Inman v. State , 22 Okla. Crim. 161 ( 1922 )

Among other assignments of error it is contended that the admission of evidence of the difficulty between defendant and Jesse Ballew, the son of deceased, from 10 to 30 minutes prior to the killing, was erroneous and prejudicial to defendant. With this contention we cannot agree. This evidence was admissible for the purpose of showing that defendant was armed and in an angry mood a short time prior to the killing. Earl Tallon v. State,22 Okla. Crim. 89, 210 P. 309; Williams v. State, 4 Okla. Crim. 524,114 P. 1114; Hampton v. State, 7 Okla. Crim. 291, 123 P. 571, 40 L.R.A. (N.S.) 43.

It is also contended that the trial court erred by refusing to give a special instruction requested by defendant. No written instructions were presented to the trial court by counsel for defendant. After the court had delivered his general charge to the jury, counsel for defendant orally took the following exceptions, and made the following request:

"Comes now the defendant and excepts to instruction giving manslaughter in the first degree and manslaughter in the second degree and requests the court to instruct the jury that if the defendant is found guilty of the charge in the indictment, their verdict should be murder in the first degree, and if they fail to find beyond a reasonable doubt from all the evidence that the defendant is guilty as charged in the indictment, that he be acquitted."

The fifth subdivision of section 5870, Revised Laws 1910 (criminal procedure), provides as follows:

"When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge; if modified, modification shall be shown in the instruction. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury."

The foregoing statutory provision clearly contemplates that the instructions should be settled before being read to the jury. Boutcher v. State, 4 Okla. Crim. 585, 112 P. 762.

Requested instructions must be in writing and presented to the trial court before the general charge is settled and read, otherwise the request comes too late. Williams v. State,12 Okla. Crim. 39, 151 P. 900.

In the case of Russell v. State, 17 Okla. Crim. 164,194 P. 242, it is held:

"The trial court is required to settle, and counsel are required to take exceptions to, instructions before the same are read to the jury.

"When requested, it is error for the trial court to refuse to permit counsel for the defendant to have a reasonable opportunity to be heard upon the instructions to be given to the jury before the same are read to the jury."

It is as much the duty of counsel to present requested instructions and to take exceptions to instructions before the same are read to the jury as it is the duty of the trial court to give counsel an opportunity to be heard upon the instructions. The provision of the statute in each respect is salutary, affording to defendant and the trial court that protection which prevents an unfair advantage to be taken of either.

This court, since the early decision in Boutcher v. State, supra, has repeatedly called the attention of counsel to the necessity of making timely objection to and request for instructions, if review is to be had in this court, otherwise the error, if any, will be considered waived unless fundamental. No fundamental error is presented by this assignment.

It is also contended that there is no evidence in the record to support a conviction for manslaughter in the second degree. Under the testimony of the state's eyewitness, Hoffer, defendant should rightfully have been convicted of manslaughter in the first degree; and indeed under his own testimony a conviction of manslaughter in the first degree would not have been disturbed by this court had the trial court, after seeing the witnesses and hearing the testimony, let such a verdict stand.

This record discloses that defendant (and he admits it) was on that day carrying a pistol in violation of the laws of the state; that he was a short time before the commission of the homicide in an angry mood, and had made a vicious assault upon the son of deceased. He was not in that calm, deliberate frame of mind indicative of a desire to avoid trouble, but rather in a frame of mind seeking trouble. According to the testimony of Hoffer, after defendant had fired the first shot and had apparently injured and disabled deceased to such an extent that he closed his eyes and uttered in a loud tone of voice the exclamation "Oh!" and staggered away from defendant, apparently in a helpless condition (which facts must have been known to defendant, as according to his own testimony he had a very acute recollection of the various positions that deceased assumed during the entire difficulty) the defendant again shot deceased. Defendant showed no inclination to avoid a difficulty with deceased, neither did he show any inclination to show mercy toward him, and the jury reasonably had a right to conclude that defendant, apparently in the heat of passion, unnecessarily shot deceased the second time when he knew deceased to be in a helpless condition and unable at that time to attack him.

If any error was committed in finding defendant guilty only of manslaughter in the second degree, it was error of which defendant in this court will not be heard to complain. This doctrine is well established by a long list of authorities, among which are the following: Weatherholt v. State, 9 Okla. Crim. 161,131 P. 185; Warren v. State, 6 Okla. Crim. 1, 115 P. 812, 34 L.R.A. (N.S.) 1121; Irby v. State, 18 Okla. Crim. 464,197 P. 526; Harper v. State, 20 Okla. Crim. 43, 200 P. 879, 882; Smith v. State, 20 Okla. Crim. 301, 202 P. 519, 520; Lytton v. State,12 Okla. Crim. 204, 153 P. 620; Wilmoth v. State, 20 Okla. Crim. 453, 203 P. 1055; Ballard v. State,12 Okla. Crim. 277, 154 P. 1197.

For reasons stated, the judgment is affirmed.

DOYLE, P.J., and BESSEY, J., concur.