Skelley v. State

The defendant was charged with the crime of murder in Oklahoma county, was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of six years in the penitentiary and has appealed.

It was contended by defendant that the evidence was insufficient to support the verdict, that the cross-examination of defendant by the county attorney was improper, and that the court erred in giving certain instructions, and failing to give a requested instruction outlining the defense presented by defendant. All of these errors may be considered together. This necessitates a review of the evidence offered in this case. Able and exhaustive briefs have been filed by counsel for both defendant and the state. The brief of defendant gives a transcript of the evidence of each of the witnesses, and is a very fair statement of the facts, from the standpoint of both the state and the defendant, and it will be referred to in stating the facts in the case.

The deceased, De Loyd Skelley, and the defendant were husband and wife. On the 3d day of September, 1935, they resided at 1014 N.W. Thirty-Fifth street in Oklahoma City, and deceased operated a place of business at 1723 N.W. Sixteenth street in Oklahoma City, which was known as the Morris Fruit Juice Company, and in the same building he had a double dip ice cream parlor. He also operated in connection with his business a "racket" in the nature of drawing numbers, and where the winner at each drawing won a certain stated sum of money. Tickets for these drawings were sold by deceased through certain agents, and the drawings were held by the deceased in that section of Oklahoma City where resided a great number of the colored race, who bought these tickets and attended these drawings. The drawings were generally held at night and defendant often accompanied deceased to assist him in conducting the drawings and especially in taking care of the money that was received. On several occasions deceased had been held up after conducting the drawings and had been robbed of the money he had received at the drawing. It was the night of one of these drawings, and defendant had accompanied him, and after they had returned home and about 10:30 o'clock that deceased was shot.

Harry E. Barnes, an intern at the Oklahoma City General Hospital, testified that he saw the deceased, De Loyd Skelley, when he was brought to the hospital on the night of September 3, 1935, and that in his opinion his death was caused from gunshot wounds.

Bessie Watkins, a maid in the Skelley home, testified that on the afternoon of the 3d of September, 1935, she was at the Skelley home when the deceased and the defendant had a difficulty; that she heard them talking and quarreling, and the defendant came to the kitchen and got a butcher knife; that she then went and got into one of the cars belonging to the Skelleys; that the deceased got out of the car that he was in and went and grabbed her out of the other car, and that he took the butcher knife away from her, but she did not know what he did with it; that after this deceased left in the Ford car and immediately thereafter defendant attempted to leave in the Buick car, but the key to the same was not there; that she saw defendant kick the glass out of the Buick car while she was attempting to start the same; that finally the defendant located the key to the Buick car, but before leaving she saw her cut a hole in the screen door with the butcher knife which the deceased had taken away from her; that prior to leaving in the car she had gone to the doctor's office, and had returned just before the difficulty or quarrel between her and her husband.

W. J. Allston testified that he was district manager for the Pontiac automobiles and that he resided immediately across the street from where the Skelleys lived; that he did not know them personally; that on the afternoon of the 3d of September, 1935, his attention was attracted by a loud conversation in front of the Skelley home, but he could not hear what was said; that someone whom he identified as defendant was in a Buick car and apparently a man was taking the keys out of the car; that the man left in a Ford automobile and the woman attempted to start the Buick car; that she could not get it started, and she kicked the windshield out; that she got out of the Buick car and started in the house, and he saw her pick up a large knife in the yard and with it she slashed the screen; afterwards he saw her leave in the Buick car; later in the night he heard what he thought was the report of a gun across the street and afterwards he saw them carrying someone out of the house and placing them in a car.

Mrs. W. J. Laws testified that she was a neighbor of the Skelleys; that on the afternoon of September 3, 1935, she saw Mr. and Mrs. Skelley having some kind of dispute in front of their house; that she saw Mrs. Skelley kick out the windshield; she did not see her pick up a knife and did not see her slash the screen.

