*1 ap- did county of Oklahoma public defender has but court, case in the lower pear trial us upon before noted, been herein he appeared before excellent an made death of defendant's counsel are commendable. efforts court. His argument before this judgment why found no reason legal We have county should Oklahoma court of district sentence judgment ordered It is accordingly be reversed. (cid:127) affirmed. sentence be concur. JJ., BRETT and POWELL, v. STATE. ROBERSON May 3, 1950. A-10978. No. 414.)
(218 2d P. *2 L. Miami, Nesbitt, Nelle Nesbitt, Miami, Frank in error. for plaintiff Jay, Keith Smith, Latti- H. and Sam Q. Atty. Gen., Mac Williamson, in error. for defendant Atty. Gen., Asst. more, de- Roberson, Jake in error, J. The plaintiff BRETT, in the district information charged by fendant below, of Ben murder with Ottawa county, Okla., court of information in the alleged Wilson. It (Doc) in the caliber pistol a .38 shot and killed Wilson with county, Ottawa Fairland, Goose Cafe the town Blue 1947. Okla., February 22, in connec- detail the facts
It not be necessary will fact notwithstanding tion the killing makes, grounds of error as numerous assignments herein imposed. and sentence of the judgment for reversal *3 the fact that call attention is essential we it However, substantial by supported that of self-defense was plea deceased was defendant testified that evidence. The son him. Defendant’s and fired at armed a pistol three times. or fired at defendant two testified Wilson of a reputable by testimony In this was supported he nicked that had been twice who said Roberson doctor, More- thereof. by fragments back of the neck bullets that after decedent there to the effect was evidence over, his and defendant gun fired his or shots the drew shot then dropped fired and that the decedent two shots, into the defend- headlong floor and lunged on the gun offer- there ant. When the was over was evidence killing of Doc body Wilson ed the defendant that when by used by a nickel plated pistol allegedly was turned over found him. Further detailing Wilson under unnecessary. deem evidence we
To determine herein the issues involved will necessary only assignments urged in to consider the two the defendant’s brief. Therein he first contends the ver- jury passion prejudice dict is the creat- result developed by highly preju- ed and the introduction of incompetent improper dicial, all of evidence, objected excepted in- the time the. and at the close of all troduction, the evidence moved court to withdraw same from consideration of the jury, being except. did overruled, clearly appears
It that the defendant attacked the reputation character and to the deceased, effect reputation being the deceased Wilson had a bad vio- person. by lent and turbulent Evidence was offered purpose. offering defendant for that Before evidence as being to Wilson person, a violent and turbulent the de- proper predicate showing fendant had laid the he shooting had acted self-defense in Wilson. Under the procedure permissible. authorities in this state, this Murphy In Okla. Cr. P. 2d it was said:
“On a trial for murder where defendant has laid a proper tending foundation show that, committing may the homicide he acted self-defense, dangerous introduce evidence of the turbulent and char- reputation acter or of deceased. justifiable “On a trial for murder where the defense is support homicide in and there self-defense, is evidence specific part same, evidence of acts violence on the against persons being deceased other than defendant, prior *4 known defendant to homicide, admissible purpose showing disposition for the of deceased to provocation, tending become violent without and as temper show Ms condition of mind and violent on such disposition deadly weapons.” occasions and his to use
221
support
Murphy
In
foregoing
rule announced in
supra,
. State,
this court cited 64
v
A.L.R. 1029, and
Annotation
“Where the issue of self-defense is raised and there is some support evidence to it, is error to exclude evi- dence that the prosecuting prior witness, to and at the time of the difficulty, general had the reputation of be-. ing a quarrelsome, violent, and turbulent man, and that general such reputation was known to the defendant.” See, also, Jenkins v. Okla. Cr. P. 2d 90, 162 P. 2d In re Fraley, 336; 4 Okla. Cr. P. 662. light In foregoing authorities, defend- having ant laid proper foundation evidence es- tablishing plea his of self-defense, it permis- was then sible for him to attack the character of the decedent for turbulence and violence. It would have been error have denied the right defendant the so to do under the con- presented. ditions herein
