Hays v. Territory

Hays v. Territory
1897 OK 48
52 P. 950
Decided: 02/13/1897
Supreme Court of Oklahoma

Syllabus

¶0 1. Errors assigned upon other questions than the sufficiency of the charge to constitute a public offense, or to the jurisdiction of the court, will not be reviewed on appeal, unless presented to the trial court for review by motion for new trial.
2. It is not error for the trial court to instruct the jury that, before a person can justify the killing of another in self-defense, he must retreat from his adversary, if he can safely do so, if by so doing he can place himself beyond danger, in a case where all the evidence shows, and where the defendant by his own testimony admits, that he provoked the assault by the use of vile and opprobrious language.
3. While the trial court should not give an instruction on the defendant's character. Where there is no evidence given to support or impeach it, it is not reversible error to give such an instruction.
4. Where a person provokes an assault by the use of gross insult and obloquy, with the belief and intention that the words would cause the deceased to make an assault upon him, he cannot plead self-defense as a justification for the killing.
5. There is no error committed in giving an instruction which defines the law in the exact language of the statute.
6. Error cannot be successfully assigned on the admission of evidence, where the question objected and excepted to did not legitimately call for the answer which is complained of, and where no objection is made to the witness proceeding with his narrative, after he had completed his answer within the scope of the question, and where no motion is made to strike out the answer of the witness after it has been given.
7. A partial statement of the law, made by the court in the trial of the case, relating to the purpose for which certain evidence is admissible, is corrected by the written instruction of the court, which properly tells the jury the purpose for which such evidence is to be considered.
8. Misstatements made by the prosecuting attorney in the argument of a case must be objected to at the time they are made, so that the court may admonish the jury against their consideration, or counsel must ask the court to instruct the jury, at the close of the argument, to give no weight or consideration to such statements; otherwise they are no grounds for a new trial.
9. The supreme court cannot say that the trial court failed to properly consider a motion for a new trial, where the record shows it was overruled pro forma, but where it also shows that the motion was duly argued by counsel and considered by the court.

C. H. Carswell and J. J. Carney, for plaintiff in error.

BIERER, J.

¶1 The defendant has assigned a number of errors, on which he asks a reversal of the judgment rendered against him. The first three relate to the refusal of the trial court to give special instructions, but, as no new trial was asked in the court below because of the refusal to give these instructions, the questions presented by them will not be considered by the supreme court. It is a well-established practice in this court that errors assigned upon other questions than the sufficiency of the charge to constitute a public offense, or to the jurisdiction of the court, will not be reviewed on appeal, unless presented to the trial court for review by motion for new trial. Peters v. U. S., 2 Okla. 116, 33 P. 1031.

¶2 The fourth error relied upon in the brief of counsel is upon the instruction of the trial court on the law of retreat. The instruction is in the following language: "That, before a person can justify the killing of another in self- defense, he must retreat from his adversary, if he can do so, if by so doing he can safely place himself beyond danger." This instruction embodies briefly the ancient doctrine of retreat, which still obtains in many of the states of the Union, but has given way in many others to the more modern doctrine, which allows a person, when assailed, to resist the assault upon him by all the force that reasonably appears necessary to prevent grievous bodily harm. This is the first time that the question has been presented to this court, and if the question were presented in such a way that we were called upon to determine which of the two doctrines is the law, and should be announced as the law, in this territory, we would give the question serious consideration before assenting to the instruction given. The question presented, however, is not whether this instruction is erroneous, as stating an abstract principle of law, but whether it was error to give it in this case; and that requires an examination of the evidence, and an application of the instruction complained of to it, to determine whether any injury has been done the defendant.

