Jones v. State
| Decision Date | 06 December 1921 |
| Docket Number | A-3475. |
| Citation | 202 P. 187,20 Okla.Crim. 233 |
| Parties | JONES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the circumstances proven on the part of the state reasonably tend to show that the accused perpetrated, or may have perpetrated, the fatal acts in self-defense, and where the homicide is admitted or proven, there is no shifting of the burden of proof from the state to the accused. Section 5902 R. L. 1910.
(a) Under such circumstances, even though the evidence on the part of the state indicative of the guilt of the defendant may not be convincing, if there is any substantial evidence tending to prove the guilt of the accused, that question is properly for the jury, and a demurrer to the evidence, under such circumstances, is properly sustained.
It is the right of a trial judge to interrogate witnesses when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged. Where the questions asked by the court are such as would tend to indicate to the jury that the court is of the opinion that the defendant is guilty, or to indicate to the jury the court's belief on any material issue in the case adverse to the defendant, such procedure is clearly prejudicial to the substantial rights of the defendant.
So long as the prosecuting attorney's argument to the jury is supported by the evidence, he may comment upon the conduct of the witnesses upon the stand and state his own conclusions drawn from the evidence. Where it is clearly within the power of the state to prove a material fact for the state, and where the state, purposely or inadvertently, fails to produce any testimony on that issue, although there is ample opportunity to do so, it is error for the prosecuting attorney to argue to the jury that such fact exists.
Where it is shown that on the evening preceding the fatal tragedy the deceased, without sufficient provocation, committed an aggravated assault upon the defendant with deadly weapons and threatened to return and murder the defendant; and where the defendant knew of other facts and circumstances reasonably tending to show that the deceased would carry his threats into execution, under such circumstances the law will not exact such calm, composed, and deliberate conduct on the part of the defendant as to cause him to pause and consider whether, as a reasonable man, he should retreat to safety or disable his assailant rather than kill him.
If under the circumstances here, the last act may seem to have been unnecessary, when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others, while the heat of the conflict was on, and if the defendant believed that he was fighting for his life.
Appeal from District Court, Ottawa County; George C. Crump, Judge.
Douglas Jones was convicted of manslaughter in the first degree, and he appeals. Reversed on rehearing, remanded, and original opinion withdrawn.
It is the right of a trial judge to interrogate witnesses when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged, where the questions asked by the court are such as would tend to indicate to the jury that the court is of the opinion that the defendant is guilty, or to indicate to the jury the court's belief on any material issue in the case adverse to the defendant.
Byron A. Coons, of Miami, Pruiett, Sniggs, Patterson & Morris, of Oklahoma City, and R. McMillan, of Ardmore, with Preston S. Davis, of Vinita, on rehearing, for plaintiff in error.
S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
The plaintiff in error, Douglas Jones, herein referred to as the defendant, was informed against for the murder of W. H. Corder, under which information he was tried and convicted of the crime of manslaughter in the first degree, and on the 27th day of April, 1918, he was sentenced to imprisonment in the state penitentiary for a term of ten years. To reverse this judgment he prosecutes this appeal.
Defendant's counsel, at the beginning of the trial, in his opening statement to the jury, admitted the homicide, but claimed justification on the grounds of self-defense. There were nine witnesses who testified in chief for the state. Only one of this number testified as an eyewitness to the circumstances and facts of the final tragedy; two were physicians who testified concerning the nature and location of the wounds of the deceased; four others were officers who testified to transactions that took place the evening and night preceding the homicide; two others were persons who gave testimony concerning the conduct of the defendant after the tragedy. In order to intelligently analyze the issues raised by the testimony, we give a condensed statement of the evidence in chief, in narrative form.
Grover C. Jackson testified that on and before the day of the tragedy he was employed by the defendant as a meat cutter and clerk in the grocery department of the defendant's store at Picher, Okl.; that this storeroom was on the main street, facing west, and was about 140 feet long; that the defendant lived and made his home in two side rooms, connected with the storeroom on the south; that on the morning of the homicide the deceased came into the store through the front entrance while the witness was talking to another employé by the name of Brown, near the middle of the storeroom in the grocery department; that Brown said to Corder, the deceased: To which Corder replied: Brown said, "Jones has gone to breakfast." Corder then went past Brown and witness and started into the Jones living room. Brown said to him, "Don't go in there." As Corder approached the door of the Jones living room Jones came out and met Corder, who at that time "had his left hand in here (indicating), working around his side, here." When they first met, Corder struck at Jones twice with his left hand and every time he would strike "he would grab back this way (indicating)." Jones then fired several shots in rapid succession; Corder staggered two or three steps and fell. "He wasn't down or wasn't up, he just crouched down like this, trying to get his gun out." "He raised up, but didn't get clear up on his feet." Witness testified that the coat and overcoat worn by the deceased were unbuttoned, and that he knew Corder was some kind of officer, as he had seen his star.
Dr. J. Clay Williams saw the deceased just after the tragedy, while he was lying on the floor of the store. Presently the deceased was removed to the doctor's office, where the doctor made an examination. He testified as to the nature and location of the gunshot wounds and a flesh wound on the head of the deceased, and that two or three of the wounds were necessarily fatal. There was one bullet that entered the back, between the shoulder blades, ranging upward about four inches and lodging in the spinal column; one bullet entered the side of the scrotum, passing diagonally through; one bullet entered just above the left knee, breaking the leg; another bullet entered the abdomen, just to the right of the median line and near the pubic bone; another bullet entered the hip, in the heavy muscles, ranging downward. There was also a cut place three or four inches long on the scalp. The probability was that the wound in the spinal column was the direct cause of death. The doctor was not certain as to whether the deceased's overcoat was buttoned or not. The deceased had a pistol inside of his trousers, in a scabbard.
George Gibson, a deputy sheriff, testified that he had a conversation with Jones at his store a short time after the first difficulty, the evening before the homicide; that he went there in company with Deputy Sheriff Eddy, and that the purpose of these two deputies in going to the Jones store was to get Corder's pistols, which had been taken from him during the difficulty; that Jones then told the deputy sheriffs that if Corder came down there any more he would kill him. On cross-examination Gibson admitted that he and Jones had some talk about the trouble with Corder that evening; that Mr. Eddy said to Mr. Jones, "Mr. Corder won't bother you any more; we will see that he doesn't." Deputy Gibson said that he had just talked with Corder and the latter had requested him to get his pistols; that Corder was not "drunk; he was just mad"; that later Gibson went with Corder to Miami, and that he parted with Corder at the office of Sheriff Freeman at the courthouse about 10 o'clock that night, the night before the final tragedy.
Deputy Sheriff Eddy testified that he saw the defendant, Jones, at his store, in company with Deputy Gibson, at about 8 o'clock; that he there asked Jones for Corder's pistols; and that Jones gave him one, and when he asked for the other Jones said that some one else got the other pistol that Jones stated that he wanted the witness and Gibson to keep Corder away from there; that he had nothing against him if he would stay away from his place; that they assured him that he would not come back there that night; Jones stated that if he did come back there again he would kill him; that Corder had been there armed and drunk and that he took his pistols away from him; that Jones then seemed to be in a nervous and excited state of mind. Deputy Eddy further testified that some time after midnight he was at the Jones store again with Sheriff Freeman, where they again talked with Jones concerning the difficulty of the evening before; that during this conversation, which took place near the stove in the...
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