O'Barr v. U.S.

• Decision Date: 18 December 1909
• Citation: 105 P. 988,3 Okla.Crim. 319,1909 OK CR 166
• Parties: O'BARR v. UNITED STATES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 988

3 Okla.Crim. 319, 1909 OK CR 166

O'BARR v. UNITED STATES.

Court of Criminal Appeals of Oklahoma

December 18, 1909

Syllabus by the Court.

Under an indictment for murder returned prior to statehood, the defendant should be tried and punished under the law as it existed at the time of the commission of the offense.

An instruction defining manslaughter under the United States statute (Rev. St. U.S. § 5341 [U. S. Comp. St. 1901, p 3628]), in force in the Indian Territory prior to statehood which omits the word "willfully," is improper.

The word "willfully," as used in the United States statute defining manslaughter, is synonymous with "intentionally" or "designedly."

The law imposes upon persons handling deadly weapons the duty of exercising such care as an ordinarily cautious and prudent person would exercise under similar circumstances.

The court in this case instructed the jury: "The law imposes upon people controlling or handling dangerous instruments or agencies the duty of exercising some care or caution in the manner of using the dangerous agency, and in case of gross or culpable neglect of this duty the law imposes criminal as well as civil liability." Held, error for the reason that it does not define the degree of care or caution to be used, or gross neglect, such as would render the defendant guilty of criminal negligence.

The defendant being on trial for murder, it was improper for the prosecuting attorney, in his closing argument, to make use of the statement: "It is your duty to punish this defendant, who, by the means of whisky given the poor girl weakened her will and dulled her senses, and has been her ruin."

Error from District Court, Le Flore County; Malcolm E. Rosser Judge.

George O'Barr was convicted of manslaughter on an indictment for murder, and he brings error. Reversed.

W. D. Buckley and Day & Du Bois, for plaintiff in error.

Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the United States.

OWEN J.

The proof on part of the state, in substance, is to the effect: That the defendant was a married man with a family of children. The deceased, who was a girl between 17 and 18 years of age, on the day of the shooting, met the defendant by appointment away from home, got into his buggy, and they were driving over the country at the time of the shooting. That defendant had, at different times during the day, given her whisky. That he had been in her company on the night before at a church house and had there given her whisky. She was found in his buggy on the roadside with a gunshot wound through her neck, and a short time thereafter died. The evidence offered on part of the defendant was in perfect harmony with the evidence on part of the state, and, in addition thereto, was to the effect: That at the time of the shooting the girl was lying on his lap, with his hand under her neck; that his pistol had been laying on the seat of the buggy; that he and the deceased began playing with it, when it was accidentally discharged, the ball passing through the girl's neck and through his hand; that he immediately started for a doctor at the nearest town; but that before he reached there the tugs of his harness became unhitched; that he got out of the buggy to rehitch them, and, thinking the deceased was dead, left her in the buggy and went to a mining camp, and there engaged one of the miners to take him to the county seat, where he surrendered to the officers. Among the persons who first saw the girl on the roadside after she was wounded, was a deputy marshal, who testified that the girl told him the shooting was accidental, and that she did not wish the defendant to be in any way harmed for it. There is no evidence in the record which tends in the slightest degree to contradict the defendant's testimony that the shooting was accidental. The case seems to have been tried on the theory that the defendant was guilty of such degree of carelessness as would make the accidental killing criminal.

In the motion for new trial, counsel for the defendant assign 11 reasons for setting aside the verdict. We deem it unnecessary to consider all of them. The three upon which counsel seem to rely, and which are well taken, are as follows: "Third. Because the court misdirected the jury in a matter of law, in this, to wit: 'Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation. It may occur upon a sudden heat of passion caused by provocation apparently sufficient to make the passion irresistible.' Fourth. Because the court misdirected the jury in a matter of law, in this, to wit: 'The law imposes upon people controlling or handling dangerous instruments or agencies the duty of exercising some care or caution in the manner of using the dangerous agency; and, in case of gross or culpable neglect of this duty, the law imposes criminal as well as civil liability.' Fifth. Because the court erred in its decision in a question of law, in this, to wit: In permitting the attorney for the United States in his closing argument to use the following language over the objection and exception of the defendant: 'It is your duty to punish this defendant, who, by the means of whisky given the poor girl, weakened her will and dulled her senses, and has been her ruin."'