It is conceded Attorney General that at no time did the any proof offer good to his own character reputation any regard. He remained silent in relation thereto, even point on being quiet peaceable. The Attorney General concedes in answer brief that under the law where the defendant has not made an reputation issue of his in a homicide case, prompted by the agreement almost universal of the courts may the state not attack the same. This concession was to the effect that the state is not entitled to introduce
222 un- reputation of accused character the bad of evidence issue puts character Ms expressly clearly and lie less con- In this good character. of introducing évidence by page 1069, § 676, Law, Criminal C.J.S., 22 see nection, cited, therein authorities numerous the 20, Note by court. this holdings effect to consistent as the well court this 2d 96, P. 96 72, Cr. 68 Okla. Flynn State, v. said: law criminal of principle a fundamental is “It impeached or be cannot defendant the of character the attacked is- character puts his he unless by state, the good character.” of introducing by evidence
sue page 85, atCr. opinion Okla. 68 body the of the In said: page it was 102 at2d 96 P. 664, P. 201 172, 154, Cr. 20 Okla. State, v. Jones “In opinion stated: body the in the court this
670, “ character bad the to show admissible not 'It is puts his himself defendant after until defendant showing his only then issue, good character Evidence acts. particular not reputation, general be should ease in the in issue not acts criminal of other give exces- tendency testimony has such excluded; exhibited, thus of crime record weight the vicious sive charge strongly on too it bear to allow either defend- justifying the it as proof take toor issue, crime guilt irrespective of condemnation, ant’s alleged use Moreover, being tried. is for de- period entire ranging over particular acts, prepare to for him impossible makes life, fendant’s may mere fab- any of-which charges, or all refute received has stated above rule as rications. country more of this courts judicial sanction Wigmore § 182; Evidence, century. Underhill than 8 Okla. State, v. Porter 953; R.C.L. 10 233; Evidence, on Cr. P. 159 526, Cr. 12 Okla. State, v. Corliss 699; P. 126 1015.’ P.
“In Porter Okla. Cr. syllabus:
court said in the first “ reputation the character or 'Where accused prosecution charged, an element the crime put by offering cannot it in issue of his bad char- unless the first acter, offers evidence of his *6 good prosecution by may character. The then rebut ” evidence bad character.’ supra, As observed Jones v. State, such attack is general reputation. limited to the defendant’s In Lizar v. 74 Okla. Cr. 126 P. 2d this State, court 368, 552, 553, said: impeach-
“The character of the defendant cannot be by puts ed or attacked in issue unless he his state, character by introducing good evidence character.” Smith See, also, 75 v. Okla. Cr. 128 2d State, P. 55, Pressley 250; 71 v. Okla. Cr. 112 P. 2d State, 436, 809. Duggins In v. 76 Okla. Cr. 135 P. 2d State, 168, 347, wherein the court said: 351,
“There are two other errors shown the record required which would have been sufficient have county reversal towit: effort of the case, at- torney prove reputation the bad of defendant when placed reputation the defendant had not his in issue offering good reputation. Porter v. State, 8 Cr. 126 Okla. P. 64, Morris v. 26 699; Okla. Cr. State, 224 Martin 399, P. 29 377; State, v. Okla. Cr. 232 136, P. 966.” deeply
Such has. been the consistent and embedded holdings following in this state as is revealed cases: Bean 77 Okla. Cr. 138 P. 2d State, 503; v. 73, Edwards 85 186 P. v. Okla. Cr. 2d Giles 333; State, v. State, 125, Uptown 55 28 P. 2d 12 Okla. v. Okla. 145, 600; State, Cr. Cr. 160 P. Scott v. 48 Okla. Cr. 1134; State, 7, 593, 288 47 P. Tindel v. Okla. Cr. 287 P. State, 999; 268, 1109; 224 279 P. Hales v.
Pearson
44 Okla.
700;
v.
Cr.
State,
19,
39
264 P.
Hales
State,
39 Okla.
v.
State,
297,
918;
Cr.
Cr.
264 P.
39 Okla.
State,
Okla. Cr.
Harris v.
300,
919;
Hargrove
258
262
37
P.
v.
Okla. Cr.
4,
700;
386,
State,
258 P.
323,
356;
Okla. Cr.
P.
Williams
37
1060;
State,
v.
