Bruner v. State
| Decision Date | 23 May 1925 |
| Docket Number | A-4430. |
| Citation | 238 P. 1000,31 Okla.Crim. 351 |
| Parties | BRUNER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Sept. 19, 1925.
Syllabus by the Court.
Where a verdict of guilty is returned in a homicide case, and the evidence fully sustains the verdict, the weight and credibility of the evidence, being peculiarly within the province of the jury, will not be disturbed by this court.
Flight of a defendant is a circumstance tending to prove guilt, and where the state offers evidence of the conduct of defendant tending to prove flight, and the defendant offers evidence in explanation of such conduct, it is proper to submit the question of flight to the jury as a matter of fact for their determination, and to instruct them that, if they find beyond a reasonable doubt that the defendant fled, it may be considered as a circumstance tending to prove guilt.
The instructions must be considered as a whole, and, although there may be technical inaccuracies and errors in the instructions considered separately, yet where, under the instructions as a whole and under the evidence, there is no error prejudicial to the substantial rights of the defendant a conviction will not be reversed because the instructions may be inaccurate or technically incorrect.
Appeal from District Court, Seminole County; John L. Coffman, Judge.
Wellington Bruner was convicted of manslaughter in the first degree and punishment fixed at imprisonment for a period of 30 years in the state penitentiary, and he appeals. Affirmed.
Norvell & Haulsee, of Wewoka, for plaintiff in error.
George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
For brevity, the plaintiff in error will be referred to as defendant,
Both the defendant and deceased are negroes, annd were brothers-in-law. Defendant was 26 years old and a veteran of the World War. The deceased was 48 years old. Some slight misunderstanding had arisen between them, but, so far as the record discloses, there had never been any quarrel or dissension of any kind. On Sunday, April 2, 1921, defendant went on horseback to the town of Seminole, and on his way went by the house of deceased. Their relations appeared amicable. Defendant claimed to be going to the house of a relative to get some medicine. He hitched his horse at Seminole, went to the house of Will Ellis, left his pistol and was about town until about 3:20, when the homicide occurred. The deceased went to the town of Seminole in an automobile which he parked near a hotel for colored, and not far from where the horse of the defendant was hitched. It appears he had an engagement to meet Tecumseh Bruner at Seminole, and was in his car most of the time. About 3 o'clock, or a little later, defendant got his pistol, and going toward his horse passed the car of deceased, who was talking to relatives of defendant. They spoke to each other apparently friendly, and immediately defendant drew his pistol and shot deceased through the head, who fell out of the car and staggered a short distance where he sank down and died. He had a pistol tied in the pockets of a pair of trousers under his overalls. After the shooting, defendant came around the car and pointed the gun at deceased, but a bystander prevented him from shooting again. He then went to his horse, mounted, and a deputy sheriff called for his surrender. On his defiance, the officer fired at him, and defendant fired four or five shots as he rode away. He went to the house of a relative a few miles away, who took him in a car and went in the direction of Wewoka, where he was met by officers and taken into custody.
The defendant claims that he acted in his self-defense, and that at the time he shot the deceased made a motion which led him to believe he was about to draw a pistol. He explains his resistance to the officers immediately following the homicide by saying that he did not know they were officers.
The assignments of error argued in the brief may be stated about as follows: First, insufficiency of the evidence; second, errors of law occurring at the trial in the admitting of incompetent evidence and the exclusion of competent evidence offered by defendant; third, error of the court in refusing requested instructions by defendant and in the giving of instructions prejudicial to the defendant. These various assignments will be considered in the order presented.
Upon the first assignment, i. e., the insufficiency of the evidence, defendant's counsel present the theory that there was ill feeling between the parties and threats made by deceased, and that, as the defendant passed to the rear of the car, the deceased made some movement of his shoulder which led the defendant to believe that he was about to draw a gun, and that the shot was fired in self-defense. The witnesses for the state, who were at or near the scene of the killing, coincide fairly closely in their account of the shooting. None of them testify that the deceased made any act whatever, and all appeared to be relatives or friends of defendant. There seems to be no substantial basis in the evidence to support the statement of defendant that the deceased made any movement whatever. The evidence was for the jury, and under it we fail to see how they could have returned a different verdict.
Upon the second assignment of error, i. e., the admitting of improper and the excluding of proper evidence, several contentions are grouped. The complaint is first made that the state introduced evidence that the deceased had two girls by a former marriage, one in college in Tennessee, and another teaching in the Lima high school. There is perhaps some slight reason for the admission of this evidence to account for the absence of the daughters of deceased from home on the Sunday morning when defendant was at the house of deceased. Defendant contends that it was a direct and unfavorable comparison between the family of deceased and the defendant. The evidence is really immaterial and serves no purpose. It merely calls to the attention of the jury the family of deceased, and might to that extent be said to create a feeling unfavorable to the defendant. But on the other hand the defendant testified that he had a wife and one child and was a veteran of the World War, which called the attention of the jury to matters foreign to the issue, and which might create a sympathy for him. This is a part of the old byplay which has been practiced since the memory of man runneth not to the contrary, where, in the trial of criminal cases, the wife, children, or old parents are brought in and arrayed on different sides of the counsel table for emotional purposes. In this case as in most cases, it is played by counsel for both sides. We do not commend these methods, but there was nothing in the proceedings here which could be reasonably calculated to arouse the passion of the jury or in any manner prevent the defendant from having a fair and impartial trial. Further under this assignment it is contended that the court erred in excluding the evidence offered by defendant, by the witness Millie Sango, of a conversation between the deceased and his wife on the morning of the shooting. There is nothin in this contention. The witness did testify:
To further questions the court sustained objections, which was no error.
Complaint is made that the court excluded testimony of the witness Tecumseh Bruner, a half-brother of defendant, that he had no arrangements to meet the deceased at Seminole on the day of the killing. This evidence should have been admitted. There had been some evidence that the deceased was at Seminole to meet Tecumseh, as explaining why he was in his car at the time...
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