The date of the commission of the alleged crime in this case was the 20th day of March, 1907, prior to statehood. The defendant was tried in April, 1908, after statehood. The case should have been tried under the law as it existed in the Indian Territory at the time of the commission of the offense. Sharp v. State, 3 Okl. Cr. --, 104 P. 71. Act Cong. May 2, 1890, c. 182, 26 Stat. 96, which put the criminal laws of Arkansas into effect in the Indian Territory, contained the following proviso: "That in all cases where the laws of the United States and said criminal laws of Arkansas have provided for the punishment or the same offenses, the laws of the United States shall govern as to such offenses." Section 33, Ind. T. Ann. St. 1899. At the time this act of Congress went into effect, the law of the United States defining murder and manslaughter and providing a punishment therefor was in full force and effect in Indian Territory. Therefore the offense committed in this case should have been tried and the punishment assessed under the laws of the United States. "Manslaughter," as defined by the United States statutes (Rev. St. U.S. § 5341 [U. S. Comp. St. 1901, p. 3628]), is as follows: "Every person who unlawfully and willfully, but without malice strikes, stabs, wounds, or shoots at, or otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, is guilty of the crime of manslaughter." The defendant was entitled to an instruction defining manslaughter as defined in this statute. The instruction of the trial court was: "Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation." It will be noted that this differs from the United States statute by omitting the word "willfully." The word "willfully," in the sense in which it is used in this statute, means not merely voluntarily, but with a bad purpose. It is a synonymous term with "intentionally," "designedly," "without lawful excuse"; that is, not accidentally. Thomp. on Tr. § 2209; Com. v. Brooks, 9 Gray (Mass.) 303; Com. v. McLaughlin, 105 Mass. 463; Roberts v. U. S., 126 F. 897, 61 C. C. A. 427. In the last-named case the United States Circuit Court of Appeals, in defining the word "willfully," as used in section 5341, Rev. St. U.S., the section under which this prosecution was had, said: "In a penal statute the word 'willful' means more than it does in common parlance. It means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful"--citing: State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. Law, 96; Savage v. Tullar, Brayton (Vt.) 223; United States v. Three Railroad Cars, 1 Abb. U. S. 196, F. Cas. No. 16,513; Thomas v. State, 14 Tex.App. 204; Sam Lane v. State, 16 Tex.App. 172. This court, in the case of Thurman v. State, 3 Okl. Cr. --, 104 P. 67, defines the word "willfully," citing Harrison v. State, 37 Ala. 154, and Felton v. U. S., 96 U.S. 699, 24 L.Ed. 875, and quoting from Felton v. United States, as follows: "Doing or omitting to do a thing, knowingly and willfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit doing it. 'The word "willfully,"' says Chief Justice Shaw, 'in the ordinary sense in which it is used in statutes, means not merely voluntarily, but with a bad purpose.' Commonwealth v. Kneeland, 20 Pick. (Mass.) 220. 'It is frequently understood,' says Bishop, 'as signifying an evil intent without justifiable excuse."'

The instruction of the trial court, as quoted in the fourth assignment of error, did not state the law, for the reason that it fails to define the degree of care or caution to be used, or the failure to use such care as would constitute carelessness, and render the shooting criminal. The law imposes upon persons handling dangerous instruments, or deadly weapons, the duty of exercising ordinary care, or such care as an ordinarily prudent and cautious person would exercise under similar circumstances. Carelessness is the failure to use such care as an ordinarily prudent person would use under similar circumstances. Under the proof in this case, the only theory on which the jury could have found this defendant guilty of manslaughter, was that the shooting was accidental. If defendant's handling the pistol was with the same caution that an ordinarily prudent person would have used, under the...