Schmitt v. State

• Citation: 47 P.2d 199,57 Okla.Crim. 102
• Decision Date: 03 May 1935
• Docket Number: A-8750.
• Parties: SCHMITT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

47 P.2d 199

57 Okla.Crim. 102

SCHMITT v. STATE.

No. A-8750.

Court of Criminal Appeals of Oklahoma

May 3, 1935

Rehearing Denied May 31, 1935.

Syllabus by the Court.

1. The evidence upon a trial on an information for murder considered, and conviction of manslaughter in the first degree affirmed.

2. A defendant in a criminal prosecution is entitled to a legal trial according to the due and orderly course of the law, and however strong the evidence tending to show his guilt may be he is entitled to a fair and impartial trial.

3. The presumption of law is that a person intends all of the natural, probable, and usual consequences of his act; and this presumption of law will prevail, unless from a consideration of all the evidence the jury entertain a reasonable doubt whether such intention existed.

4. The general rule is that if a man uses a deadly weapon, not in self-defense, and life is taken, he is presumed to intend the natural and necessary consequence of his own act. However the presumption arising from the character of the weapon used is not conclusive as to his intent.

5. An offense against property does not, in the absence of other circumstances, constitute adequate provocation to reduce an intentional homicide to manslaughter in the first degree. The rule applies where the homicide was intentionally committed with a deadly weapon, although the trespass or larceny could have been prevented in no other way.

6. A person may resist a trespass on his property, real or personal, not amounting to a felony or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but if he is unable to prevent it and there is no felony attempted, he must suffer the trespass and the loss of property and seek redress at the hands of the law, rather than commit homicide.

7. A trial court is not required to be a mere umpire, but in the interest of justice, and to see that both sides have a fair and impartial trial, may interrogate a witness; but in so doing must refrain from allowing his action or words to indicate to the jury his opinion of the guilt or innocence of the defendant or the credibility of any witness.

8. A trial judge has the right, in the exercise of his discretion to ask of any witness such questions as will tend to elicit the truth, and so long as the judge does not, by his questions or conduct, indicate his views as to the matters at issue, a defendant will not be heard to complain of any question asked by him which is reasonably calculated to elicit the truth.

9. For the trial judge to ask questions of witnesses which tended to elucidate the matter, and were not objectionable unless asked by him, is not error.

10. While it is the right of the trial judge to interrogate witnesses, when essential to the due administration of justice, yet it is better practice for him not to do so unless it is necessary.

11. Remarks harmless in themselves, made by the trial judge during the progress of the trial, are not assignable as error on the ground that the emphasis, and manner with which they were made, prejudiced the defendant with the jury.

12. Instructions submitting the issue of self-defense examined in connection with other instructions given and refused, and held, that the instructions given fairly and fully cover the law of the case, and that no prejudicial error occurred in refusing to give instructions requested.

Appeal from District Court, Tulsa County; Thomas D. Lyons, Judge.

G. C Schmitt was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

The information charged the defendant with having, on the 11th day of September, 1933, in Tulsa county, killed and murdered one Wayne Hernden by shooting him with a rifle.

Upon the trial of the case the defendant was convicted of manslaughter in the first degree, the jury fixing his punishment at confinement in the penitentiary for four years.

To reverse the judgment rendered in accordance with the verdict, he prosecutes this appeal.

The defendant committed the killing, but contended that the killing was justifiable on two grounds: First, that it was necessary to prevent the commission of a felony; and, second, that the same was done in his necessary self-defense.

The theory of the state is that it was a deliberate, wanton murder.

At the outset, it may be stated that a clear understanding of the facts in the case is the best explanation of the questions presented by appellant. It appears that appellant at the time of the killing owned and operated a seventy-acre truck farm near Garden City, a suburb southwest of the city of Tulsa. The east side of his land abutted the section line that runs south from Garden City, and was a little less than a quarter of a mile wide. His house was located on the northwest corner of the tract. There was a three-acre watermelon patch on the side next to the river; extending across from the road was a cornfield about one hundred yards wide, and the land south of the cornfield was in millet and alfalfa.

