*1 534 sufficiency performance. The of and contem- worth’s were dealt with
them—which they principal as a parties entered minimum or base rentals by the plated by for not a fit This is borne out consideration the lease is sub- agreement. into the (a) agreement: judicial scrutiny. do not ject of the leаse Courts an examination provision gauge measuring weighing that dis- or possess lease contained a part obligation pro quo. any adequacy agreed quid on Woolworth’s of an claimed percentage here, If, appears a certain level of produce as consideration have (b) of promis- and absence bargained-for rentals benefit to been ter- that would allow the contract it promisee, term a detriment to the must or and per- of instrument accepted mination to have more be deemed been Thus, generated. centage rentals were not just is hence sufficient in than nominal. It Mercury’s very fail- foundation of while promise.39 law to theory is its claim to ure-of-consideration plain, lease clear is written rentals, them right to must percentage its unambiguous language. There is and regarded as condition was be Summary hence no room fоr construction. parties only contemplation within decree for denial of lease termination fail dealt expressly that was but one entirely free of consideration is from ure short, failure of consideration the lease. legal error. nonpay- be inferred from continued cannot is vacated Appeals’ The Court percentage ment of rentals. judgment reinstated.
and the court’s SUMMARY' HODGES, LAVENDER, KAUGER and inability to bring
Woolworth’s JJ., SUMMERS, concur. range of lease-created its sales within percentage rentals constituted liability for C.J., DOOLIN, V.C.J., SIMMS, and HAR- in performance a default neither WILSON, JJ., and ALMA dissent. GRAVE Mercury’s due nor a failure of considera legally essential to maintain Wool duty status as No stood worth’s lessee. tenant, Woolworth,
imposed upon qua specific receipts—
generate any amount of upon it in none be rested
and by inference from the four corners
lawsuit Nay, lease. the existence Thomas Elmer Mercury us duty now seeks to have infer BROADDRICK, Appellant, conclusively plainly contradict here v. parties’ agreement whose fаce ed presence unambig refutes its in clear Oklahoma, Appellee. STATE promise terms.38 No breach of uous No. F-82-344. Mercury express implied hence — —can nonpayment of from Woolworth’s arise Appeals of Oklahoma. Court of Criminal rentals. percentage 3, Sept. 1985. nonpаy Because a breach percentage rentals cannot be said ment of contemplation have been within the in Wool- parties, there no default
38. ambiguity matter of Corbett v. Oklahoma, If ambiguity, language is a decision to be made Combined. law; similarly, Inc., Okl., court a contract Communications is to the existence of an interpret clear and 617 [1982]. Corp. it as court. free 39. P.2d 959 Ledford [1951] [1980]; [1932], Cox Wheeler, Okl.App., Dunn v. Freeman, Thompson, Okl., 620 P.2d 227 P.2d 156 Okl. 670, 903, *2 and, charged having (1) found appellant previously been convicted of two felo- involving nies the use or threat of violence (2) a probability existence of appellant would commit criminal acts of violence that would continuing constitute a society, threat to appellant sentenced the that judgment sentence, death. From appellant perfected has appeal an this Court. We reverse and for remand new triаl.
Thomas Broaddrick and Ray Nolan Craft, area, both from the Tulsa were friends and had known each both through Tulsa and their involvements with penal system. problems The between began them when Broaddrick became ro- Oates, mantically involved with Paula who previously had been involved Nolan with (Paula Craft. married then Craft and Bro- addrick, although the record reveals she previous was never divorced hus- band, Oates.) Kinnard outrage Craft’s the relationship over between Broaddrick caused convey many and Paula him to throughout threats kill Tulsa Broaddrick he saw him. evening 10, 1981,
On the of June Broad- drick, accompanied by went Paula Craft, residing see who was in Paula’s apartment Osage Apartment Com- plex. After Paula lured Craft out of the apartment, Broaddrick him to walk ordered building. began to the side of the Craft walking toward the street instead. Sud- Jr., Smith, Appellate Thomas G. Asst. denly, Craft turned around with his hands Defender, Norman, appellant. Public him times shot six raised. Broaddrick Turpén, Gen., Atty. Hugh Michael C. A. bullets, with a .38 caliber revolver. All six Gen., Manning, Atty. City, Asst. Oklahoma wounds, three of which inflicted fatal hit appellee. disputed. foregoing are facts OPINION theory The State’s of the case is that the BRETT, Judge: appellant apartment went tо to kill Craft’s Broaddrick, Thomas Elmer him. The is that Broad- herein, charged Osage County Dis- talk drick went to to Craft to their resolve GRF-81-104, Court, trict Case friendship No. with differences so that the could be resumed, committing Degree First Murder in viola- personal Paula could remove her O.S.1981, repre- of 21 property apartment, 701.7. He was that was still § begin by jury, counsel and with sented tried and Broaddrick and Paula could liv- moving presiding. constantly the Honorable Mermon H. Potter normal lives without killing appellant guilty keep finding found the Craft from opinion, only shot. Broaddrick’s We are of the them. unexpectedly accomplish this way tо Craft’s movement constituted overt act gun in When hand. confront Craft or demonstration to execute Craft’s threat this, raised his hands did Broaddrick kill Broaddrick. suddenly. realizing Without and turned distinguishes The other fact happening, shot
what was
*3
Woods,
case
that in
present
from
isWoods
in self-defense.
