Cooper v. State , 1973 Okla. Crim. App. LEXIS 530 ( 1973 )

OPINION

BUSSEY, Judge:

Appellant, Eston L. Cooper, a/k/a Jack Cooper, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Stephens County, Case No. CRF-70-157, for the offense of Shooting With Intent to Kill. His punishment was fixed at two (2) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

The State’s evidence showed that on the afternoon of December 14, 1970 the defendant was observed shooting a pistol in his back yard at Marlow, Oklahoma. The police were notified and Officers Crown-over and Abney went to the defendant’s home to investigate. Defendant admitted test-firing the pistol but said it was none of the officers’ business. Defendant began using abusive language at them and was placed under arrest because of the profane language. The defendant was charged with Firing a Weapon in the City Limits and subsequently posted a Twenty-Dollar bond and was released.

About 6:45 on the same day, the police received another report from two of the defendant’s neighbors that they heard shots fired and saw the defendant with a pistol. Officers Lothridge and Crownover went to defendant’s home to investigate the second shooting incident. Upon arriving at defendant’s residence, they were informed by defendant’s wife that they had better not see the defendant at that time because he was still mad about his arrest earlier that afternoon. Officer Crownover stated that they intended to talk to the defendant and, if necessary, they would get a warrant. At this point, defendant’s wife opened the door wide and stepped to one side. The officers observed defendant sitting in a chair with a pistol pointed at them. The officers demanded that defendant put his pistol down, but defendant refused to do so. The officers thereupon drew their guns and repeated the request several more times. The defendant then fired two shots while sitting in his chair. Both officers fired at the defendant trying to hit his gun hand. The defendant got out of the chair and charged toward the door still firing. The defendant emptied his gun and slammed the door shut. The officers radioed for additional aid.

The testimony of Officers Lothridge and Crownover as to the details of the occurrences did not differ substantially.

Shortly thereafter, Deputy Sheriff Benson arrived on the scene and was ultimately permitted entrance into the house. Defendant put the pistol on the table and Deputy Benson unloaded it. He testified that the defendant had a smell of alcohol about his person, his face was red, and his tongue “seemed real thick when he was trying to talk.” (Tr. 20)

For the defense, Martha Cooper, the defendant’s wife, testified that Officers Crownover and Abney came to their residence at approximately 4:00 on the afternoon in question. Crownover grabbed her husband by his arm and pulled him out into the yard. She proceeded to the police station and posted a Twenty-Dollar bond. They returned home and later that evening, Officers Crownover and Lothridge knocked at the front door. She answered the door and Crownover said, “Get Jack out here on the porch, I want to talk to him.” (Tr. 180) She told Crownover that, “I don’t think you should talk to him, he’s still a little angry with you as you well know for jerking him around this afternoon and jerking him out the back door.” Crownover replied, “Well, he’s going to come out here on this back porch and I’m going to talk to him.” Crownover tried to jerk the screen door open which was locked. He then grabbed his gun and fired into the latch. He then fired at her husband. Her husband returned the fire and told her to “get on the phone and call the sheriff.” (Tr. 183)

Defendant testified that Officers Abney and Crownover came to his home that afternoon. They jerked him around violently, knowing that he had recently been involved in an automobile accident, and took him to the police station. He posted a bond for Shooting a Firearm Within the City Limits. At about 6:45 p. m., Officers Crown-over and Lothridge came to his house. His wife answered the door and would not let them inside the house. Crownover pulled on the screen door and upon finding it locked, fired at the lock. When the officers fired a second shot, he picked up his pistol and started firing in their direction to scare them away. He testified that he was not shooting to hit anybody. He admitted prior convictions for forgery and burglary in 1957.

Defendant asserts two propositions of error : That the trial court erred in sustaining the State’s objection to the offer into evidence of a certified copy of the city ordinances of Marlow dealing with discharging a firearm in the city limits, and that the trial court erred in instructing the jury by giving Instruction No. 4 and refusing defendant’s Requested Instructions No. 8 and 9.

Defendant asserts two propositions of er-the charge of Shooting with Intent to Kill was that the Marlow City Police Officers, in coming to his home, without a warrant for his arrest and also without having viewed the alleged offense for which they came out there, to-wit: Discharging of Firearms, was that the Officers were trespassing at his home; that he, sought to be arrested, was not obligated to submit to arrest, and such arrest was an illegal one; that he had a right to resist such arrest or attempted arrest by the Officer and that what he did thereafter, by reason of the Officer’s actions, was in self-defense of himself and of his wife.”

We observe that there is no evidence in the record to adduce that the police officers went to defendant’s residence to arrest the defendant for a violation of the city ordinance. The officers testified that they went to the defendant’s residence to investigate the shooting incident and wanted to talk to the defendant. When the defendant’s wife refused to allow them to talk to her husband, Officer Crownover stated that they intended to talk to him “even if they had to secure a warrant.” (Tr. 122) At that point, according to the officers’ testimony, the defendant’s wife pushed the door wide open and the defendant started shooting at them. The testimony of the defendant and his wife adduced that the police officers came to their house and stated that they wanted to talk to the defendant. When defendant’s wife refused to allow this, Officer Crownover fired his weapon into the door latch and then started shooting at the defendant. The defendant thereupon fired several shots through the screen door to scare them away. It is thus apparent that the ultimate question of fact to be decided by the jury was not whether the defendant was resisting an unlawful arrest but rather whether or not 'the defendant was acting in self-defense. We, therefore, are of the opinion that the trial court did not err in refusing admission of the certified copy of the municipal ordinance and further that the trial court did not err in refusing defendant’s requested instructions concerning the right to resist an unlawful arrest. We further observe that the court’s Instruction No. 4, which stated: “You are instructed that for the purpose of preserving the peace and to prevent crime, a peace officer or a private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed” was proper. In Hargus v. State, 58 Okl.Cr. 301, 54 P.2d 211, we stated:

“* * * it is not the law that a peace officer or any other person, if he makes an inquiry of any person, not having at the time a warrant, does so at the peril of death. In this modern time, when automobile travel permits persons to cover long distances in a short time, it is not unlawful for a peace officer, nor for a private citizen, to make a reasonable inquiry of strangers or others and at the least a mere accosting or inquiry does not permit the person so accosted, in the absence of a reasonable apprehension of immediate danger, to open fire and then justify on the ground the officer or citizen was without authority. * * *”

The trial court gave four instructions covering in detail the theory of self-defense including the right to defendant’s domicile against an unlawful invasion. We thus conclude that the trial court’s instructions taken as a whole correctly stated the law applicable to the issue presented by the evidence. The jury chose to believe the evidence of the State’s witnesses and not the evidence of defendant’s witnesses.

The judgment and sentence is affirmed.

BLISS, P. J., concurs and BRETT, J., dissents.