231 P. 326 | Okla. Crim. App. | 1924
After an examination of the record, the conclusion is reached that the confession of error of the Attorney General should be sustained. *440
While it is not necessary for the trial court to instruct on some theory of the law not supported by the evidence (Newby v. State,
Whether the defendant believed, at the time he shot the prosecuting witness, that he was in imminent danger of death or great bodily harm at the hands of the prosecuting witness, and that it was necessary to employ the force used to prevent such injury, and whether the defendant under the circumstances of this case had reasonable grounds for such belief, were all questions of fact for the jury under proper instructions of the court as to the law of apparent self-defense.
The question is not how much evidence there was on the issue of self-defense, nor does the court believe such evidence, but is there any evidence tending to support such issue? If there is, it is the duty of the trial court to submit such issue to the jury and instruct the jury on the law applicable hereto *441
if found to be true, although the court may disbelieve it. Beard v. U.S.,
The defendant introduced some witnesses and offered to prove by them that the prosecuting witness had the general reputation in the community in which he lived, prior to and at the time of the difficulty between him and defendant, of being a violent, quarrelsome, and turbulent man, and also that this general reputation was known to the defendant. The court excluded this proffered testimony. This, too, was error prejudicial to defendant.
The remarks of the specially employed counsel assisting in the prosecution (quoted at length in the Attorney General's confession of error,) tended to aggravate the error of the trial court in refusing to submit the issue of self-defense.
For all of these apparently prejudicial errors, the judgment is reversed, and the cause remanded to the district court of Marshall county, with instructions to grant the defendant a new trial and for further proceedings not inconsistent with this opinion.
BESSEY and DOYLE, JJ., concur.