communicated these facts to the defendant in this case; that thereupon the defendant procured a shotgun and loaded it.

By the Court: The objection to the offer is sustained."

The defendant as a witness in his own behalf testified to the circumstances of the shooting. The record is then as follows:

"Q. I will ask you to state to the jury what was the occasion of you having your gun at that time, and what did you shoot for? (The state objects.)

By the Court: You may answer that question, but in answering it you will not repeat conversations you had with other persons than the deceased."

An exception was taken. The court directed the jury to retire, and the following offer of proof was made:

"The defendant offers to prove that on the night of the 3d day of November, 1911, that the deceased came to the house of Ed Armstrong, and there at that time forcibly assaulted his wife and forced her, under a threat with a gun, to have sexual intercourse with him; that when the defendant came home on Saturday evening Mrs. Armstrong cried, and

told him of the assault which had been made upon her, and what she had been forced to do in order to save the lives of herself and her children. The defendant further offers to prove that, thinking and believing that the deceased intended to carry out his threat, he got a shotgun; that on Monday night when the deceased did come back he was warned to leave the premises by the defendant; that he refused to do so, and when the doors were opened to the place of residence, which was a dugout, that the deceased threatened then and there to fix or impliedly to kill the whole outfit, as he had formerly threatened to do to the wife of Ed Armstrong if she told of his treachery. The defendant further offers to prove by this witness that on Saturday afternoon, November 4, 1911, Mrs. Ed Armstrong communicated to this defendant a certain threat made by the deceased toward this defendant and herself, in substance as follows: That if she (Mrs. Armstrong) told of his (Pendergraft's) having ravished her on the Friday night previous, that he (Pendergraft) would kill the whole damn outfit. (The state objects.) By the Court: The objections to the offers are sustained."

After cross-examination on redirect examination, the defendant was asked the following question:

"Q. You knew he had ravished your sister-in-law at that time, didn't you? A. Yes, sir.

By the County Attorney: Objected to as incompetent,

...