Charles Fuller testified, in behalf of the state, that he was employed by the deceased, De Loyd Skelley, and that at the time that Skelley lost his life, had been working for him about six or seven days; that on the afternoon of the 3d of September, 1935, Mrs. Skelley came into the business establishment of the deceased; that she had in her hand a small pistol; that she went back and talked to the deceased a short while in his office and then left. He stated that in his opinion the defendant was mad at the time she came to the store. He further testified that after leaving the deceased's office, she went and got into the Buick automobile; that the deceased went out and talked to her for a few minutes and when she left she gunned the car and the deceased jumped out of the way and came back into the store and locked the door.

Ethurma Parker testified that on the 3d day of September, 1935, he was working as a porter for the Morris True Fruit Juice Company, which was operated by the deceased, De Loyd Skelley; that on that day he saw Mrs. Skelley; that she came into the store; that she was driving a Buick car; that he talked to her and she asked him if he knew where she could get some cartridges for her pistol; that he told her he thought he did, and would go and call and see; that he first went to the place of business of the deceased to use the telephone and deceased was using the telephone; that he then went into a beauty shop next door and called a drug store down on Reno and came back and told the defendant that she could get the cartridges at this drug store on Reno and Walker.

Luther F. Thompson, called as a witness in behalf of the state, testified that he worked for the Liberty Drug Store, located at Reno and Walker in Oklahoma City; that on the 3d day of September, 1935, the defendant, Mrs. Lahoma Skelley, came to his store and he sold her some pistol cartridges; that she said she wanted to get some shells and had the pistol with her; that he sold her about 19 shells, and put six of them in the gun for her, and she put the other shells in her purse.

George P. Harrison, police department lieutenant of Oklahoma City, testified that on the 3d day of September, 1935, he was called to investigate the shooting of De Loyd Skelley; that he went to 1723-A and B, West Sixteenth street, which was the business establishment of the deceased; that he found on the ground five cartridges, the cartridges being of the same make of those found in the gun with which the deceased was killed. This was after the shooting occurred. Some of the cartridges were found directly in front of the place of defendant, others in front of the adjoining place of business.

P. L. Borden, police officer of Oklahoma City, testified that on the 3d day of September, 1935, he answered a call at 1014 Northwest Thirty-Fifth street, said address being the home of the deceased and defendant; that when he got there the sister of defendant and two small children were at the address, and on an occasional chair in the living room he found a pistol, the pistol being State's Exhibit No. 2; that he looked in the chamber and smelled of the barrel and could see that the gun had been recently fired, one shell having been fired; that the gun was taken to the police station, and later turned over to Mr. Claud Tyler, county evidence man; he also stated that he found another gun in a chest of drawers in the southeast bedroom, this gun was identified as State's Exhibit No. 5; he also found a purse at the home of these parties, and in the purse he found 12 pistol shells; that there was also a large hunting knife in the purse. The knife and the shells, being identified, were introduced in evidence.

W. W. Harbolt, police officer of Oklahoma City, testified that he answered a call at 1014 Northwest Thirty-Fifth street about 10:15 p. m., September 3, 1935; his testimony corroborated the testimony of Officer Borden.

Arahevilla Ridenhour, an aunt of the deceased, testified that she resided at 24 1/2 West Grand avenue, Oklahoma City; that she was well acquainted with the defendant, Lahoma Skelley, and knew her voice and could distinguish her voice over the telephone; that on the night of the 3d of September, 1935, she talked with the defendant, Lahoma Skelley, over the telephone, and defendant asked her if Fred Campbell was at her home; that she told the defendant that he was not there and the defendant asked her if Campbell had paid her some money that was due her, and she told the defendant that he had not; that she was not bothered about the money because De Loyd had promised to pay her; that the defendant then stated that if she, the defendant, found the s__ o_ _ b____'s neither one of them would pay her, and then hung up the phone. She also testified that deceased came by her house in a car sometime before the shooting, but could not state the exact time, but that a negro boy was with him, that he did not get out of the car for the reason that he was double parked and told her that he would be back soon.

