Wingfield v. State

• Decision Date: 30 March 1949
• Docket Number: A-10936.
• Citation: Wingfield v. State, 205 P.2d 320, 89 Okla. Crim. 45 (Okla. Crim. App. 1949)
• Parties: WINGFIELD v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

205 P.2d 320

89 Okla.Crim. 45

WINGFIELD v. STATE.

No. A-10936.

Court of Criminal Appeals of Oklahoma

March 30, 1949

Appeal from District Court, Muskogee County; E. A. Summers, Judge.

Charles Thomas Wingfield was convicted of manslaughter in the first degree, and he appeals.

Syllabus by the Court.

1. This court will not reverse a conviction upon the ground that the evidence is insufficient unless there is no competent evidence in the record from which the jury reasonably could conclude that the defendant was guilty.

2. The weight and sufficiency of the evidence is a matter for the jury to determine.

3. Where the trial court instructs the jury in such manner as to constitute technical but not substantial error, the same will not constitute grounds for reversal.

4. In repelling an assault a person may use such force as reasonably appears to him to be necessary under the circumstances to avoid serious or permanent bodily injury or loss of life.

5. The plea of self-defense is not available to one who uses unreasonable or unnecessary force to repel an assault.

6. It is improper for the court to comment upon or stress particular evidence of either the State or defendant in the instructions given to the jury.

7. The instructions should fairly state the law applicable to all the issues raised by the evidence, but should leave the questions of fact for determination of the jury.

8. It is not error for the trial court to refuse a requested instruction of the defendant which emphasizes certain evidence of the defendant so as to constitute comment upon the weight of the evidence.

9. It is not error for the court to refuse defendant's requested instruction where the substance of the requested instruction is covered by a given instruction.

10. It is not error in the absence of a showing of substantial prejudice for the trial court to appoint more than one special county attorney or prosecutor to serve for the duly elected and qualified county attorney upon his disqualification when one man is designated as county attorney and the other as assistant.

11. Where the duly elected and qualified county attorney has disqualified and the court appoints a special county attorney, and prosecutor as a substitute for him, and the defendant files a protest and objection alleging first, that there was an assistant county attorney who was not legally disqualified to try the case and second, that the special county attorney and prosecutor have never been elected appointed or qualified as such in the manner and form required by law and have not been qualified as special county attorney or prosecutor as required by law, and the latter ground is not presented and urged to the trial court, until after the trial and conviction, said objection will be deemed to have been waived as not having been timely presented.

12. Under the provisions of Title 22 O.S.A.1941 § 1068, a judgment of conviction will not be reversed on the ground of misdirection of the jury, unless, after an examination of the entire record it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of the constitutional or statutory rights of the defendant.

13. Under the provisions of Title 22 O.S.A.1941 § 1066, and in keeping with the ends of justice, the judgment and sentence herein imposed is modified and reduced to ten years.

W. J Crump, of Muskogee, and Geo. C. Crump, of Wewoka, for plaintiff in error.

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

BRETT Judge.

The plaintiff in error Charles Thomas Wingfield, defendant below, was charged in the district court of Muskogee County, Oklahoma, with the murder of a soldier, Edward F. Kucza, 21 years of age. He was tried, convicted of first degree manslaughter and sentenced to twenty years in the penitentiary at McAlester, Oklahoma. From the judgment and sentence therein this appeal is perfected.

