Fields v. State
| Decision Date | 29 October 1947 |
| Docket Number | A-10699. |
| Citation | 188 P.2d 231,85 Okla.Crim. 439 |
| Parties | FIELDS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Jan. 7, 1948.
Appeal from District Court, Jackson County; John B. Wilson, Judge.
Walter Fields was convicted of first-degree manslaughter, and he appeals.
Affirmed.
Syllabus by the Court
1. Matters occurring during the trial of a case, which counsel desires to assign as error, must appear by proper recital in the casemade, duly certified to as the law provides independent of the motion for a new trial.
2. Errors assigned upon instructions given, by the trial court will not be considered upon appeal, where the record fails to show that any objections were made or any exceptions taken to such instructions at the time they were given, unless the errors are of a fundamental character.
3. Where counsel for the defendant is not satisfied with the instructions given by the court and desires additional or different instructions, other than the instructions given by the court, they must reduce such instructions to writing and request that they be given, and a conviction will not be reversed where there is a failure to make such request unless the Criminal Court of Appeals is of the opinion in the light of the entire record and instructions, that, because of failure to instruct upon some material question of law, accused has been deprived of a substantial right.
4. Where the defendant is on trial for homicide, it is proper for the defendant to give testimony in relation to what the deceased told him as to acts of violence which the deceased told the defendant he had perpetrated against other parties, as said testimony goes to the proposition that the defendant believed the deceased was a dangerous and violent man, and it is error for the trial court to sustain objection thereto.
5. Where, on direct examination, the defendant opens up a certain subject for investigation, he cannot be heard to complain if one cross examination questions are asked him, the answers to which would tend to limit, explain, modify the testimony he has given in chief, or tend to discredit him, such cross examination is controlled by the rule that statements and conduct of a witness contrary to and inconsistent with his testimony may be inquired about on cross examination.
6. On cross examination, it is not a proper matter of inquiry to ask a defendant in the trial of a case on its merits why the defendant's lawyer did not ask a certain question at the preliminary hearing.
7. An affidavit for continuance on the grounds of an absent witness which states the defendant expects to procure the attendance of the witness at the next term of court should state the grounds of such expectation for the purpose of determining the reasonableness thereof.
8. Threats made by the deceased against the defendant are not admissible in evidence when there is no testimony presenting the issue of self defense.
9. Before evidence of threats is admissible in a trial for homicide, there must first be introduced some evidence tending to show that the deceased at the time he was killed was making some overt act or demonstration which furnished the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the deceased.
10. Where the defendant seeks a continuance on the ground of an absent witness, whom it was alleged would give evidence in relation to threats made by the deceased against the defendant, and the plea was self defense, and there was no evidence in the case to support said plea without the defendant taking the witness stand in his own behalf, it was not error for the court to refuse to grant the continuance on the theory that to refuse to do so would force the defendant to testify in his own behalf.
11. Where the defendant refused to avail himself of the agreement, on the part of the State, that the affidavit as to what an absent witness would testify to might be read into the record without objection, the defendant cannot be heard to complain because of the court's refusal to grant a continuance to procure the attendance of said witness, in the absence of a showing of prejudice to his substantial rights.
12. Where the evidence of an absent witness would merely be cumulative, it is not error for the court to overrule a motion for continuance based thereon.
13. Fear, based upon threats alone, unless accompanied by some overt act or demonstration designed to execute the threats, which furnished the defendant some reason to believe that he was in danger of being killed or suffering great bodily injury at the hands of the deceased, will not support a plea of self defense and mitigate the homicide.
Guy P. Horton, of Altus, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
The defendant, Walter Fields, was charged with the crime of murder of one Jerry Miller. He was tried, convicted of first degree manslaughter, and sentenced to ten years in the penitentiary.
The sufficiency of the evidence to warrant the jury in finding the defendant guilty and fixing his punishment at ten years in the penitentiary is not questioned. The contention of error is based on other grounds.
In his first three assignments of error, in his brief, the defendant urges that the court erred in its instructions eight, nine, and ten, on the theory that instruction number eight did not properly present the defendant's right of self defense; that instruction number nine did not properly present the defendant's theory as to the effect of the threats made by the deceased against the life of the defendant; and that instruction number ten not properly present his claim of self defense in relation to his right to protect himself from serious bodily harm. Nowhere in the record, except in the motion for new trial, does it appear that the defendant made any objections to the instructions which the court gave. Only in the motion for new trial, it is stated that objections were made and exceptions duly allowed. The record hewever does not support that allegation of the motion for new trial. This court has held that, 'errors assigned upon instructions given by the trial court will not be considered upon appeal, where the record fails to show that any objections were made or exceptions taken to such instructions at the time they were given.' Cruzan v. State, 13 Okl.Cr. 71, 161 P. 1179. In Sing v. State, 4 Okl.Cr. 544, 113 P. 204, it was held that, 'matters occurring during the trial of a case which counsel desire to assign as error must appear by proper recitals in the case-made duly certified to as the law provides, independently of the motion for a new trial.' In Giles v. State, 70 Okl.Cr. 72, 104 P.2d 975, 978, this court said:
See also, Short v. State, 74 Okl.Cr. 272, 125 P.2d 227; Green v. State, 65 Okl.Cr. 463, 88 P.2d 907; Adams v. State, 62 Okl.Cr. 167, 70 P.2d 821; Carpenter v. State, 56 Okl.Cr. 76, 33 P.2d 637. In Ford v. State, 52 Okl.Cr. 321, 5 P.2d 170, 171, this court held:
'It is not error for the trial court to omit to instruct upon every possible question under defendant's theory of the case, when he has not requested such instructions.'
We have carefully examined the instructions given by the court and find that they substantially presented the defendant's theory of self defense, the effect of threats made by the deceased, and his theory of self defense in relation to serious bodily harm.
The defendant assigned, as erroneous, instructions eleven and twelve but did not urge them. We have carefully examined the instructions as a whole and while they are not by any means perfect, they are not fundamentally erroneous.
The fourth assignment of error urged by the defendant is that the court erred in sustaining the objections of the State to evidence showing the deceased had told the defendant of other specific acts of violence the deceased had committed against other people. It was error for the court to sustain this objection. It was entirely proper for the defendant himself to give testimony in relation to what the deceased told him as to acts of violence which he, the deceased, perpetrated against other parties. It was relevant as touching upon the defendant's belief that the deceased was a dangerous and violent man. It constituted a proper element of the defendant's theory of self defense. Murphy v. State, 72 Okl.Cr. 1, 112 P.2d 438, is in point, wherein Brock v. State, 55 Okl.Cr. 410, 32 P.2d 88, 89, is cited as authority for the proposition that it is proper for the defendant to testify relative to acts of violence which the deceased had told defendant he committed on other persons. In the Brock case, this court said:
'The question before the jury was not whether the stories told by deceased to defendant of...
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