Gransden v. State

DOYLE, P. J. (after stating the facts as above). Plaintiff in error, W. H. Gransden, was tried for the murder of J. K. Lytle. The jury returned a verdict finding him guilty of manslaughter in the first degree, leaving his punishment to be fixed by the court. On the 2nd day of August, 1913, the court rendered judgment, and he was sentenced to be imprisoned in the penitentiary for the term of 10 years. The first and second assignments of error are the usual ones: That the verdict was contrary to law and to the evidence, and that the court erred in overruling the motion for a new trial. The third assignment is : ’ . “The court erred in not permitting to go‘to the jury the testimony of W: C. Johnson, a witness for the defendant, to the effect that when he placed the defendant under arrest, about 10 minutes after the homicide, that the defendant told him that he would find the pistol of the deceased in the little car of the deceased, where it had been placed by one of the boys of the deceased, the same being a part of the res gestae; and also corroboration of the evidence of the defendant, and of the witness of the defendant, Jasper Mesmore, who testified that he found the pistol under the seat of the little car.” (1) We think the court properly rejected the testimony of the witness Johnson on the ground that the declarations of the defendant at the time were self-serving and incompetent for any purpose. *425 It appears from the record that before the arrival of Johnson, and after the death of his victim, he made several statements to others, and several witnesses testified that the defendant was calm at the time of their arrival on the scene prior to the arrival of Johnson. There is nothing remarkable that the defendant should have known that there was a gun in the Lytle car; he had probably seen it, as the car had been in front of his place of business nearly the whole day. It is more remarkable that if the deceased had had a Colt’s 45 caliber pistol in his hip pocket, and being in his shirt sleeves, that the defendant or his employes who were working with the deceased on the car would not have noticed it before the shooting. On the undisputed facts the defendant’s statements to the witness Johnson formed no part of the res gestae. The testimony offered was therefore not admissible. See Birdwell v. United States, 10th Okla. Cr. 159, 135 Pac. 445. (2) The defendant requested two instructions, which the, court refused to give, and allowed exceptions. The court, among ■ other instructions, gave the following, to which exceptions were taken: “11. A person who is unlawfully attacked by another is not bound to retreat in order to avoid the necessity of injuring his assailant, or of killing him, if it reasonably appears to him to be necessary in order to save his own life, or to avoid serious bodily injury by the person killed; and the person so unlawfully attacked has the right to stand his ground and use such force as reasonably appears to him necessary to repel the attack upon him, and if the person making such attack is killed under such circumstances, the killing will be justifiable in self-defense; and it is not necessary to the right of self-defense that the danger should in fact exist; and if it reasonably appears to the defendant from all the facts and circumstances in the case that danger exists, he has the same right to defend against it and to the same extent that he would have were the danger real. “12. When an unlawful attack has heen made upon a person by another, and the person making the attack is killed, in determining whether the killing was necessary and in self-defense, the nature and apparent purpose of the attack, the intention with which it is made, the existence or appearance of danger, and the extent thereof, the amount or degree of force necessary and *426 sufficient to be used to avoid the apparent or threatened danger, and all the facts and circumstances in the case must be viewed and considered by the jury from the standpoint of the person doing the killing at the time thereof, and from no other standpoint, and if, when viewed from his standpoint, it appears that he might reasonably have believed the killing, or the act which resulted in death, was necessary to prevent death or great bodily harm to himself, the killing will be justifiable. “13. But you are further instructed that while one unlawfully attacked has the right to use such force as under the circumstances reasonably appears to him necessary and sufficient to repel the attack and avoid injury to himself, he will not be justified in using greater force than so reasonably appears to him necessary and sufficient to avoid the danger apparently intended to be inflicted upon him, and if h'e uses greater force than so reasonably appears necessary to avoid death or great bodily injury to himself, and thereby kills the person who made the attack, or if the killing is committed after it reasonably appears to him that the person who made the attack has abandoned the same, and that danger to himself no longer exists, then the killing will not be justifiable, and the person who did it will be guilty of manslaughter in the first degree. “14. You are instructed that insulting and abusive language will not justify or excuse homicide. “15. You are further instructed that homicide cannot be justified or excused on the ground that the person killed, prior to the killing, had committed a mere assault and battery upon the person who did the killing, but when, at the time of the killing or just prior thereto, the person killed committed an assault and battery upon the person who did the killing, this may be taken into consideration by the jury in determining whether it reasonably appeared to the person who did the killing that he was at the time in danger of death or great bodily injury at the hands of the deceased. “19. If you find and believe from the evidence beyond a reasonable doubt that the defendant is guilty of murder or of manslaughter in the first degree, but you have a reasonable doubt as to which of said offenses he is guilty, you must give him the benefit of the doubt and find him guilty of the latter offense,' to-wit, manslaughter in the first degree. “21. The defendant, while testifying as a witness in his own behalf, admitted that he. shot and killed J. K. Lytle at the time and *427 place alleged in the information, and claims that such killing was in his own self-defense. And in this connection you are instructed that if at the time of, or immediately before, the killing, the deceased made an attack upon him with a pistol, and that from the manner and nature of such attack, and from all the facts and circumstances in the case, it reasonably appeared to the defendant that the deceased then and there intended to shoot and kill, or seriously injure him, the defendant, and he shot the deceased, believing at the time he did so it was necessary to avoid such apparent or threatened injury to himself, then you will find him not guilty and so say by your verdict, and unless you find from the evidence beyond