Smith v. State , 49 Okla. Crim. 339 ( 1930 )

The evidence of the state was that the defendant and his wife attended a dance at the home of Mrs. Freeney, in the city of Hollis; that among those present was Russell Breedlove, the deceased; that the defendant had been married about a month and that he was jealous of the attentions of other men towards his wife, and that such jealousy was the cause of the difficulty which resulted in the killing of Breedlove; that the defendant objected to Breedlove dancing with his wife, being angered at what he claimed were improper attentions on the part of Breedlove toward defendant's wife; that defendant stopped Breedlove and his wife from dancing; that defendant was standing in one corner of the room cleaning his finger nails with his knife; that defendant caught deceased by the shoulder and told him he objected to him dancing with his wife, and that the defendant pushed the deceased toward the door and said, "Get out and we will settle it." That immediately after defendant and deceased got outside of the door they started fighting, and that defendant stabbed deceased a number of times with his knife, from the effects of which deceased died two days later.

The defense relied upon was self-defense, defendant contending that Breedlove, the deceased, got him to go out of the house, and that he only went out with the deceased for the purpose of talking to him and trying to persuade him to leave his wife alone; that deceased had been drinking and assaulted the defendant, and that everything the defendant did was done in self-defense and without fault on his part.

Defendant first contends that the court erred in giving instruction No. 12 over the objection and exception of the defendant, which instruction reads as follows: "Whenever a person voluntarily enters into a conflict, or mutually agrees with his adversary to engage in a voluntary conflict and enters therein after such mutual agreement, such person thereby waives his right of self-defense, and no matter how hard pressed he may find himself during the engagement, if he kills his adversary, he is guilty of manslaughter in the first degree and a plea of self-defense will not avail him." Defendant contends that the giving of this instruction was erroneous, first, because there was no evidence to authorize the giving of said instruction. It is a sufficient answer to this objection to say that the evidence of the state shows that the defendant accosted deceased on the dance floor, protested against his dancing with his wife and shoved him towards the door telling him they would settle the difficulty outside.

The law is well settled that one who seeks and brings on an affray cannot shield himself under a plea of self-defense. Reed v. State, 2 Okla. Cr. 589, 103 P. 1042; Rollen v. State,7 Okla. Cr. 673, 125 P. 1087; Young v. State, 11 Okla. Cr. 22,141 P. 285; Berry v. State, 23 Okla. Cr. 223, 213 P. 909; Graham v. State, 25 Okla. Cr. 372, 220 P. 967.

It is also well settled that, where the defendant seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased, and a combat ensues, and, the defendant, being hard pressed, kills the deceased, then the defendant will be guilty of manslaughter, unless before the fatal blow was struck, or shot was fired, the defendant in good faith sought to withdraw from the combat. Koozer v. State,7 Okla. Cr. 336, 123 P. 554; Moutry v. State, 9 Okla. Cr. 623,132 P. 915; Odum v. State, 21 Okla. Cr. 87, 204 P. 1118.

Under the evidence in the case it would make no difference if, after the deceased and the defendant had gone out of doors, the deceased assaulted the defendant, for the reason that defendant put himself in fault in going out of doors, when he must have known that deceased had no other purpose in getting out of doors except to settle the difficulty with defendant, and that in such settlement a bodily conflict would likely take place. When the defendant pushed the deceased out of doors — or, taking the defendant's story for the occurrence, that he agreed to go out of doors for the purpose of settling the difficulty and then engaged in a combat with the deceased — he placed himself in a position where he could not claim the right of self-defense, if the deceased assaulted him, unless, after such attack, he in good faith withdrew from the combat.

In the case of Akes v. State, 31 Okla. Cr. 386, 239 P. 187, this court said:

"If the defendant provoked the combat or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat; but if he provoked the combat or produced the occasion without any felonious intent, the killing in self-defense will be manslaughter in the first degree only."

Under the evidence of the defendant and his wife and the facts and circumstances revealed in the case, the defendant was guilty of manslaughter, and the evidence and facts in the case fully justify the court in submitting to the jury the question of whether or not the defendant voluntarily entered into this combat with the deceased.

Defendant's second objection to instruction No. 12 is that it fails to instruct on the issue of the question of whether or not defendant voluntarily withdrew from the combat with the deceased. There is not a word of evidence in the record to indicate that the defendant made any effort whatever to withdraw in good faith at any time during the progress of the combat, and it appears from the evidence that he did not withdraw until such time as the deceased was wholly incapacitated to continue the combat further because of the numerous wounds inflicted upon his body with his knife by the defendant.

In the case of Gandy v. State, 34 Okla. Cr. 350,246 P. 887, this court said:

"A defendant is not entitled to an instruction on an issue not raised by the evidence."

In Baker v. State, 22 Okla. Cr. 224, 210 P. 292, this court said:

"Where the defendant is convicted of manslaughter in the first degree and punishment assessed at the minimum under the law, and defendant's own testimony shows him to be guilty of the crime of which he was convicted, alleged errors in the instructions and in the refusal to give a requested instruction will not be held prejudicial." See, also, Morris v. State,35 Okla. Cr. 5, 247 P. 418; Canada v. Territory, 12 Okla. 409,72 P. 375.

Defendant next contends that the court erred in admitting certain incompetent, irrelevant, and immaterial testimony over the objection and exception of the defendant. This assignment of error relates to certain testimony given by Mrs. Joe Baccus, a witness for the state, to the effect that on the evening of the homicide, and just an hour or two before its commission, this defendant was at her house and stated that he was going to have to kill a couple of fellows, naming them (neither of whom was the deceased), because of their attentions to his wife. Defendant contends that this evidence was inadmissible and prejudicial for the reason that it had no bearing on the question of his attitude towards the deceased.

In the case of Sears v. State, 27 Okla. Cr. 311,227 P. 899, this court said:

"Threats of a general or indefinite nature, made by an accused person, where they tend to disclose general malice, may be shown, although not particularly directed against the deceased, but against a class of persons which includes the deceased."

The evidence in this case shows it was the contention of the defendant that the deceased, Russell Breedlove, had become entirely too familiar with his wife, and that such familiarity was the direct cause of the trouble between the defendant and deceased which resulted in the defendant killing the deceased. Under the case of Sears v. State, supra, these threats were admissible, as they tended to show the defendant's state of mind just a short time before the killing as against any one who was guilty of undue familiarity with defendant's wife.

While the conduct of the deceased was reprehensible, and this court does not undertake to condone the same, the taking of human life is a serious matter which cannot be justified under circumstances like those appearing in this case. The defendant had a fair trial, and the jury found him guilty upon sufficient evidence, and no doubt considered the misconduct of the deceased in fixing the penalty of the defendant at the minimum provided by law.

No substantial error appearing upon the record, the cause is affirmed.

EDWARDS, P.J., concurs.