Graham v. State

• Decision Date: 04 April 1945
• Docket Number: A-10373.
• Parties: GRAHAM v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

157 P.2d 758

80 Okla.Crim. 159

GRAHAM v. STATE.

No. A-10373.

Court of Criminal Appeals of Oklahoma

April 4, 1945

Appeal from District Court, Stephens County; Toby Morris, Judge.

Oscar Graham was convicted of the crime of manslaughter in the second degree, and has appealed.

Affirmed.

Where there was some evidence of attempted flight after committing homicide, trial court did not err in submitting issue to jury by instruction which clearly advised jury to disregard evidence of flight unless they found beyond reasonable doubt that accused had attempted to flee to evade arrest.

Syllabus by the Court.

1. Where the evidence is conflicting, the weight of the evidence and the credibility of the witnesses is for the jury, and Criminal Court of Appeals will not substitute its judgment for that of the jury where there is evidence reasonably tending to support the conclusion arrived at by the jury.

2. Counsel for defendant should object to alleged improper statements of prosecutor at the time they are made, move court to exclude such remarks from consideration of the jury, and make sufficient record so that Criminal Court of Appeals may determine whether alleged improper remarks were actually made, and, if so, whether they were invited or provoked by opposing counsel's remarks.

3. Where there is no proper record in the case-made of alleged improper remarks of the prosecuting attorney to the jury such assignment of error will not be considered on appeal.

4. For the purpose of affecting credibility of a witness, he may be asked if he has ever been convicted of a felony or of any offense which involves moral turpitude.

5. Instructions are sufficient if, when considered as a whole, they fairly state the law of the case as applied to the evidence and are as favorable to the defendant as the evidence warrants.

6. Dying declarations are statements of material facts concerning the cause and circumstances of the homicide, made by the victim under the solemn conviction of impending death.

7. When a dying declaration is offered in evidence, the court should require the necessary preliminary proof to be first made to the court in the absence of the jury.

8. Where, in the trial of a criminal case, the court as a matter of law passes upon the competency of dying declaration and finds that it is competent to be submitted to the jury, and it is submitted to the jury, it is not error for the court by an instruction, to again submit the question of the competency of such declaration to the jury for their consideration.

9. Flight is a circumstance which jury may consider in determining guilt or innocence of defendant.

10. Where State contends that certain acts of defendant constituted an attempt to flee to evade arrest after commission of homicide, trial court did not err in submitting issue to jury by instructing them as follows:

"You are instructed, gentlemen, that some evidence has been offered on the part of the State seeking to show the defendant attempted to flee and evade arrest immediately after the commission of the offense. In this connection, gentlemen, you are instructed that flight is regarded as some evidence of guilt, but in this case, it is for you to determine whether or not the defendant made an attempt to flee or evade arrest and unless you find, beyond a reasonable doubt, that he did flee for the purpose of evading arrest, you should entirely disregard this evidence, but on the other hand, should you find, beyond a reasonable doubt, that he did attempt to flee for the purpose aforesaid, you may then consider it in determining the guilt or innocence of the defendant."

Jerome Sullivan, of Duncan, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant, Oscar Graham, was charged in the District Court of Stephens County with the crime of murder; was tried, convicted of manslaughter in the second degree, and sentenced to serve one year in the County Jail, and has appealed.

This is the second appeal by the defendant from a conviction in this case. In the former appeal, the case was reversed because of error of the trial court in communicating with the jury out of the presence of defendant and his counsel, after the jurors had retired to their jury room. Graham v. State, 73 Okl.Cr. 337, 121 P.2d 308. In said former appeal, the defendant had been convicted of manslaughter in the first degree and sentenced to serve 11 years in the State Penitentiary.

For a reversal of this case, the following propositions are presented: (1) The evidence is insufficient to sustain the verdict. (2) Misconduct of the Assistant Attorney General which prevented the defendant from having a fair trial. (3) Error of the court in giving certain instructions to the jury over the objections and exceptions of defendant.

