Powell v. State

• Citation: 12 P.2d 247,53 Okla.Crim. 366
• Decision Date: 04 June 1932
• Docket Number: A-8319.
• Parties: POWELL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

12 P.2d 247

53 Okla.Crim. 366

POWELL v. STATE.

No. A-8319.

Court of Criminal Appeals of Oklahoma

June 4, 1932

Syllabus by the Court.

1. To justify a homicide on the ground of self-defense, the slayer must believe and have reasonable grounds for believing that he is in imminent danger of great bodily harm, and that there is a necessity to kill in order to protect himself from such danger.

2. When an accused is tried for murder and convicted of manslaughter in the first degree and is assessed the minimum punishment and his own testimony shows him guilty of that degree of homicide, this court will not reverse a conviction, in the absence of substantial error.

Appeal from District Court, Pawnee County; S. J. Clendinning, Judge.

Jesse Powell was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

N. E McNeill, of Tulsa, for plaintiff in error.

J Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen and C. E. Mitchell, Co. Atty., of Pawnee (Prentiss Rowe, of Pawnee, of counsel), for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pawnee county of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of four years.

At the time of the homicide, defendant was about 70 years of age, resided alone on a farm. The deceased, Floyd Bell, was a young man about 20 years of age. From the evidence, we gather defendant was eccentric, and had been annoyed by persons entering his farm and not securely closing the gate and probably by other trespasses. On the day of the homicide, young Bell and some other boys left Bell's home on horseback and were driving some horses near defendant's farm, and as a pastime were jumping their horses across a ditch along the road. While doing this, one of Bell's horses fell into a ditch so that it could not extricate itself. Two of the boys went to a neighboring house to get a chain for use in getting the horse out of the ditch. Not being able to secure one, Bell and a young man named Davis went to defendant's house. Defendant was not at home, but was down in the field. The boys found a chain on a water barrel, took it, and, after getting the horse out of the ditch, Bell and a young man named Kendall went to defendant's house to return the chain. On arriving there, Bell began replacing the chain where he had procured it, and Kendall was at the pump getting a drink of water. In the meantime defendant came to his house and went down to the gate which the boys had used and found it partly open. He returned to his house, got an automatic pistol, and went to his field, and returned to his house as the boys were at the well replacing the chain. As he came to the barn, about 150 or 200 feet from the barrel and pump, he saw the boys there and demanded to know what they were doing. Upon this point defendant testified in part:

"* * * A. When he was over there I asked him, after he had told me he had just gotten back over the fence when he told me what he was doing.

Q. Yes. A. He said, 'I had a horse get in the ditch and I came here to get this chain to pull him out.' I says, 'Well, that is all right, by why didn't you close my gate when you went out, so I could keep my hogs in there?' He said, 'I was in a hurry and the fellow that was with me I thought was going to shut the gate.' * * *

A. After that I turned to the other boy and I said, 'Were you the one that was with him, that left it open?' He said, 'No.' I said, 'Well, now, if it wasn't you, who was it?' He said, 'I don't know.' 'Now,' I said, 'you needn't tell me that you don't know, when you have been playing with him all afternoon.' And then that made him mad and he just says, 'Now here' and just stepped off of the platform, just like he was coming to me, you know, and I had my hand-both hands in my pockets at the time, and I had the gun in my hand and when he started off, when he got off of the platform I shot him. * * *

Q. Did you say that he stepped off the well platform and in what direction was he coming? A. He was coming right east off of the platform.

Q. All right. A. And he was just looking right at me, and I thought, you know, that he was aiming, that he was aiming to keep his eyes on me. He wasn't going like he was going to get away, and so I just shot him, just aimed to shoot him in the leg. * * *

Q. After he ran between the houses, did you look for the Bell boy? A. He had not gotten to the building until I looked for the Bell boy, and when I looked for the Bell boy he was on the south side of the well, coming over the fence. He just threw this foot over and then followed it up with this, and as he got on top of the fence, I was out that way, and I shot him right across there. * * *"

On cross-examination defendant testified:

"* * * A. I said, 'Now, you needn't tell me that you don't know because you have been playing with him all evening.'

Q. That is when he stepped down off the-A. Off the platform.

Q. Which way was he facing? Which way was his body facing at that time? A. Toward me.

Q. But he stepped east off of the step? A. Yes, sir. He couldn't step over the pump.

Q. He was standing right there when you pulled down on him? A. He came off the platform and stepped on the ground and I...