233 P. 244 | Okla. Crim. App. | 1925
The evidence discloses that a posse of officers, at night, near Piedmont, discovered a still in *132 a straw stack which had been hollowed out. No one was present, so the posse hid near by. Soon thereafter two men approached, one on foot and one on horseback. According to the evidence of the state, when the posse raised up from hiding, one of the men fired and the posse returned the fire. Both men ran, and the posse pursued. After running a short distance, the man on foot turned and fired a gun, and a few hundred yards further on the plaintiff in error in this case was overtaken. In his pocket was a hollow copper wire and some small parts used about a still. He was tried for shooting with intent to kill a member of the posse.
The brief of the plaintiff in error is directed at errors relating to the instructions given by the court, and those offered and refused. The motion for a new trial is insufficient to point out the errors complained of. The fourth and twelfth assignments challenged the instructions, and are as follows:
"(4) Because the court misdirected the jury in matters of law and duly excepted to by the defendant.
"(12) Because the court erred in refusing to give defendant's requested instructions numbered 1 to 19 respectively, to which defendant duly excepted."
The plaintiff in error in his brief has not in any sense complied with rule 7 of this court by setting out the instructions or parts of instructions which are complained of that were given or refused. He does not specifically and particularly set out in his brief the errors intended to be relied on. The brief is merely a running statement and argument of which the following is an excerpt:
"Our ninth requested instruction at page 269 of the case-made asks the court to instruct the jury with regard to assault and battery and the punishment therefor. Requested instruction No. 10, at page 270 of the case-made, *133 is on the law of circumstantial evidence, and certainly should have been given. Instruction No. 12 certainly should have been given, and we most earnestly insist that it was reversible error not to give it. It is found at page 271 of the case-made, and is our requested instruction No. 12, and is on the law of self-defense, and sets out the salient features of self-defense, and nowhere in the instructions is there a word thereon. We also think it was error for the court to fail to give our requested instruction No. 13, at page 272 of the case-made, which follows the identical language of the statute as to when a peace officer may or may not shoot at or kill any person, and when he may or may not make an arrest. Instruction No. 15 at pages 272 and 273 should have been given. It is with regard to when peace officers may arrest without warrant."
There is much more to the same effect. We have, however, examined the record and considered the arguments presented by the plaintiff in error. One of the contentions made is that an instruction on circumstantial evidence should have been given. The case is not in any sense a circumstantial evidence case, and such contention is without merit.
It is also argued at some length that the jury should have been instructed on the law of self-defense. The plaintiff in error took the stand and testified in substance that on the occasion in question he had gone hunting at night with a dog and shotgun; that he went by chance to the straw stack where the still was, and there found the hollow copper wire, or "jigger," as he called it, and put it in his pocket. While standing there he heard a shot, saw a horse running to the northwest, and directly a man came up on foot running, and these men (posse) were firing at him, and that he (plaintiff in error) went off southwest and the other man northwest; that he turned and fired to one side, but did not try to hit any one; that he was shot in the back and shoulders with a *134 shotgun; that he finally stopped, threw down his gun, and stuck up his hands.
The theory on which the defense was based was that he never shot at any member of the posse at all; that he shot once to frighten his pursuers. There is no evidence indicating that he shot in self-defense.
This court has held that the accused in a criminal case is entitled to instructions defining the law applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate his theory. Courtney v. State,
But the court is not required to give a law on some theory not warranted by the evidence and on a theory different to that taken by the defendant in the trial. Under the record the plaintiff in error had a fair trial. His guilt was abundantly established.
The judgment will be affirmed.
BESSEY, P.J., and DOYLE, J., concur.
