Fowler v. State

• Citation: 126 P. 831,8 Okla.Crim. 130,1912 OK CR 389
• Parties: FOWLER v. STATE.
• Decision Date: 30 September 1912
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

126 P. 831

8 Okla.Crim. 130, 1912 OK CR 389

FOWLER v. STATE.

Court of Criminal Appeals of Oklahoma

September 30, 1912

Syllabus by the Court.

(a) Our statutes require that the instructions in a case must be settled before they are read to the jury. This means that counsel must have an opportunity to offer suggestions to the trial court with reference to the instructions given, and reserve exceptions to any instructions which they deem to be injurious to the rights of their client.

(b) Where the trial court refused to submit the instructions in a case to the attorneys for their inspection before the instructions are read to the jury, a defendant will be entitled to such objections and exceptions as he might have had if the instructions had been previously submitted to his counsel.

When a defendant is unlawfully attacked at a place where he has a right to be, it is improper to instruct the jury that he cannot plead self-defense, unless the jury find that he could not have averted the danger by retreating.

(a) The character of the place where a homicide is committed is a part of the res gestæ of the offense, and may be proven upon the trial.

(b) On cross-examination for the purpose of affecting his credibility, the occupation, manner of living, and companions of a witness may be inquired into.

(c) The fact that a witness is a professional bootlegger, or has been convicted of bootlegging, may be proven for the purpose of impeaching his testimony.

Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence or in its instructions to the jury, we must further find from an inspection of the entire record, that appellant was injured thereby; and to determine this issue the court must consider the question as to whether the appellant is guilty or innocent of the offense charged.

For a statement under which admitted error of the trial court in the instructions to the jury is not ground for reversal, see opinion.

Appeal from District Court, Jefferson County; Roy Hoffman, Judge pro tem.

Lee Fowler was convicted of manslaughter in the first degree, and appeals. Affirmed.

Appellant was tried in the district court of Jefferson county, charged with the offense of murder. He was convicted by the jury of manslaughter in the first degree, and sentenced by the court to imprisonment in the penitentiary for the period of 25 years.

The following is a condensed statement of th material parts of the testimony introduced in this case:

Dr. L P. Sutherland testified: That he was a physician and resided in the town of Waurika. That he was summoned to attend the deceased shortly after he received the fatal wound. That upon examining the body of deceased he found that a bullet had entered to the left of the spinal column and went out about three or four inches beneath the fifth and sixth rib and passed through and came out immediately over the sixth rib. This wound was fatal. Deceased was wounded about 4 o'clock at night, and died at 8 o'clock the next morning. That he was present when the clothes of deceased were taken off of him. That there was nothing about his person, except a few dollars in silver in his pants pocket two $5 bills, and his watch and some tobacco and a little memorandum book, and that no weapon was found on deceased, except a pocketknife.

Joe Weyman testified for the state: That he resides in and was night watchman of the town of Waurika. That he heard the shots of the difficulty in which the deceased was killed. That he entered the joint kept by appellant about two minutes afterwards. That he saw the deceased there. He was just crouched down against the building. He was neither lying down nor standing. That with the assistance of others he carried the deceased back into the building and straightened him out. Deceased did not speak. When witness entered the room, appellant said, "I am the man that done the shooting," and said, "Here is my gun." Appellant said he shot one shot to bluff deceased and the next one to hit him. Appellant was trying to take a drink of liquor. He had a bottle in one hand and a glass in the other. Appellant was very nervous, and could not pour the liquor without spilling it, and finally set the glass down and took the bottle in both hands. This happened in Jefferson county, state of Oklahoma. Appellant was very much excited and very nervous when witness entered the room.

Dr. Cantrell testified: That he was a physician and resided in Waurika. That shortly after the shooting he was called to the place of business of appellant and found the deceased there wounded. Dr. Sutherland was there. Deceased was shot in the back. That the ball came out about two inches below the right nipple. Deceased died from the effects of this wound the next morning. That a pocketknife and some money was taken from the clothes of deceased after he was shot.

