Duncan v. State
| Decision Date | 08 December 1914 |
| Docket Number | A-2090. |
| Citation | 144 P. 629,11 Okla.Crim. 217,1914 OK CR 150 |
| Parties | DUNCAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A. Under the provisions of the prohibitory law in this state as expressed in section 3616, Rev. Laws, no officer is authorized to search a private residence occupied as such, or any portion thereof, unless it or some part of it be used as a store, shop, hotel, boarding house, or place of storage, or unless such residence is a place of public resort.
B. No magistrate in this state has the power to issue a search warrant to search the private residence of any inhabitant of the state unless it is made clearly to appear that such private residence comes within the exceptions stated in section 3616, Rev. Laws 1910.
C. No officer has a lawful right to search any private residence even though he possesses a search warrant issued by a magistrate, unless the conditions, or some one of them referred to in section 3616, exist in the habitation at the time the search is to be made.
A. It is the law of the land that no man, however high the office he holds, is permitted to ruthlessly invade the sacred rights of any home, however humble, unless he is clearly within the statutory provisions.
B. The home of the American citizen is his castle supreme, and he who dares to invade the sanctity thereof does so at his peril.
A. A search warrant once served cannot be further resorted to for the purpose of additional searches. An attempt to make a second search on a warrant once served, even though valid originally, would place the officer attempting the search in the attitude of a trespasser.
B. Under the facts disclosed by the record in the case at bar the search warrant was wrongfully issued and therefore void. It would have afforded no protection or justification to any officer entering the premises at any time.
The following instruction given by the trial court is held to be a correct statement of the law: "You are instructed that after a search warrant has been executed and the property and things therein described have been seized thereunder, its office has been performed and a lawful search cannot again be made thereunder."
A. An assignment of error, based upon an instruction of the court bearing on the question of the guilt or innocence of the person on trial of murder is of no avail when the jury return a verdict finding such person guilty of manslaughter and not of murder.
B. For an instruction complained of, but which is held correct, see opinion.
For facts which in the opinion of the court are sufficient to justify a conviction of murder, see opinion.
An instruction of the court which, taken as a whole, states a rule of law more favorable to the accused than he is entitled to receive, although subject to criticism in some respects if free from fundamental error, will not ordinarily justify a reversal.
It is not error for the court to refuse to give instructions which are not applicable to the facts disclosed by the record and do not contain correct statements of the principles of law applicable to the issues on trial.
Appeal from District Court, Washington County; R. H. Hudson, Judge.
John C Duncan was convicted of manslaughter, and he appeals. Affirmed.
J. R Charlton, of Bartlesville, for plaintiff in error.
Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error, John C. Duncan, was tried at the March, 1913, term of the district court of Washington county on a charge of the murder of Dallas Alexander, and convicted of manslaughter in the first degree. His punishment was fixed at imprisonment in the state penitentiary for a period of ten years.
The homicide occurred at Ochelata in Washington county on the 6th day of August, 1912, which was the day upon which the general primary election was held in that year. The deceased was a man about 65 years of age, and had been engaged in the cattle business at Ochelata. The wife of the plaintiff in error was a candidate before that primary for the nomination as a party candidate for county superintendent of public instruction of Washington county. It appears that the deceased was actively opposing her nomination. The night before the election a conference was held among the friends of Mrs. Duncan at the store of one Fuller in the town of Ochelata, at which conference the plaintiff in error was present. Plans were laid for the purpose of counteracting the opposition to Mrs. Duncan's candidacy. Alexander's name was mentioned at the conference as one of her opponents. The plaintiff in error made a statement to the effect that he would take care of Alexander. About 9 o'clock on the morning of the election the plaintiff in error procured a search warrant from the local justice of the peace to search the deceased's residence for intoxicating liquor. He did not make the search immediately after procuring the warrant, but did search the premises about noon, and secured one quart of whisky which he displayed to bystanders and afterwards destroyed the same. About 5 o'clock in the afternoon the plaintiff in error again attempted to search Alexander's house by virtue of the same warrant he had served in the forenoon. The deceased resisted the search, contending that the plaintiff in error had no further authority to search his premises under the warrant. In his effort to prevent the search the deceased took hold of plaintiff in error and shook him around considerably. The plaintiff in error, on account of this action, placed the deceased under arrest for, as he says in his testimony, resisting an officer of the law. In making this arrest he drew a revolver. The deceased finally subsided. By use of force the plaintiff in error took the deceased out of the house and started down toward the office of the mayor. He had gone some little distance, it appears, when the deceased put his hands in his pocket in an attempt to pull out his pistol. The testimony of witnesses conflicts as to just what was done.
The witnesses on behalf of the state testified that the deceased said, "John Duncan, you have gone far enough," or something of that import, and then pulled out his revolver. The plaintiff in error stepped a short distance ahead of deceased and grasped him by the wrist of the hand, in which he held the pistol. At the same time plaintiff in error drew his own pistol, and immediately thereafter two shots were fired, almost simultaneously, and shortly thereafter other shots were fired to the number of five or six.
The plaintiff in error testified that the deceased pulled out his pistol before he knew anything about it, and somebody across the street yelled, "Look out, he has got a pistol!" and he seized the deceased by the left hand, in which he was holding the pistol, to prevent him from shooting, and said, "Don't do that!" but the deceased fired immediately, and the bullet struck him in the upper part of the left arm. At the time of this shot, he, the plaintiff in error, was pulling his pistol out of his pocket, and immediately fired a shot at deceased, the bullet taking effect in the abdomen and passing out through the spinal column. Other shots were fired by both parties; at least one more shot was fired by plaintiff in error which entered the left side of the deceased and passed through his body. Two or three more shots were fired by deceased, one of which struck the plaintiff in error in the hand; another in the left arm. There was also a bullet wound in the left hip of the plaintiff in error.
Some of the witnesses testified that the deceased fired three shots; others, four. There were only three empty shells, however, found in his pistol. There was evidence of ill feeling on the part of the combatants on account of the election being held at the time, and it was the theory of the state on the trial of this cause in the court below that the plaintiff in error, with malice in his heart, went to the home of deceased to search it, in order to provoke a difficulty with him and give the plaintiff in error a pretext for killing him. It appears that the plaintiff in error knew the deceased as a man who kept whisky in his home for his own use, and that he did not sell it, and that his home was not a place where people congregated for drinking intoxicating liquor.
The theory of the state also appeared to be that the arrest attempted by the plaintiff in error was unlawful; that he had no authority to search the premises or to apply for the said warrant, and that his action in attempting to make a second search amounted to an assault and an unlawful entry to the home of deceased which he, the deceased, had a right to resist; that the plaintiff in error knew that the deadly weapon he used in making the assault and in attempting the arrest gave the deceased the right to resist with similar force, and the plaintiff in error's right of self-defense under the circumstances did not attach until he had in good faith withdrawn from the conflict that was occasioned by his own unlawful conduct in attempting the search and unlawful arrest. It was the theory of the defense in the trial court, as disclosed by the record, that plaintiff in error had a right to search the premises with or without a search warrant, and that his act in placing deceased under arrest was lawful, and that the assault made on him by deceased was felonious and one which he had a right to defend against without withdrawal.
There is no contention on the part of counsel that the verdict is contrary to the evidence. Their contentions are all based upon alleged errors of law.
This homicide was one of many that have occurred under somewhat similar circumstances in Oklahoma. The plaintiff in error was wholly in the wrong for two reasons:...
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