Skelley v. State

• Decision Date: 25 March 1938
• Docket Number: A-9239.
• Citation: 77 P.2d 1162,64 Okla.Crim. 112
• Parties: SKELLEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

77 P.2d 1162

64 Okla.Crim. 112

SKELLEY v. STATE.

No. A-9239.

Court of Criminal Appeals of Oklahoma

March 25, 1938

Syllabus by the Court.

1. It is the duty of the court to instruct the jury from both the standpoint of the state and the defendant; and the defendant had the right to have a clear affirmative charge based upon the hypothesis that her testimony and the testimony of her witnesses was true, when this testimony affects a material issue in the case.

2. The cross-examination of a defendant who elects to testify as a witness in his own behalf should be confined to the issues or to transactions which are pertinent to the issues.

3. It is the duty of the trial court to confine the cross-examination of any witness to proper channels.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Edna Lahoma Skelley was convicted of first degree manslaughter and she appeals.

Reversed.

DOYLE J., dissenting.

David Tant, O. P. Estes, and Gordon Johnston, all of Oklahoma City for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lewis Morris, Co. Atty., of Oklahoma City, for the State.

BAREFOOT Judge.

The defendant was charged with the crime of murder in Oklahoma county, was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of six years in the penitentiary and has appealed.

It was contended by defendant that the evidence was insufficient to support the verdict, that the cross-examination of defendant by the county attorney was improper, and that the court erred in giving certain instructions, and failing to give a requested instruction outlining the defense presented by defendant. All of these errors may be considered together. This necessitates a review of the evidence offered in this case. Able and exhaustive briefs have been filed by counsel for both defendant and the State. The brief of defendant gives a transcript of the evidence of each of the witnesses, and is a very fair statement of the facts, from the standpoint of both the State and the defendant, and it will be referred to in stating the facts in the case.

The deceased, De Loyd Skelley, and the defendant were husband and wife. On the 3d day of September, 1935, they resided at 1014 N.W. Thirty-Fifth street in Oklahoma City, and deceased operated a place of business at 1723 N.W. Sixteenth street in Oklahoma City, which was known as the Morris Fruit Juice Company, and in the same building he had a double dip ice cream parlor. He also operated in connection with his business a "racket" in the nature of drawing numbers, and where the winner at each drawing won a certain stated sum of money. Tickets for these drawings were sold by deceased through certain agents, and the drawings were held by the deceased in that section of Oklahoma City where resided a great number of the colored race, who bought these tickets and attended these drawings. The drawings were generally held at night and defendant often accompanied deceased to assist him in conducting the drawings and especially in taking care of the money that was received. On several occasions deceased had been held up after conducting the drawings and had been robbed of the money he had received at the drawing. It was the night of one of these drawings, and defendant had accompanied him, and after they had returned home and about 10:30 o'clock that deceased was shot.

Harry E. Barnes, an intern at the Oklahoma City General Hospital, testified that he saw the deceased, De Loyd Skelley, when he was brought to the hospital on the night of September 3, 1935, and that in his opinion his death was caused from gunshot wounds.

Bessie Watkins, a maid in the Skelley home, testified that on the afternoon of the 3d of September, 1935, she was at the Skelley home when the deceased and the defendant had a difficulty; that she heard them talking and quarreling, and the defendant came to the kitchen and got a butcher knife; that she then went and got into one of the cars belonging to the Skelleys; that the deceased got out of the car that he was in and went and grabbed her out of the other car, and that he took the butcher knife away from her but she did not know what he did with it; that after this deceased left in the Ford car and immediately thereafter defendant attempted to leave in the Buick car but the key to the same was not there; that she saw defendant kick the glass out of the Buick car while she was attempting to start the same; that finally the defendant located the key to the Buick car, but before leaving she saw her cut a hole in the screen door with the butcher knife which the deceased had taken away from her; that prior to leaving in the car she had gone to the doctor's office, and had returned just before the difficulty or quarrel between she and her husband.

