Kincaid v. State , 10 Okla. Crim. 357 ( 1913 )

The assignments of error relied upon for reversal of the judgment are, in effect, as follows: That the court erred in refusing to give the instructions requested by the defendant; misconduct of the prosecuting attorney in his argument to the jury.

The charge of the court contained nineteen instructions. No objection was made nor exception taken to any instruction given. The defense requested the court to give eleven additional instructions. It is our opinion that the requested instructions were properly rejected, as all the law pertaining to the defense had been clearly and correctly expounded in the instructions given, which were more favorable to the defendant than the law contemplates.

Our Code of Criminal Procedure provides (section 5902, Rev. Laws 1910) 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."

The court should have given an instruction based upon the foregoing section. See Culpepper v. State, 4 Okla. Cr. 103,111 P. 679, 31 L.R.A. (N.S.) 1166, 140 Am. St. Rep. 668. However, its failure to do so was an error in favor of the defendant, of which he cannot complain. When the defendant has had the benefit of a fair trial by an impartial jury, selected conformably to law, and fully and fairly instructed in every principle of law applicable to his defense, with no rulings against him that would tend to prejudice a substantial right or deprive him of his defense, he has received all that any citizen can rightfully demand.

During the closing argument of counsel for the prosecution, the assistant prosecutor made the following statement:

"Now, gentlemen of the jury, of all the dark and bloody and black murders that have ever been committed in McCurtain county, this is the blackest and the dirtiest, and unless you convict the defendant you may expect many more such dark and bloody murders."

At which time counsel for the defendant took an exception. Thereupon the court admonished the counsel not to make use of such language before the jury. We think this statement went beyond the limits of legitimate argument and was improper. In determining the effect of an improper statement made by the prosecuting attorney in the closing argument to the jury, the question is, Was the defendant prejudiced by such improper statement? and the strength of the evidence supporting the conviction will be considered.

The evidence in this case is that the defendant, without any provocation, deliberately shot the deceased, and, not satisfied with this, he stepped up to the prostrate form of his victim and shot him a second time. The evidence proved beyond all reasonable doubt that the homicide was murder. There was no room for even a probability that it was manslaughter in the first degree, nor was there any evidence fairly raising, or tending to raise, the issue of self-defense. We would not have reversed the judgment if the court had omitted to charge upon the issue of manslaughter in the first degree, because in our opinion the facts of the case did not demand that this issue be submitted.

The defendant, without excuse, unjustifiably, with a premeditated design to kill and murder, shot and killed Levi Davis. The jury in mercy, or in charity for the weakness of human kind, or possibly through a mistaken view of the law, lessened his crime to manslaughter in the first degree, and he should be satisfied with his conviction for the lesser offense.

A careful examination of the whole case leads to the conclusion that no error has been committed, to the defendant's prejudice. The judgment is therefore affirmed.

ARMSTRONG, P.J., and FURMAN, J., concur.