Nutt v. State

• Decision Date: 18 November 1912
• Citation: 128 P. 165,8 Okla.Crim. 266,1912 OK CR 402
• Parties: NUTT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

128 P. 165

8 Okla.Crim. 266, 1912 OK CR 402

NUTT v. STATE.

Court of Criminal Appeals of Oklahoma

November 18, 1912

Syllabus by the Court.

In a prosecution for murder, the evidence is held to support the verdict, and that no reversible error was committed on the trial.

To constitute the defense of "justification" where a homicide has been committed, the apprehension of danger must be founded on sufficient circumstances, real or apparent, to authorize the opinion that the felonious design then existed.

Where the instructions of the court considered as a whole fully and fairly present the law of the case and are not inconsistent they are without error.

Appeal from District Court, Pontotoc County; Robt. M. Rainey, Judge.

Bill Nutt was convicted of murder, and appeals. Affirmed.

Galbraith & McKowen, of Ada, J. B. Champion, of Ardmore, and Crawford & Bolen, of Ada, for plaintiff in error.

Chas West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

The plaintiff in error was charged, by information filed in the district court of Pontotoc county on August 14, 1909, with the crime of murder, committed July 20, 1909, upon the body of T. F. Morrow. Having entered a plea of not guilty, his trial resulted in a verdict of the jury finding him guilty of murder and assessing his punishment at imprisonment in the penitentiary for life at hard labor. On September 29, 1910, a motion for a new trial was overruled, and judgment and sentence was pronounced and entered in accordance with the verdict. From this judgment the defendant prosecuted an appeal by filing in this court on March 27, 1911, his petition in error with case-made.

T. F Morrow, the deceased, was foreman for a sewer construction company in the city of Ada, coming to work there a few weeks before his death, and during that time he was stopping at the Byrd Hotel. On July 20th, about 7 o'clock, while he was standing in front of the counter in the hotel office, talking to the defendant's wife, she being behind the counter, the defendant approached and shot him three times with a large caliber pistol, killing him almost instantly. The principal eyewitesses of the assault were Mrs. Sue Rains, L. E. Rains, and Charles Goodwin.

Mrs. Sue Rains testified that she lived in Ada on July 20, 1909; that she had known Mr. T. F. Morrow about three or four days before he was killed; that for that length of time she and her husband had been running the Byrd Hotel; that at the time the killing took place she was sitting in the dining room at the table; that she was not eating; that the building faced the east; that there are two sets of double windows on the front of the building; that right by one of these windows was a typewriter; that just a minute or two previous to the killing she saw Mrs. Nutt, wife of the defendant, sitting at the typewriter; that she saw Mr. Morrow come up to where she was, and she turned around and faced him and flicked a piece of paper or something in his face, and he brushed her back in the face, and they stepped out of my sight; that they seemed to be in a good humor, were laughing; that there were double doors between the dining room and the office; that she could see through these rooms into the parlor and could see part of the office; that she never saw Mr. Nutt until the shooting; that the shooting took place about four or five minutes after she saw them standing at the typewriter; that Nutt had a pistol in his hand when she saw him; that she did not see Mr. Morrow until after the first shot was fired; that he stepped out of her sight then, and Nutt shot again; that Morrow's arms were hanging by his side; that her son, who was sitting at the dining room table, got up and went towards the door and told him not to come in there, and Morrow then turned towards the parlor door. "I believe the third shot was fired before my son told him not to come into the dining room. I did not see Mr. Morrow except when the second shot was fired."

