Henderson v. State

• Decision Date: 04 April 1936
• Docket Number: A-8924.
• Parties: HENDERSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

56 P.2d 915

59 Okla.Crim. 86

HENDERSON v. STATE.

No. A-8924.

Court of Criminal Appeals of Oklahoma

April 4, 1936

Syllabus by the Court.

1. In prosecution for murder, evidence considered, and conviction of manslaughter in the first degree affirmed.

2. A defendant's general good character or reputation as to the trait involved in the charge against him is always admissible in his favor to evidence the improbability of his doing the act charged, and, where a defendant offers testimony to show his previous good character, the state may in rebuttal offer evidence of his bad character.

3. On cross-examination of witnesses as to defendant's character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased.

4. When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant, his character cannot be attacked by the state; as a witness, he puts his credibility at issue like any other witness.

5. Where an information charges murder under the first subdivision of section 2216, St.1931, perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, a conviction, if warranted by the evidence, may be had under either of the other subdivisions of said section.

Appeal from District Court, Atoka County; P. L. Gassaway, Judge.

D. J Henderson was convicted of manslaughter in the first degree and he appeals.

Affirmed.

On cross-examination of witnesses as to accused's character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by accused at various times prior to time of killing on others than deceased.

It appears from the record that an information was filed in the district court of Atoka county October 23, 1934, charging that in said county, on or about the 22d day of September 1934, the defendant, D. J. Henderson, did kill and murder Hayden Norris by shooting him with a pistol.

On the 5th day of December, 1934, he was placed on trial. On December 8th the jury returned their verdict finding the defendant guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the state penitentiary for a period of 99 years. On December 14th after motion for new trial had been duly filed, presented, and overruled, the court rendered judgment, and he was sentenced to imprisonment in the state penitentiary at McAlester for the term of 99 years. From this judgment he appeals.

Upon the trial the defendant admitted the killing, but claimed that the homicide was justifiable in self-defense.

In order to better understand the errors assigned, the following brief statement of the facts disclosed by the testimony is made; also excerpts from the testimony of certain witnesses for the state and of the defendant.

The deceased lived with his mother 10 miles southeast of the city of Atoka. The defendant, a young man 20 years of age, lived with his mother in the town of Caney, Atoka county.

It appears from the testimony that on Sunday morning, September 23, 1934, two boys, Robert Merritt and Oscar Dowd, were hunting, and left highway 75 about a mile north of the town of Caney and proceeded east on what is known as the Bentley road. About a quarter of a mile east of said highway it appeared that something had been dragged from the road through the fence and into the weeds on the north side of the road. Investigation showed this to have been a dead body which was at that time discovered, and identified as that of Hayden Norris.

The testimony of Sam Howard, Oscar Dowd, and C. G. Maxwell, sheriff, showed the following facts in reference to the condition of the ground where the body was found: The body was found about 12 feet inside the fence. A short distance from the body was discovered the empty billfold belonging to the deceased. The right-hand pants pocket was turned inside out. The left-hand pants pocket was halfway out. There was no money on the body of deceased. On the north side of the Bentley road, across the fence and in the weeds, were found bloody seat covers which were identified as the seat covers from the Chevrolet car belonging to the deceased, and the right-hand front seat cover was covered with blood. An examination of the ground showed only one set of footprints.

The testimony of Dr. J. S. Fulton, Dr. C. C. Gardner, and the undertaker, J. A. Wagner, show the nature of the wounds that caused the death to be as follows: Two bullet holes in the back of deceased; one in the face and one through the hand. Each testified positively that one of the bullet holes in the back was an entrance. The undertaker testified positively that the other bullet hole in the back was an entrance, and the doctors were of the opinion that it was an entrance.

The testimony of Earl Norris, Jim Peel, and Pawnee Dandridge showed that the defendant was in the city of Atoka late in the afternoon of Saturday, September 22, 1934; that he had several conversations with Hayden Norris, and finally Norris, in the presence of Jim Peel, made the following statement to the defendant: "I'll take you down there for that," to which the defendant replied: "We'll leave Jim here until you come back"; that Hayden Norris, in company with the defendant, left the city of Atoka going in the general direction of the town of Caney, and that that was the last time Hayden Norris was seen alive; that the departure from Atoka was between 7 and 8 o'clock.

