Coulson v. State

I cannot concur in the majority opinion for two reasons: First, because the evidence was not incompetent.

The evidence of the state was that the defendant and one Richardson were both drunk, and the defendant stopped opposite the deceased and ordered him to get up, and that, as deceased started to get up in response to the command of the defendant, defendant struck deceased a blow on the neck with his fist; that deceased staggered a short distance to the north and fell, and died within 20 or 30 minutes as the result of a broken neck caused by the blow struck by defendant.

Defendant claims that he made a remark to Richardson as he passed these negro boys that he would take him down to the park in his automobile, but that same had been stolen by a nigger. That thereupon deceased jumped up from the place where he was sitting and said to the defendant, "Who are you calling a nigger, you white son-of-a-bitch," and that thereupon deceased struck defendant two or three blows with his fist, and that defendant only struck deceased once with his fist in his own self-defense.

The court permitted the state, in rebuttal to this claim that the deceased made a violent and unprovoked attack upon the defendant, to introduce evidence that the deceased was of quiet and peaceable character. Defendant contends that this was error, for the reason that the defendant had not put the character of the deceased as a peaceable and quiet citizen in issue.

The question presented is whether or not in a homicide case, where the issue of self-defense is presented, and the defendant and his witnesses testify to facts that make the deceased the aggressor and show an unprovoked attack by deceased on the defendant, that lays a sufficient predicate to authorize the state in rebuttal to introduce evidence of the character of the deceased as a peaceable and quiet citizen to rebut the inference that as such citizen he would not likely make the attack as testified to by the defendant and his witnesses.

On this question the authorities are divided, and this court now for the first time passes upon same. Some authorities hold that before evidence of this kind is admissible in rebuttal it is necessary for the defendant to have made a direct attack upon the reputation of the deceased as a peaceable and quiet citizen. There are other authorities, however, which hold that, where the defense is self-defense and where the evidence of the defendant and his witnesses is that the deceased made an unprovoked attack upon defendant and that deceased was the aggressor, this evidence sufficiently raises the issue of the character of the deceased to entitle the state in rebuttal to show that the deceased was a peaceable and quiet citizen.

In the case of Fields v. State, 134 Ind. 46, 32 N.E. 780, the court said:

"Where defendant, on trial for murder, testifies that deceased assaulted him, and that he apprehended great injury from the assault, the peaceable character of deceased may be shown in rebuttal."

In the case of Thrawley v. State, 153 Ind. 375, 55 N.E. 95, 97, that court said:

"On behalf of appellant no reputation witnesses were produced to show that the character of deceased for peaceableness was bad. Appellant did not testify, but his defense was that he killed deceased in a hand-to-hand encounter, in the proper defense of his person from an apparently felonious assault by deceased. On rebuttal the state proved the good reputation of deceased for peaceableness. * * * The character for peace of each of them was presumed to be good, in the absence of evidence. But the evidence of the state in support of the charge against appellant was such an attack upon his character for peace as to authorize him to introduce his good character as a substantive fact, involved in the transaction, * * * without the state's consent. So the evidence of appellant in support of the charge against deceased was such an attack upon his character for peace as to authorize the state to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without appellant's consent."

In Fields v. State, supra, Fields squarely raised the very question presented by Thrawley, and the court said:

"The defendant testified that the deceased assaulted him, and that he apprehended great injury to life or limb from the assault. On rebuttal the court permitted the state to prove that the deceased was a peaceable, quiet man. This was not erroneous."

On the question as to whether or not deceased was in fact the aggressor, this evidence was admissible in negation of appellant's declaration that he was, just as evidence of appellant's good character for peace would have been received in disproof of the state's evidence that appellant was the aggressor. See, also, State v. Wilkins, 72 Or. 77, 142 P. 589; McKie v. State, 165 Ga. 210, 140 S.E. 625; Ferguson v. State,138 Tenn. 106, 196 S.W. 140; Webster v. State, 207 Ala. 668,93 So. 545; State v. Holbrook, 98 Or. 43, 188 P. 947, 192 P. 640, 193 P. 434; Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50.

Where there is evidence that the homicide was committed in self-defense, or the evidence is wholly circumstantial and the character of the transaction is in doubt, the character of the deceased is competent. State v. Banner,149 N.C. 519, 63 S.E. 84; Green v. State, 143 Ala. 2, 39 So. 362; Wells v. State, 18 Tex. App. 417[18 Tex.Crim. 417]; Heffington v. State,41 Tex.Crim. 315, 54 S.W. 755; Spangler v. State, 41 Tex.Crim. 424,55 S.W. 326; Fields v. State, 134 Ind. 46, 32 N.E. 780; Thrawley v. State, 153 Ind. 375, 55 N.E. 95; State v. Wilkins, 72 Or. 77, 142 P. 589; McKie v. State, 165 Ga. 210, 140 S.E. 625; State v. Morey, 25 Or. 241, 35 P. 655, 36 P. 573; People v. Anderson,39 Cal. 703; Bowlus v. State, 130 Ind. 227, 28 N.E. 1115; Cook v. State, 5 Ala. App. 11, 59 So. 519; State v. Jones, 48 Mont. 505, 139 P. 441; Barnett v. State, 76 Tex.Crim. 555, 176 S.W. 580.

There is no division of authorities upon the question that the state may not introduce evidence of the character of the deceased until the defendant puts the question in issue. The division arises upon the question of what evidence is necessary to put the character of the deceased in issue. The authorities relied upon in the majority opinion are to the effect that self-defense and proof by defendant of an unprovoked attack by deceased are not sufficient to put the character of the deceased in issue, while the authorities cited in this dissenting opinion hold to the contrary.

Under the Constitution and laws of the state of Oklahoma and the liberal construction put thereon by this court, I am of the opinion that this court should follow those authorities which adopt the more liberal rule and should hold that the evidence introduced by the state was competent under all of the facts and circumstances as detailed by the defendant and his witnesses in his defense.

The second reason why I cannot agree with the majority opinion of the court is that, even if the evidence was incompetent, that furnishes no sufficient ground for a reversal of the case.

Section 2822, C.O.S. 1921, provides:

"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

Under the provisions of this section, this court may reverse the case on one of two grounds: First, when there is a miscarriage of justice.

The facts in this case disclose a wanton and unprovoked attack by a full-grown man upon a defenseless sixteen year old colored boy, which resulted in the almost immediate death of the boy. The defendant had a fair trial; the evidence amply supports the verdict of the jury; and the errors of law complained of are all technical and without merit. To reverse this case will cause a miscarriage of justice and defeat the very purpose for which section 2822, supra, was enacted and set at naught the many holdings of this court beginning with George v. U.S.,1 Okla. Cr. 307, 97 P. 1052, 100 P. 46, and coming down through all the decisions of this court to this date.

Second. This court may reverse a case where the defendant has been deprived of a constitutional or statutory right.

There is no statute nor constitutional provision in Oklahoma making the evidence complained of in this case incompetent. The rule contended for by defendant and supported by the majority opinion of this court is wholly case law, except in the state of Texas, where same is regulated by statute. The defendant was not deprived of a statutory nor constitutional right by the admission of this evidence, and such error, if any, furnishes no ground for a reversal of the cause.

For the reasons stated, I cannot concur in the majority opinion of this court reversing the case.