Tarter v. State

• Decision Date: 01 February 1961
• Docket Number: No. A-12883,A-12883
• Citation: 359 P.2d 596,1961 OK CR 18
• Parties: Albert Eugene TARTER, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 596

359 P.2d 596

Albert Eugene TARTER, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12883.

Court of Criminal Appeals of Oklahoma.

Feb. 1, 1961.

As Corrected Feb. 6, 1961.

Syllabus by the Court

1. The law makes no distinction in weighing evidence between expert testimony and evidence of other character, and it is for the jury and not the reviewing court to determine the weight to be given such evidence.

2. In a prosecution for murder, the court should instruct the jury on the law of each degree of homicide which the evidence tends to prove, whether it be requested on the part of the defendant or not; and it is the duty of the court to decide, as a matter of law, whether there is any evidence that would tend to reduce the degree of the offense to manslaughter in the first degree.

3. In determining whether there is any evidence tending to reduce the degree of the homicide from murder to manslaughter, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct the jury on the law of each degree which the evidence tends to prove, whether requested or not.

4. The homicidal act must be done with a premeditated design to effect the death of the person killed to constitute murder, and the premeditated design to effect death is the material element of the offense, and must exist at the time the homicidal act is committed, or there is no murder.

5. Where, in a murder charge, the evidence creates a reasonable doubt that the killing was committed with premeditated design to effect death, the proper exercise of discretion should direct the giving of an instruction on manslaughter.

6. In order for the taking of human life to constitute murder by reason of the perpetrator being engaged in the commission of a felony, the precedent felony must constitute an independent crime not included within the resulting homicide.

7. While the proceeding on the issue of present sanity has been held to be in the nature of a collateral or interlocutory civil proceeding, it definitely arises as a result of the criminal information or indictment lodged against the accused, and constitutes an essential ingredient of the whole matter for the determination of the criminal proceeding; the determination of that issue goes to the primary requisite of jurisdiction, and the same is not to be determined by arbitrary or capricious action in the trial proceedings; and where it appears that such may be the case relief therefrom may be sought by the defendant, as a matter of right, from the judgment against him on the merits upon appeal, and any decision of the court, or intermediate order made in the progress of the case, including the question of present sanity, may be reviewed.

8. Present sanity is a determination of a question of fact, subject to review on appeal, only for the purpose of ascertaining whether there is any competent evidence reasonably tending to support the finding of the jury on the question.

9. A witness may not be impeached by showing contradictory or inconsistent statements by him in respect of collateral, irrelevant or immaterial matter, and where on cross-examination witness has denied making a statement as to a collateral, irrelevant and immaterial matter, cross-examiner is bound by answer and may not introduce evidnce by way of rebuttal to prove that witness did make statement which he denied making.

10. On murder prosecution, the question of insanity at the time of the commission of the crime, presents a question of fact for the sole determination of the jury, and where there is any evidence tending to support the finding it is not the province of the appellate court to weigh the same.

Appeal from the District Court of Stephens County; Arthur J. Marmaduke, Judge.

Albert Eugene Tarter was convicted of the crime of murder, sentenced to life imprisonment in the State Penitentiary, and appeals. Reversed and remanded for new trial.

Hegel Branch, Sullivan & Baucum, Duncan, for plaintiff in error.

Mac. Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

This is an appeal by Albert Eugene Tarter, defendant below, plaintiff in error herein. Tarter was charged in the district court of Stephens County, Oklahoma by information with the crime of murder, allegedly committed by him on June 24, 1959 in said County, affected against Roby Jesse Hall by shooting him with a .22 automatic pistol, inflicting certain mortal wounds resulting in his death on said date. He was tried by a jury, convicted and his punishment fixed by the jury at a term of life in the penitentiary. Judgment and sentence was entered accordingly, from which this appeal was perfected.

Briefly, the facts in this case, a considerable part of which are covered by stipulation, disclose the following:

The defendant Tarter came upon his victim, Roby Hall, in the town of Loco, Oklahoma, in the middle of the afternoon of June 24, 1959 while Hall was playing dominoes with some friends, and shot him without warning.

