Shepherd v. State
| Decision Date | 29 May 1931 |
| Docket Number | A-7898. |
| Citation | 300 P. 421,51 Okla.Crim. 209 |
| Parties | SHEPHERD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied June 19, 1931.
Syllabus by the Court.
Trial court should advise jury to acquit only if there is absolutely no evidence which tends reasonably to sustain charge.
It is only where there is absolutely no evidence which tends reasonably to sustain the charge, that it is the duty of the court to advise the jury to return a verdict in favor of the accused.
Whether evidence of experiment is admissible is preliminary question for trial court's determination; Supreme Court will not interfere when testimony of experiment has been admitted unless abuse of discretion, prejudicial to accused, appears in murder prosecution, admitting testimony as to results of police officers' experiments in firing at shirting material at varying distances under conditions reasonably similar to actual homicide held not abuse of discretion.
Whether or not evidence of an experiment is admissible is, under the circumstances of each case, a preliminary question for the determination of the court. When testimony of an experiment has been admitted, this court will not interfere unless an abuse of judicial discretion, prejudicial to accused, is made to appear.
It should be shown that experiments testified to at trial were made under conditions reasonably similar to those which attended original transaction, and experiments should shed light on original transaction and assist jury in considering matter at issue; evidence of results of experiments is to be considered by jury with other evidence in case.
Where experiments as to a matter in controversy are testified to at the trial, it should be shown that they were made under conditions similar or reasonably similar to those which attended the original transaction, and they should be such as tend to shed light on the original transaction and to assist the jury in an intelligent consideration of the matter at issue and to aid them in ascertaining the truth. The results of such experiments are not conclusive, but are mere circumstances to be considered, weighed, and determined by the jury with the other evidence in the case.
Right to present material evidence cannot be taken away or force of evidence weakened by stipulation of facts.
The right of the state, or of the accused, to present material evidence in support of an issue, cannot be taken away or the force of the evidence weakened by an admission or stipulation of the facts sought to be proven.
Accused cannot complain of irregularities or errors brought about by his own action.
An accused will not be heard to complain of an irregularity or error which is brought about by the action of the accused or his counsel.
Instructions should conform to charge and to defense and testimony, and should not assume truth of controverted fact questions instructions as to self-defense in murder prosecution held not erroneous as assuming that defendant shot deceased.
The instructions of the court should conform to the charge in the information and the defense interposed and to the testimony in the case. They should be applicable to the testimony and should not assume the existence or the truth of any controverted question of fact. Held, that the instructions in this case sufficiently conform to this fundamental requirement.
New trial will be granted on ground of perjury of state's principal witness and such witness' recanting affidavit only if trial court in its discretion determines that recantation is probably true and another trial would probably result in acquittal.
Where a motion for a new trial on the ground of newly discovered evidence sets out in substance that the principal witness for the state committed perjury upon a material question, and that since the trial the witness has furnished accused a recanting affidavit which is also attached to the motion for a new trial, accused is not as a matter of law entitled to a new trial, but new trial will be granted only if the trial court, in the exercise of its discretion, determines that the recantation is probably true and that another trial would probably result in the acquittal of the accused.
Appeal from District Court, Pawnee County; Edwin R. McNeill, Judge.
B. O Shepherd was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Hudson & Hudson, of Tulsa, and McCollum & McCollum, of Pawnee, for plaintiff in error.
J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pawnee county, on change of venue from Tulsa county, of manslaughter in the first degree and was sentenced to serve a term of 35 years in the state penitentiary.
In August, 1929, one Robert Hatcher was shot and killed in the apartment of Alice Andrews in Tulsa. She was a stenographer who for a short time had been in the employ of defendant. Hatcher was paying her some attention and they had been engaged to marry. Defendant, a married man, was in the real estate business. A few days before the homicide, accompanied by the Andrews girl, he had rented the apartment for her which she had occupied but a day or so. On the Saturday before the homicide, on Tuesday, defendant and the Andrews girl had lunch together at the apartment, during which Hatcher came and knocked on the door. She went to the door and told Hatcher to leave and to return in about twenty minutes. Defendant became peeved and told the Andrews girl she was discharged, to come to the office Monday and he would pay her off. On Sunday he returned to the apartment, apologized, and told her to come back to work Monday, which she did. On Monday, Hatcher called at the office by telephone and asked her to have lunch with him, but she declined. Just before noon he came to the office. Defendant and Hatcher became angry, engaged in a quarrel about the girl, and cursed each other. Defendant called the police, but at the request of the Andrews girl, Hatcher left before they came. Defendant then left the office and later returned with a pistol. That afternoon the Andrews girl gave the key to the apartment to Hatcher; later in the afternoon defendant told her he was going to watch the apartment to see that Hatcher did not come there. On Tuesday, at defendant's suggestion, he and the Andrews girl again decided to have lunch at the apartment. As they got in the car, defendant put a pistol in the right-hand pocket of the car. They made some purchases, and on arriving at the apartment with the bundles the Andrews girl saw the pistol in one of the paper sacks carried by defendant. The place was locked and they were unable to get in. Defendant directed the girl to return to the office, stating he would call her back. Defendant called the janitor, who had a small boy enter and open the apartment. What occurred after defendant entered is shown only by his testimony at the trial, by proof of statements made by him immediately after the homicide, and by the physical facts. From these sources it appears that after entering the apartment a single shot was fired from the pistol belonging to defendant, which inflicted a mortal wound on Hatcher, and which rendered him incapable of speech or action, and from the effect of which he died within an hour. Defendant testified in substance that he did not fire the shot, that when he entered the apartment he set down the packages and turned around as he was accosted by Hatcher, who was in the bathroom and was pointing a pistol at him. That Hatcher approached, and when he got near defendant shouted and grabbed his arm and turned the gun which was discharged, and at the same time defendant was knocked loose and made his way out on his hands and knees, but stopped at the entry and looked in and saw Hatcher struggling and crying out to call the ambulance that he was shot. When others arrived, the body of Hatcher was on the floor with the pistol lying near. There is evidence of contradictory statements made by defendant, some conflicting testimony, and numerous circumstances not detailed.
It is argued that the court erred in overruling the defendant's application for a directed verdict and to advise the jury to return a verdict of not guilty. Where an accused is on trial on a charge of murder, the court should rarely direct a verdict of acquittal. It is only in those cases where there is absolutely no evidence of guilt which tends reasonably to sustain the charge that it is the duty of the court to advise the jury to return a verdict in favor of the accused. The court was eminently correct in this case in denying such request.
Complaint is made that the court permitted the state to offer evidence of experiments without laying a predicate to show the experiments were made under conditions similar to those existing at the time of the homicide. The state's evidence discloses that there were no powder burns on the body nor on the shirt worn by deceased at the time he was shot. The theory of the defense being that the shooting was accidental, this evidence was offered by the state to show the pistol was farther from deceased at the time it was discharged than the defense claimed. Witnesses Mercer and Cockrell, police officers, testified they placed shirting material on the side of a wooden box and fired at it at a distance of 6, 15, 24, and 36 inches, and the results of such shots as showing powder burns. Defendant contends this was inadmissible in failing to show the similarity of the shirting material with that worn by deceased, its condition as to being dry, damp, or wet, or the kind of shell or powder used, citing 10 R. C. L. 1002, 1003; Gibbons v Territory, 5 Okl....
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