Ruth v. State

• Decision Date: 24 July 1978
• Docket Number: No. F-77-21,F-77-21
• Citation: 581 P.2d 919
• Parties: Kenneth Wayne RUTH, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 919

581 P.2d 919

Kenneth Wayne RUTH, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-21.

Court of Criminal Appeals of Oklahoma.

July 24, 1978.

Rehearing Denied Oct. 16, 1978.

An Appeal from the District Court, Cleveland County; Elvin J. Brown, judge.

Kenneth Wayne Ruth, appellant, was charged with the offense of Murder in the Second Degree and convicted of the lesser included offense of Manslaughter in the First Degree; was sentenced to four (4) years' imprisonment, and appeals. AFFIRMED.

Robert N. McIlroy, Norman, for appellant.

Kenneth Wayne Ruth, pro se.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Donnie G. Pope, Legal Intern, for appellee.

OPINION

PER CURIAM:

Appellant, Kenneth Wayne Ruth, was charged in the District Court, Cleveland County, Case No. CRF-76-149, with the offense of Murder in the Second Degree, in violation of 21 O.S.Supp.1973, § 701.2. He was tried before a jury and convicted of the lesser included offense of Manslaughter in the First Degree, 21 O.S.1971, § 711. His punishment was fixed by the jury at four (4) years under the direction and control of the Department of Corrections of the State of Oklahoma in accordance with 21 O.S.1971, § 715. From said judgment and sentence a timely appeal has been perfected to this Court.

The State's theory of the case was that the killing of the deceased was premeditated and intentional, that the defendant provoked the attack by the deceased by retiring to his room and returning with a loaded pistol, and that he therefore could not claim that the killing was either justifiable homicide or in self-defense. The defendant's theory was that he fired the four shots at the deceased in necessary self-defense and that he had not intended to kill or injure the deceased. The defendant testified that he had brought the gun into the room where the deceased was, intending to persuade the deceased to leave the rooming house.

The defendant first complains that the instruction which stated that the jury could find him guilty of manslaughter in the first degree if they found that he had shot and killed Jeffrey D. Windham "without intent to cause his death but while defendant was engaged in the commission of a misdemeanor, which misdemeanor was in itself the contributing cause of the shooting of the deceased and without which he would not have died " (emphasis added) was reversible error. The defendant had requested an instruction defining proximate cause as "that which produces an injury directly, or in the natural and normal sequence of events without the intervention of any independent, intervening cause. It is the direct and immediate cause, the predominant cause which, acting directly or in the natural sequence of events, produces the resulting injury, and without which the injury would not have occurred."

In Stumblingbear v. State, Okl.Cr., 364 P.2d 1115 (1961), this Court upheld an instruction on proximate cause in a misdemeanor manslaughter case which read as follows:

" 'You are further instructed that should you find and believe from the evidence, or entertain a reasonable doubt thereof, that the deceased, Harvey Bullbear, Jr., came to his death by reason of any other cause or causes than the acts of the defendants herein, you should resolve such doubt in favor of the defendant, and find him not guilty.' "

The instruction in the instant case is more precise than that in Stumblingbear. Therefore, we hold that the instruction requiring that the misdemeanor in a misdemeanor manslaughter case be "the contributing cause of the shooting of the deceased, and without which he would not have died," while not in legal language, is an adequate instruction on proximate cause.

Next, the defendant contends that the trial court committed error in giving Instruction No. 12, pertaining to self-defense, which states in pertinent part as follows:

"The law of self defense is given citizens for their protection, and it cannot be pleaded as a defense by an aggressor or one who voluntarily enters into difficulty. Mere words, irrespective of how insulting, obscene, or vexations, will never justify an assault as 'self defense.' Under appropriate circumstances, the threat of an attack may justify it."

The defendant argues that the jury should have been instructed as to the intent of the defendant at the time he entered into the difficulty. In support of his argument, he cites Swan v. State, 13 Okl.Cr. 546, 165 P. 627 (1917), in which we held that an instruction on self-defense was wrong in that it:

"(M)akes no mention of the intent with which the difficulty must be provoked, and we find no place in the instructions where this defect is cured. The instruction says:

" 'If you believe...