C. M. Tyler was called as a witness on behalf of the state, testified that he was the county evidence man in Oklahoma county. He identified the various state's exhibits as having been turned over to him by the various officers, after which said exhibits were introduced in evidence. He testified that the defendant told him they had a fight, and that Skelley struck her on the head with the small gun and she did not know anything after that until she heard her sister calling the ambulance and saw Skelley on the floor. That the deceased Skelley had this gun pointed at her, and she had said, "That will go off," and had gotten ahold of it and pushed it around towards him and the shot was fired. He also stated that she made the statement that when she came home she had put the little gun on the telephone stand or a little stand near the telephone and that Skelley had put the larger gun on the divan in the front room, where he had placed his coat and vest before they had their dinner.

This constituted all of the evidence offered by the state in chief.

Edna Lahoma Skelley, the defendant, was called as a witness in her own behalf, and testified that the deceased, De Loyd Skelley, in his lifetime, was her husband; that they resided at 1014 Northwest Thirty-Fifth street; that he was engaged in the orange juice business and operated a policy wheel, and had an office on Sixteenth street; that he handled from $200 to $300 per day, and on several occasions had been hijacked while returning home late at night; that on the afternoon of the 3d day of September, 1935, about 4:30 o'clock, she went to the office of Dr. Barker; that she went in a cab, and the deceased asked her where she was going; that after she went to the doctor's office she went to her husband's place of business on Sixteenth street and got the Ford car, and came home; that her husband was at home when she arrived, and appeared to be angry, and told her he did not believe she had been to the doctor's office; that she told him to call up and find out; that that led to a quarrel, and that they started quarreling about Fred Campbell; that he had the little hunting knife in his hand, and slapped her several times, and she went back to the kitchen and got a bread knife; that she went and got in the Ford car, which was on the driveway; that he followed her out and took the knife and the keys and started back in the house; that he said, "I think I will just tear things up," and he cut the window screen and threw the knife down and started to leave. She picked up the knife and said, "Well, I will just help you"; and that she then cut the screen; and then told him, "We are acting just like two kids"; and then she went in the bedroom; that she started to leave again, and went and got in the Buick car which was sitting in front of the house; that he came out and got in the Ford and drove the Ford up by the side of the Buick and got out and started to choke her; that she knocked the windshield out of the Buick, and he took the keys and left; that she then went in the house and was around there quite awhile; that she called Wheeler's Garage to see about getting a key for the Buick and then remembered that she had another set of keys at the house for the Buick and went and got them, and then went to Skelley's place of business on Sixteenth street; that at that time she and Skelley were over their mad spell, and he asked her if she was going to the drawing with him that night, and she said, "Yes."

She further testified that the little gun had been given to her by Skelley; that their house had been broken into several different times; that the little gun had been loaned by Skelley and had been returned empty a few days before; that she had the gun with her when she went to Skelley's place of business, and asked Skelley about getting some shells for the gun, and he said: "If you have time, will you get them?" That she asked the porter where to get the shells, and he went and telephoned and told her where she could get them; that she then went to the drug store and bought the shells and had the clerk load the gun for her; that the other shells not placed in the gun were dropped in her purse; that he had some business to take care of and some money to collect and he went in the Ford car and she followed him in the Buick as he told her; that he asked her to keep driving around the block until he collected the money; that they then drove by the Butler Hotel as he wanted to see his aunt, Mrs. Arahevilla Ridenhour, and they stopped there a few minutes, as he was expecting a letter from Kansas City on that day; that she did not make the threat against Fred Campbell or her husband as related by Mrs. Ridenhour; that she did talk to her on the telephone and, at the time she talked to her, her husband was in the breakfast room; that about that time the phone rang and she answered the phone and it was Fred Campbell; that her husband came from the breakfast room through the dining room into the hall where the phone was located, and said: "Give me the phone," and she then hung up the receiver; that he became very angry, and grabbed hold of her; that the little gun which belonged to her had been placed on the writing desk in the hall; that he grabbed the gun off the writing desk and slapped or hit her several times; that she did not have the gun in her hands; that she did not fire the gun, and did not shoot the deceased, or have any intention of shooting him; that in the scuffle the gun was discharged and the next thing she knew they were at the hospital.

