90 P.2d 949 | Okla. Crim. App. | 1939
Defendant was charged with murder in Pittsburg county; was tried, convicted of manslaughter in the first degree, and sentenced to serve four years in the penitentiary, and has appealed.
The first contention of defendant is, that the court erred in overruling his motion for a continuance. This contention is based upon the fact that defendant filed a praecipe for a witness on the 2d day of October, 1937, and that the subpoena did not reach the deputy sheriff for service until the afternoon of October 4, 1937, and that the witness had left the county and could not be served. And he alleges "that if said cause is continued that he can procure the evidence of the said Wister Standerfer by the next term of court." It was set out in this motion that this witness would swear that a few days prior to the killing of deceased by defendant, he had ridden in a truck with deceased and his son, and that deceased said he was going to have some trouble with defendant over a woman, "but that it did not make any difference to him, that he was prepared for him, and at that time deceased exhibited to him a six-shooter that he was carrying." At the time the motion was presented counsel for defendant offered evidence to substantiate the facts with reference to the filing of the praecipe and the issuance of the subpoena. The court stated he would take for granted that all the facts alleged in the affidavit for continuance were true, that the witness was not an eye-witness, and he would overrule the motion. We have examined the record and do not find that the court erred in overruling this motion under the decisions of this court. Ford v. State,
It is next contended by defendant that the evidence was sufficient to sustain the verdict. The defense offered in this case was: (a) self-defense, and (b) insanity. It is revealed by the record that defendant was 40 years of age, and had resided in Hartshorne, Pittsburg county, all of his life, and had worked in the coal mines 22 years, and until they closed, and was now driving a truck on W.P.A. That he had married Ida Westfall when she was 15 years of age and he was 19. That they had 8 children, 7 of whom were then living, and their ages ranged from 2 to 18 years. That he owned his own home until the mines closed. That he had never had any trouble with his wife or family until about July 10, 1937, when on that night he returned to his home and she was not there. That he prepared his supper, and finally went to bed, but could not go to sleep. That she did not return until about 2:30 or 3 o'clock a. m. That at this time she came in with her sister, Mary Irvin, and they were both drunk. That they told him they had been to Krebs drinking beer. That he told his wife "to get out and stay out," and that she left home. *223 That he could not sleep and finally got up and dressed, and went to Mary Irvin's home. He was there told by Mary Irvin that she and his wife had gone with "Estol Barnes," the deceased, to Krebs and drank beer, and that his wife got very drunk, and she had kept her out for the purpose of sobering her up, but also assured him she had done nothing wrong, and he took his wife home. That he continued to live with his wife as usual, and worked on W.P.A., and started to hauling hay for Albert Long and Bill Barnhill. That he became sick, and was examined by two physicians who said he had "gonorrhea." The evidence revealed that his wife admitted to him she had intercourse with the deceased, Estol Barnes, and that she had taken this disease from deceased and had transmitted it to him. This evidence was given by a daughter of defendant who heard the conversation between her father and mother. Different doctors also testified that the deceased, the defendant, and defendant's wife were all afflicted with this disease. A great deal of evidence was introduced in reference to this matter, and a great deal was offered which the court did not permit to go to the jury, and to which reference will be made later.
The facts pertaining to the actual killing were that deceased, on the 5th day of August, 1937, entered "Gooby's Lunch Room," in the city of Hartshorne, and ordered a dish of chili. He was sitting on a stool facing the south and with his back to the entrance door at the north. That as he raised his spoon to his mouth, the defendant entered the door at the north. He immediately raised his gun and fired two shots at deceased, both of which struck deceased in the back and passed through his body. That deceased started toward the back of the building and one more shot was fired by defendant. That deceased, when he reached the outside door, collapsed. He was examined by a doctor and others and was taken to a hospital and died as a result of the gunshot wounds inflicted by defendant. *224
The above evidence was given by four eye-witnesses who were in the lunch room and witnessed the shooting. Two of them were young ladies who were working there, and the other two were customers who were being served. There was no material difference in the testimony of these four witnesses. There was no testimony on the part of any witness with the exception of defendant that the deceased made any movement or demonstration of any kind toward defendant. All of the witnesses testified he had no firearm, or weapon of any kind. After the shooting defendant walked up the street with his gun in his hand and was arrested by an officer to whom he surrendered.
From a statement of the evidence as above outlined, it will be seen that the evidence was not only sufficient to convict the defendant of manslaughter in the first degree, but that it would have sustained a verdict of murder.
We shall now refer to some of the specific errors assigned. It was, and is, contended by defendant that he was insane at the time he fired the fatal shots which took the life of deceased, and that the court erred in refusing the admission of certain evidence by nonexpert witnesses as to their opinion as to his sanity. We have carefully read the record. The trial court, following the rules announced by this court in the cases of Turner v. Territory,
In the case of Lee v. State, supra, the facts were very similar to those in the case at bar. This case gives the testimony offered by certain nonexpert witnesses, and it is very much like the evidence here offered and part of which was excluded. However, in the instant case the court permitted much of the evidence to go to the jury and the jury was permitted to judge the weight thereof. Marshall v. Territory,
"Before submitting the case to the jury, the court instructed the jury not to consider any of the evidence relating to the question of insanity. It has been held that temperamental eccentricities of mind and conduct, alone, are not evidences of insanity. A man may do the most extraordinary things; he may recklessly squander his money; his conduct may be the subject of ridicule; he may be addicted to sudden bursts of passion and of harsh treatment towards those he should treat with tenderness; his deportment upon a particular occasion may be an outrage upon decency and propriety. All this, if it be the result of eccentricity of character, or of depraved taste, or an unfortunate temper, and does not proceed from a *227
permanent disorganization of the mental faculties, will not support a, plea, of insanity. 16 C. J. 99, 100; 32 C. J. 597; Hopkins v. State,
"The opinion of a nonexpert witness that a person is irrational, based on observations of this character, is a conclusion merely, not warranted by the facts. Most persons have some temperamental peculiarities of thought and action that to others seem queer. The term 'irrational' is an elastic term, one that may convey one idea to one person and an entirely different idea to another. 'Irrational' may mean unreasonable, foolish, absurd, and a person in such sense may be irrational, and still not be, in any legal sense, insane. If it could be shown as a defense in every homicide case that the perpetrator at some period of his life acted queer, unreasonable, or absurd, that defense could be interposed and relied upon in all homicide cases. To establish a legal defense on the ground of insanity, there must be a showing that at the time of the commission of the deed the person accused was laboring under such a defect of reasoning, from some disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know, that he did not know that what he was doing was wrong. Notes and cases cited, 32 C. J., supra.
"Idiosyncrasies, peculiarities, or unreasonable conduct may be a symptom of insanity, where these are due to some disease of the mind, and where it is shown that at some prior period of the man's life he was not so afflicted."
In the case of Tapedo v. State,
"In cases where insanity is interposed as a defense, opinion evidence of insanity must be based upon facts submitted as a foundation for such opinion. Mere conclusions, without a showing of facts upon which such conclusions may logically be drawn, are regarded as insufficient."
Finding no error, we are of the opinion that the judgment and sentence of the district court of Pittsburg county should be affirmed, and it is so ordered.
DOYLE, P. J., and DAVENPORT, J., concur. *228