Wyrick
Millett
turbulent Nesbitt: improper cross-examination. The Court: Overruled. to, * ** Exception. Q. Mr. Nesbitt: it isn’t true Jake, you gun various occasions the in and have shot that about Object incompetent, town? Mr. Nesbitt: to ir- that; improper relevant and immaterial; cross-examination, impeaching, question proper if intended in is not place. has not fixed the time form, The Court: I general (We think it is too and indefinite —sustained. question only include the last as characteristic of the cross- examination.) years ago. Q. four About Jake, isn’t it you up true the front of shot office? Mr. Dr. Smith’s Objected improper incompetent, Nesbitt: to; irrelevant proper impeaching cross-examination; form as an question, period materiality too remote time be of explanation in this case. The Court: is no There question, nothing up, the er was an to show it was shot wheth- just shooting it altercation or for fun or what. objection question, That tained. court has sus- (Again question, only we include this because prejudicial character of the same. Some jurors prosecutor no doubt believed such was true or the inquired it.)” would not have about object type this cross-examination permitted clearly appears following .it
reason special prosecutor judge: statements and the trial (Spepial prosecutor) (Out “Mr. J. Smith of J. presence jury) is a : The state this offers to show high-tempered given that he man witness turbulent, seeing having given firing pistol, admit- trouble, tedly continuously years, upon carried several divers provocation; or occasions without reason excuse competent now so *8 becomes that rebuttal supported by may independent proof, the offer not hav- ing competent in been chief. Mr. Nesbitt: To which of- objects is the same for the reason that defendant fer tlie proper improper incompetent, cross-examination, period question, of impeaching too remote an form as materiality, no the further reason and for to be of time proper developed in- to this case foundation has been quire specific The and into acts of turbulence violence. opinion that the defendant Court: The court is opened question by testimony in up his line of the has quarrelsome, showing and relsome, turbulent that the deceased was quar- dangerous prove is a he to that likewise felloAv, dangerous person. The court hav- turbulent testimony by ing defendant as offered the admitted the theory it of on the had a to the the turbulence deceased tendency aggressor the and also to show AvhoAvas show just or defendant and had Avhether not the Avasreasonable fearing that the defend- cause the since deceased, open up question the ant had elected to as to turbu- that subject he likewise is lence the now deceased, by showing purpose the for the attack bearing upon State sole question aggressor, was the the who having interposed plea self-defense. policy folloAving to counsel this court announces rule- in the trial by Judge case. The offer made question. proof keeping is not in Aviththe General Smith keeping offer Mr. with the will be allowed. Nesbitt: testimony strike The defendant moves to all concern- ing alleged part acts on turbulent of the defendant only incompetent is not in this case for the reason that it subject objection grounds on in- heretofore ground terposed, further is 'but there no evi- dence to that the deceased Avas or show aware knew relied these turbulent or thereon. The Court: The acts, position Court takes the that it immaterial determin- ing aggressor Avhetheror not he as whether or not he didn’t. Mr. Nesbitt: Ex- it, knew whether ception.” foregoing
With the announcement court, special prosecutor then unrestrained in his cross-ex- following questions revealed : amination, as *9 fact “Q. if it isn’t a I to state you will ask Jake, that occasions have you you promiscuously many disturb many caused your used have indiscreetly gun ob Mr. To the defendant question ances? jects Nesbitt: in terms, same its the same that the is too general in not proper improper cross-examination, incompetent, form time be as no impeaching question, particular anr the al fixed and for the further reason that none of ing in acts on defendant leged turbulent the part this are to communicated to or case shown have been in by the deceased or that he relied upon known case, them in the manner in this charged complaint.
