Green v. U.S.
| Decision Date | 30 March 1909 |
| Citation | 101 P. 112,2 Okla.Crim. 55,1909 OK CR 29 |
| Parties | GREEN v. UNITED STATES. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It was error for the court below to exclude the testimony of the wife of deceased, by which the accused offered to prove that a short time before the killing of deceased, the deceased said, "If Mrs. Mahoney (daughter of accused) ever interferes with you again, if you don't whip her I will whip you and will then attend to the man" (meaning defendant), for the reason the defense was that of self-defense, and the accused was entitled to the benefit, if any there was, to be derived from the threat of the deceased against him.
[Ed Note.-For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190. [*]]
In a prosecution for murder it was error, in attempting to define the term "malice aforethought," to charge the jury that "if the thought came to the mind (of the defendant), 'I will kill,' and he did kill immediately after that, it is thought of beforehand; that is 'malice aforethought,"' since it made the conscious act of the defendant malicious, regardless of the fact as to whether he was acting in self-defense or otherwise.
[Ed Note.-For other cases, see Homicide, Dec. Dig. § 286. [*]]
It was error for the court to refuse to instruct the jury in this case: and such a requested and refused instruction is not cured by the general instruction in the charge that:
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829. [*]]
On rehearing. Judgment below reversed and remanded.
For former opinion, see 104 S.W. 1159.
On the 6th day of November, 1903, the grand jury of the United States Court for the Central District of the Indian Territory, sitting at Durant, returned an indictment against appellant, G. W. Green, charging him with the murder of one Martin Liston. The defendant entered his plea of not guilty, and, on the 9th day of March, 1904, the venue of the cause was changed to the United States Court for the Central District, sitting at Atoka. On October 20, 1904, the defendant was found guilty of murder, without capital punishment. Motion for a new trial was overruled, and an appeal, in due time, was prosecuted to the United States Court of Appeals for the Indian Territory, where, on the 26th day of September, 1907, the judgment of the lower court was affirmed. A petition for a rehearing was filed, which was pending when the Indian Territory was admitted as a portion of the state of Oklahoma. On consideration by this court a rehearing was ordered.
The testimony shows that the defendant and deceased were neighbors, the houses in which they resided being only a few hundred feet apart. Near their houses was a tank of water which both used for watering their domestic animals. On the 14th day of July, 1903, they met at this tank, where the deceased received a gunshot wound at the hands of the defendant, from the effects of which he instantly died. The testimony of the prosecution tended to show an unprovoked killing. Defendant testified that the deceased had made threats against his life, and that, at the time he fired the shot that killed, the deceased was making towards him such hostile demonstration as led him to believe that the deceased was then about to take his life. A fuller statement of the testimony is deemed unnecessary.
Williams & Utterback, J. G. Ralls, and Henry M. Furman, for appellant.
J. H. Wilkins, Frank Lee, and Charles West, for the United States.
The first assignment of error challenges the action of the trial court in excluding certain testimony which the defendant offered to prove to the jury. The prosecution placed upon the witness stand Mrs. Lettie Liston, the wife of the deceased by whom the defendant offered to prove that, a short time before the killing, she had told the wife of the defendant to tell the defendant that her husband, the deceased, had said, "If Mrs. Mahoney (daughter of defendant) ever interferes with you again, if you don't whip her I will whip you and will then attend to the man"-meaning the defendant. This testimony was excluded upon the ground that any trouble between the wife of the deceased and the daughter of the defendant bore no proper relation to the case on trial, although it culminated in a threat on the part of the deceased to do the defendant bodily harm. We cannot agree with this contention. The testimony of the defendant clearly presented the issue of self-defense. The prosecution contended that the shooting of the deceased was a brutal and unprovoked murder. The testimony of the defendant was that he shot only in defense of his life. This direct conflict in the testimony rendered competent any evidence that would shed any light upon the transactions occurring at the very moment of the fatal shooting. The defendant, while on the witness stand, testified that a short time before the killing he had sent his wife over to see the wife of the deceased, for the purpose of composing the troubles that existed between the members of the two families. That his wife came back and told him that "the wife of the deceased had informed her that the deceased had said that if she, Mrs. Liston, did not whip the daughter of the defendant, he, deceased, would whip her, the witness, and he would then settle with the defendant." This was a remarkable statement, and coming from the mouth of the defendant, liable to be received with suspicion. If true, it was an important fact in the defendant's favor. It expressed a violent and malignant state of feeling, and if, in fact such threat was communicated to the defendant, it must have had a profound impression upon his mind. Receiving such information, the defendant might properly have reasoned that nothing but a deadly hatred towards him upon the part of the deceased would cause him to offer his innocent wife the unpleasant alternative of taking into her own hands the settling of the family difficulties, or, herself, receiving at his hands a brutal chastisement. The very fact that the statement was an unusual one-difficult to be believed-made it the more important that the defendant be permitted to show its truth, if in his power. The testimony of the witness, Mrs. Liston, plainly showed that her feelings were hostile to the defendant. It may be that this statement, coming from the defendant, would be disregarded by the jury as an unbelievable statement. If however, it had been supported by the testimony of the wife of the deceased, it would, in view of her manifest hostility toward the defendant, in all probability have been received by the jury as the truth. We are not permitted to speculate as to what effect the admission of this testimony might have had upon the minds of...
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