Myers v. State

• Decision Date: 13 November 1946
• Docket Number: A-10631.
• Citation: 174 P.2d 395,83 Okla.Crim. 177
• Parties: MYERS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

174 P.2d 395

83 Okla.Crim. 177

MYERS v. STATE.

No. A-10631.

Court of Criminal Appeals of Oklahoma

November 13, 1946

Appeal from District Court, Bryan County; Roy Paul, Judge.

W. F (Dink) Myers was convicted of the crime of murder, sentenced to life imprisonment, and he appeals.

Affirmed.

Crime

Record disclosing that defendant had another challenge left at time prospective juror was interrogated, so that juror could have been challenged, failed to show prejudice even if there were evidence tending to show that juror was disqualified where it did not appear that juror sat on jury which convicted defendant.

Syllabus by the Court.

1. In a prosecution for murder, alcohol insanity, or mental incapacity produced by voluntary intoxication existing only temporarily at the time of the homicide, is no justification or excuse therefor. To constitute insanity, caused by intoxication, a defense in a trial for murder, it must be insanity caused by chronic alcoholism, and not a more temporary mental condition.

2. Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors or drugs and known as 'Delirium tremens,' or 'mania a potu,' renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor or drugs at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a more fit of drunkenness. A person, not previously laboring under such disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.

3. Under Tit. 21 O.S.1941 § 701, homicide is murder 'when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being', and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death. And this question is for the jury to determine.

4. Intoxication, either voluntary or involuntary, is to be considered by the jury in a prosecution for murder, in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear.

5. Record examined and court did not err in submitting issue of premeditated design to effect death in murder case to jury where the defense was temporary insanity by reason of voluntary or involuntary intoxication by reason of the excessive use of intoxicating liquor or 'drugs.'

6. Where the requested instructions are sufficiently covered by the general instructions, it is not error to refuse to give the requested instructions.

7. The questions asked a juror on his voir dire examination testing his qualification as a juror are largely in the discretion of the trial court, and where no abuse of discretion is shown, case will not be reversed.

D. S. McDonald, Jr., of Durant, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Victor C. Phillips, Co. Atty. of Bryan County, of Durant, for defendant in error.

BAREFOOT Judge.

Defendant, W. F. (Dink) Myers, was charged in the District Court of Bryan County with the crime of murder. He was tried, found guilty, and his punishment assessed at life imprisonment in the State Penitentiary, and he has appealed.

Defendant is now confined in the penitentiary, and on motion of his counsel, his case has been advanced. Defendant, by reason of poverty, being unable to pay the expenses of an appeal, and having made application in this court for an order requiring Bryan County to pay the expenses of a case-made, the application was granted on May 11, 1945, and the case-made with petition in error attached was duly filed.

Defendant being unable to employ counsel, the trial court, at the suggestion of the defendant, appointed the Honorable D. S. McDonald, Jr., of the Bryan County bar, to defend him. He tried the case in an excellent manner, without compensation, and has prepared the appeal in proper form and briefed and orally argued the case in this court. We commend him for the services rendered in this case, as a member of the bar of this State.

For a reversal of this case, it is contended:

'The state's evidence and uncontradicted testimony precluded a conviction for murder.

'The instructions given, as excepted to by defendant, were not warranted under the facts and did not recognize the uncontradicted facts and the instructions refused should have been given in substance or effect.

'Improper prejudicial questioning was permitted and juror was not excused for proper cause.'

The first proposition requires a short statement of the evidence as revealed by the record.

Defendant was charged with the crime of having murdered George Myers, who was his brother, in the city of Durant, Bryan County, on August 2, 1944, by shooting him with a certain U. S. Springfield Rifle containing a 45-60 caliber shell. The killing occurred at the home of deceased and while he was lying on a mattress on the floor in a room occupied also by his son and another party. The shot was fired from the outside of the house, and entered the room below the window facing, and struck the head of the bed, and was deflected and struck the body of deceased. He was taken to a hospital in an ambulance by his son and the undertaker, and died from the effect of the wound received soon after reaching the hospital.

Defendant was what is commonly known as a 'dope fiend,' and was seen to take some kind of a tablet prior to the killing. The chief of police of the city of Durant testified that the defendant had been picked up 'for being too drunk' forty or fifty times in the past two years. Another son of deceased, who had returned from the armed services for the trial, testified for the defendant, and stated that his uncle had been on dope and whiskey for the past seven or eight years.

It is contended by defendant that he could not have been guilty of murder for the reason that at the time of the killing his mental condition was such by reason of the taking of drugs (barbiturates) that he was incapable of forming a premeditated design to effect death.

The record reveals that the defendant lived alone in a trailer house a block or two from the home of the deceased. At the time of the killing Oscar Coffee was staying with defendant. Deceased lived alone, but on the night of the homicide his son Lee M. Myers, who lived in California, was at home on a visit; and a young woman by the name of Lucile Morgan who was engaged to marry another son of deceased, and her small child were also there.

On the morning of the homicide, defendant was in the town of Durant. He made an attempt to secure two different parties to go on his note so he could borrow money. Both refused, and he cursed and abused them, and said to one of them: 'My brother George (the deceased), the God-damned son of a bitch, I tried to get him to sign my note and he wouldn't do it. I think I will go home and get my rifle and shoot the damn son of a ditch between the eyes.' After being refused by the second party, he said, 'There is my brother, he wouldn't go my note, and I think I will go home and get my gun and shoot him.'

The record shows that defendant spent some time at the home of the deceased during the day preceding the killing. On the night of the killing, defendant and Oscar Coffee went to the home of deceased, and the defendant called his brother to come out, but this he refused to do. Lee M. Myers, son of deceased, went outside and told defendant that his father did not want to talk with him, and did not want to have anything to do with him. He asked defendant what he wanted, and defendant told him he had an ice pick he wanted to give his brother. Lee M. Myers offered to take the ice pick in for him, but defendant insisted on delivering it in person. He entered the room and was sitting by deceased on the bed. The witness Lee M. Myers testified:

'When I came back he was sitting on the bed talking to daddy and in some way they had gotten into an argument and dispute and he was going to draw this ice pick on daddy and daddy jumped up and put his clothes on and took the ice pick and daddy didn't want to have him arrested and told him to go on home and get away from there. And he wouldn't go and daddy told him to go on and he stumbled out of the door and got--one word brought on another and he drew a knife on daddy and daddy pushed him out the door and locked the screen door.

'Q. Did you hear the defendant make any remark when your father put him out the door? A. After daddy put him on the porch he allowed he would come back and kill 'all of you sons of bitches.' That is what he said.'

Defendant returned to the street where Oscar Coffee who had come with him had been waiting, and they returned to the home of defendant. The testimony of the witness Oscar Coffee was 'Dink (the defendant) asked me to walk in front of him and show him the way. He can't see very good and I did and when we...