¶3 From the record it appears that the shooting of the deceased, James Doss, by the defendant, was done in the city of Elreno, Canadian county, Okl., on the 20th day of March, 1895; that the deceased was at that time a constable, and held a warrant for the arrest of the defendant, who was charged with the larceny of some stock, and with which offense one Harry McDade was also charged; that the defendant met Doss on the street in Elreno during the forenoon of the day of the shooting, and that Doss demanded money of him, in consideration of which, he (Doss) would stop an indictment against the defendant for the larceny; that the defendant told Doss he had no money, but that he would consider the matter, and let him know later. They separated, and in a short time the defendant met Harry McDade, and shortly after that the defendant met the deceased again on the street, and these three passed through a saloon to a back yard or alley, where the shooting occurred. The defendant shot the deceased twice,--once in the head, and once through the hip and lower portion of the body; each wound being a fatal one, and from which the deceased died in about eight days. The defendant was a witness in his own behalf, and testified to meeting Doss on the street, to Doss' demand for money, and to the defendant's agreeing at the first meeting to let Doss know whether he would let him have the money; that after this agreement they separated, and the defendant went out to hunt up Harry McDade; that he found McDade, and went down the street, and saw Doss coming across the street, and hallooed to him to come over there, and told Doss he could not let him have the money; that Doss said, "Come on, he wanted to speak to him;" and that they then went through a saloon, and walked back in a passageway behind the saloon; that Doss said to look in a certain window near by, to see if any one could hear them; that the defendant looked in and said they could not. That the defendant turned around, and looked into another window, and said, "I see a man in there;" and that they then went behind the building and stooped down close to the building. The defendant's testimony then is as follows: "Q. Now, what conversation took place there? A. Well, Doss said he thought it would be cheaper for me to stop an indictment in front of the grand jury than to have a trial. He said he could take a hundred dollars, and stop the indictment, and I told him I did not have any money to give anybody. Well, he says that man Barrett was spending his money freely, and was going to prosecute that case pretty hard; and I told him I did not care; and he says, 'I'm on whichever side puts up the money;' and I says, 'A man that will try to blackmail--' I do not care to say what I said. Q. State it. A. I says, 'Will suck a ___.' [The word which appears in the record here in place of the blank is left out because too indecent to be given.] And he says 'You're a G___ d___d lying son of a b___,' and made a move, and threw his hand down here, and straightened back against the wall, kinder in this position. I was intensely excited. I am telling it just as near as I could. My pistol was in my hip pocket. Q. Which one? A. In this one. And I just jerked it, and shot right over that way. I fired two shots just as fast as I could shoot."

¶4 Harry McDade, who was standing near by, and was the only eyewitness to the killing, was placed on the stand by the defendant, as a witness in his behalf; and he, in his direct examination, in answer to questions put to him by the defendant's counsel, in which he was asked to give the very words that Hays called Doss, stated that he called him a name, also too vile to be published, but corresponding to the language which the defendant himself said he used. So that there is no question but what it is proven, and proven by the defendant's own witnesses, and also by his own testimony, that the gesture (for that is all the defendant claims it was) which was made by the deceased towards drawing a revolver, which the evidence shows the deceased had on his person, concealed under his vest, which was buttoned up when he was raised from the ground, was caused by the defendant's own misconduct. If what the defendant says the deceased did may be dignified at all as an assault in any manner justifying even a preparation for the use of a deadly weapon, it was caused directly and entirely by the defendant's use of the most vile and opprobrious language towards the deceased. And such language, as every one knows, any man, whether he be a blackmailer or a saint, would ordinarily resent, or at least would be very apt to resent. So that the question is not whether a person who is wrongfully assaulted by another is bound to retreat, if retreat is practicable and consistent with his safety, before killing his assailant, but whether a person who is the aggressor in bringing on a deadly combat is bound to retreat, if retreat is practicable, before taking human life. The doctrine of retreat is a part of the law of self-defense. Self-defense is one of the rights which the law of necessity gives to man. It is founded and based on necessity,--on the inability of the executive machinery of the law to be always with the citizen to protect him from the aggression of others. A right of such a high character must also, of necessity, be attended with high responsibilities; and that is the obligation on