On cross-examination the defendant was interrogated at great length concerning her former marriages and concerning the date of her divorce from her last husband, and the date of her marriage to the deceased, De Loyd Skelley. This cross-examination covered 11 pages of the record.

George L. Borecky testified in behalf of the defendant, and stated that he was the county jail physician; that in the month of September, 1935, the exact date he could not remember, he visited the defendant when she was confined in the county jail; that she had been in the county jail about two days when he saw her and had been in the city jail several days before being transferred to the county jail; that he examined her head and she had three abrasions right on the top of her head about the central portion; that they were about three-eighths of an inch long; that at the time of examining them they had scabbed over and were beginning to heal.

Bernice Bovers was called as a witness and testified, on behalf of the defendant, that she was a registered nurse, and was one of the nurses on duty who cared for De Loyd Skelley; that she was called on the case on the evening of September 3d 1935, by Dr. Barker, and went on the case about 11:30; that he had been operated on at that time, and she took charge of the case as he came out of the operating room; that he died on the 5th day of September, 1935, and she was on duty when he died; that Miss Ealy, another nurse, relieved her during the time the deceased was her patient; she was asked the question: "During the time you waited on him, did he talk to you with reference to whether or not he thought he would recover?" Her answer was: "He told me he was going to die." She was then asked: "When did he tell you that?", and she answered: "On the morning that he did die, September 5th." She further testified that after he had told her he thought he was going to die, he stated that he and his wife were scuffling over a gun and it went off accidentally; that he made that statement the day he died, about 20 minutes prior to his death; that she was present when the deceased had a conversation with Clyde Scholes; that Mr. Scholes asked him what happened, and he said: "I got shot"; and that Mr. Scholes asked him if Lahoma shot him, and he said, "No, we were scuffling over a gun, and it went off accidentally, and I don't want her prosecuted."

Sam Beatty, being sworn, testified that he was a graduate of the Oklahoma University Medical School, and was an intern at Oklahoma City General Hospital. That on September 3, 1935, he had occasion to help treat De Loyd Skelley, he did not have any conversation with him himself but heard others ask him how the shooting occurred and he said: "I heard him state that his wife did not shoot him."

Mary Etta Ealy testified that she was a registered graduate nurse, that she took care of the deceased, De Loyd Skelley, at the time he was brought to the hospital; that she was called by Dr. Barker on the case; that De Loyd Skelley told her there was no use for him to try to recover that he could not make it; that Officers Riggs and Jeter came to the hospital to talk to Skelley and he asked her to listen to the conversation; that Skelley stated to the officers: "My, God, we were scuffling over a gun and I don't want anything done. I want to free her, and I want to see her."

Clyde Scholes testified that he had worked for De Loyd Skelley from the first part of June, 1935, up until September 3, 1935; that he was working for him at the time of his death; that he saw Mrs. Skelley come in the store in the afternoon before Skelley was shot that night; that she did not appear to be angry when she came in, was smiling when he saw her. She went to the rear of the store and talked to Skelley and there was no demonstration or quarrel at that time. Later she and her sister came back to the store. Skelley went out to the car and talked to her, he did not pay any particular attention to what they were doing as no one had given him any reason to think anything was wrong. There was no fight at the car; that he went to the hospital after Skelley was shot and saw Skelley about 12:10 or 12:15, and Skelley was aware of the fact that he was not going to recover. He further testified as follows: "Q. What did he say? A. I asked how it happened, did Lahoma do it, and he said, 'No, it was an accident,' and asked me to call her up and see how she was getting along." A young lady nurse was there at the time of this conversation.

Zelda McLemore testified that she was a sister of the defendant, and was living at the Skelley home at the time of the shooting, was at the home the night the accident occurred; that Mr. and Mrs. Skelley came in about 10 or 10:30; that she was preparing for bed when she heard the report of the pistol. She heard the telephone ring, but did not pay any attention to it; the radio was on and she did not hear any noise or scuffling prior to the report of the gun; that when she heard the report of the gun she ran down into the living room, Skelley was lying on the floor and Mrs. Skelley was partly lying on the floor, she asked what had happened, and he said: "Zelda, there is an accident, call an ambulance," and he told her to call Dr. Barker, then took a large gun from his trousers and handed it to her and told her to put it away.

