No. A-2306. | Okla. Crim. App. | Apr 26, 1917
The only alleged errors relied upon for reversal in this case are the giving of certain instructions, the first of which is instruction No. 15, to which instruction objection was made and exception taken at the time of its giving, and which instruction is as follows:
"You are further instructed, gentlemen of the jury, that while the law permits a person to defend himself or his wife against real or apparent danger, such is defensive and not offensive; and therefore you are instructed that a person under the law cannot arm himself and invite and provoke a difficulty, and thereupon assault and slay his adversary, and invoke the right of self-defense. And you are instructed, gentlemen of the jury, if you believe from the evidence in this case beyond a reasonable doubt, that this defendant armed himself with a rifle and sought the deceased, either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design between husband and wife, either husband or wife invoke and provoke a difficulty with the deceased, and thereupon the defendant shot and killed the deceased, then the defendant cannot invoke the right of self-defense."
The contentions of counsel for appellant that this instruction is erroneous are as follows:
"The court clearly in this last language assumes without sufficient testimony, which point was controverted, that the defendant, to carry out the design which he had formed to slay the deceased, and in furtherance of such design and conspiracy between him and his wife, *309 invited or provoked a difficulty, etc. If there were any testimony tending to show a collusion or conspiracy between the defendant and his wife, certainly the jury should have been permitted to have passed upon and determined that issue."
"The court in the case at bar, in giving the instruction complained of, very strongly intimates a conspiracy or collusion between the defendant and his wife to provoke a difficulty with the deceased for the purpose of slaying him. We doubt if there is sufficient testimony in the record warranting the court to charge upon an issue of conspiracy by and between the defendant and his wife; but if there be such testimony, certainly a jury should have been permitted to determine this issue; and the detriment to the defendant by the court's assuming such state of facts cannot be calculated."
We cannot agree with these contentions. First, said instruction does not assume that the defendant invited or provoked a difficulty. The instruction assumes nothing. It will be noted that the court instructed the jury that if they believed beyond a reasonable doubt from the evidence that the defendant armed himself and sought the deceased, either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design did provoke a difficulty with the deceased, and thereupon killed him, then the defendant could not invoke the right of self-defense. The clause, "If you believe from the evidence beyond a reasonable doubt," qualifies everything that follows it in the sentence. This was a correct exposition of the law, as this court has repeatedly held in the following cases:Moutry v. State,
But it is contended that the court should have gone further and instructed the law to be that, if after any such design on the part of the defendant to seek the deceased for the purpose of engaging in a difficulty, he abandoned such design and then thereafter his life was put in immediate danger, he would have the right to defend himself. The court is only required to instruct upon the law as applicable to the facts. In this case there was not a syllable of evidence falling from the lips of any witness on either side that there was any withdrawal from this conflict on the part of this appellant. As we view the evidence, from his own testimony, the appellant is at least guilty of manslaughter in the first degree. The testimony of his wife would also corroborate this view. The testimony of the only other witness for the defendant does not show a justification or excuse for the homicide.
As to the further contention that the foregoing instruction is not warranted by sufficient testimony in the record, we conclude that this contention is not meritorious. We have carefully examined this record and reached the conclusion that the acts and conduct of the appellant and his wife on the occasion of this homicide disclosed a state of facts which fully authorized the giving of this instruction. Considered, then, from all the angles complained of, we are of the opinion that the trial court did not err in giving the aforesaid instruction on the law of self-defense.
It is also contended that the court erred in giving instruction No. 19, as follows:
"Evidence has been offered in this case, gentlemen of the jury, relative to certain previous difficulties and threats, and certain opprobrious epithets alleged to have *311 been used by the deceased as against the defendant. You are instructed that even though you should believe from the evidence that the deceased used such epithets and engaged with the defendant in previous difficulties, such previous difficulties or epithets cannot serve as a justification or defense in this case, unless you should find the defendant justifiable and excusable in doing what he did under the evidence and the instructions given you in this case."
An examination of the record discloses that no objection was made or exception taken to the giving of this instruction. In the absence of any such objection or exception, an erroneous instruction could not be ground for reversal unless fundamentally wrong. The instructions are to be considered as a whole, and we find that in this case the court, by instruction No. 17, fully informed the jury relative to threats and former difficulties. In instruction No. 17 the court, among other things, said that such threats were competent for consideration by the jury, together with all the other facts and circumstances in the case, "in determining the guilt or innocence of this defendant." Considered as a whole, and in view of the fact that the defendant under his own testimony and that of his witnesses is at least guilty of manslaughter in the first degree, this court cannot say that there was prejudice in the giving of this instruction, which counsel for the defendant did not see fit to object to at the time. It is the duty of counsel to call the trial court's attention to alleged errors in instructions, in order that he may have an opportunity to correct them; and, where this is not done, this court has repeatedly held that only such errors in the instructions as directly conflict with the constitutional and plain statutory rights of the defendant will be considered. *312
Upon an examination of the entire record we find no error prejudicial to the appellant, and the judgment is accordingly affirmed.
DOYLE, P.J., and ARMSTRONG, J., concur.