the part of one who exercises the right to be the executioner of his fellow man to see that his own conduct is exemplary. Self- defense is a legal right, not an excuse for a homicide, and it can be exercised only where he who employs it is himself in the right at the time or moment of its use. The aggressor--one who strikes another, and thereby brings on a combat, or one who by the use of vile and opprobrious language almost as surely brings on a combat--is not clothed with the right of self-defense, so long as he continues to persist in his own wrongdoing. He must discontinue his own assault, whether by violence or by word, before the law of necessity says that he can strike down his assailant; and whether or not he is required to retreat before resorting to the awful extremity of taking human life, when he is in the right, he certainly must resort to that simple expedient, if it is consistent with his safety, when he is in the wrong. The instruction complained of does not go so far as to say that, under the defendant's own admission of his own wrong in bringing on this combat, he was required to retreat before killing his assailant; but he was only required, under this instruction, to retreat, if by so doing he could place himself beyond danger. The defendant being admittedly in the wrong, whatever we might hold concerning this instruction as an abstract principle of law, we do not think there was any error in giving it in this case. A similar instruction was complained of in the case of Stewart v. State, 1 Ohio St. 66, where the court stated that there was some diversity of opinion among the members of the court as to what was the precise state of the law on this subject, and then said: "Whether a person assaulted is or is not bound to quit the combat, if he can safely do so, before taking life, it will not be denied that, in order to justify the homicide, he must at least have reasonably apprehended the loss of his own life, or great bodily harm, to prevent which, and under a real, or at least supposed, necessity, the fatal blow must be given. And, again, the combat must not have been of his own seeking, and he must not have put himself in the way of being assaulted, in order that, when assaulted and hard pressed, he might take the life of his assailant. It will also be admitted that in a criminal, as well as a civil, cause, before the judgment can be reversed for error in the charge to the jury it must appear that some evidence was given tending to prove a state of case in which the charge would be material. If the charge was upon a mere abstract question of law, that could not arise upon the testimony, and could not influence the decision of the jury, its character, however erroneous, furnishes no ground to reverse the sentence. And such, we are clearly of opinion, was the case under consideration." The doctrine that a party unlawfully attacked must retreat to the wall before he can be justified in taking the life of his assailant in self-defense does not obtain in Kansas. State v. Hatch (Kan. Sup.) 46 P. 708. But in this case it was held: "Where the defendant is in the wrong, and commences the affray, even without an intent to kill or inflict great bodily harm, and the other person, being thus provoked, makes a deadly assault, then it is the duty of the defendant to retreat as far as the fierceness of the assault will permit him to do without danger of great personal injury to himself, before slaying his antagonist;" citing State v. Rogers, 18 Kan. 78. Kerr, Hom. § 179, says: "One who kills another under an apprehension of death or great bodily harm from an assault must have been free from fault in bringing on the difficulty, if he would contend that the homicide was excusable." In support of this doctrine the authority cites the case of Kinney v. People, 108 Ill. 519, decided as late as 1884, where, in the syllabus of the opinion, it is said: "If a defendant, without previous malice against the defendant, without previous malice against the deceased, and with no intent to take his life, seeks for and provokes a personal difficulty with the deceased, which results in an assault upon him by the deceased with a deadly weapon, contrary to the expectation of the defendant, who in return shoots the deceased, from which act death ensues, the homicide, in such case, cannot be justified upon the ground of self-defense, and will amount to manslaughter." The law there stated is given upon a much stronger position on the part of the defendant than he holds in this case; for there he was denied the right to kill, after provoking the assault, even though at the time he was being assailed by the deceased with a deadly weapon. Here the defendant does not claim that he was assailed with a deadly weapon, but only that the deceased was armed with a deadly weapon, and made a gesture as if to bring it into use. The evidence, uncontradicted, shows that the weapon of the deceased was buttoned up under his clothing, and that the deceased had in his right hand a small pocketknife, with which he had been whittling, and which remained in his right hand when the persons who came to his assistance after the shooting arrived. We have based the case, however, on the defendant's claim that a gesture was made by the deceased as if to draw a revolver, but there is other evidence which shows how barren of merit the claim of self-defense in this case is.

