Garrett v. State

• Decision Date: 19 December 1951
• Docket Number: No. A-11426,A-11426
• Citation: 239 P.2d 439,95 Okla.Crim. 44
• Parties: GARRETT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 439

239 P.2d 439

95 Okla.Crim. 44

GARRETT v. STATE.

No. A-11426.

Criminal Court of Appeals of Oklahoma.

Dec. 19, 1951.

Syllabus by the Court

1. As a general rule, the state may not introduce evidence reflecting the bad character of the defendant unless the character of the defendant has been placed in issue by the defendant offering evidence of his or her good character.

2. The proof of the state showing the relationship of the defendant, an unmarried woman, with the deceased, a married man, was admissible in evidence where the same established the motive for the commission of the crime charged, although such proof incidentally might tend to reflect on the character of the defendant.

3. Where defendant does not except to the giving of any instruction, nor offer any requested instructions, he may not be heard to complain about the instructions on appeal, unless this court can say, from an examination of the instructions that were given, that they were so fundamentally erroneous that the defendant was denied his constitutional right to a fair and impartial trial.

4. Photographs, drawings, and maps, may be introduced in evidence as an aid to the jury for the purpose of explaining the locations and positions of objects which are material to the inquiry, but their admission in evidence rests largely in the discretion of the trial court, and, unless this discretion is abused, it will not be cause for reversal.

5. Where the record contains no properly certified recital setting out specifically the language used by the county attorney in his argument and presenting enough of the argument to enable the court to pass intelligently upon the question which is presented, nothing is raised which may be properly considered on appeal.

6. The evidence was sufficient to sustain conviction for crime of manslaughter in the first degree.

Jess L. Pullen, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Ass't Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, Frances Garrett, was charged in the District Court of Murray County with the crime of murder; was tried; convicted of manslaughter in the first degree; and pursuant to the verdict of the jury was sentenced to serve the minimum term of four years imprisonment in the penitentiary.

The defendant, about three o'clock a. m. on September 6, 1949, fired a bullet into one Onis Curtsinger from a .38 Smith and Wesson revolver. The bullet struck the deceased in the left part of his chest, which caused his death in just a few minutes.

Mrs. Nell Curtsinger, widow of the deceased, testified that prior to September 5, 1949, she and her husband and four children had lived at Ryan, Oklahoma; that her husband, the deceased, was an oil well driller who was working in the oil field near the town of Davis, but that he returned to their home about once a week, although it varied and sometimes he did not return home but about twice a month; that on September 5, 1949, she and Mrs. Gill, the wife of another oil field worker, came to Davis for the purpose of locating a house in which they could move; that they rented a cabin and waited for their husbands to come in off the oil rig at midnight; that her husband arrived about 12:30 a. m.; that immediately after he arrived she and her husband drove to the home of the defendant, Frances Garrett, down near Cedarvale, which is about four or five miles south of Davis on Highway 77; that they made the trip for the purpose of seeing the defendant, Mrs. Garrett, about some lies she had been telling about the witness; that Mrs. Garrett came out and got into the Curtsinger car and after they had fussed for a few minutes the defendant asked her husband, 'Curt have you made up your mind what you are going to do?', and that he replied, 'Yes, I am going back to my wife and kids.'; that when this was said the defendant and deceased walked over to the car of the defendant and sat in the car together for about thirty minutes; that her husband then went into the home of defendant and brought out her purse and handed it to her; that the deceased then came to the Curtsinger car and and got under the steering wheel and the defendant got in the car on the other side of the witness; that the witness ordered Mrs. Garrett to get out of the car and let her and her husband go home, but that Mrs. Garrett said she was going with Onis wherever he went; that Onis Curtsinger then started the automobile and they coasted about 100 yards north of the Garrett house where he stopped the car and said he was not going any farther; that the witness and Mrs. Garrett commenced to fuss again over a statement that the defendant said that she had been to Ryan and had talked to the witness about a divorce from the deceased, and the witness denied that defendant had ever come to Ryan and had such a talk; that after the fuss had continued for some time the deceased said, 'I have got to go home and get some sleep.'; that defendant opened the door and started to get out of the car, and then said she wasn't going home and started to get back in, at which time the witness gave her a push out of the car; that Mrs. Garrett fell to her knees, and when she turned around she had a gun pointed towards the witness and the deceased; that her husband stepped over Mrs. Curtsinger and Mrs. Garrett shot him, and he than knocked defendant down and they scuffled for about five minutes around over the ground before her husband fell over exhausted and died; that she ran to where the parties were scuffling and attempted to take the gun away from the defendant, but was unable to do so; that she and defendant scuffled for several minutes in the loose gravel and both of them sustained scratches and skinned places on their knees; that during the scuffle the defendant fired four more shots from the pistol into the air; that prior to the shooting, during the argument which had been going on for about two hours, the defendant threatened to whip the witness, and after Mr. Curtsinger had stated that he was going back to his wife and children the defendant said, 'You better not leave.', and at another time she said, 'You are not leaving'.