Court: A. Overrated. Mr. Nesbitt: sir. Exception. No, * * * Q. just Jake back a minute to that going ques in fall Paul early of 1948 didn’t shoot at tion; you Jones top part after your building poker game? A. sir. Mr. Nesbitt: The for the No, objects reason that question calls for irrelevant incompetent, not in form an matter; proper impeaching question; as too remote of time to be of period materiality if and even true the has case, same not 'been shown have been communicated, known acted upon by deceased in the altercation and in this case. controversy The Court: Overruled. Mr. Nesbitt: sir. There never A. Exception. No, a card I there after played bought used to place. They there before I play pitch bought * ' * Q. it. Isn’t it a fact the latter part you 39 or the first of 1940 part your start pointed gun, ed to shoot at one Bud your gun and John Jones Nelson, Mr. grabbed gun? Nesbitt: Objected to; improper form cross-examination, as an proper impeaching too remote in of time to question, period materiality in this and for case the further reason if true, that even which we don’t admit it to be of the same is not course, shown have been known or acted communicated, upon by deceased. The Court: Where is that alleged have occurred? Mr. In Smith: the Blue Goose Cafe. The Court: Overruled. Nesbitt: A. Mr. Exception. No, sir.” single solitary proof sup-
There not a line of port questions asked on cross-examination of de- presents perfect picture fendant. situation This special prosecutor testifying by innuendo. inference and foregoing clearly colloquy All of the shows the nature of the cross-examination and under the cir- cumstances its inadmissible as the well character, theory upon which the admitted in same was evidence. light foregoing In fact that the authorities *10 put reputation defendant had not in is- his character clearly it was cross- sue, reversible error for the state to specific prejudicial examine the mat- ters hereinbefore set forth. support by
In of rule the trial court the invoked Attorney reply General cites in 40 Homi- his brief C.J.S., by § for cide, Note wherein the rule contended 273, 44, the defendant is as follows: stated,
“It accused has been that where tenders held, however, the factual issue of the bad character of his to sub- victim plea opens thereby stantiate his of he the door self-defense, reputation for the admission of of his evidence own bad citing quarrelsome, as a turbulent in violent, and man”, support thereof isolated case State v. Robinson, 344 530. Mo. 1094, S.W.
Obviously, this case is in conflict and an direct with exception to the rule that the defendant’s character reputation puts until in cannot be attacked the same good offering character or issue evidence his own in to that In face of others his behalf effect. the over- weight authority support whelming rule fol- and most all the other are lowed Oklahoma we states, ' efficacy. given impressed its reasons for not many. says following Wigmore § are vol. 1, 57, permitting page for not an Note “the reason at- upon reputation the character and made tack to be defendant until he upon makes such the issue is founded long policy avoiding established the uncontrollable prejudice, possible unjust and undue condemnation might which such against induce” the defend- and to ant, which we add, thus result in his condemna- upon tion collateral issues and primary not the issue on thereby depriving trial, right him of his a fair impartial only trial. Not is the Missouri case con- general flict with propriety but the rule, of this cross- examination inis holding direct conflict with the in Porter supra, stating general wherein after rule, against right of the state to.attack defendant’s char- puts acter before he body character in the issue, opinion page said, Okla. atCr. 126 P. page 700: appellant “The placed fact that general in issue the reputation of the being deceased as dangerous to his place man did not appellant peace character ashed in with questions issue. The Steadham, witness to the appellant, character highly all were im-
reference proper. they conveyed The insinuation which appellant was an all-around man bad and a horse thief. *11 presented style prosecution It a of which this court approve. does not No man sanctity he should clothed with or simply visited with condemnation because he is accused crime. He is entitled to fair treatment on his trial, presumption and the his'legal of by right innocence is until jury. has been reproach convicted the It would be a to our courts to by allow a to be un- convicted defendant means. A upon verdict be should based evidence, fair upon suspicions and not prejudice. “In the case of Hicks v. United 2 States, Okla. Cr. 103 626, P. 873, this court said: “ every- whether ‘Unfairness, intentional or taints not, thing it touches, will a vitiate unless verdict, it clear- ly appears from the record that there was no rational jury conclusion at which the could have arrived favorable 230 upon absolutely clear
to this and it must be defendant; the question wipe con- is the taint out. Such ” dition of in this case.’ the record 212 438, In Cr. P. Munson 23 Okla. syllabus said: the court singular, is case the issue
“In the trial of a criminal upon question, com- ‘Did defendant the and is based mit the the upon question, ‘Has charged?’ crime and not having reputation committed defendant the ” charged, similar crime?’ crime or some opinion page body In 23 Okla. Cr. cpurt page said: P. at repeatedly that this ceurt decided “It has been be that been committed cannot fact an offense has proven by general repute. common rumor or principle of criminal “It is a fundamental law impeached at- defendant cannot be or character of a puts in issue tacked the state unless he his character Says Bishop: by introducing good character. evidence “ is ‘Bad admissible evidence character never guilt. against ground presuming This stealing horse evidence of thus, doctrine absolute; is by showing is the defendant cannot be reinforced Bishop’s New Proc. an horse thieves.’ Cr. associate par. 1112. anything has a natural “If it the law that were per-
tendency a conclusion that a lead the mind towards charged guilty crime son evidence gument with is must admitted charge, against ar- him on of that the trial for the doubtless be hard answer; state would is otherwise. It is the that a defend- but the law law presumed is until ant in a criminal case the to be innocent contrary proved by competent beyond a respect the law this is wise reasonable doubt. Whether whether it accords with human reason unwise, great protection experience, whether too affords questions society, too little to are not criminal or
231
province
courts
It
have to do.