Craft
defendant
see who hе
the
could not
appellant’s
assignment of
however,
The
first
Broaddrick,
shooting.
was stand-
the
erred in
alleges
error
that
trial court
ing
to face
man
face
with the
who had
requested instruction
denying his written
him,
threatened to kill
a man who was
court’s refusal
on self-defense.
propensity
well-known
toward vio-
jury
to
on self-defense was
instruct
lence.
State,
P.2d 486
based on Woods v.
long
This Court has
held
that
(Okl.Cr.1971),
held that
wherein this Court
entitled,
law,
is
a matter of
to
defendant
as
did not
an instruction
the evidence
warrant
jury
govern
have the
instructed on the law
case, however,
on self-defense.
Woods
ing
theory
possi
case if it finds
distinguishable
is
from the case at bar.
support
ble
the evidence.
Davis
Gray
that the de-
suspected
had
Connie
State,
(Okl.Cr.1983);
his habit to
one....
opinion
I am of the
that the
in
testimony
216,
Id. at
ings before 22 an unarmed clearly contrary to O.S. acted self defense. When This would be states, part, turns 1981, 834, pertinent person raises hands and around which § by person armed to be decided is shot six times “questions law are and questions residence, are court, of fact come to lured him and who has outside, pointed Our current jury....” a loaded firearm at be decided practice him, in this State since it is I am of inconceiv- approach—the require give immemorial—hаs been time that the trial court should a self able defense in- give court to I am aware of the defense instruction. struction, requested, when there if on fact that Craft made threats support the in the record to carry weap- life and was known is discred- fense, even the evidence However, interpret if we Craft’s ac- ons. P.2d 327 around, ited. See White tions, turning raising his hands Finley v. See also designed act as an “overt or demonstration (1947) (theory Okl.Cr. execute the threats which furnished the given where instruction should be defense defendant some reason to believe that he “possible finds position suffering killed or was in evidence”). Any heavier standard bodily injury at the hands of the great usurp obligation the sacred deceased,” then a defense instruction self trier of fact. be the exclusive required every imaginable would be under circumstance. *5 BUSSEY, dissenting: Judge, Supreme In Allison v. where opinion judgment I am stated, is or is nоt Court “What overt af- in should be sentence this case varies demonstration with the violence firmed. circumstances. some circumstances Under trial, presented overwhelm- At the State slight may justify movement instant ac- appellant’s guilt, and apprehension reasonable appel- any dеvoid of evidence that record is under circumstances danger; when he shot Mr. lant acted self defense so,” not be evidence was that the would Therefore, I believe who threatened defend- deceased properly denying court acted gun constantly, and who carried a ant requested on self written instruction his a sudden hand made movement fense. pocket. Obviously, the sudden toward movement could cause a reasonable hand out, points majority the facts are As the under the circum- apprehension evening of June disputed. not On the However, in in- stances Allison. acсompanied Paula case, his hands and stant Craft raised Craft, residing to see went who had a turned around while Osage Apart- apartment in the in Paula’s him. pointed Certainly, at this movement Complex. After Paula lured Craft ment produced not have could reasonable apartment, appellant ordered out of part appellant. on apprehension building. to walk to side him walking street in- began toward the Therefore, I am of that the Suddenly, Craft raised hands stead. denying appel- acted properly trial court appellant shot him and turned around. The lant’s written instruction on self revolver, .38 times with a caliber result- six defense, I judgment affirm the ing in death. and sentence. The law well settled Oklahoma is no evidence in the record there giv-
support an instruction it should be See,
en. Nauni case, In the there instant