Pope v. State , 15 Okla. Crim. 162 ( 1918 )

This appeal is prosecuted from a judgment of conviction rendered in the district court of Grady county on the 5th day of February, 1916, in pursuance of the verdict finding the defendant guilty of manslaughter in the first degree, and fixing his punishment at imprisonment in the penitentiary for a term of four years.

The first assignment of error is that the verdict is contrary to and unsupported by the evidence. It is contended under this assignment that the evidence shows that defendant believed the deceased started to arm himself with a razor for the purpose of assaulting the defendant, and that he pulled his gun to prevent him from so arming himself; that in the scuffle with the father of the deceased the gun, an automatic pistol, was discharged accidentally; that at the time of the discharge the defendant, struggling with the father of the deceased, was unable to see the deceased or know where he was. We deem it sufficient to say that in our opinion the evidence in the case tended strongly to prove that the killing was premeditated and deliberate, and was amply sufficient to support a verdict of murder. The defendant was an armed trespasser, and had within the hour preceding assaulted the deceased and had cut his brother with a knife. His evidence fails to show what other purpose he had in entering the barber shop at the time he fired the fatal shot. Fortunately for the defendant, the jury, in mercy or in a mistaken view of the law or the facts, found him guilty of manslaughter in the first degree. This the jury had a right to do.

The next error assigned is that the court erred in overruling the defendant's challenge to the juror Bouleware. From the examination of this juror it appeared that he had heard the case discussed by neighbors, who knew nothing about the case except by hearsay; that he had expressed an opinion about the case, but had no opinion at that time as to the guilt or innocence of the defendant; that he could disregard that opinion, and try the case solely under the evidence as presented.

We are of the opinion that there was no error in overruling the challenge. In the case of Gentry v. State, 11 Okla. Crim. 355,146 P. 719, it is said:

"Under our statute, the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. In order to disqualify the juror there must be ``the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.' Section 5858, Rev. Laws 1910.

"The issues raised upon a challenge for cause to a juror in a criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial."

The third assignment is that the court erred in refusing to permit the witness Dr. Hune to testify as to what the defendant said to him immediately after the homicide when the defendant went to his office. The record shows that Dr. Hune, a witness for the defendant, testified that his office is about 150 or 200 feet from the Chitwood barber shop; that he was in bed in his office the night Marvin Chitwood was killed, and heard a shot between 12:30 and 1 o'clock, and two or three minutes later the defendant came up the stairs to his office. He was then asked to state what, if anything, the defendant said. The court sustained an objection that the same was incompetent. Counsel for the defendant stated that "we expect to show by this witness that the defendant Pope, when he came to his office, said that he had better go down to the barber shop, that he thought some of them were badly hurt, as they had been in a scuffle and his pistol was accidentally discharged and he thought Chitwood was shot." We think the court properly rejected the testimony offered on the ground that the statements of the defendant to Dr. Hune formed no part of the res gestae, were self-serving, and incompetent for any purpose. The testimony was, therefore, inadmissible. SeeGransden v. State, 12 Okla. Crim. 417, 158 P. 157.

The fourth assignment is that "the court erred in permitting counsel for the state to inquire of certain character witnesses about alleged difficulties and threats made by the defendant on other occasions and concerning other parties and arguing the same to the jury as a fact proven." It appears that G.W. Stevenson, the first character witness called, testified to the defendant's good character for peace and quiet. His cross-examination was in part as follows:

"Q. Did any one ever tell you about Hugh Pope drawing a gun on Daniel Froneberger and threatening to kill him? A. Not prior to this trouble. Q. But since this trouble you have heard about it? A. I didn't hear any of the particulars about it; I just heard it referred to. Q. At the time of this killing had you heard about Hugh Pope pulling a gun on Fred Scroggins and making him get up one night and build a fire? A. No, sir. Q. Do you know Harold Smith, a little boy fourteen or fifteen years old? A. I do not know him by his name. Q. Did you ever hear about Hugh Pope pulling a gun on that little boy and making him dance down at the wagon yard there? A. No, sir. Q. Do you know Jack Abram? A. Yes, sir. Q. Did you ever hear of Hugh Pope pulling a gun on him between Minco and El Reno and threatening to kill him? A. No, sir. Q. None of these occurrences you have heard about except the one with the Froneberger boy? A. I have heard something of it since the occurrence. Q. You have heard all of these things since the killing occurred? A. Yes, sir; most of them. Mr. Riddle: We move to strike out the testimony as assuming a state of facts not in the record, incompetent, irrelevant, and immaterial. Overruled by the court. Exceptions allowed."

Other character witnesses were asked the same questions on cross-examination, and two or three stated that since the homicide they had heard such reports.

As a general rule a witness to good character may be asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove, and generally as to the grounds of his evidence, not so much to establish the truth of such facts or charges as to test his credibility and to determine the weight of his evidence. He may be asked if he has not heard some general report which contradicts the good report which he has been called upon to prove. Underhill, Crim. Ev. par. 82; Stouse v. State,6 Okla. Crim. 415, 119 P. 271. However, evidence of bad character must refer to a period prior to the discovery of the crime, and ordinarily such reports, to be admissible, must be confined to a time previous to the commission of the crime charged. We think the cross-examination of the character witnesses was proper. It appears that these witnesses qualified their answers by stating that they had heard such reports since the homicide occurred, and for this reason the motion to "strike out" this testimony should have been sustained. However, on the undisputed facts of this case, we cannot regard this error as a sufficient cause for a reversal.

In support of one of the grounds for new trial affidavits of the defendant and his counsel were filed to the effect that counsel for the state, in the closing argument to the jury, stated, in substance, that certain character witnesses had not heard of the gun plays on the part of the defendant until after the homicide, and that had they known of such gun plays their testimony would have been different; that objection was made, and defendant's counsel called for the court reporter, which was granted. Alleged improper remarks made by the prosecuting attorney in his argument to the jury must be incorporated in the case made by transcript or by bill of exceptions allowed and certified by the trial judge before they can be considered on appeal. Such remarks cannot be presented by affidavit or in any other manner, unless it appears from the record that counsel for the defendant requested the trial judge to have such remarks taken down by the stenographer in order that they might be incorporated in the record, and the court refused to have this done. Upon the record in this case there is nothing properly before the court to act upon.

Several assignments are based upon objections made and exceptions taken to the instructions given submitting the defense that the shooting was accidental. It would subserve no good purpose to review them at length, as the evidence is undisputed and the defendant admits that after he assaulted the deceased on the street, and after he had stabbed the brother of the deceased, he returned and entered the barber shop of the father of the deceased armed with a pistol; that he then committed an assault upon one Dunaway, and also upon the brother of the deceased, by drawing a pistol upon them. Thus from his own testimony it appears that he was engaged in the commission of a misdemeanor at least, when he fired the fatal shot, and that the homicide was manslaughter in the first degree at least, even though the shot that caused the death of Marvin Chitwood was accidental and unintentional, and for this reason the instructions objected to were far more favorable to the defendant than the law warrants.

Having considered all the assignments of error, and finding no error prejudicial to the substantial rights of the defendant, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.