Bean v. State
| Decision Date | 07 February 1936 |
| Docket Number | A-8954. |
| Citation | 54 P.2d 675,58 Okla.Crim. 432 |
| Parties | BEAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The instructions of the court should apply the law to the competent evidence as offered by the state and the accused and leave the jury to determine as to what facts and circumstances are established by the evidence.
2. The trial court correctly instructed the jury as to the different degrees of crime the defendant might be found guilty of, and the punishment to be imposed for each degree.
3. The court, in giving instruction No. 12, complained of by the defendant, which is set forth in full in this opinion, erred.
4. For reasons more fully set out for modifying the judgment, see body of the opinion.
Appeal from District Court, Payne County; Freeman E. Miller, Judge.
Mark Bean was convicted of manslaughter in the first degree, and he appeals.
Modified and affirmed.
L. G Lewis, Paul Myrick, and R. J. Shive, all of Stillwater, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
The plaintiff in error, for convenience in this opinion referred to as the defendant was by information charged with the crime of murder; was tried and convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of fifteen years.
The evidence of both the state and the defendant shows that the difficulty occurred at the home of Ben Hahn, near Cushing, Okl., where a dance was in progress; there was some drinking during the time the parties were there at the dance. It is further shown that Wesley McCoin, the party the defendant is charged with killing, became involved in a fight, or some kind of a difficulty, with the Lauderdale boys; that Mrs. Hahn ordered them out of the house; the defendant, Mark Bean, had been over to the Carroll home, a short distance from the Hahn home, and spent the evening, leaving the Carroll place about 11 o'clock, and stopped at the Hahn place just a few minutes before the difficulty occurred in the house.
It is further shown that as the parties went out the door they broke a glass out of one of the doors, and Mrs. Hahn followed them out in the yard and demanded pay for a new glass. The testimony shows that after they got out of the house, Ben Hahn, who was a brother-in-law of the defendant, became involved with Elmer McCoin, the father of the deceased; there is some dispute in the testimony as to whether this fight between Ben Hahn and Elmer McCoin occurred prior to the difficulty between Wesley McCoin and the defendant, Mark Bean; the defendant insists his brother-in-law and Elmer McCoin engaged in a fight and the deceased rushed in and commenced hitting Ben Hahn in the back, and he went in and separated them, and that he became involved in a fight with Wesley McCoin.
Several witnesses who saw the fight testify the defendant and deceased fought for several minutes, and the defendant got loose from the deceased and ran through a grape vine that was framed in the yard, and deceased followed him; when they got through the grape vine they clinched and both went to he ground, the defendant being on top of the deceased, who was trying to get up, and was on his hands and knees; that defendant struck the deceased one or more times while he was in that position, and deceased sank to the ground, and some one caused the defendant to stop fighting, and took him away from the deceased. Later, examinations showed that the deceased had been cut with a knife, from which wounds he afterwards died in a hospital. Up to the time of the fight between McCoin and the defendant there is no conflict in the testimony. The defendant denies he had a knife or that he cut the deceased. He claims he did not even own a knife at the time. He admits fighting the deceased, but insists that he did not use a knife on him. All of the testimony of the eyewitnesses in detail show the fight between the defendant and the deceased, and its culmination; that the deceased sank to the ground unable to fight longer.
There is no evidence whatever that any one else was near the deceased or struck the deceased but the defendant. The evidence is clear as to the starting of the difficulty in the house, and that the McCoin boys were involved in the difficulty; and when they got out in the yard the father, Elmer McCoin, became involved in the difficulty with Ben Hahn, and that Ben Hahn was cut by some one while the row was going on. The foregoing is the substance of the testimony, and it is not deemed necessary to set it out in full.
The first error the court will consider is the eighth, in which the defendant insists that the court erred in giving instruction No. 12, for the reason that the instruction set forth is beyond the right of the court or the jury considering the guilt or innocence of the party on trial, and is based on a statute intended by the Legislature as a reward for good behavior while in prison, and should not be considered by the jury in fixing the punishment, and does not aid or assist at arriving at the guilt or innocence of the party on trial.
Instruction No. 12, complained of the by the defendant, is as follows:
"You are further instructed that if you find the defendant guilty of any offense in this case, it is your duty to fix his punishment, and in this connection, you are instructed that when a defendant is convicted of a felony in the State of Oklahoma and receives a prison sentence as a punishment therefor, he does not necessarily serve the entire term of punishment imposed for the reason that the laws of this state make a provision of commutation of time for good behavior. The following table shows the commutation of time given convicts on their good behavior in this state:
Net time served
Sentence Years Months Days
4 years 2 3 7
4 1/2 " 2 5 29
5 " 2 8 21
6 " 3 2 5
7 " 3 7 17
8 " 4 1 1
9 " 4 6 15
10 " 4 11 28
11 " 4 5 10
12 " 5 10 24
13 " 6 4 5
14 " 6 9 21
15 " 7 3 5
16 " 7 8 18
17 " 8 2 2
18 " 8 7 20
19 " 9 0 28
20 " 9 6 11
25 " 11 9 18
30 " 14 0 25
40 " 18 7 8
50 " 23 1 23
60 " 27 8 6
99 " 46 3 2."
The foregoing instruction is evidently predicated upon section 5341, O.S.1931, which is as follows:
"Every convict who shall have no infractions of the rules and regulations of the prison or laws of the state recorded against him shall be allowed for his term a deduction of two months in each of the...
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...and responsibility is imposed by the legislature upon that officer, and you will make no mistake in such assumption." In Bean v. State, 58 Okl.Cr.R. 432, 54 P.2d 675 the jury fixes the punishment), it was held that a charge to the jury as to the rules for commutation for good behavior after......
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