Charles Goodwin testified: That he lived at Stratford. Did not know Mr. Morrow. Knew Bill Nutt when he saw him. Was at the hotel on the evening of July 19th. Stayed there the night before the killing. Had been back to the hotel probably an hour before the killing took place and was sitting on the porch in front of the hotel facing the lobby of the hotel. Morrow was out there talking just a short time before the killing. Saw Mrs. Nutt there. She was standing in the northeast door. She stayed there two or three minutes. "There was another lady, I think Miss Burns, that was discussing some statement with her about giving away something; I think it was the Grand Leader. Morrow was in conversation with her, and asked her, 'What is that you are giving away this evening?' that way, and she says, 'You think you are awfully darn smart.' She turned and walked back into the lobby and went over to the typewriter right at the window. Morrow stayed in his seat beside me for a few minutes, and then he got up and asked me to go to town with him. He was in his shirt sleeves and got up and went into the building in the southeast door, and got his coat and came back to the counter, and Mrs. Nutt was behind the counter. Before that, while she was sitting at the typewriter, Morrow had said to her, 'You had better look out, you will be walking on that thing directly,' and she said, 'What is that to you,' or something like that. Mrs. Nutt was behind the counter when the shooting took place; Morrow was on the outside of the counter. The counter was between them. The defendant appeared at the door that leads into the lobby. He was at the door when I first saw him. He said 'damn' something, and the report of the gun drowned the rest of the sentence. Morrow was standing right there with his arms against the counter. It was all done in a flash. He had his right side to the man shooting and held his arms in a crouching position and walked slowly away from him with his right side towards the defendant. During this time, the defendant was shooting him; moving on to him; held his gun out, walking right towards him. There was a greater interval between the first and second shots than between the second and third. The first shot was fired by Nutt while he was standing in the door. After he fired that he came right on, following the way the man moved. Morrow was standing just about to go into the dining room door when the last shot was fired, and Nutt was within three feet of him."

L. E. Rains testified: That he had been running the Byrd Hotel two or three days at the time of this killing. That he was eating his supper in the dining room, and the shooting attracted his attention. He heard three shots fired. He jumped up, looked around, and saw the defendant coming towards Mr. Morrow, who was going in a kind of stooping position with his hands down to his side with nothing in them towards the dining room door, and "I told him not to come through the door. The defendant had his gun up, and as Mr. Morrow turned he fell against the side of the wall, and the defendant, who was then within five feet of him, fired the third shot. Mr. Morrow staggered and fell and died almost instantly."

Dr. T. W. Hartman testified: That he was called to the Byrd Hotel on the 20th day of July, 1909, and found the man Morrow dead. Made an examination of his body. That he had three bullet wounds, all of them entering on the right side. The first one was 2 1/2 inches below the point of the shoulder, and the second one 5 1/2 inches below, passed through the arm and entered the thoracic cavity and was lost in the lungs. The next one entered 9 1/2 inches below the point of the shoulder and passed through the arm and went through the body on a level and came out about 5 inches posterior to the left nipple. It was the only bullet to penetrate the entire body. Two of these wounds were necessarily fatal, the lower two.

Harry Parks testified that the width of the counter at the Byrd Hotel was 30 inches, height about 4 feet, with six feet space between the counter and the wall behind it.

On behalf of the defendant, W. H. Brinlee testified that he heard Mr. Morrow and somebody else talking while Mr. Nutt and his wife were passing, and Mr. Morrow remarked that this fellow Nutt had the name of being a pretty bad man, but "I am going to accomplish my desire with that Indian woman if I have to kill him." That this was three or four days prior to the killing, and that he told the defendant what Morrow had said about the middle of the afternoon before he killed him that night. On cross-examination the witness testified that he had sold a good deal of whisky during the Indian Territory days, and was convicted for selling since statehood.

W. R. Royal testified: That he heard a conversation between Mr. Morrow and another gentleman, and the other gentleman said to Mr. Morrow: "You had better let that woman alone. They tell me that Bill Nutt will shoot a fellow." And Mr. Morrow said: "That fellow ain't nothing but a big wind. If he was to draw a gun on me, I would take it away from him and wear it out on his head." That this was two or three days before the killing.

Luke Jenkins testified that he was in the Byrd Hotel one night and Mr. Morrow tried to break into Mrs. Nutt's room; that he told him that Bill would shoot him; and that he said that he could shoot some himself. Cross-examination showed that witness was running a joint; had been convicted of a violation of the quarantine law, and that he was up in the hotel to see a woman that night.

J. D Morris testified that he heard Mr. Morrow say, " 'I never did have intercourse with a damned Indian.' Don't guess he knew I was Indian. He said: 'I've got one on the string.' I said, 'Who is it?' He said, 'A woman around...