W. J. Allston testified that he was district manager for the Pontiac automobiles and that he resided immediately across the street from where the Skelleys lived; that he did not know them personally; that on the afternoon of the 3d of September, 1935, his attention was attracted by a loud conversation in front of the Skelley home, but he could not hear what was said; that someone whom he identified as defendant was in a Buick car and apparently a man was taking the keys out of the car; that the man left in a Ford automobile and the woman attempted to start the Buick car; that she could not get it started, and she kicked the windshield out; that she got out of the Buick car and started in the house, and he saw her pick up a large knife in the yard and with it she slashed the screen; afterwards he saw her leave in the Buick car; later in the night he heard what he thought was the report of a gun across the street and afterwards he saw them carrying someone out of the house and placing them in a car.

Mrs. W. J. Laws testified that she was a neighbor of the Skelleys; that on the afternoon of September 3, 1935, she saw Mr. and Mrs. Skelley having some kind of dispute in front of their house; that she saw Mrs. Skelley kick out the windshield; she did not see her pick up a knife and did not see her slash the screen.

Charles Fuller testified, in behalf of the State, that he was employed by the deceased, De Loyd Skelley, and that at the time that Skelley lost his life, had been working for him about six or seven days; that on the afternoon of the 3d of September, 1935, Mrs. Skelley came into the business establishment of the deceased; that she had in her hand a small pistol; that she went back and talked to the deceased a short while in his office and then left. He stated that in his opinion the defendant was mad at the time she came to the store. He further testified that after leaving the deceased's office that she went and got into the Buick automobile; that the deceased went out and talked to her for a few minutes and when she left she gunned the car and the deceased jumped out of the way and came back into the store and locked the door.

Ethurma Parker testified that on the 3d day of September, 1935, he was working as a porter for the Morris True Fruit Juice Company, which was operated by the deceased, De Loyd Skelley; that on that day he saw Mrs. Skelley; that she came into the store; that she was driving a Buick car; that he talked to her and she asked him if he knew where she could get some cartridges for her pistol; that he told her he thought he did, and would go and call and see; that he first went to the place of business of the deceased to use the telephone and deceased was using the telephone; that he then went into a beauty shop next door and called a drug store down on Reno and came back and told the defendant that she could get the cartridges at this drug store on Reno and Walker.

Luther F. Thompson, called as a witness in behalf of the State, testified that he worked for the Liberty Drug Store, located at Reno and Walker in Oklahoma City; that on the 3d day of September, 1935, the defendant, Mrs. Lahoma Skelley, came to his store and he sold her some pistol cartridges; that she said she wanted to get some shells and had the pistol with her; that he sold her about 19 shells, and put 6 of them in the gun for her, and she put the other shells in her purse.

George P. Harrison, police department lieutenant of Oklahoma City, testified that on the 3d day of September, 1935, he was called to investigate the shooting of De Loyd Skelley; that he went to 1723-A and B, West Sixteenth street, which was the business establishment of the deceased; that he found on the ground 5 cartridges, the cartridges being of the same make of those found in the gun with which the deceased was killed. This was after the shooting occurred. Some of the cartridges were found directly in front of the place of defendant, others in front of the adjoining place of business.

P. L Borden, police officer of Oklahoma City, testified that on the 3d day of September, 1935, he answered a call at 1014 Northwest Thirty-Fifth street, said address being the home of the deceased and defendant; that when he got there the sister of defendant and two small children were at the address, and on an occasional chair in the living room he found a pistol, the pistol being State's Exhibit No. 2; that he looked in the chamber and smelled of the barrel and could see that the gun had been recently fired, 1 shell having been fired; that the gun was taken to the police station, and later turned over to Mr. Claud Tyler, county evidence man; he also stated that he found another gun in a chest of drawers in the southeast bedroom, this gun was identified as State's Exhibit No. 5; he also found a purse at the home of these parties, and in the purse he found 12 pistol shells; that there was also a large...