Kennamer v. State

• Decision Date: 14 March 1936
• Docket Number: A-8937.
• Citation: 57 P.2d 646,59 Okla.Crim. 146
• Parties: KENNAMER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

57 P.2d 646

59 Okla.Crim. 146

KENNAMER v. STATE.

No. A-8937.

Court of Criminal Appeals of Oklahoma

March 14, 1936

Rehearing Denied April 17, 1936.

Syllabus by the Court.

1. The evidence upon a trial on an information for murder considered, and conviction of manslaughter in the first degree affirmed.

2. On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity character, or credibility. This must necessarily include impeaching questions, although they relate to matters independent of the questions testified to in chief.

3. When cross-examination is directed to matters not inquired about in the examination in chief, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the court will not be reviewed on appeal.

4. It is always permissible on cross-examination to lay a foundation for impeaching a witness by proving prior statements which are inconsistent with or which contradict his testimony at the trial.

5. The attention of a witness for defendant may be directed to conflicting statements made to a reporter and published in a newspaper, and inconsistency established by testimony of the reporter who made notes of the statements when made.

6. If there is an inconsistency between the belief of a witness as indicated by his statements prior to the trial, and his belief as indicated by his examination in chief, the prior statements may be shown by way of impeachment, though they are not directly contradictory of any specific statement made by him on his examination in chief.

7. Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial.

8. Objectionable argument on the part of the prosecuting attorney, not called to the attention of the trial court cannot ordinarily be taken advantage of on appeal.

9. Before error, other than fundamental, occurring at the trial can be considered in this court, it must be incorporated in the motion for a new trial, and thereby submitted to the trial court, and its ruling thereon excepted to and afterwards assigned as error in this court.

10. A defendant in a criminal case may waive any right not inalienable, given him by the Constitution or by the statute either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.

11. Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

12. The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for the state is grossly improper and unwarranted upon some point which may have affected defendant's rights that a reversal can be based on improper argument.

13. On a trial for murder, where evidence is introduced which in any degree tends to support the defense of insanity at the time of the commission of the homicide, the issue as to whether or not the defendant was then sane or insane is a question of fact for the jury to determine under proper instructions from the court.

14. Section 1797, St.1931, Penal Code, provides: "All persons are capable of committing crimes, except those belonging to the following classes: * * * Fourth: Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness." Held that, under this provision, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.

15. Section 3076, St.1931, Procedure Criminal, provides: "Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." Held, that where the defense sought to be established is insanity, the legal presumption of sanity must be overcome by evidence which is sufficient to raise a reasonable doubt of the defendant's sanity at the time of the commission of the homicide. When that is done, the presumption of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if upon consideration of all the evidence, together with all the legal presumptions applicable to the case, the jury have a reasonable doubt as to whether the defendant was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he should be acquitted.

16. A man, who has sufficient reason to know that the act he is doing is wrong and deserves punishment, is legally of sound mind and is criminally responsible for his act.

17. An insane delusion is not a defense to a prosecution for crime, unless it would excuse the crime if the facts about which it exist are true.

Appeal from District Court, Pawnee County; Thurman S. Hurst, Judge.

Phil Kennamer was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

Cross-examination is permissible to lay foundation for impeaching witness by proving prior statements inconsistent with or contradicting his testimony at trial.

It appears from the record that an information was filed in the district court of Tulsa county, December 20, 1934, charging that in said county, on the 29th day of November, 1934, the defendant, Phil Kennamer, did kill and murder John Gorrell, by shooting him with a pistol.

On the defendant's application the court granted a change of venue to Pawnee county.

On the 11th day of February, 1935, he was placed on trial in the district court of Pawnee county. On the 21st day of February the jury rendered their verdict finding "the defendant guilty of manslaughter in the first degree as charged in the information, and being unable to agree upon the punishment leave the penalty to be assessed by the court."

On February 25th, after motion for a new trial had been made, presented, and overruled, the court rendered judgment and he was sentenced to imprisonment in the state penitentiary for a term of twenty-five years. On March 1st a supplemental motion for a new trial was filed and overruled. From the judgment of conviction and from an order denying his supplemental motion for a new trial, the defendant appeals.

Upon the trial the defendant admitted the killing of John Gorrell, but claimed that it was excusable because he was insane at the time, and also that it was justifiable in self-defense.

The theory of the state is that the method and manner of this killing shows that it was a willful, deliberate, and premeditated murder.

In order to better understand the assignments of error and to fully comprehend the rulings of the court thereon, it will be necessary to give a brief statement of facts disclosed by the testimony, and also to quote excerpts from the testimony of certain witnesses for the state and on behalf of the defendant.

It appears that the homicide was committed on the night of November 29, 1934, Thanksgiving night; that the deceased was shot and killed with his own pistol; that his death was due to two gunshot wounds in the head. That shortly after midnight his body was found in his automobile, parked on one of the streets of Tulsa. The second day after the tragedy, Phil Kennamer, the defendant, a young man nineteen years of age, went to the office of Flint Moss, an attorney, and told him that he had shot and killed John Gorrell. Then with his attorney, Mr. Moss, he went to his home, from there to the sheriff's office, and surrendered, stating, "I shot John Gorrell."

Both the defendant and the deceased were living with their parents. The defendant comes from a prominent family; his father, Judge F. A. Kennamer, being United States District Judge N.D. of Oklahoma, and formerly an Associate Justice of the Supreme Court of Oklahoma.

The deceased also came from a prominent family; his father, Dr. J. F. Gorrell, being a well-known physician in the city of Tulsa.

Dr Gorrell testified that he has been engaged in the practice of medicine in the city of Tulsa for eighteen years; that John Gorrell, the deceased, his son, age twenty-one years, attended the grade schools in Tulsa, graduated from the Military Academy, Mexico, Mo.; the next two years student Tulsa...