The deceased, a young man living in Tulsa, was at that time out of employment, and on the morning of the 11th of September, 1933, he and his friend Harry Hubbard drove in Hubbard's Ford car to Sapulpa, to visit one of the glass factories, to see about work. Being unable to obtain work at Sapulpa, they returned to Tulsa, arriving there about the noon hour. They came by the home of Harry Baker, commonly called "Bus." He got in the car, and they drove out to the salt plant in West Tulsa, to inquire there about getting work. When they arrived at the salt plant, they decided to drive around awhile and come back later. Taking the section line highway, which leads south from the salt plant, they drove through Garden City, and along the west side of appellant's farm.

Harry Hubbard testified in part as follows:

"We went through Garden City, took that road out by Mr. Schmitt's house that leads south. One of the boys suggested that while we were over here we might find a watermelon patch; so we were watching for it and didn't see any watermelons and we drove by a little road leading into Mr. Schmitt's property. There was no wire and no fence across this road and there were tracks where cars had been going through. We were going so fast we passed the road but stopped and backed up and turned in. We went through there about two blocks. There was a corn field on the north side of us. We turned around and headed back, stopped the car and all of us got out and started through the corn field. Wayne Hernden started first, 'Bus' Baker second and I was third. I had gone about 100 yards, my feet were hurting and I hollered to the boys and told them I wasn't going on, that I would stay with the car; so I went back, sat down on the running board of the car about five minutes. They had not returned so I walked to the edge of the corn field and picked about a half dozen ears of corn and put it in the rumble seat of the car. I waited about another five minutes and Wayne Hernden came back with a small watermelon and he put it in the back end of the car. 'Bus' Baker had not got back yet and we sat in the car waiting for him. In about two minutes he came out of the corn field. He didn't have a thing. He asked us if we were ready to go. We said we were. He got in the car and I drove out of this field onto the highway and turned south. Just as we pulled out into the middle of the road, Wayne, who was sitting in between us, turned around and said 'Someone is hollering at us,' and he said 'go ahead,' and about that time he said, 'they are shooting at us,' so we all ducked. I gunned the car as hard as I could. There was a manifold gasket blowed on it, it made a lot of noise; we couldn't hear the shooting but he said they were shooting. We had probably got about 100 feet when I felt him stiffen. He didn't make a sound, groan or anything, but he stiffened out. I hollered and said: 'Bus, Wayne is shot.' 'Bus' grabbed Wayne and pulled him up on the seat. We had gone on probably, I imagine, a quarter of a mile and I told 'Bus': 'throw that watermelon, those things out of the back end of the car.' We didn't stop; he crawled back there and threw those things out. We went to the end of that road and turned west."

"There was a car stalled in the middle of a bridge there, so we hollered at the fellows to get in and steer the car and we would push them out of the way. None of us got out of the car at that time. We pushed them out of the way and went right on in to Red Fork and there we stopped at a doctor's office. He wasn't in and some fellows there told us to take him to the fire station, so we took him there and waited for the ambulance. 'Bus' went with Wayne to the hospital and I stayed for the officers. When the officers came I went back out with them and found Mr. Schmitt and his nephew putting the fence up across that road."

Harry Baker testified that he first saw the other two boys in front of his home about 12:30 that day. "I got in the car and they drove through West Tulsa towards the Texas Salt Plant they were going there to apply for a job. I just went along with them to ride in the car. We arrived at the salt plant about 12:50. We went on past the salt plant in the direction of, and through Garden City. As we passed a corn field one of the boys said 'there is a watermelon patch around here some place, let's stop and see if we can get a watermelon.' There was a fence down and one of the boys said, 'I believe we can drive in there.' We backed up and drove in a short distance. All three of us got out of the car, and started through the corn field. Hernden and I got through the corn field, Hernden got a small melon, and started back to the car. We got...