Foster v. State

First. Every word of the testimony offered by appellant and excluded by the court was competent and material, and should have been admitted. This offered evidence is fully set out in the statement of the case accompanying this opinion, and it is not necessary to restate it here.

The offer to introduce in evidence the files in the injunction proceedings pending against appellant in the district court of Jefferson county should have been received, because under these proceedings it was the duty of appellant to keep the infant child in question within the jurisdiction of the court, and not to allow any person to take it out of such jurisdiction until the matter was finally adjudicated by the court; and in attempting to do this if he acted in good faith, which was a question for the jury to determine, he was simply obeying an order of the court, and was thereby within his legal rights and duty. We cannot understand why the court would not permit appellant to prove that deceased had threatened to kill appellant and other members of his family. We suppose it was upon the theory that the issue of self-defense had not been presented. If this assumption is correct, the ruling of the court was proper; but the state introduced a number of witnesses who testified to statements made by appellant with reference to the fatal difficulty. If these statements had been offered by appellant, they should have been excluded, upon the ground that they were self-serving declarations; but, the state having introduced them in evidence, it could not select such portions as were against appellant and ignore those parts which were favorable to him; and appellant was entitled to any benefits which might reasonably arise from such statements, unless they were proven to be untrue by other evidence, and in these statements appellant said that the deceased shot at him first. This raised the issue of self-defense, which the jury should decide, under proper instructions from the court. Wherever the issue of self-defense is raised, it is competent for the defendant to offer evidence of threats to do him injury, made by the deceased, and of previous hostile demonstrations toward defendant by the deceased or others acting with him, whether he was aware of such threats or demonstrations or not. Such threats and demonstrations are in no sense of the word hearsay evidence; but they constitute original testimony, and should be received in such case and considered by the jury for what they are worth. InOffitt v. State, 5 Okla. Cr. 48, 113 P. 554, Judge Armstrong, speaking for the court, said:

"On a trial of a person charged with murder, evidence tending to show that the deceased had made threats against the appellant is competent, and should be admitted when the issue of self-defense is presented."

See, also, White v. State, 4 Okla. Cr. 143, 111 P. 1010, and Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766. For a full discussion of the philosophy of the law of threats, see Morris v. Territory, 1 Okla. Cr. 624, 99 P. 760,101 P. 111. It would be well for all trial judges in Oklahoma to make themselves familiar with what is there said, because it represents the mature views of this court, and will be followed as a precedent. If this case is ever tried again, all of the evidence offered will be material and competent, and should be admitted.

Second. Exceptions were reserved to the instructions of the court upon the subject of circumstantial evidence; but it would be a waste of time to discuss this kind of testimony here, because this is in no sense of the word a case of circumstantial evidence. Where a defendant admits the killing, or where there is any direct evidence that the defendant did kill the deceased, a charge on circumstantial evidence should not be given. We do not deem it necessary to discuss the accuracy of the instructions given in this case, as the case will have to be reversed upon other grounds, and as the error complained of cannot possibly occur upon a second trial, because no instruction upon this subject should be given.

Third. Section 2300, Comp. Laws 1909, is as follows:

"Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, with intent, either: 1st. To cause such other person to be secretly confined or imprisoned in this state against his will; or, 2nd. To cause such other person to be sent out of this state against his will; or, 3rd. To cause such person to be sold as a slave, or in any way held to service against his will, is punishable by imprisonment in the state prison not exceeding ten years. Upon any trial for a violation of this section, the consent thereto of the person kidnapped or confined, shall not be a defense, unless it appears satisfactorily to the jury, that such person was above the age of twelve years, and that such consent was not extorted by threat, or by duress."

Section 2290, Comp. Laws 1909, is as follows:

"Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or, 2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or, 3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace."

Under the order of the court in the injunction case, it was the duty of appellant to prevent the baby from being carried beyond the jurisdiction of the court until the matter was finally determined. As the baby was under twelve years of age, the attempt upon the part of the deceased to carry the baby into the state of Texas, under the evidence in this case, constituted kidnapping, although the baby may have gone with him of its own free will and accord. When appellant was informed of the attempt to kidnap the baby, it was his right and duty to use all necessary means to prevent this from being done. If appellant was informed that deceased was armed with a shotgun, and had been informed of the previous threats and hostile demonstrations of deceased, appellant had the right to arm himself and pursue deceased to prevent him from carrying his illegal purpose into execution; and if appellant acted in good faith and had reasonable ground to believe that there was imminent danger that deceased would kidnap the child, under section 2290 hereinbefore quoted, appellant had the right to use all reasonable, necessary, or apparently necessary, means in his power to prevent the commission of this felony. This is the plain statute law of the state, and it is not open for discussion; and the court, by proper instructions, should have submitted this question to the jury and allowed them to pass upon the good faith of appellant. We find no such instruction in the record.

Fourth. Among other things, the court instructed the jury as follows:

"If the jury find from the evidence that the conduct of Burgett at the time of the homicide was such as to reasonable lead the defendants to believe that Burgett was about to inflict some great bodily harm upon their persons, and the jury further find that the defendants were not at fault in bringing on the difficulty, and that the defendants could not have retreated without increasing their danger, and that the defendants acted upon such reasonable belief of great bodily harm being done them at the hands of the deceased, Burgett, then the jury should acquit the defendants."

The portion of the instruction which required the jury to find that the appellant should have retreated before he could act in self-defense is not the law, and should not have been given. This instruction has been repeatedly condemned. See Price v.State, 1 Okla. Cr. 384, 98 P. 447; Floyd v. State,5 Okla. Cr. 65, 113 P. 212; Fowler v. State, ante, 126 P. 831, decided at the present term.

As was said by this court in the case of Fowler v. State,supra:

"Under the old common law, no man could defend himself until he had retreated, and until his back was to the wall; but this is not the law in free America. Here the wall is to every man's back. It is the wall of his rights; and when he is at a place where he has a right to be, and he is unlawfully assailed, he may stand and defend himself; and cases sometimes arise in which he has the right, when unlawfully assailed, to advance and defend himself until he finds himself out of danger."

Fifth. Among other things, the court instructed the jury as follows:

"And in the event you find that any witness has willfully testified falsely relative to any material matter in issue you are at liberty to disregard the whole of such witness' testimony, except in so far as the same may be corroborated by other credible witnesses, or by some other facts and circumstances appearing upon the trial."

This instruction has been so often condemned by this court that it is needless to cite the cases in which this has been done, as every one who has paid the least attention to what has been decided is already familiar with the law upon this subject. We cannot understand why trial judges disregard what has been decided. They should know that by doing so they are simply inviting a reversal of their judgments, as it would be folly for this court not to enforce its decisions. The practice must be uniform in the state. The effect of the latter clause given was to take away from the jury the right to judge of the credibility of the witnesses. If the jury find that any witness has been successfully impeached in any manner, they are not bound to believe him, because he has been corroborated, as this instruction would require them to do.

There are a number of other errors assigned which it is needless to discuss, because we think that what has already been decided is decisive of the case if it is ever tried again.

The judgment of the lower court is therefore reversed.

ARMSTRONG and DOYLE, JJ., concur.