Doud v State

Doud v State
1916 OK CR 21
154 P. 1008
12 Okl.Cr. 273
Case Number: No. A-2441
Decided: 02/19/1916
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. WEAPONS Pointing of Pistol Defense Instructions Evidence.

2. INSTRUCTIONS Credibility of Accused.

Appeal from County Court, Blaine County; R.J. Puderbaugh, Special Judge.

George H. Doud, convicted of pointing a pistol, appeals. Reversed.

I.H. Lookabaugh, for plaintiff in error.

R. McMillan, Asst. Atty. Gen., for the State.

PER CURIAM. The plaintiff in error was tried and convicted upon an information charging that in Blaine county, on the 9th day of February, 1914, he George H. Doud, "did then and there unlawfully, wilfully, and maliciously point at Raymond Whiteshield a person then and there being, a deadly weapon, to-wit: a pistol, contrary," etc., and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of three months.

From the judgment rendered in pursuance of the verdict the defendant appeals.

The evidence shows that Whiteshield, a Cheyenne Indian, twenty-two years old and another Indian boy on the date alleged borrowed five dollars of the defendant, by pawning a saddle, and that evening they returned to the defendant's home and demanded

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three dollars more on the saddle, finally accepting two dollars and fifty cents additional as the purchase price of the saddle.

The complaining witness Whiteshield testified that in the dispute, the defendant took from a drawer a pistol and pointed it at him. The other Indian and another white man who were present, as witnesses for the state did not testify that the defendant pointed the pistol.

The defendant's grown daughter and son testified that Whiteshield used profane and threatening language and said he had a gun and threatened to shoot the defendant and his son; that the defendant then took his gun from a drawer and told Whiteshield to leave, but did not point the gun at Whiteshield. To the same effect was the testimony of the defendant as a witness in his own behalf. The evidence tended to show that Whiteshield was drunk at the time.

Of the numerous errors assigned we deem it only necessary to notice those predicated upon the instructions given, and those requested and refused.

Among others the court gave the following instructions:

"You are instructed that if you find that any witness has wilfully testified falsely, to any material matter on trial, you are at liberty to disregard the whole of such witness' testimony."

"You are further instructed that evidence of the general reputation of the defendant George H. Doud for truth and veracity is proper for your consideration and you will give it such weight, as you think it entitled to and that if you find that such reputation is established as bad, you have the right to disregard the whole of his testimony."

The attorney general confesses that the giving of these instructions under the evidence in this case constitute reversible error. Citing Billingsley v. State, 4th Okla. Cr. 597, 113 P. 241, and Hendrix v. State, 4th Okla. Cr. 611, 113 P. 244, as to the first instruction above quoted, and Vreen v. State, 2nd Okla. Cr. 55, 101 P. 112; Fletcher v. State, 2nd Okla. Cr. 300, 101 P. 599

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, 23 L.R.A. (N.S.) 581; Hughes v. State, 3rd Okla. Cr. 387, 106 P. 546, and Heacock v. State, 4th Okla. Cr. 606, 112 P. 949, as to the second instruction above quoted.

We think the confession of error is well founded and should be sustained.

The defendant further contends that the court erred in failing to instruct the jury upon the law applicable to the case.