Graham v. State , 25 Okla. Crim. 372 ( 1923 )

It is first contended that the trial court erred in excluding certain evidence offered in connection with the examination of the witnesses Rice and Reed and the defendant, which said evidence related to certain threats alleged to have been made by the prosecuting witness, John Cash, against the defendant Graham.

The portions of the record necessary to be considered in connection with this assignment of error are as follows:

"Q. State your name. A. W.E. Reed. Q. Where do you live, Mr. Reed? A. I live out at Brushy Mountain now. Q. Were you sworn with the other witnesses yesterday? A. Yes, sir. Q. Are you acquainted with Carl Graham, the defendant? A. Yes, sir. Q. Do you know John Cash? A. I know him when I see him. Q. Have you ever heard John Cash say anything about Carl Graham in any way? A. I heard him —

"By Mr. Gumm: I object unless he knows. A. Yes.

"By Mr. Crump: Q. When was it about, as near as you can tell? A. Last summer sometime; I believe it was last summer, as near as I can remember, right after Carl got into trouble, and they put him in jail, and he got out. I think it was a day or so after he got out, maybe the day he got out. Q. When he was having trouble over Cash's stepdaughter, the girl he did marry? A. Yes, sir. Q. Where was it you heard Cash say what you heard? A. Down in front of the Cardinal Hotel, right in front of the Cardinal rooms. Q. Down in front of the Cardinal rooming house on Okmulgee? A. Yes, sir. Q. What did he say?

"By Mr. Gumm: We object as incompetent, irrelevant, and immaterial and too remote to be admissible.

"By the Court: I believe I will sustain the objection. (Whereupon the following offer to prove is made out of hearing of the jury by counsel for the defendant:)

"By Mr. Crump: We offer to prove by this witness that the witness John Cash, about the time the trouble was up about the defendant's relations with his now wife, Cash's stepdaughter, that Cash stated if Carl Graham didn't do what was right about the matter that he was going to kill him.

"By Mr. Gumm: We object as incompetent, irrelevant, and immaterial and too remote.

"By the Court: Sustained.

"By Mr. Crump: We except. Stand aside."

Part of the redirect examination of the witness Rice is as follows:

"Q. What was it he stated to you some time ago?

"By Mr. Gumm: We object as incompetent, irrelevant, and immaterial, and for the further reason it was never disclosed to the defendant.

"By the Court: Sustained.

"By Mr. Crump: We except. (Whereupon the following offer to prove is made out of the presence and hearing of the jury:)

"By Mr. Crump: We now offer to prove by the witness that shortly after Carl Graham married his present wife, that Cash told this witness now on the stand if Carl hadn't have married her he would have killed him, and if he didn't treat her right he would kill him.

"By Mr. Gumm: We object as incompetent, irrelevant, and immaterial.

"By the Court: Sustained.

"By Mr. Gumm; And for the further reason it was never told or related to the defendant by this witness.

"By the Court: Sustained."

Certain offers to prove threats were made in connection with the defendant's examination, and are as follows:

"Q. Has Cash ever at any time had any conversation with you about you and your wife or about your relations with your wife, or anything of that kind? A. Yes, sir. Q. About — well, when the trouble — were you arrested on account of your relations with the girl? A. Yes, sir. Q. At that time did Cash have any conversation with you just after you got out of jail, made bond and got out of jail? A. Yes, sir. Q. Where was it? A. It was down on — I don't know what street. It is in front of the Cardinal rooming house. Q. That is on this street right here, isn't it, Okmulgee? A. Yes, sir; on Okmulgee. Q. What did he say to you there?

"By Mr. Gumm: We object as incompetent, irrelevant, and immaterial, and too remote from this occurrence to have any connection with it whatsoever — the same reason as the other testimony.

"By the Court: Where have you been living since that, since the occasion that you have just been asked about?

"By the Witness: You mean since the shooting occurred?

"By the Court: No, since the occasion Mr. Crump asked you about?

"By Mr. Crump: Q. When you had the conversation with Cash in front of the Cardinal? A. Well, I stayed at this rooming house awhile, and then stayed down home awhile down close to Checotah.

"By the Court: How long were you in town before this trouble came upon the 17th day of February?

"By the Witness: Well, I was in town, I suppose — well, about a month and a week, I guess.

"By the Court: Objection sustained.

"By Mr. Crump: We except. (Whereupon the following offer to prove is made by counsel for the defendant, out of the hearing of the jury:)

"By Mr. Crump: We offer to prove by the witness Graham that very soon after he was released from jail, and before he married his present wife, that Cash told him that if he didn't do right about the matter and didn't marry the girl he would kill him, and that if he did marry her and didn't treat her right that he would kill him, and that he had a damn good notion to do it anyway.

"By Mr. Gumm: Objected to as incompetent, irrelevant, and immaterial, and too remote from this occurrence to have any connection therewith.