is
we
which
to
in order
evidence
change
the rules
relax
fa
Un
particular class
in a
convictions
cilitate
offense.
prescribes dif
lawmaking power
intervenes
til the
govern the trials
ferently,
mast
of evidence
rales
the same
govern in all
that
in this class
offenses
of defendants
other
Cr.
11 Okla.
State,
Kirk et al. v.
criminal trials.
146 P.
Cr. 382,
11 Okla.
State,
P.
Sims v
307;
145
Can
72;
154 P.
12
Cr. 224,
Okla.
State,
Richards v.
914;
Upton v.
P. 1092;
Cr. 534,
Okla.
trell v. State,
that
It follows
er
scheme
it tends to
common
establish
admissible when
is
or
plan, embracing
or
crimes
commission of two more
proof of one
to estab-
tends
other
so related
each
knowledge
guilty
or in-
when
shows
other,
lish
charged, or
of the offense
where
in the commission
tent
gestae.”
part of the res
offenses are a
the other
*13
Pressley
supra;
this
See,
connection
also,
v. State,
supra;
Wyrick
Bean
supra;
v.
Pierson
State,
v. State,
supra;
Salyer
v.
State,
and
State,
Okla. Cr. 433,
“Where the asks a defendant improper on questions questions, cross-examination and where the expectation are asked without and answers, plain purpose prejudice where jury against the is to the judgment of questions defendant, conviction will be reversed, appears unless it that the could not in- have fluenced the verdict.” appears questions Herein it that the were asked with- expectation out prejudicial answers, were of such a they nature jury. no doubt did influence the It clear- ly appears sought that most all of the matter to be cover- ined the cross-examination hereinbefore set even forth, if it proof, had been the form of substantive does not any exceptions come within discussed in Lizar v. supra. The complained cross-examination herein unsupported of constituted upon an indirect attack reputation against of the defendant in violation of the rule such attack where defendant had not made an issue reputation by offering of his character and sup- evidence port clearly appears thereof. Therefore, that the cross- examination herein under consideration rise does even high evidentiary may level an' but attack, dangling only defined upon specula- as a attack, based conjecture tion, surmise, innuendo, inference creat- by questions by ed the series of asked the state with the purpose destroy obvious to discredit and the defendant’s reputation, bring regard- so to about his conviction. plea less of his in-sup- and his self-defense, port procedure thereof, this court has never sanctioned and often condemned. opinion impressed
The writer of first argu- not without Missouri now it is rule, concedes majority leads able merit. But mature consideration adopt reason- of the court to that to the conclusion assumption ing supra, of State on the v. Robinson, bring light «there- truth as asserted it would the whole key being he could the defendant, that the in, rep- upon open making either door an attack keep for turbulence and violence utation deceased require by refraining doing, us it closed from so would precedents, long which have to break with established *14 in administra- served the nation and this state the well justice. adoption of the Missouri tion of the Moreover, opinion exposition in of in our not result the rule would open door to the so much as it tend to the would truth, irreparable prejudice, be creat- confusion which would ambitious, (who special prosecutors ed overzealous getting many only in too times are interested convictions means.) regardless of under too, the manner Then, temptation great Missouri is the the abuse too rule, questions to ask such as herein resisted, be involved, assumption prosecutor prove on that the the the would inquiry failing in facts and then so to do rebuttal, theory seek to excuse himself on the that he had acted good temptation in faith. We believe that the thus creat- any ed offset would benefits be from such derived procedure. In other words, the evils we would flee to would exceed the sins we would seek to avoid. Further- plunge to follow the Missouri rule would us more, into experimentation an extended relative to a rule of evi- dence tested the crucible centuries of time and de- signed protect rights the of the accused. are of We opinion experimentation past the that the of the has es- safeguard tablished around the defendant as a “must” justice. in the administration of Such must continue to presumption in- indulge the if are to we the rule be beyond a reason- guilt established has been until nocence is a rule Missouri the that is contended It able doubt. If we get truth. designed whole the progressive one, inquiry would