It appears there were about twenty entry and exist wounds located as follows: upper left forearm two, upper left chest two; entry wound in left side of the abdominal area about three inches above the hip joint exiting through the back about the belt line; entry wound in left side near left hip joint, and the balance apparently confined to the legs.

The domino game was being played by James W. Alexander, Ray Reynolds, L. W. Marsh and the decedent Roby Hall. During the shooting Alexander exclaimed, 'For God's sake, Albert, don't shoot him any more'. Tarter replied, 'Bill, the damned gun is jammed anyway'.

After the shooting, witnesses testified the defendant Tarter exclaimed to Roby Hall, 'This will teach you to break up my home', and in a few seconds he was in his car and gone.

Hall did not expire immediately, but died on the way to the hospital in Wichita Falls, Texas.

L. W. Marsh related substantially the same detail of facts, except that he said Hall replied to Tarter, 'You got the wrong man'.

Another eye witness, Hames Edmondson, testified substantially to the same effect, and on this the State rested.

The defense was, 'Not guilty by reason of insanity'.

There was much evidence for the defendant to the effect that he had been a lawabiding citizen for the many years he had lived in and around Loco. Much of the evidence offered by various witnesses established that several years before this tragic incident the defendnat became highly emotional, crying a great deal. He had severe headaches. At the inception of these attacks he wanted his wife near him, but this later developed into a resentment for her, and he began to feel that she had been unfaithful to him. The occasion for this resentment arose in 1952, just before Christmas, when both the Halls and the Tarters were in Duncan doing shopping. Mrs. Tarter and Mrs. Hall met and discovered Tarter and Mrs. Hall met and discovered their mutual dilemma as to spouses. Mrs. Hall, a jocular person, remarked, 'Well you don't think they could be out together?' This remark was accepted as a joke until the defendant began to have headaches and crying spells in 1956, then the ridiculous remark became a reality to him.

All during this time the defendant Tarter was under the care of physicians and psychiatrists, from those in and near Loco to some from Waco, Texas, and Coyne Campbell Sanitarium in Oklahoma City. His mental condition was apparent to his family and friends up to the date of the killing. Members of his family were supported by his friends, doctors and psychiatrists on the question that he was insane at the time of the killing, and did not know right from wrong.

Dr. Oliver J. Haag of Waurika testified that he treated the defendant for male menopause. He admitted he missed the boat completely. The defendant, he said, should have had a sanity hearing before the killing occurred. He testified defendant was most irrational on the supposed infidelity of his wife, which infidelity was unsupported by everyone who knew them. It appears to have been a complete figment of the imagination.

Dr. Frank Stickney, osteophathic physician and surgeon, of Comanche, Oklahoma, testified that he had treated the defendant for his nervousness and mental condition. That it was his opinion that the defendant was insane the day he killed Roby Hall, and had been for some time, as well as at the time of trial.

Dr. Stanley M. Kemler, physician and psychiatrist and clinical director at Central State Hospital, Norman, Oklahoma, testified the defendant was suffering from involitional psychosis or depression, and did not know right from wrong at the time of the alleged murder.

Harold G. Sleeper, M.D., psychiatrist and neurologist, said he treated defendant at the Coyne Campbell Sanitarium in May of 1958. He testified that defendant was suffering from psychotic depression, 'involving loss of contact with reality, or a lessening of the ability to tell what is real and what one imagines is real', or thinking which is delusional or not real in nature. He testified defendant did not know the difference between right and wrong.

Alfred A. Hellams, M.D. psychiatrist, related that the defendant shot Roby Hall because of delusional thinking; that he was psychotic and did not know the difference between right and wrong at the time of the killing.

With this evidence, the defendant rested, not taking the stand in his own behalf.

Thereafter the State offered rebuttal testimony. James M. Alexander, an eye witness, testified the defendant in his opinion knew the difference between right and wrong at the time of the shooting. So, also, did L. W. Marsh and James Edmondson, brother-in-law of the deceased Roby Hall and who were eye witnesses to the killing.

Mrs. Southerland, a neighbor, testified on rebuttal for the State that following the killing, Tarter appeared at her home and wanted her husband to take...