Proctor v. State
| Decision Date | 02 January 1923 |
| Docket Number | A-3737. |
| Citation | 211 P. 1057,22 Okla.Crim. 445 |
| Parties | PROCTOR ET AL. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Jan. 27, 1923.
Syllabus by the Court.
Alleged improper and prejudicial remarks of counsel in the argument to the jury will be considered by this court only where such remarks are made a part of the record. Mere naked allegations of prejudicial remarks in the motion for a new trial are insufficient.
Before final submission the inadvertent and momentary mingling of jurors with others at the place where the jury took their meals, and telephone and other conversations in the presence of the bailiff, will not operate as a reversal, unless it appears that such conduct was probably prejudicial.
Where alleged misconduct of the jury before final submission was investigated by the trial court on consideration of the motion for a new trial, the trial court's finding that there was no prejudice will not be disturbed.
Instructions relating to self-defense and the necessity or apparent necessity to act in self-defense held sufficient.
An instruction that evidence of threats, communicated or uncommunicated, might be considered for the purpose of determining which was the probable aggressor and what might be reasonably apprehended from the overt acts of the deceased, considered with the other instructions given, was not prejudicial as being an improper limitation of the purpose for which such evidence might be considered.
Where the killing is admitted and the accused pleads self-defense there may be a shifting of the burden of the evidence on that particular point, but the burden of proof on the whole case lies with the state. Self-defense may be and often is an affirmative defense. Section 5902, Rev. Laws 1910.
Appeal from District Court, Carter County; Thos. W. Champion, Judge.
A. G Proctor and another were convicted of manslaughter in the first degree, and they appeal. Affirmed.
S. J Castleman, of Wilson, R. Brett and Jas. H. Mathers, both of Ardmore, for plaintiffs in error.
S. P Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
A. G. Proctor and Orin Proctor, plaintiffs in error, in this opinion referred to as the defendants, were by information filed in the district court of Carter county charged with the murder of Ray Massard. By verdict of the jury rendered October 31, 1919, each of the defendants was found guilty of manslaughter in the first degree. Defendant A. G. Proctor's punishment was assessed at confinement in the state penitentiary for a term of five years, and defendant Orin Proctor's punishment was fixed at four years. From the judgment pronounced in accordance with this verdict defendants appeal.
The evidence shows that on the Sunday preceding the Wednesday night on which the fatal difficulty occurred the deceased, Ray Massard, and another Syrian were playfully throwing at each other pieces of ice taken from an ice pack on the sidewalk in Healdton; that a piece of this ice accidentally struck defendant A. G. Proctor; that this defendant then asked Massard why he hit him, and Massard replied with a vile epithet, that it was an accident; that thereupon A. G. Proctor and Massard engaged in a fight in which defendant's head was cut with a piece of ice, and he sustained a broken or injured hand or wrist. On Wednesday evening Massard, in company with Albert Shadid, another young Syrian, was walking along the street near where defendants A. G. Proctor and Orin Proctor were sitting on the sidewalk, passing along in front of and beyond a pool hall near by; that after they had passed the defendants remained sitting on the curb a few minutes, and then went into the pool hall to get a drink of water, on their way to their rooms located a short distance to the rear of the pool hall. Defendants discovered that Massard and Shadid were in the pool hall, engaged in a game of pool. Defendants prepared to play a game on an adjoining table, and while they were chalking their cues preparatory to beginning the game, these two Syrians approached with their cues in their hands, in a fighting or belligerent attitude; according to other testimony, the defendants were the aggressors. However this may be, all four then engaged in the difficulty, using their fists and the billiard cues, and fighting by striking, shoving and clinching. At the culmination of the difficulty A. G. Proctor struck the deceased, Ray Massard, with the heavy end of a broken billiard cue, fracturing his skull, from which wound he died shortly afterwards. It was claimed by defendant Orin Proctor that he took part in the fight only to protect his brother.
The physician who examined the wounded Syrian and operated on him testified that there was evidence of his head having been struck with some hard instrument at two different places, about an inch apart, and that there was also a flesh wound near the eye.
It was the theory of the state that the defendants followed these two Syrians into the pool hall and invited the difficulty; it was the theory of the defendants that the deceased and his companion were the aggressors. The evidence in support of these two theories is more or less conflicting, and it is difficult, if not impossible, to determine from the record before us which of the two was correct. A great deal of demonstrative evidence was...
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