Charles E. Riggs testified that he was a city detective in the Oklahoma City police department, he had been a peace officer since 1921, had known the deceased, De Loyd Skelley, for approximately ten years; was called upon to investigate the shooting of De Loyd Skelley, that he and Officer Jeter went to the hospital the next day and talked to Skelley; that the nurse was present; that Skelley told him he had just a few hours to live and he would like to have his wife turned loose and brought up there to stay with him while he was alive. He further testified:

"Q. Did he say anything with reference to how he was injured? A. He did. Q. What did he say? A. He said they were scuffling over a pistol and it went off, and it was an accidental shot."

Paul Jeter testified that he was employed by the Oklahoma City police department; that he went to the hospital after the shooting of De Loyd Skelley with Officer Charlie Riggs. His evidence was as follows:

"Q. Did you hear him make any statement as to how the accident occurred, or how he got shot? A. Yes, sir. Q. What did he say with reference to that? A. He said it was an accident. Q. Did he say anything else that you heard? A. Yes; he said some other things. Q. What were they? A. He said he wanted his wife turned loose and brought to the hospital."

Mrs. Arahevilla Ridenhour was called on rebuttal and testified that she went to the hospital to talk to De Loyd Skelley and he told her he was going to die, and further testified as follows:

"Q. Then did he make a statement to you about who shot him or how he come to be wounded? A. I asked him who shot him. Q. What did he say? A. He said Lahoma shot him. Q. What else did he say? A. I asked what in the world were you doing to let her shoot you, and he said he didn't know the gun was loaded."

With the close of the evidence the court instructed the jury. Counsel for defendant offered the following requested instruction:

"You are instructed that the defendant claims that the death of the deceased was brought about and caused by an accidental shooting and you are instructed that if you find from the evidence, or if you have a reasonable doubt thereof, that the death of the deceased was the result of an accidental shooting you should find the defendant not guilty and so say by your verdict."

The refusal of the court to give this requested instruction, together with the giving of other instructions, is assigned as error. It will be noted from a reading of the evidence in this case, and especially the evidence of the defendant, that the defense relied upon by defendant was that of "excusable homicide," based upon "accidental death." The defendant claimed that she did not have possession of the gun at any time and that, in the scuffle between herself and deceased, the gun was accidentally discharged. An examination of the instructions given by the court reveals that the jury, at no time, were given an instruction outlining the defense offered by the defendant in this case, that of "accidental homicide," and when a requested instruction was offered by counsel for defendant the same was overruled by the court, to which the defendant excepted. The only charge given by the court that in any way referred to "excusable homicide" was instruction No. 12, which simply set out the statute, Okla. Stat. 1931, § 2235, Okla. St. Ann. tit. 21, § 731, p. 314, as follows:

"Homicide is excusable in the following cases: First, when committed by accident and misfortune in doing any lawful act by lawful means with usual and ordinary caution and without any unlawful intent, or, second, when committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, provided that no undue advantage is taken, nor any dangerous weapon is used, and that the killing is not done in a cruel and unusual manner. (Excepted to as not correct instruction on defendant's theory. Exception allowed. Clarence Mills, Judge.) "

We are of the opinion that the mere quoting of this statute, as above given, was not a sufficient instruction presenting to the jury the defense of the defendant as shown by the record in this case. There was no plea of self-defense, yet the judge presented to the jury instruction No. 17, as follows:

"You are instructed that if a person is assaulted in such a manner as to produce on the mind of a reasonable person a belief that he is in actual danger of losing his life or suffering great bodily harm, he will be justified in defending himself, though the danger be not real, but only apparent, and such person will not be held responsible criminally if he acts in self-defense from real and honest conviction as to the character of the danger, induced by reasonable evidence, though he may be mistaken as to the actual extent of the danger.