The defendant shot and killed the deceased, Grace McCaulley, in the City of Duncan, at the home of the deceased on July 2, 1939. The defendant, a former constable who had resigned the previous year, had been associating with the deceased for several months. The defendant was married and so was the deceased, but the husband of the deceased was in the State Penitentiary at the time of the shooting.

There is very little dispute in the evidence as to the facts leading up to the actual killing. Defendant had been keeping company with the deceased for about two years prior to her death. On many occasions, they had gone to neighboring towns and stayed over night. Deceased was engaged in the whiskey business. On the afternoon of her death, defendant came to her home about 4 o'clock. He and deceased left in defendant's car. Later, defendant and deceased returned and invited a sister of the deceased to go with them on a drive out into the country. They, then, left again with the sister of deceased accompanying them and were gone about two hours. During this time, everything was pleasant and agreeable. Some whiskey was drunk by all of the parties. When they returned to the McCaulley home, the sister of deceased and deceased went into the house while the defendant drove off to park his automobile. A stranger came up to the porch before defendant returned and asked for some whiskey. Just as the stranger was leaving, the defendant returned and entered the house. Up to that point, there is no apparent conflict in the testimony. The theory of the State was that the defendant returned to the home of the deceased and saw the stranger with the deceased and became jealous. That he ran the stranger away from the place and engaged in a quarrel with the deceased which lead up to the fatal difficulty.

To support this theory, Clyde Williams, brother-in-law of the deceased, testified that he came to the home of the deceased just before the shooting occurred. That as he approached the house, he saw the defendant and another man come around from the back of the McCaulley house. The defendant was saying to the other man, "Hop, and I mean Hop." That the car of the stranger, to whom the defendant was talking, was parked across the street from the McCaulley house. Williams and his wife Lottie, who was a sister of the deceased, testified that they were standing in the southeast bedroom and heard loud talking and scuffling in the kitchen between the defendant and Grace McCaulley. That they seemed to be angry. That in a short space of time, defendant came out of the kitchen into the room where they were standing and said that Grace had stabbed him with an ice pick. There was some blood appearing through the shirt of defendant. That the deceased followed the defendant out of the kitchen and, upon hearing the defendant say that she had stabbed him, said, "Yes, and I'll stab you again." To which the defendant said, "If you do, I'll kill you." That the deceased had an ice pick in her hand. That she and the defendant went together and the defendant shoved her back momentarily, took a gun out of his right front pocket, and shot her. The shot struck deceased in the neck and ranged downward. She was taken to the hospital where she died the following night.

The defendant interposed a plea of self-defense and also, that the killing was a result of accident and misfortune.

As to the facts immediately surrounding the killing, the defendant testified that when he returned to Grace McCaulley's house after parking his automobile that he saw a car parked across the street from the McCaulley house. That he and deceased went in the kitchen where he wanted to get a drink of water. That he asked the deceased whose car that was sitting across the street. That deceased did not tell him whose car it was, but accused him of knocking her out of the sale of a pint of whiskey. That an argument started and the deceased attempted to get defendant's gun out of his hip pocket. That when she failed in this, she grabbed an ice pick and jabbed him four times on the arm with it. That he went into the southeast bedroom and was talking to Lottie and Clyde Williams when the deceased came in with the ice pick in her hand and rushed at him with it. That he had the pistol in his right front pocket with his hand on it. That when the deceased rushed at him with the ice pick, he pulled the pistol out of his pocket to ward off the blow. He and the deceased commenced to scuffle and during the scuffle the gun accidentally discharged killing the deceased.

We have not attempted to detail a summary of all of the other evidence, but have given only the testimony of the defendant and the other two eyewitnesses to the shooting. This testimony is sufficient to show that there is a dispute between the evidence of the State and the testimony of the defendant concerning the facts surrounding the actual...