"By the Court: Sustained.

"By Mr. Crump: We except. (The above and foregoing was all of the offer to prove made out of the hearing of the jury, by the defendant, at this time.)

"By Mr. Crump: Q. Well, I will ask you if after that, at different times, whether or not Cash had any conversation with you in which he made any threats against you? A. Yes, sir; two or three times. Q. Can you recall any place where you were after that that he used any language or made any threats? A. Yes, sir. Q. Where? A. Well, it was on Second street, and one of them was up on Cherokee and Broadway. I mean Main and Cherokee, I guess it is, on the corner. Q. You don't know the streets very well? A. No. Q. Well, the first one of those that you had after the time out in front of the Cardinal, when was that? A. As near as I can remember — well, it was about, I guess, a month. Q. About a month after the Cardinal incident? A. Yes, sir. Q. What did he say to you at that time?

"By Mr. Gumm: Objected to as incompetent, irrelevant, and immaterial, and for the further reason it is too remote from this occurrence.

"By the Court: This is in October, 1920?

"By Mr. Crump: Yes.

"By the Court: Sustained.

"By Mr. Crump. We except. (Whereupon the following offer to prove is made by counsel for the defendant, out of the hearing of the jury:)

"By Mr. Crump. I offer to prove that Cash, at the time the witness has testified, about a month after the incident which occurred in front of the Cardinal rooming house, stated to this defendant in effect that from the information he could get he wasn't treating his wife right, and if he found out he wasn't he was going to fix him.

"By Mr. Gumm: Same objection, as incompetent, irrelevant, and immaterial, and too remote.

"By the Court: Sustained.

"By Mr. Crump: We except."

It is strenuously contended that the exclusion of the foregoing proffered evidence of threats by the prosecuting witness against the defendant was erroneous and prejudicial.

In the case of Smith v. State, 14 Okla. Crim. 250,174 P. 1107, it is held:

"Threats and misconduct on the part of the deceased toward the defendant occurring prior to the homicide form of themselves no justification or excuse for the taking of human life.

"Where the element of self-defense enters into homicide cases, it is the duty of the trial court to admit evidence of threats and other misconduct on the part of the deceased toward the defendant under proper instructions to the jury covering the law of self-defense. And this would be true if there was any doubt as to who was the aggressor at the time of the killing."

For a further discussion of the admissibility of threats against the defendant by the person slain or injured in prosecutions where the element of self-defense enters, see the body of the opinion in the case of Smith v. State, supra, and cases cited therein.

The testimony of the defendant and of some of his witnesses is sufficient to present the issue of self-defense in this case. The evidence of threats offered to be proved as having been made by the prosecuting witness against the defendant was therefore competent, and the court should have admitted it.

The question now arises: Was the exclusion of such evidence reversible error?

In order to give full consideration to the questions presented by the foregoing assignment of error, it is necessary to incorporate herein other portions of the record disclosing the admission of evidence of threats alleged to have been made by the prosecuting witness against the defendant.

The witness J.F. Rice was permitted to testify as follows:

"Q. Well, do you know about Carl Graham having some trouble and getting arrested over the girl that he married? A. Yes, sir. Q. That is, Mr. Cash's stepdaughter? A. Yes, sir. Q. When was it with reference to that now? A. Well, it was the day that he made bond on that charge. Now, I can't say what that date was. Q. I see, it was the day Carl made bond on that charge? A. Yes, sir. Q. And then how soon after that did he marry? A. The next day, I believe. Q. The next day — now, what was it and where was it that you heard Cash talking? A. It was on South Third street. Q. Just tell the jury. A. Just this side of Okmulgee. Q. Just tell the jury what Cash said. A. Or North Third, rather. Q. Just tell the jury what Cash said to you. A. Well, I and a fellow —

"By Mr. Gumm: We object to that, if the court please, as incompetent, irrelevant, and immaterial, and too remote.

"By the Court: I will let him answer it. A. I and a fellow by the name of Shipman was standing there talking, and he came up to me, Mr. Cash did, and he asked me where Carl was, and I told him I didn't know. I said, ``I seen him around the corner just awhile ago, about 30 minutes ago,' and he says, ``Well, I am looking for him,' and he says, ``If I find him, it won't be very healthy for him,' and he put his hand back like this. Q. Back how? A. Back just like this (demonstrating). Q. Back on his hip? A. Yes, sir; but he didn't — I just took it for granted."

Concerning threats alleged to have been made by the prosecuting witness against him, the defendant testified as follows:

"Q. Now, on the day that you did have the trouble — the day that you shot Cash, had you seen Cash that day before the time of the shooting? A. Yes, sir. Q. Where were you when you saw him first? A. I was in the A. C. Pool Hall. He came in there and called me out. Q. Is that the one that is run by Tom Anderson and Frank Corey? A. Yes, sir. Q. When he called you out, what did he say to you? A. Well, we walked down to the corner of Main street, and he said he heard — my wife told him that I said the child didn't belong to me, and he said he was going to kill me if I denied it, and I told him, I said, ``Why don't you do it?' and then Mr. Sherrod arrested us. * * * Q. As you were going down to the jail, after Sherrod arrested you, what happened, if anything, between you and Cash, or what did Cash say, if anything? A. Cash said, ``I will get you before night,' and Sherrod turned around and told him to shut up — ``I wouldn't be making those threats if I was you.'"