"In determining whether or not the defendant had reasonable cause to apprehend or fear death or great bodily harm at the time and place here in question, the jury should, as far as possible, place themselves in the position occupied by the defendant at that time, and view the facts and circumstances of the case from the standpoint of the defendant and as they reasonably appeared to her, and if, after so doing, you entertain a reasonable doubt as to whether or not, at that time, she had reasonable grounds to apprehend or fear death or great bodily injury, and in good faith acted upon that apprehension, you should resolve that doubt in favor of the defendant and acquit her."

This instruction was followed by instruction No. 18, as follows:

"You are instructed that the right of self-defense is given to the citizen for her protection, and it cannot be pleaded as a defense and relied upon for an acquittal by one who, herself, is the aggressor, or by one who enters voluntarily into a difficulty, armed with a deadly weapon, no matter how great her danger or how imminent her peril may become during the course of the difficulty. (Excepted to by defendant. Not applicable to case. Exception allowed. Clarence Mills, Judge.) "

From a reading of these charges, it will be seen that the view of the court was that the defendant was entering a plea of self-defense and failed to consider the plea of "excusable homicide" by reason of "accidental death." From the instructions given as a whole, there is not much doubt that the jury considered her guilt from the standpoint of whether she acted in self-defense and not as to whether the shooting was accidental. Instruction No. 18 only had a tendency to confuse the jury and distract their mind from the real defense offered by this defendant, that of "excusable homicide" by reason of accident.

Not only this court, but every court in the land, has uniformly held that it is the duty of the court to present to the jury instructions in plain and concise language, giving not only the contention of the state, but that of the defense, which is substantiated by evidence offered by the defendant upon a material issue, and it has always been held reversible error for the court to fail to give an instruction covering defendant's theory or defense, where the issue is material. Payton v. State, 4 Okla. Crim. 316, 111 P. 666, 667; McIntosh v. State, 8 Okla. Crim. 469, 128 P. 735; Crittenden v. State,13 Okla. Crim. 351, 164 P. 675, 676; Golpi v. State,14 Okla. Crim. 564, 174 P. 288; Tubby v. State, 15 Okla. Crim. 496, 178 P. 491; Davis v. State, 20 Okla. Crim. 203, 201 P. 1001; Moore v. State,35 Okla. Crim. 257, 250 P. 538, 539; Miles v. State,41 Okla. Crim. 283, 273 P. 284, 286; Johnson v. State, 59 Okla. Crim. 283,58 P.2d 156, 162.

In Payton v. State, supra, Judge Furman, Presiding Judge of this court, said:

"The court instructed the jury with reference to the law applicable to the evidence for the state, but the charge is silent as to the issue presented by the testimony for the defendant. As we understand the law, a defendant has the right to have a clear affirmative charge based upon the hypothesis that his testimony and the testimony of his witnesses is true, when this testimony affects a material issue in the case.

"Counsel for defendant requested eight special instructions, all of which were refused by the court. While we are not prepared to say that the court erred in refusing any one of the requested instructions, yet their general effect was to call the attention of the court to the point in issue, and the court should have instructed the jury correctly as to the law with reference to purchasing property in good faith, and then left it to the jury to say which testimony they believed. For this defect in the instructions, the case is reversed and remanded."

In McIntosh v. State, supra, the court said:

"Where an issue is properly presented by the evidence and the defendant requests it, he is entitled to an instruction upon the hypothesis that his testimony is true."

"Where the evidence reasonably presents that issue in a murder case, it is the right of the defendant to have a clear, affirmative, and clean-cut instruction upon the law of self-defense."

"Where an instruction requested by the defendant is not in proper form but pertains to a material issue in the case as made by the evidence, the court should correct it and give it in proper form, if it has not otherwise properly instructed the jury upon that issue."

