Jones v. State , 17 Okla. Crim. 561 ( 1920 )

Xenophon Jones was indicted in the district court of Muskogee county for murder, and upon his trial the jury returned a verdict finding him guilty of manslaughter in the first degree, leaving the punishment to the court. On March 20, 1918, the court rendered judgment and sentenced him to imprisonment in the penitentiary for a term of 25 years. To reverse the judgment he prosecutes this appeal.

It appears that deceased, Guy F. McIntyre, was a resident of Muskogee; he was a young man with a family, consisting of a wife and two children. Defendant, Jones, a negro boy, lived with his parents in Muskogee. The difficulty which resulted in the tragedy arose between the deceased, who was manager of the Muskogee Tire Repair Company, and defendant, over the repair of an automobile tire. Defendant shot deceased three times with a 32-caliber automatic pistol. One shot took effect in the back, another in the hip, and another took effect in the abdomen, which proved fatal. The theory of the state was that it was an unprovoked killing. Defendant's evidence suggests the theory of self-defense.

The first assignment of error necessary to notice is that the court erred in permitting the witness Dr. Wilkiemeyer to testify that the wounds in the body of deceased corresponded to the holes in the clothing of deceased introduced in evidence, and in placing said clothing upon the back of another, and pointing out and demonstrating how the holes in the garments corresponded to the wounds in the body. It is urged that this was demonstrative testimony, and that there was lacking evidence of the size of the deceased in comparison to the size of the person on whose back the clothing was placed.

It is the settled rule in this state that on a trial for murder, where the plea is self-defense, the clothing worn by the deceased at the time of the homicide, and which shows the point of entrance of the bullets, is admissible in evidence, for the purpose of showing the location of the wounds, and to enable the jury to form an estimate of the relative position of the parties when the shots were fired. In the case of Saunders v.State, 4 Okla. Crim. 264, 111 P. 965, Ann. Cas. 1912B, 766, it is held that a coat worn by deceased at the time of the homicide, and which showed the point of entrance of the fatal bullet, was admissible in evidence. In the opinion it is said:

"The coroner, who was also a physician, testified that one bullet entered about six inches below the angle of the scapula, and about four inches to the right of the spine; the other wound was in the buttock. The garments were competent in corroboration of this evidence, and for the purpose of showing exactly what was inexactly stated. Nor is the state required in such cases to stand on the oral testimony of one or two witnesses, without supporting their testimony by demonstrative evidence; nor can the state be precluded from offering such evidence by a general statement, made by the defendant's attorney in objecting to the evidence, that ``there has been no dispute raised as to the mortality or location of the wounds.'"

And see Burton v. State, 16 Okla. Crim. 602, 185 P. 842;Brantley v. State, 15 Okla. Crim. 6, 175 P. 51.

The next assignment is:

"Misconduct on the part of P.A. Gavin, special counsel for the state, in the cross-examination of Mrs. J.A. Green, who as a character witness testified to defendant's good reputation as to being peaceable, quiet, and law-abiding."

On her cross-examination this witness was asked:

"Question by Mr. Gavin: Well, did you ever discuss about defendant having had a fight up here with a negro in a garage, in which he pulled a gun on him? (Defendant objects as incompetent, irrelevant, and immaterial, and not proper cross-examination.)

"The Court: Sustained.

"By Mr. Gavin: Have you ever heard of that circumstance? (Same objection.)

"The Court: That would not disprove what she has testified to; the specific act does not constitute one's general reputation.

"Mr. McGinnis: This is to test the knowledge of the witness of the matters about which she offers testimony.

"The Court: I don't see that it is competent. Objection sustained."

The question involved has heretofore been decided by this court in Pope v. State, 15 Okla. Crim. 162, 175 P. 727. It was there held that:

"A witness to good character may be asked on cross-examination whether he had heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove. This is admissible, not for the purpose of establishing the truth of such reports, but to test the credibility of the witness and to determine the weight of his evidence."

And see Stouse v. State, 6 Okla. Crim. 415, 119 P. 271;Russell v. State, 17 Okla. Crim. 167, 194 P. 242; Underhill, Crim Ev. par. 82.

We think the cross-examination of this character witness was proper, and that the court erred in favor of defendant in sustaining the objection made.

Another assignment of error is that the court erred in permitting the jury, over the objection and exception of defendant, to visit the scene of the difficulty and examine and view the marks or indentations on the wall, about which testimony had been given. Our Code of Criminal Procedure (section 5897, Rev. Laws 1910) reads as follows:

"When, in the opinion of the court, it is proper that the jury should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time."

It appears from the record that in the course of the trial the county attorney requested the court that in the manner prescribed by law the jury be sent to view the place where the offense was committed and to view the indentations on the partition about which testimony had been offered. Defendant objected, for the reason that the room where the homicide was committed had been changed since the shooting, which objection was overruled, and exception allowed. The action of the trial court in permitting a trial jury to view the scene of a homicide will not be disturbed by this court, unless it is made to appear that such court acted arbitrarily and abused its discretion, under circumstances which tend reasonably to indicate that the substantial rights of defendant were prejudiced thereby. Starr v.State, 5 Okla. Crim. 440, 115 P. 356; Seigler v. State,11 Okla. Crim. 131, 145 P. 308. It was the privilege of the defendant and his counsel to accompany the jury, and we presume they did so. If they did not, the privilege was waived. We find nothing in the record that tends to show that the court abused its discretion in overruling defendant's objections.

Other errors assigned are based on exceptions taken to certain instructions given and to the refusal of the court to give instructions requested. The court, among other instructions, gave the following:

"(13) You are further instructed that evidence has been introduced to the effect that the deceased in his lifetime bore a general reputation as being a man of a quarrelsome, contentious, and overbearing disposition, and that the defendant, prior to the fatal difficulty, bore a general reputation as a peaceful, quiet, and law-abiding man. You are therefore instructed that this evidence is competent and proper, tending to show who was the probable aggressor at the time of the fatal difficulty."

(Given, and excepted to by defendant. Chas. G. Watts, Judge.)

The court then refused the following instruction, asked by defendant:

"You are instructed that the defendant has introduced proof to the effect that he has always had the reputation of being a peaceable, quiet, respectful, law-abiding boy, and you are instructed that such evidence is proper for your consideration, together with all the other evidence in the case, and should be considered by you in determining the guilt or innocence of the defendant, and as to who was probably the aggressor in the difficulty."

Thus it appears the requested instruction was substantially embodied in the instruction given, and defendant had the full benefit of the principle involved. The court, therefore, committed no error in refusing to repeat it. Taken as a whole, the instructions given covered every phase of the case, and were more favorable to defendant than he had any legal right to demand.

One of the grounds of the motion for new trial, and which is assigned as error, is newly discovered evidence to the effect that the mark or indentation on the wall, about which testimony was given, was tampered with after having been examined by defendant's witnesses, and before it was viewed by the jury. The affidavits filed by defendant in support of his motion for a new trial are to the effect that the indentations were tampered with, in that they had the appearance of having been rubbed over, which indicated a difference in the original depth of one thirty-second of an inch. There is nothing to show that they were tampered with before the verdict in this case was returned, and the motion for new trial was properly overruled.

Upon the merits, the evidence for the state establishes an unprovoked murder, and as to defendant's testimony in support of the self-defense theory the proof was overwhelmingly the other way. In our view, the jury were exceedingly lenient under the circumstances in fixing the degree of the crime. As shown by the record, defendant has had a fair and impartial trial under the laws of the state.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.