Roberson v. State, A-10978
| Decision Date | 03 May 1950 |
| Docket Number | No. A-10978,A-10978 |
| Citation | 218 P.2d 414,91 Okla.Crim. 217 |
| Parties | ROBERSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. On a trial for murder, where defendant has laid a proper foundation by evidence tending to show that in committing the homicide he acted in self-defense, he may introduce evidence of the turbulent and dangerous character or reputation of deceased.
2. On a trial for murder, where the defense is justifiable homicide in self-defense, and there is evidence to support the same, evidence of specific acts of violence on the part of deceased against persons other than defendant, being known to defendant prior to the homicide, is admissible for the purpose of showing the disposition of deceased to become violent without provocation, and as tending to show his violent temper on such occasions and his disposition to use deadly weapons.
3. It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.
4. It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts.
5. In the trial of a homicide case the defendant may place in issue the reputation of the deceased victim of his assault for being a violent and turbulent person, without placing his own character for peace in issue. Only when he offers evidence of his own reputation for peace and quietude, does he subject himself to attack by a contrary showing of his qualities for turbulence and violence.
6. Evidence of specific acts of violence or turbulence on the part of the deceased if known to defendant are admissible in evidence on behalf of defendant, not for the purpose of showing who was the probable aggressor but to show the probable state of mind of defendant.
7. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant's condemnation, irrespective of his guilt of the crime for which he is being tried.
8. Where the prosecuting attorney asks a defendant on cross examination improper questions, and where the questions are asked without expectation of answers, and where the plain purpose is to prejudice the jury against the defendant, the judgment of conviction will be reversed, unless it appears that the questions could not have influenced the verdict.
Frank Nesbitt, Miami, Nelle Nesbit, Miami, L. Keith Smith, Jay, for plaintiff in error.
Mac Q. Williamson, Attorney General, Sam H. Lattimore, Ass't Attorney General, for defendant in error.
The plaintiff in error Jake Roberson, defendant below, was charged by information in the district court of Ottawa County, Oklahoma, with the murder of Ben (Doc) Wilson. It was alleged in the information he shot and killed Wilson with a .38 caliber pistol in the Blue Goose Cafe in the town of Fairland, Ottawa County, Oklahoma, on February 22, 1947.
It will not be necessary to detail the facts in connection with the killing notwithstanding the fact that the defendant makes numerous assignments of error as grounds for reversal of the judgment and sentence herein imposed. However, it is essential that we call attention to the fact that the plea of self defendant was supported by substantial evidence. The defendant testified that the deceased was armed with a pistol and fired at him. Defendant's son testified Wilson fired at defendant two or three times. In this he was supported by the testimony of a reputable doctor, who said that Roberson had been twice nicked in the back of the neck by bullets or fragments thereof. Moreover, there was evidence to the effect that after decedent fired his shot or shots the defendant drew his gun and fired two shots, and that the decedent then dropped his gun on the floor and lunged headlong into the defendant. When the killing was over there was evidence offered by the defendant that when the body of Doc Wilson was turned over a nickel plated pistol allegedy used by Wilson was found under him. Further detailing of the evidence is we deem unnecessary.
To determine the issues herein involved it will be necessary only to consider the two assignments urged in the defendant's brief. Therein he first contends, the verdict of the jury is the result of passion and prejudice created and developed by the introduction of highly prejudicial, incompetent and improper evidence, to all of which the defendant objected and excepted at the time of introduction, and at the close of all the evidence moved the court to withdraw the same from consideration of the jury, and being overruled, did except.
It clearly appears that the defendant attacked the character and reputation of the deceased, to the effect, that the deceased Wilson had a bad reputation as being a violent and turbulent person. Evidence was offered by the defendant for that purpose. Before offering evidence as to Wilson being a violent and turbulent person, the defendant had laid the proper predicate by showing that he had acted in self-defense, in shooting Wilson. Under the authorities in this state, this procedure was permissible. In Murphy v. State, 72 Okl.Cr. 1, 112 P.2d 438, 443, it was said:
'On a trial for murder where defendant has laid a proper foundation by evidence tending to show that, in committing the homicide he acted in self-defense, he may introduce evidence of the turbulent and dangerous character or reputation of deceased.
'On a trial for murder where the defense is justifiable homicide in self-defense, and there is evidence to support the same, evidence of specific acts of violence on the part of deceased against persons other than defendant, being known to defendant prior to the homicide, is admissible for the purpose of showing the disposition of deceased to become violent without provocation, and as tending to show his condition of mind and violent temper on such occasions and his disposition to use deadly weapons.'
In support of the foregoing rule announced in Murphy v. State, supra, this court cited 64 A.L.R. 1029, and Annotation 121 A.L.R. 380; Sneed v. Territory, 16 Okl. 641, 86 P. 70, 8 Ann.Cas. 354; Mulkey v. State, 5 Okl.Cr. 75, 113 P. 532; Mathews v. State, 16 Okl.Cr. 466, 184 P. 468; Elliott v. State, 18 Okl.Cr. 230, 194 P. 267; Edwards v. State, 58 Okl.Cr. 15, 48 P.2d 1087. In Ammons v. State, 28 Okl.Cr. 433, 231 P. 326, it was said: 'Where the issue of self-defense is raised and there is some evidence to support it, it is error to exclude evidence that the prosecuting witness, prior to and at the time of the difficulty, had the general reputation of being a violent, quarrelsome, and turbulent man, and that such general reputation was known to the defendant.' See also Jenkins v. State, 80 Okl.Cr. 328, 161 P.2d 90, 162 P.2d 336; In re Fraley, 4 Okl.Cr. 91, 111 P. 662. In light of the foregoing authorities, the defendant having laid the proper foundation by evidence establishing his plea of self-defense it was then permissible for him to attack the character of the decedent for turbulence and violence. It would have been error to have denied the defendant the right so to do under the conditions herein presented.
It is conceded by the Attorney General that at no time did the defendant offer any proof as to his own good character and reputation in any regard. He remained silent in relation thereto, even on the point of being quiet and peaceable. The Attorney General concedes in his answer brief that under the law where the defendant has not made an issue of his reputation in a homicide case the state may not attack the same. This concession was prompted by the almost universal agreement of the courts to the effect that the state is not entitled to introduce evidence of the bad character or reputation of accused unless he clearly and expressly puts his character in issue by introducing evidence of good character. In this connection, see 22 C.J.S., Criminal Law, § 676, page 1069, Note 20, and the numerous authorities therein cited, as well as the consistent holdings to that effect by this court. Flynn v. State, 68 Okl.Cr. 72, 96 P.2d 96, this court said: 'It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.'
In the body of the opinion 68 Okl.Cr. at page 85, 96 P.2d at page 102 it was said:
'In Jones v. State, 20 Okl.Cr. 154, 172, 201 P. 664, 670, this court in the body of the opinion stated:
"It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant's condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover, the use of alleged particular acts, ranging over the entire period of the defendant's life, makes it impossible for him to prepare to refute the charges, and or all of which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R.C.L. 953; Porter v. State, 8 Okl.Cr. 64, 126 P. 699; Corliss v. State, 12 Okl.Cr. 526, 159 P. 1015.'
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