In Crittenden v. State, supra, Judge Matson, speaking for the court, says:

"Upon the trial counsel for the defendant requested the following instruction, which was refused and an exception to the action of the court in refusing to give the same properly preserved at the time, and in the motion for new trial and in the petition in error:

" 'The jury is instructed that, if you believe from the evidence, or have a reasonable doubt thereof, that the defendant John Crittenden bought the steer in controversy in good faith from Julius Garland, not knowing the same had been stolen, then in that event you will acquit the defendant John Crittenden.'

"The trial court did not give any instructions in any way covering the defense relied upon. In our opinion, therefore, the refusal to give this requested instruction, or one affirmatively covering the defense interposed, is reversible error.

"The defendant * * * has a right to have a clear and affirmative instruction given to the jury applicable to his testimony, based upon the hypothesis that it is true, and when such testimony affects a material issue in the case."

In Miles v. State, supra, Judge Doyle, speaking for the court, says:

"The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury has been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside."

In Tubby v. State, supra, which was a murder case where the death penalty was assessed, in reversing the same, the court said:

"It is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support when the defendant requests it."

In the case of Moore v. State, supra, Judge Doyle says:

"This court has repeatedly held that it is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support, when the defendant requests it and when such evidence affects a material issue in the case. * * *

"We are of the opinion that in this case the refusal of the court to give the requested instruction, or one affirmatively covering the defense interposed, was reversible error."

In the case of Johnson v. State, supra, the defendant was charged with manslaughter in the first degree. It was claimed that he killed the deceased by hitting him with his fist. Defendant presented the defense that the killing was by accident and misfortune, and therefore, excusable homicide, as defined by the statute. The reported case does not give the instructions of the court, but we have examined the original record in the case, and find that the court, in instruction No. 12, gave the identical instruction as is given in the case at bar on excusable homicide, just as the statute defines it. The defendant then requested the court to instruct the jury as follows:

"You are further instructed that homicide is excusable in the following cases: When committed by accident and misfortune, in the heat of passion, upon sudden and sufficient provocation, or upon any sudden combat, provided that no dangerous weapon is used and the killing is not done in a cruel and unusual manner; and in this connection you are instructed that, if the homicide was committed by the defendant by accident and misfortune in the heat of passion, upon any sudden or sufficient provocation, or upon a sudden combat, and that the killing was not done in a cruel and unusual manner and not with a dangerous weapon, the homicide would be excusable, and you should find the defendant not guilty."

This instruction was refused by the court and the defendant excepted. It was in accordance with the defense offered in that case, just as was the requested instruction in the case at bar. Judge Doyle, speaking for the court, in reversing the case for the failure of the court to give this and other instructions, says:

"It follows that the court, in refusing to give the requested instructions, denied to the defendant the right to have the jury properly instructed as to the law of the case and to say by their verdict whether he went farther than the law justified in preventing a trespass upon his premises and in defense of his person from threatened assault. * * *

"When requested, the defendant is entitled to an affirmative instruction covering any defense interposed when there is evidence tending to support such defense."

This case is directly in point with the issue raised in the case at bar.

The cases cited in the brief of the state fully uphold the principle announced above. In the case of Brandley v. State,14 Okla. Crim. 479, 173 P. 661, the court says:

"When a person is tried upon a charge of murder, he is entitled to have all of the law applicable to his defense clearly stated to the jury in the charge of the court."

And cites with approval the cases of Turnbull v. State,8 Okla. Crim. 459, 128 P. 743, and Swan v. State, 13 Okla. Crim. 546,165 P. 627, both of which sustain the principle or rule above announced. We have heretofore referred to the case of McIntosh v. State, 8 Okla. Crim. 469, 128 P. 735, which is also cited by the State. The case of Parsons v. People, 218 Ill. 386, 75 N.E. 993, 994, relied upon by the state is not in conflict with the law as here announced. In that case there is nothing to show that the court did not instruct the jury upon the question of excusable homicide by accidental killing. An exception was taken to the instruction defining justifiable or excusable homicide given in the words of the statute. The court held that this was not error. We do not think it was error in the case at bar to define excusable homicide as defined by the statute, but we do believe that the court should have also presented to the jury an instruction giving defendant's theory of the case, under the statute, St. 1931, § 2237, 21 Okla. St. Ann. § 733.