a reasonable doubt that the killing was not done under the circumstances herein just stated, you must acquit the defendant. “24. The defendant in a criminal case is not required by law to prove his innocence, but the burden is upon the state to prove his guilt of the offense charged against him. He is presumed to be innocent of such charge until his guilt thereof is established by the evidence beyond a reasonable doubt, and in case the jury, after a careful consideration of all of the evidence in the case, have a reasonable doubt as to the defendant’s guilt, they must acquit him and return a verdict of not guilty. “25. The jury are instructed that a reasonable doubt is a doubt for which there exists a reason in the minds of the jurors, founded upon the facts and circumstances in proof in the case, and is a state of mind of which an ordinarily intelligent man could readily give an explanation, consistent with the facts disclosed by the evidence, and the law as given to the jury by the court.” It is contended that the court improperly instructed the jury on the law of self-defense; that instruction No. 11 is prejudicial, “In that it impresses upon the minds of the jury that the defendant would have the right to simply stand his ground,” and that it should have included the concluding paragraph of the defendant’s requested instruction No. 2, which is as follows: “And in such' case the defendant was not compelled to retreat, but had the right to pursue his adversary until he found himself out of danger, and if in the conflict between them, under the circumstances described, the defendant killed the deceased, such killing is justifiable.” *428 We think instructions No. 11 and No. 12 sufficiently covered the law of self-defense under the facts and circumstances appearing in evidence in this casé, and that the instruction requested was properly refused. There was no evidence tending to prove that after the deceased turned and fled from the defendant endeavoring to make his escape, that the defendant was at any time in danger of bodily harm, or had any reason to apprehend such clanger. (15) To repel a simple assault the person assaulted is not authorized to attack his assailant with a deadly weapon. He will not be justified in doing those acts that are calculated to destroy the life of his assailant, unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. If his assailant retreats in good faith, and there are no reasonable grounds for apprehending danger from him, the pursuit of him is not justifiable, and if under such, circumstances he is pursued and killed, the killing cannot be justified on the ground of self-defense. Michie on. Homicide, 42$. The law limits him to such acts as are necessary or apparently necessary to self-defense. In support of the other exceptions taken to the court’s instructions, counsel complain that they are insufficient in that: “There is not included therein or elsewhere in said instructions, any instructions to the jury as to what consideration to give insulting and abusive language as used by the deceased toward the defendant just prior to the homicide.” Under any circumstances passion caused by mere words cannot reduce homicide below the crime of manslaughter in the first degree. The defendant can only complain of errors which may have affected his rights. In support of other exceptions taken counsel complain that the instructions given do not cover the law of communicated and uncommunicated threats previously made by the deceased against the defendant as tending to show the feeling of the deceased toward the defendant. It appears from the record no such instruc *429 tions were requested by the defendant. We think the instructions as given by the court were sufficiently broad and comprehensive as to fairly cover these points. The defendant having failed to request more specific instructions on these points, waived the same, and therefore the omission to give such instructions was not error. (.4) Finally it is insisted that the court erred in giving instruction No. 25, defining “reasonable doubt.” By numerous decisions of this court it has been held that an instruction which states that by the term “reasonable doubt” is meant a doubt for which a reason may be given, is erroneous. Harris v. State, 10th Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846; Morgan v. State, 7th Okla. Cr. 45, 121 Pac. 1088; Abbott v. Territory, 1st Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260, 129 Am. St. Rep. 818. (6) While we do not hesitate to condemn this instruction, still we do not think it constitutes reversible error in this’ case, because the guilt of the defendant was so- clear and palpable from the evidence that no question of doubt could arise. It may be safely said that with this exception the instructions given were far too favorable for the defendant. Our Procedure Criminal provides that: “Upon a trial for murder,'the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Section 5902, Rev. Laws. See Boswell v. State, 8th Okla. Cr. 152, 126 Pac. 826; Lumpkin v. State, 5th Okla. Cr. 488, 115 Pac. 478; Culpepper v. United States, 4th Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668. (3) This court has often held that when the instructions fully and fairly covered the law of the case when taken and considered together, though one of them may be erroneous, still *430 for such error the judgment will not be reversed, provided it shall appear that no prejudice has resulted by reason of such erroneous instruction. B. L. Tisinger, of Mangum, B. F. Van Dyke, of Granite, and H. H. Hagan, of Oklahoma City, for appellant. (9) In Nelson v. State, 5th Okla. Cr. 369, 114 Pac. 1124, it is said that: “An instruction defining reasonable doubt should not be given by the trial courts of this state, except upon proper request by defendant.” We do not think that the term “reasonable doubt” is of such unknown, uncertain, or uncommon signification that a definition by the court in its charge to the jury is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom- be made plainer by further definition. It has been said that, “the expression itself seems to comprehend the whole subject-matter, ‘reasonable doubt,’ ” and that the phrase is its own best definition, and any attempt to define the phrase is likely to leave in the minds of the jury, “a reasonable doubt as to what a reasonable doubt is.” Jurors are presumed to have common sense, and to understand common English, and all persons who possess the qualifications of jurors know that a “doubt” of the guilt of the defendant, honestly entertained, is a reasonable doubt. Having considered the errors assigned, we should add in conclusion that upon the whole record we are satisfied that no exception taken by the defendant upon the trial is of any force, although it appears that the defendant was there, as he has been here on the appeal, exceptionally well represented. The conviction meets with our approval, and, finding no material error in the record, the judgment rendered upon the verdict is affirmed. FURMAN and ARMSTRONG, JJ., concur.