Franks v. State

• Decision Date: 14 September 1912
• Citation: Franks v. State, 126 P. 582, 8 Okla.Crim. 71, 1912 OK CR 380 (Okla. Crim. App. 1912)
• Parties: FRANKS v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

126 P. 582

8 Okla.Crim. 71, 1912 OK CR 380

FRANKS v. STATE.

Court of Criminal Appeals of Oklahoma

September 14, 1912

Syllabus by the Court.

When a motion for continuance is filed by an accused setting up sufficient grounds to justify a postponement, it is an abuse of discretion for a trial court to overrule the same, in the absence of any showing that the motion is without merit or made in bad faith.

An instruction which requires the accused in a criminal case to measure the force necessary to be used in order to protect himself from the assault of another person by using just such force as may be necessary in order to save himself from receiving great bodily injury, and no more, is erroneous because it places too great a burden upon the accused, and requires him to measure the force necessary with entirely too much exactness. No one is capable in the heat of conflict of measuring the exact force that is necessary to avert danger. If a person in repelling an attack exercises reasonable judgment and in good faith uses only such force as is apparently necessary to avert such danger, he has done all the law requires.

Appeal from District Court, Tulsa County; T. L. Brown, Judge pro tem.

Fred Franks was convicted of assault with intent to kill, and appeals. Reversed.

Davidson & Williams, of Tulsa, for plaintiff in error.

Charles West, Atty. Gen., for the State.

ARMSTRONG J.

The plaintiff in error, Fred Franks, was convicted in the district court of Tulsa county at the December, 1910, term on a charge of assault with intent to kill.

When the case was called for trial, the accused filed the following motion for continuance: "Fred Franks, being first duly sworn, on his oath says: That he is the defendant in the above-entitled cause. That in said cause he is charged with the crime of assault with intent to kill one Geo. Eoff and that one of the defenses therein will be self-defense and the material issue therein will be whether or not the defendant was assailed or assaulted by the said Geo. Eoff at the time and immediately before the shooting, as charged in the information. That the defendant cannot safely proceed to the trial of the cause at this time on account of the absence of a material witness in his behalf, to wit, one Louisa Franks. That said witness would testify, if present, as follows, which is true: 'I was present at the time of the assault alleged in the information in this case, being within less than 50 feet of the defendant and Geo. Eoff. That it was still daylight, and I was in a position to see and hear all that occurred, and did see and hear all that did occur at that time. That, when I first saw the defendant, he was returning from the well with a bucket of water. That as he approached the portion of the double house in which Eoff at the time lived, and, just as he passed the northeast corner of the porch in front of Eoff's house, I saw Mr. Eoff rush out of his house in a half-shaved condition, with a lather on his face, and intercepted the defendant near the center of the porch. And at that time Mr. Eoff said to the defendant, as he approached him, "You God damned son of a bitch, didn't I tell you not to come over here for any more water?" to which the defendant answered: "I have a right to get water at this well. There is no other place for me to get it, and my landlord instructed me to use the well, and I am going to do it." Whereupon Mr. Eoff stepped off the back porch, and struck the defendant about the shoulder and neck with his fist. As Mr. Eoff approached the defendant, he had both hands in his pants pocket, and his left hand was still in his pocket as he struck the defendant with his right hand. That the blow caused the defendant to stagger back, and as Mr. Eoff followed him up the shot was fired. That on the evening prior to this trouble I heard Mr Eoff say to the defendant: "If you ever come...