The case of People v. Stokes, 11 Cal. App. 759, 106 P. 251, relied on by the state, is in no wise conflicting with the decisions above quoted. It was not contended in that case that the killing was accidental, nor did the defendant present to the court an instruction setting out this defense as in the case at bar.

The case of State v. Estes, 52 Utah, 572, 176 P. 271, 275, is clearly not in conflict with the position above taken. There is nothing to show that the question here involved was in this case.

This has been the uniform holding of the courts of other states. 14 Rawle C. L. 799, § 58; 30 C. J. 364; State v. Markel,336 Mo. 129, 77 S.W.2d 112; Campbell v. Commonwealth, 162 Va. 818,174 S.E. 856; State v. Ledbetter, 332 Mo. 225,58 S.W.2d 453; Smiley v. Commonwealth, 235 Ky. 735, 32 S.W.2d 51; State v. Stewart, (Mo. Sup.) 29 S.W.2d 120; People v. Rallo, 119 Cal. App. 393,6 P.2d 516; Roberts v. State, 112 Ga. 542, 37 S.E. 879; French v. Commonwealth, 88 S.W. 1070, 28 Ky. Law Rep. 64. In Wharton on Homicide, § 354, p. 568, it is said:

"And when there is evidence in a prosecution for homicide tending to show misadventure, failure to instruct the jury as to the law with reference thereto is error, though no request was made for such instruction."

The evidence offered by the state in this case, so far as the actual shooting was concerned, was highly dependent upon circumstantial evidence. No eyewitness was produced by the state. The only witness in the home at the time of the shooting, besides the defendant and deceased, was a sister of defendant, Miss Zelda McLemore. She was in her room and did not witness the difficulty. Her attention was first attracted by the shooting and, when she immediately appeared at the scene, the deceased said: "Zelda, there is an accident, call an ambulance." These were the first words uttered by the deceased after the shooting occurred. The deceased stated in the presence of six disinterested witnesses, among them being veteran officers of the law and highly trained nurses, that it was an accident; that they were scuffling over a gun and that she should not be prosecuted.

The defendant was arrested on the same night of the shooting. She was taken to police headquarters, she at that time made a written statement, and while this written statement was not introduced in evidence, when the county evidence man, Mr. Tyler, was on the witness stand, he testified that he had seen this statement; that the same was in the files of the county attorney, and the attorney for the defendant, while examining him, read from the statement, and it was revealed that the statement was practically the same as the evidence given by the defendant at the trial of this case. In this statement made on the night of the shooting she stated that the shooting was an accident and that deceased had made the same statement while on the elevator at the hospital while on his way to the operating room. From the above evidence it clearly appears that the defense offered by the defendant was that of excusable homicide by reason of an accident. The defendant was clearly entitled to a clear concise instruction giving her theory of the case, based upon the evidence offered.

It is contended by defendant that the court erred in permitting the county attorney, on cross-examination of defendant, to go into the marriage relation of defendant and deceased, for the purpose of showing that she had married the deceased in the state of Illinois prior to six months from the date of her divorce and that they had returned to Oklahoma to live after the marriage. In another trial of this case these questions will probably not arise and it therefore becomes unnecessary for this court to pass upon this assignment of error. However, we call attention to the following cases from this court in which questions similar to this have arisen and with which all parties will in all probability familiarize themselves prior to the retrial of this case. Price v. State, 1 Okla. Crim. 358, 98 P. 447; Flohr v. Territory, 14 Okla. 477, 78 P. 565; Watson v. State,7 Okla. Crim. 590, 124 P. 1101; Appleby v. State, 11 Okla. Crim. 284,146 P. 228; Hager v. State, 10 Okla. Crim. 9, 133 P. 263; Scott v. State, 13 Okla. Crim. 225, 163 P. 553.

For the reasons above stated, the judgment of the district court of Oklahoma county is reversed, and defendant granted a new trial.

DAVENPORT, P. J., concurs.