In addition to the foregoing alleged threats, the defendant also testified that just before he shot prosecuting witness the prosecuting witness called him a "son of a bitch" and said, "I am going to kill you."

Further, the defendant was permitted to testify that he had heard of other threats that had been made against him by the prosecuting witness.

It appears from the foregoing excerpts from the record that certain threats alleged to have been made by the prosecuting witness against the defendant were excluded from consideration by the jury upon the ground that they were too remote and had no bearing upon the issues. The offers to prove show that such alleged threats were conditional in their nature, some depending upon the failure of the defendant to marry the stepdaughter of the prosecuting witness, and another upon the failure of the defendant to treat the stepdaughter of the prosecuting witness good, provided he did marry her. These alleged threats were all the outgrowth of a prosecution which was at the time pending against the defendant for statutory rape. The defendant married the prosecutrix, who was a stepdaughter of the prosecuting witness, so that such threats as were based upon his failure to marry her were of very little probative force in this prosecution. However, we are inclined to the view that evidence of such alleged threats should have been permitted to go to the jury for what it was worth.

It is apparent, however, that the jury had before it for consideration evidence, by the testimony of the witness Rice, of a similar alleged threat, and also by the testimony of the defendant as to a threat by the prosecuting witness to kill the defendant on that day, and further evidence of an intention to carry this latter threat into execution at the time of the shooting.

The alleged evidence of threats which was excluded was, therefore, to a large extent cumulative of that which was permitted to go to the jury.

In Addington v. State, 8 Okla. Crim. 703, 130 P. 311, it is held:

"The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result."

See, also, Clingan v. State, 15 Okla. Crim. 483, 178 P. 486; Kennedy v. Commonwealth, 109 S.W. 313, 33 Ky. Law Rep. 83.

It is apparent from consideration of this record that the evidence of these alleged threats which was excluded could have had very little bearing upon the result of this trial, as it was conceded that on the day of the shooting the prosecuting witness and the defendant had had a quarrel which resulted in both of them being arrested, thus clearly indicating that ill feeling existed between the parties at the time this shooting occurred.

It is next contended:

"That the court erred in not permitting the defendant to testify and state to the jury while on the witness stand why he was not living with his wife."

This evidence was properly excluded, as it had no bearing upon the question of the right of the defendant to defend himself against an attack by the prosecuting witness which he claimed was imminent at the time of the shooting.

As the shooting was admitted, an investigation into the marital troubles of the defendant was a collateral issue. Whether the defendant was or was not living with his wife, or his reasons for not living with her, were not germane to the issue of self-defense.

It is next contended that the trial court erred in giving instructions numbered 5 and 7.

The instructions here complained of are identical in substance with instructions numbered 11 and 12, approved by this court in the case of Turner v. State, 4 Okla. Crim. 164,111 P. 988, and have bearing on the issue of self-defense. Considering the instructions as a whole, we believe the charge to fairly and fully cover the law of the case; that the jury was not misled by such instructions; that when so considered they are not open to the objections separately urged against instructions numbered 5 and 7; and that the court did not err in refusing to give certain requested instructions in view of the fact that the law of the case was sufficiently covered in the general charge.

The punishment inflicted in this case was well deserved. While the testimony of the defendant, if believed, tended to present a shooting in defense of his person, his conduct in arming himself shortly before the shooting and his conduct at the time of the shooting in, according to his own testimony, shooting the prosecuting witness four or five times after the prosecuting witness had apparently abandoned any effort to attack him, cannot be justified without doing violence to those well-settled rules and statutes which point the duty to one engaged in a conflict to use only such force as is necessary to prevent injury to himself at the time.

The prosecuting witness was unarmed, was clothed in a heavy rain coat, and was engaged at the time of the shooting in his usual vocation. The defendant had previously armed himself with a loaded, deadly weapon, had placed himself in a position where he knew he was likely to come in contact with the prosecuting witness; in fact, he made no effort to avoid what he himself testified would likely be a fatal encounter. He shot the prosecuting witness eight times, bullets entering from the bottom of the feet to one inch above the heart, and the entrances and exits of these bullets are silent witnesses to the fact that the prosecuting witness and other state witnesses told the truth as to how this shooting occurred. The defendant is extremely fortunate that none of these eight wounds proved fatal. That he will be permitted to expiate this crime by serving four years in the penitentiary, instead of the balance of his natural life, should be cause for rejoicing on his part.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.