Rogers v. State
| Decision Date | 26 October 1912 |
| Parties | ROGERS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) Where the issue of self-defense is raised, and the defendant offers evidence of threats made by the deceased against him which threats were communicated to the defendant prior to the homicide, such threats are admissible in evidence without first proving they were actually made by the deceased, upon the ground that a person is always justified in acting upon reasonable apprehension of danger, and that it is immaterial as to whether the danger is real or only apparent, provided only that he acts in good faith. Morris v. Territory, 1 Okl. Cr. 617, 99 P. 760, 101 P. 111, and White v State, 4 Okl. Cr. 157, 111 P. 1010, cited and reaffirmed.
(b) Communicated threats are admissible in evidence for the purpose of showing the defendant's state of mind toward the deceased at the time of the homicide, and also to show the fact and reasonableness of defendant's apprehension of violence at the hands of the deceased. If, therefore, the defendant has received information from a reliable source that the deceased has threatened his life, or to inflict serious bodily injury upon him, the effect of this depends alone upon the information received, and, so far as the rights of appellant are concerned, it is immaterial as to whether or not the threats were actually made.
(c) For a full discussion of the philosophy of the law of threats whether communicated or uncommunicated, see opinion.
(a) A defendant being on trial for murder, and the issue of self-defense having been raised by the testimony, it is error for the trial court to refuse to permit the defendant to prove that knucks and four knives were found in a pocket of the coat of the deceased after the fatal difficulty.
(b) Where a fatal difficulty occurs, and a trial for murder ensues therefrom, as to whether or not deceased was armed during such difficulty is a part of the res gestæ thereof and may always be shown, either by the state or by the defense.
(a) During the trial of a criminal case, it is improper for attorneys on one side or the other to make side-bar remarks reflecting on opposing counsel; and it is the duty of the trial court to promptly rebuke and suppress remarks of this kind, and, if persisted in, the offender should be punished for contempt of court.
(b) In the examination or cross-examination of witnesses, it is highly improper for attorneys to ask questions which suggest unfair inferences, either on one side or the other, and such conduct should not be permitted by the trial court.
(c) Every defendant in a criminal case is entitled to fair treatment on his trial, and a prosecuting attorney should not be permitted to ask questions which he knows to be illegal for the purpose of prejudicing the defendant, or to make remarks in the examination of a witness which contain unfair reflections upon the defendant. In the examination of witnesses, he should confine himself exclusively to developing legal evidence against the defendant, and should reserve his comments on the testimony for his argument to the jury; and it is the duty of trial courts to rigidly enforce this rule.
(a) On cross-examination, it is proper to inquire as to whether or not the witness was drinking intoxicating liquor at the time or shortly before the occurrence with reference to which he testifies.
(b) Where the state has placed a witness on the stand, in a case where the issue of self-defense is raised, who testified that he was with the deceased some time prior to the fatal difficulty, it is proper for the defendant to ask said witness on cross-examination as to whether or not the deceased drank any intoxicating liquor at this time.
(c) Where a party places a witness on the stand, who testifies to a transaction or part of a transaction, it is the right of the opposing side on cross-examination to bring out anything which may have happened during the time covered by the testimony of the witness given in his direct examination which had previously been omitted, and which would in any manner tend to shed light upon the transaction testified to.
(d) Where the state places a witness on the stand, who testifies to a certain transaction, it thereby voluntarily opens a door which it cannot arbitrarily close, until the defendant on cross-examination has brought out all the facts within the knowledge of such witness material to a thorough understanding of that part of the transaction which the state has proven.
(a) Where the issue of self-defense was raised by the testimony, it was error for the trial court to refuse to allow the appellant to prove that some time prior to the fatal difficulty he met the deceased on the public road, the deceased riding in a buggy and the appellant on horseback, and that the deceased jumped out of the buggy and rushed at appellant; that appellant turned his horse and attempted to run away, whereupon the deceased grabbed the tail of appellant's coat and hung onto it; and that in appellant's efforts to escape from deceased his coat tail was torn from his body and left in the hands of the deceased.
(b) Where the issue of self-defense is presented by the evidence, testimony of previous assaults, attacks, and attempts to injure the defendant by the deceased are admissible in evidence, and have far greater probative force than any threats made by the deceased against the defendant could have had. Sneed v. Territory, 16 Okl. 641, 86 P. 70, 8 Ann. Cas. 354, McHugh v. Territory, 17 Okl. 20, 86 P. 433, and Mulkey v. State, 5 Okl. Cr. 96, 113 P. 532, cited and reaffirmed. Kansas v. Scott, 24 Kan. 68, and Russell v. State, 11 Tex.App. 291, cited and approved.
(a) The following instruction is erroneous:
(b) It is not necessary for a jury to believe that a defendant's cause of apprehension of danger was reasonable before they can acquit him; neither is it necessary for them to find that his defense has been established by the evidence before they can acquit him. But it is their duty to find him not guilty if the entire evidence, whether offered by the state or defendant, leaves in their minds a reasonable doubt as to his guilt. A verdict of not guilty is not based upon a belief of innocence, but is required by law where there is a reasonable doubt of guilt.
(c) In a case of murder, where the issue of self-defense is presented, the jury should be instructed that, in passing upon the questions as to whether or not the defendant acted upon reasonable apprehension of danger, they must view the facts and circumstances in evidence from the defendant's standpoint and as they then reasonably appeared to him.
(a) To tell a jury that they are at liberty to disregard the testimony of a witness, who they believe has willfully testified falsely as to any material fact, except in so far as the same may be corroborated by other credible evidence, is to tell them that if they find such testimony has been corroborated they are bound to accept and act upon it, although they may still believe it to be untrue. Such instruction invades the province and right of the jury to be the sole judges of the credibility of the witnesses, and is therefore erroneous.
(b) It is the settled rule of this court to disregard all immaterial and harmless errors, and to affirm convictions where the record shows that the appellant was fairly tried and legally proven to be guilty; but it would be an outrage on law and a prostitution of justice to affirm a conviction, where the record affirmatively shows that the defendant was not fairly tried, that competent and material evidence in his behalf was excluded, and that erroneous instructions covering the pivotal points in his case were given to the jury. The doctrine of harmless error cannot be made to apply to such a case.
Appeal from District Court, Kay County; W. M. Boles, Judge.
Frank B. Rogers was convicted of manslaughter, and appeals. Reversed.
Statement of Testimony.
P. M Butler testified, in behalf of the state: That he resided in Kay county, Okl. That he was acquainted with the deceased, Ed Conrad, in his lifetime. Deceased was a good-sized man, and weighed nearly 200 pounds, of medium height, and was in fairly good health. On the 28th day of February, 1910, deceased and witness were traveling east on the public road in Kay county, Okl., going toward a town called Hardy. While traveling on this road, they saw the defendant. Two men were with him. They were coming west with a wagon. Bill Hammond was driving the wagon, and defendant was on horseback. When they met, the deceased struck the defendant on his neck or jaw. Defendant was riding on the north side of the wagon, about even with the center of the front wheels. When the deceased struck defendant, they were both leaning over in their saddles pretty strong toward the south; that is, on the opposite side of which deceased was riding. Just after this deceased swung his horse around, nearly facing the northeast. The horse upon which the defendant was riding stepped one or two steps west. Just as the defendant's horse started to turn, the first shot was fired. When the...
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