The first contention of the defendant is that the evidence is not sufficient to sustain the conviction. This contention calls for a brief resume of the evidence. This case has been twice tried and twice appealed. There is no substantial difference in the facts in this appeal and the prior appeal reported in Wingfield v. State, 81 Okl.Cr. 146, 160 P.2d 945. Herein the facts appear to be that on or about September 20, 1942 the defendant was the owner of two cabin apartments about a block from the business section in Braggs, Oklahoma, near Camp Gruber, wherein the defendant was employed as a warehouseman by the Government of the United States. A corporal, Elliott W. Sanders and his wife, occupied the cabin just south of the one in which the defendant and his wife resided. The cabins were about 12 feet apart. It further appears that on the night of September 20 the Sanders had retired rather early. On realizing that they had no bread for breakfast Mrs. Sanders suggested that her husband dress and go to a nearby store and get some. Mrs. Sanders worked in a laundry and had to be on the job between seven and eight o'clock in the morning. When Sanders returned he saw some one loitering near his cabin window. His wife was inside with the light burning. Sanders accosted the man and told him to go back to town or wherever he came from. Thereupon he said the deceased staggered off. He then went inside and was told by Mrs. Sanders that some one had been peeping in the window, and prowling around the house. Sanders then went outside to see if the man had gone. He found the deceased still there, and said he had a gun in his hand. He told Kucza to put it away that he was not afraid of him. The deceased then said 'Now, by God, if you want anybody to go, you son of a bitch, you start moving--by God, you turn around,' which he did and started back to the cabin. Sanders then turned around and the deceased shot at him. Sanders then turned back around and returned to his cabin, helped his wife put her coat on and they went to the Wingfields' for aid. Wingfield suggested that he should report the matter to the Military Police up town. Leaving his wife at the Wingfields' he went to town for the M. Ps. The M. Ps. came back with him and made a search and found no one, and together with Sanders they returned to town, to look for the window-peeper in a beer joint. While Sanders and the M. Ps. were gone, Mrs. Sanders suggested she heard a noise at her cabin. Wingfield loaded his double barreled .410 shotgun and went outside to investigate. He found the deceased Kucza coming around the corner of the cabin. He said that the deceased looked as though he was drunk. He admonished Kucza to leave the premises which he did not do, so he put him under arrest and told him he was going to deliver him to the M. Ps. Wingfield said he was marching him down the street and he did not move as he thought he should and he fired the .410 into the air to frighten Kucza. He then proceeded down the street 8 or 10 feet behind the deceased, until they reached the shadow of a large elm tree, where the deceased suddenly turned on him and it looked to him he said as though he were going for a gun. He said, his wife hollered 'Look out, he is going to shoot,' and the defendant shot intending 'to wing' him; instead the deceased Kucza was shot just below the right nipple from which wound he died. Some of the shotgun pellets were removed from the heart and some of the wadding was taken from his liver. Defendant claimed he fired in self-defense believing that his life was in peril or that he was in danger of suffering great bodily injury.

A Mr. Harris who lived in the vicinity of the killing testified he heard defendant say 'God damn you, don't make no gun play at me.' In this connection the record is conclusive that the deceased was unarmed.

Three times at the suggestion of the defendant the M. Ps. searched Kucza in Wingfield's presence for fire-arms and found nothing. The record does disclose however that when Kucza was searched at the hospital he had three cartons of .45 caliber pistol shells on his person.

Mrs. Wingfield testified that when Kucza turned around and put his hand up to his shirt, Wingfield shouted, 'Look out, Esther, he is going to shoot,' and when her husband shot she did not recall him saying, 'God damn you, don't make no gun play at me.'

This constitutes the gist of the evidence. We have carefully examined the record as a whole. As hereinbefore pointed out the defendant's theory is that it appeared to him that he was in danger of losing his life or suffering serious bodily injury and that in killing Kucza he acted in self-defense. The State's contention was that even though he was defending against an assault, the plea of self-defense would not be available to him because he used unreasonable and unnecessary force to repel the same. Upon the foregoing evidence the jury decided the issue against the defendant. This court has repeatedly held that before the Criminal Court of Appeals will interfere with the jury's verdict on the ground that the evidence was insufficient to sustain the conviction, there must be no competent evidence in the record upon which the verdict could be based. Rule v. State, Okl.Cr.App., 182 P.2d 525 not yet reported in State Reports; Ritter v. State, Okl.Cr.App., 183 P.2d 257, not yet reported in State Reports. Furthermore, we have held that the function of the Criminal Court of Appeals in considering the sufficiency of the evidence is limited to ascertaining whether there is a basis in the evidence on which the jury can reasonably conclude that the defendant is guilty as charged. Ray v. State, Okl.Cr.App., 189 P.2d 620, not yet reported in State Reports; Peterson v. State, Okl.Cr.App., 192 P.2d 286, not yet...