J. O. Barnhill testified for the state: That witness heard the shooting which resulted in the death of deceased. It was between 3 and 4 o'clock at night. Witness then went to the place of business of appellant. Witness heard appellant say, "I have killed him." Appellant says, "By God, he is dying, and all I regret is that I shot him in the back." Appellant also said, "I ought to be hung," and said he would not have done it for a thousand dollars. Witness saw a knife taken from the pockets of deceased after he was removed to the hospital. The state then rested its case.

Miss Pearl Atwood testified for appellant: That she was a nurse at the Stevens Sanitarium at Waurika at the time of this homicide; was there when deceased was brought in wounded. That witness examined the clothing of deceased and found some money and a pocketknife. That the money and pocketknife were all in the same pocket. The knife was open when found in the pocket of deceased.

Joe Weyman was recalled by the appellant, and testified that he did not hear appellant say that the only thing he regretted was that he shot the deceased in the back, and that he ought to be hung.

Lee Fowler, the appellant, testified in his own behalf: That he lived in the town of Waurika, and was running a joint there at the time deceased was killed. That he had met the deceased two or three times before the killing. That on the night of the homicide deceased and appellant were engaged in a game of cards. They began to play about 11 o'clock, and continued to play until about 3:30. That they started playing pitch for $1 a game, and when they quit playing they were playing for $5 a game. That on several occasions during the game a squabble came up between them. Witness then testified as follows:

"A. We was playing--every once in a while he would raise a squabble over the game, or something like that, and along about 3:30, something like that, between 3 and 4 o'clock, we had played a game for $5. I won the game and left up my $5 on the table, and finally he claimed the $5 bill himself, and I pitched the cards across the table, and I told him it was getting late; I would quit. And he said all the time I was the fairest men he ever played with. And he said, 'I will play you for all the money you have got in front of you.' I told him 'All right,' I would play him. I wanted to quit anyway. Q. Well, did you play him? A. No, sir; we didn't. Q. What was the reason you didn't play him? A. Why, I put up my money. I belive I had $22.50. I had a $10 bill and a $5 bill and $7.50 in silver--I had $7, I believe it was, and two quarters that we had used during the game for setback when we first commenced playing--and he stacked his silver up on top of my money, and than backed out and would not play, and taken $2.50 of my money. Q. What was said then when he took the $2.50 of your money? A. I told him he had gotten my money, and I didn't want to take it away from him. Q. What did he say? A. 'I will die before I will give it up.' Q. What did you do, if anything? A. He raised up just about the time he put this money in his pocket, or after he went to his pocket with this money, and said, 'I will kill the damn son of a bitch or have it.'

The Court: I didn't hear it.

A. He says, 'I will kill the damn son of a bitch or have the money,' and raised up and started to his pocket. Q. Which pocket? A. To his right-hand pocket. Q. What did you do then? A. Why, I raised up and drawed my gun just as quick as I could and shot. Q. How many times did you shoot? A. I shot twice, I believe. Q. Do you know which shot hit him? A. I would judge the first one did. Q. How came you to shoot the second shot? A. It was accidently shot. Q. You may state whether or not you was excited at the time? A. Yes, sir; I was excited. Q. At the time you fired the shot, you can state to the jury whether or not you believed your life in danger? A. I thought he meant to kill me at the time."

Several witnesses testified that they knew the appellant, and that his general reputation as a peaceable, law-abiding man was good. The state, in rebuttal, proved by two witnesses that they heard Miss Atwood state that when she took the knife from the pocket of deceased it was closed, but that she had a habit of opening a knife as soon as it came into her hands, and that she had opened this knife as soon as she took it out of the pocket of deceased.

Bridges & Vertrees, of Waurika, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN, P.J. (after stating the facts as above).

First. But two questions are presented in the brief of counsel for appellant. The first is that the trial court erred in refusing to allow appellant to examine the instructions given, before they were read to the jury, in order that they might have an opportunity to present objections and save exceptions to...