On cross-examination Mrs. Curtsinger testified that when they arrived at the defendant's house the lights were on and she had not gone to bed; that when Mrs. Garrett came to the car the witness said, 'We are going to move to Davis. We have got us an apartment.', and that Mrs. Garrett got mad. She denied that the defendant asked them to leave three or four times.

Doctor W. P. Rudell testified that he made an examination of the body of the deceased at the funeral home in Davis on September 6, 1949. His examination disclosed that a bullet had entered the body of deceased about one-half inch to the left of the sternum and about one-quarter of an inch below the nipple, and came out about the same distance up on the body but just under the right shoulder blade, which gave it about 45 degrees to the exit. On cross-examination he said that the point of exit was slightly higher than the point of entry of the bullet.

John Henry Samples, sheriff of Murray County, testified that he was called at his home about 3:00 a. m., September 6, 1949, and informed that a man had been killed near the Price's Falls road. He drove to the place and found the deceased Curtsinger lying at the edge of the road; that after he had examined the body he went up the road toward the home of defendant and met her near her home. He had a conversation with her, in which defendant stated she had shot Curtsinger. In this conversation, which was admitted without objection on the part of counsel for defendant, the sheriff stated that defendant told him the deceased had brought her home from town about 12:00 o'clock; that they talked for a short while and then deceased left to return to town; that about 1:00 a. m. the deceased and his wife drove up to her place and called her and she went to their car; that she got in the Curtsinger car and they all argued for a long time; that Curtsinger and the defendant then got into the Garrett car and talked a little while, after which Curtsinger said, 'I am going to take my wife back to town and you have got to go with me.'; that all of them then entered the Curtsinger car, with Curtsinger doing the driving, Mrs. Curtsinger in the middle, and the defendant on the outside; that the deceased stopped the car after going a short distance and the argument started again between the two women; that Mrs. Curtsinger shoved her out of the car backwards; that the defendant got up and Mr. Curtsinger knocked her down; that she immediately pulled her gun and shot him; that they had a desperate struggle for quite some time before he fell over dead; that she said she shot her gun empty while they were scuffling. The sheriff further said that he secured the gun from the defendant and examined it. The gun was a .38 Smith and Wesson revolver and had five empty shells in the cylinder. On cross-examination the sheriff testified that he observed Mrs. Garrett's physical condition after day-light; that she had a black eye and appeared to be very sore, her knees were scratched badly and he took her to the hospital where she complained of bruises and sores on her body.

On behalf of defendant, Harry Camp testified that he lived in Russell's Park near the home of Mrs. Garrett; that on the night of the killing they heard the confusion at the scene of the homicide. He was getting up when Mrs. Curtsinger ran to their home and told them her husband had been killed by Mrs. Garrett. He immediately went to the scene of the difficulty and saw Curtsinger's body lying on the ground; there were human tracks all around the body and the gravel was freshly disturbed. The witness found some eye glasses and a pencil at different places on the ground. Other people who lived in the vicinity arrived shortly after he got there. The witness identified a penciled...