The testimony of Ray Hall shows that the defendant came into the Hall's store at Caney and had a $5 bill changed about 8 o'clock on the night of the killing.

W. D. Black testified: "I live 2 1/2 miles north of Caney, one-fourth of mile west of the railroad and highway. On leaving the highway there is an underpass. I heard three shots between 8 and 9 o'clock that night in the direction of the highway leading from Atoka to Caney, from the underpass. The first shot had a deadened sound, then it seemed a minute, maybe two before I heard the other two, after the shots I heard a car running south."

On cross-examination he stated: "I know where the iron stob, the marker of the township corner is; it is 2 1/2 miles from my house, from the place I heard the shots to the iron stob is 1 3/4 of a mile."

Sam Walker testified: "I live a mile and a half north of Caney, near the highway, 9 or 10 miles from Atoka. I heard three shots; it was between 8 and 9 o'clock. I would say they were this side of Boggy, near the underpass."

The testimony of Sheriff Maxwell and John Shoemake shows that defendant's mother, about a year prior to the tragedy, borrowed a 32-20 Colt's pistol from the sheriff, and that about 60 days prior to the tragedy the defendant's mother reported that the pistol which she had borrowed from Sheriff Maxwell had been taken from her home.

Mr. Shoemake testified that the description of this pistol exactly described the pistol which the defendant surrendered to the officers as being the one with which he shot and killed Hayden Norris. Sheriff Maxwell could not positively identify the gun.

Miss Virginia Akers testified: "My home is on Northeast Ninth street, Oklahoma City; the defendant's sister, Mary Henderson, has lived with me since July; the Sunday morning on which Hayden Norris' body was found the defendant appeared at my home. Mary asked him, 'How are all the folks?' and she asked him whose car he was in, he said, 'Hayden's'; he said he left Tulsa at 4 o'clock, that he went to Tulsa to see his girl friend Lois. Mary asked him, 'Where is Hayden?' he said, 'In Atoka.' We told him he had better go to bed and get some sleep. He said he didn't have time, he had to bring Hayden Norris' car back to him."

Mary Elizabeth Henderson, sister of the defendant, testified that she had been living in Oklahoma City since about the middle of July with Miss Akers. "My brother D. J. came there 7 o'clock Sunday morning. He said he had been to Tulsa to see his girl friend, Lois Hall, and thought he would come by see me a few minutes. He went out and backed his car into the driveway." She asked him if it wasn't Hayden's car, he said "Yes," and, asked where Hayden was, he said, "At Atoka." When leaving, she went out to the car with him and got in the car. He had a shaving kit, pair of blue overalls, and underwear in the car; that she never knew of her brother D. J. and Hayden Norris having any trouble.

On cross-examination she stated that the last time Hayden Norris had come to Oklahoma City to see her was September 3d; that she and Hayden had planned to get married.

The testimony of John G. Alexander shows that the deceased's car was left at his place at Altus, Okl., by the defendant, and that the route of travel from Altus to Atoka is by the way of Lawton, Duncan, Sulphur, Ada, and to Atoka.

The testimony of Claud Collier and Henry Savage show the deceased's car had blood in the right front seat and on the right-hand door and that there was an impression on the left end of the dashboard which appeared to have been made by a bullet.

J. Lee Mann, undersheriff, testified that he went with Ralph Mitchell and John Alexander to Altus, and Henry Savage sheriff, turned a 1934 Chevrolet car to him; that he compared the tag number and title papers and they showed the car belonged to Hayden Norris, and he brought the car back to Atoka; that there was some blood on the right seat of the car, and a little blood on the door and a dent just below the windshield, that he found in the receptacle on the dashboard some papers and anticaps; that Ralph Mitchell delivered to him the gun...