¶5 The fifth error assigned is on the instruction which the court gave to the jury on the character of the defendant. The jury was told that the defendant's character was presumed good until the contrary was proven, and that the defendant's character could not be attacked until he first introduced evidence in support of it, and that no such evidence had been offered. No evidence was offered on either side as to the defendant's character, and it was unnecessary to give any instruction on this phase of the case. We do not, however, observe that the instruction, as a whole, does the defendant any injury.

¶6 The sixth and seventh contentions of counsel are based on instructions which told the jury that if the defendant, by gross insult and vile language, provoked the deceased to make the assault on the defendant, with the intention that the defendant would then kill the deceased, he could not justify the act as being done in his self-defense. There was no error in these instructions. They were as strong, if not stronger, in his favor, than the defendant had a right to expect. They included the proposition that the assault was provoked by the defendant for the express purpose and with the intention of resisting such assault by killing the deceased. There can certainly be nothing prejudicial to the defendant in such an instruction.

¶7 The eighth contention is that the court erred in instructing upon manslaughter in the second degree. Without expressing an opinion upon the question as to whether or not there is any manslaughter in the second degree in this kind of a case, we dispose of this matter by saying there was no error in the instruction. It is a literal transcript of the statute, and it would not seem that the law could be misstated by quoting it.

¶8 The ninth assignment of error is based on the admission of the evidence of the witness Felix Willian, who appears to have been the second person who reached the deceased after the fatal shooting, and who testified to what the deceased then said about the affair. Counsel strenuously contend that this evidence was erroneously admitted as a part of the res gestae, and the question would be an exceedingly important as well as interesting one, to be decided from many conflicting decisions from the highest courts and the ablest of modern jurists, if it was properly presented by the record. But we do not think the question is saved. The record shows that Willian was asked: "Q. While you were unbuttoning the coat and vest and shirt of James Doss, when you found him over there, back of the building, what question was it you asked him? (Objected to as incompetent, irrelevant, immaterial, not the best evidence, no part of the res gestae, and for the further reason that his testimony shows that it was not in the presence of the defendant, which objection is by the court overruled, to which ruling counsel for defendant excepts.) A. I reached Mr. Doss, and started to unbutton his coat; and the first thing I done was to ask him whether he was hurt, and he said he was; and I think the next question was, where he was hurt, and he told me; and I asked him who done it, and he said, 'Eugene Hays.' He says, 'He murdered me like a dog, without giving me any chance for my life,' is the answer he made." It will be observed that the testimony complained of was not objected to, and the record does not disclose any motion or request to strike out the testimony given by the witness. The question objected to was one that in no way called for that part of the answer which is complained of. Counsel make no complaint in their argument because of the answer that the witness gave to the question which was asked him; that is, "What question was it you asked him?" They do not claim that there was any prejudicial error in the answer to that question, and the question did not ask the witness what answer Doss gave to any question asked by the witness. It did not ask the witness to state what Doss said when he found Doss back of the building. The witness, in answer to the question asked him, was allowed to go ahead, without objection, until other matters, that he was in no way asked about by the question, were given. If counsel desired to object to this evidence, they should have done so when the witness proceeded to give it, or have asked the court to strike it out after it was given. Having done neither, they cannot now be heard to complain.

¶9 The tenth error assigned is on the action of the court in telling the jury during the trial that certain evidence which was being offered, tending to show the dangerous character of the deceased, was not admissible for any other purpose, except as bearing on the question of the probability or improbability of Doss having been the first to make the assault. Counsel correctly contend that such evidence was also admissible for the purpose of tending to show that the defendant, if he knew, as he stated he did, the dangerous character of the deceased, feared and apprehended harm from the deceased. Counsel, however, did not ask the court to correct this statement (which was made, as many suggestions are in the course of a trial, in answer to objections of counsel, or to statements by witnesses, or inquiries from jurors) at the time it was made. Although the whole of the law relating to such evidence was not given by the court in this statement, it was correctly given in the written instructions to the jury.

¶10 The eleventh assignment of error relates to the admission and exclusion of testimony that we do not consider of any importance in the case, and therefore do not discuss.

¶11 The twelfth assignment of error is upon the refusal of the court to grant a new trial because of an improper statement made by the prosecuting attorney in his argument of the case. It appears that the county attorney stated: "I have my theory of this shooting. I think it is correct,--I know it is correct,-- because I got it from lips that are sealed." No objection appears to have been made to the statement at the time it was made. No request was made that the jury should be directed to disregard the statement, and no request was made at the close of the argument for an instruction to the jury to disregard it. And we hardly believe that, even without an admonition or instruction from the court, the jury would regard such a statement as anything but the theory of the prosecuting attorney. He had a right to have his theory. Of course, he had no right to tell the jury something he had not testified to; and juries in this territory are composed of men intelligent enough to know that, without any instruction; and they did, no doubt, regard it merely as a statement made under the impulse of interested argument. The statute specifically provides that when the arguments are concluded, if the court be of the opinion that the jury might be misled by the arguments of counsel, he may, to prevent the same, further instruct the jury. If it is the desire that the jury should not consider or be influenced by such statements, it is the duty of counsel to call the matter to the attention of the court at the time, that the court can easily correct any false impression by an instruction to the jury. It is too late to complain after the case is allowed to go to the jury, and a verdict returned. State v. McCool (Kan. Sup.) 9 P. 618, 745.

¶12 The thirteenth contention of counsel is that the jury received evidence given out of the court by the witness Newton, at the time the jury viewed the scene of the homicide. The jury went in charge of the court, and in the presence of the defendant and his counsel, to view the scene of the difficulty; and the witness pointed out, by the direction of the court, places and locations concerning which he testified; and the record does not support the contention that the jury received evidence at that time materially different from what the witness had testified to on the trial.

¶13 The last error assigned is because the court overruled the motion for a new trial, pro forma. The record does contain these words, but it also shows that the motion was "duly argued by counsel, and considered by the court," and overruled; and, this being done, all was done that the defendant had any right to demand. When a motion for a new trial is duly presented and duly argued by counsel, and duly considered by the court, it makes little difference with what formality or lack of formality the court passes upon the motion. The record, taken as a whole, does not show that the court failed to exercise its judgment in determining that the defendant was properly found guilty on the evidence, about the justness of which verdict there can be no question, unless, perchance, we should say that the jury was too lenient. Finding no error in the record, the judgment of the court below is affirmed.

¶14 All the justices concurring, excepting McATEE, J., who tried the case below, not sitting.

¶15 KEATON, J., concurs in the conclusions reached, but not in all the reasoning in support thereof.