Palmer v. State

• Decision Date: 01 March 1944
• Docket Number: A-10207.
• Citation: Palmer v. State, 146 P.2d 592, 78 Okla.Crim. 220 (Okla. Crim. App. 1944)
• Parties: PALMER v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

146 P.2d 592

78 Okla.Crim. 220

PALMER v. STATE.

No. A-10207.

Court of Criminal Appeals of Oklahoma

March 1, 1944

Syllabus by the Court.

1. Errors to which no exceptions are taken will not be considered on appeal unless they are jurisdictional or of a fundamental character. The appellate court indulges a presumption that if error had been called to the attention of the lower court by objection at the time and in the motion for a new trial, the lower court would have corrected the error.

2. Fundamental errors which will be considered on appeal, even without objection or exception taken during the trial of a case, are those which go to the foundation of the case, or take from the defendant a right which was essential to his defense. Where it appears, and justice requires, this court will consider them whether or not exceptions are taken in the court below.

3. An instruction is erroneous, although correct as an abstract proposition of law, if it leaves the jury in doubt or uncertainty as to how it should be applied to the evidence.

4. It was fundamental error for trial court to instruct jury that homicide is manslaughter in the first degree, when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor, without further instructing them as to what constitutes a misdemeanor, and without defining assault and battery, which was the misdemeanor relied upon by the prosecution.

5. In prosecution for manslaughter in first degree the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.

6. In prosecution for manslaughter in first degree, allegedly caused by defendant striking decedent with fist, refusal of instruction that homicide is excusable when committed by accident and misfortune, in heat of passion, upon sudden and sufficient provocation, or upon sudden combat, provided no dangerous weapon is used and killing is not done in cruel and unusual manner, held error.

7. In prosecution for manslaughter in the first degree, allegedly caused by defendant striking decedent with fist while parties were engaged in altercation over certain bogus checks given by deceased, and evidence is conflicting as to whether deceased died from blow struck by defendant's fist or stumbled and fell, striking his head against curb, resulting in his death, court should have submitted issue of manslaughter in second degree and also that of assault and battery.

8. The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury have been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Gibson Palmer was convicted of manslaughter in the first degree, and he appeals.

Reversed and remanded.

Wimbish & Wimbish, of Ada, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Presiding Judge.

The defendant, Gibson Palmer, was charged in the District Court of Pontotoc County with the crime of manslaughter in the first degree, was tried, convicted and sentenced to serve four years in the state penitentiary and has appealed.

Gibson Palmer, the defendant, was the owner and operator of the Broadway Buffet in the City of Ada. The deceased, W. M Barringer, on March 4, 1939, and on April 5, 1939, had cashed checks at the defendant's place of business, drawn on Barringer's personal account at the Oklahoma State Bank of Ada. Payment on these checks was refused by the bank on account of insufficient funds. The defendant had tried unsuccessfully several times by conversations over the telephone with the deceased to collect the checks.

On July 18, 1939, the defendant received a telephone call from one J O. Abney that the deceased was standing in front of Abney's store. The defendant took the checks and went to the front of Abney's store and there entered into a conversation with the deceased in an attempt to collect the two checks.

Roy Earles was talking to the deceased at the time the defendant approached. His testimony concerning what occurred on that occasion is as follows:

"Q. You may state, as near as possible, Mr. Earles, the conversation had between these parties? A. Well, Mr. Gib Palmer walked up there and he had two checks in his hand and he asked Mr. Barringer if he was going to pay those checks off and he said, 'No, I don't have the money'--that is just as near as I know now as to what was said--and he said, 'It looks like you could pay those checks off, they have been given now about three or four months' and he told him that he didn't have the money and that man, Gib Palmer then reached to get hold of him and they started scuffling and he said, 'Come go with me to the County Attorney and I will turn you and the checks both over to the County Attorney,' that is the best I know as to what they said and then they went scrambling on west and south of there.

Q. Did Mr. Palmer reach to hit him or to get hold of him? A. He reached to get hold of him it looked to me like.

Q. Where did he reach to get him? A. In the shirt bosom.

Q. Will you demonstrate to the jury about where he reached to get hold of him? A. Right about there (indicating).

Q. What did Mr. Barringer do when Mr. Palmer took hold of his shirt? A. The best I could tell he butted against that glass right there. Q. Bumped back like that? A. Yes, pulling back.

Q. What did Mr. Barringer do then? A. His feet then were both down on the concrete and he went to dodging backwards and they were going west and south right back out that way. (indicating)

Q. Will you state to the jury what the two men were doing as they went along there? A. The only thing I can state is that they were scuffling with one another, naturally like a man would if another man was going to take him some place and he didn't want him to.

Q. Did Mr. Barringer swing at Mr. Palmer? A. Yes, sir.

Q. Did Mr. Palmer still have hold of his shirt there when they got along there (indicating) as near as you could tell? A. Yes, sir, as near as I could tell.

Q. Where did you go? A. I got back to about that mark right in there. (indicating)

Q. Did you watch him closely--Mr. Barringer? A. It looked to me like he stumbled in that grass there and fell out into the street."

J. O. Abney testified that he heard a noise in front of his store and looked out and saw the defendant and the deceased slapping each other. That the scuffling started on the north side of his store building and continued onto the west side. That after they got around to the west side of his building he could only see their feet. He saw the deceased fall at the curb and the witness called the ambulance.

Paul Anderson and Tom Cummings each testified that they were engaged in a conversation while they were standing on a street corner west of Abney's store. That their attention was first attracted to a scuffle by the bowl of a pipe coming out across the sidewalk. That they saw the deceased back up to the curb with his hands in front of his face trying to shield himself from some blows being struck by the defendant. They each testified that they saw defendant strike deceased two blows with his fist and that at the second lick the deceased fell to the pavement.

It was the theory of the state that the defendant struck the deceased with such force with his fist that the deceased sustained a fracture to his skull, resulting in his death. The information charged the defendant with the crime of manslaughter in the first degree and alleged that the defendant killed the deceased while the defendant was committing a misdemeanor, to-wit, assault and battery upon the deceased.

Four doctors testified concerning the injuries sustained by the deceased.

Dr. I. L. Cummings, brother-in-law of the deceased, testified that the deceased had a laceration in front of the left ear and eye; his nose was fractured, his left eye was black and blue and his face beaten up quite a bit. That deceased died from a fracture to the basal skull and hemorrhage of the brain. That his death was caused from a lick of some sort. That it could have been caused from a fall on the curb or on a rock or it could have been caused from a side blow to the head.

The other three doctors testified on behalf of the defendant that they examined deceased at the Sugg Clinic. That the deceased had a laceration above the left ear and was bleeding from his nose and his ear. That X-rays were made and it was determined that deceased had a fractured skull. Each of these doctors testified that in his opinion the basal fracture sustained by the deceased could not have been caused by a blow from a man's fist. Each gave as his opinion that the blow was sustained by the head striking the pavement.

The defendant testified in his own behalf. His testimony did not differ materially from the testimony of Roy Earles. He stated that he was attempting to get the deceased to go with him to the county attorney's office to straighten out the checks and that a scuffle started and some licks passed...