the case and such the that was be sure could be more relevancy we would elicited, matter of the end ines- But it seems rule. impressed Missouri the variety di- issues, a raise capable to us, would jury immediately before one of the the attention vert ac- provoke many conviction instances, and, in- issues principles upon general instead cused it would particular words, In other case. in the volved jus- impartial justice for fair totalitarian substitute hold, cited hereinbefore of the authorities As some tice. singular. We case homicide on trial issue Missouri persuaded that the invocation are charge particular upon the convictions lead to rule would a conviction fear confronting but Ave defendant, upon proof other acts many instances had in would in- charge as laid way Avith connected in no tendency to have it would Furthermore, formation. never He would defense. in his confuse upon until to meet called issue what know surprise case. trial of the in the sprung aas same in the example, cross-examination as an Witness, *15 only required to not instant case. charged, but he stood sin with for the answer charge. way the in no connected many maledictions, contrary rule to that fundamental procedure Avas Such be informed jurisprudence shall the accused our in required the to meet. Under he shall the accusation of approach a trial with could no defendant rule Missouri certainty he would the issues to degree relative any of and speculation, inference, unfounded by innuendo, face must we pure Furthermore many fabrications. times may judges, in the law, in bear mind that while trained general criminative of to from a mass be able eliminate upon directly the crime not bear those which do facts always against of charged true is not the such accused, ability they juries. Certainly, in not of are trained the processes from relevant of irrelevant, the of elimination preside judges controlling over matter. The reason analy- processes they of trials is are trained because prejudicial tends evidence which sis exclusion of antipathy prisoner. jury’s to the in the mind an raise adopt If Missouri no such meticulous we are rule required eliminating judges irrelevant is- care as needed. Under the sues the trial of a case would be degenerate adoption so fear trials we would rule, inquisi- concerned into boards of far as the defendant was single upon fact issues, tion to determine the scope charged the entire in the information but extend to only could result of the life the defendant which general many principles. can cases on We conviction many proof, de- under the where the instances, visualize charge on fendant would be entitled be exonerated- yet laid in the become victim information, jury’s general antipathy Wigmore him. towards page gives § reasons for exclu- Evidence injected sought to be into such as was sion foregoing instant case in cross-exam- trial ination, as follows: may in- of this be said that it is because
“It almost relevancy it is of such evidence that excluded. dubitable appreciable proba- objectionable, it no not because has It is tive it has much. The natural and but because too value, tendency judge of the tribunal —whether inevitable jury give weight excessive to the vicious record —is thus either to allow to bear too exhibited, crime strongly present charge, proof on the or to take the of of irrespective justifying guilt it as a condemnation *16 present charge. particular alleged the nse of Moreover, ranging period acts over the entire defendant’s life impossible prepared for him makes to be to refute the charge, any may or all of which be mere fabrications.” says page
He further the reasons for exclud- ing type this of evidence is: “(1) over-strong tendency The the defend- to believe guilty charge merely likely per-
ant of the because he is a (2) tendency son to do because condemn, such The acts; guilty present charge, ishe believed but escaped unpunished because he has from other offences; represent principle Prejudice both of these of Undue (post, 1904) (3) injustice § attacking one neces- ; sarily unprepared dence is fair attacking demonstrate evi- represents principle fabricated; Un- Surprise (post, 1849). § “* * * (4) Confusion of Issues new rea- * * avoiding son for such evidence willingness
This court has demonstrated its
to treat
progressive
as a
law
science and to abandon out-moded
procedural practices, demonstrated to be
erroneous,
justice.
not an
parte
aid to the administration of
Ex
85 Okla.
P. 2d
Lewis,
Cr.
367. Likewise we have
demonstrated our reluctance to abandon true and tried
principles merely
expediency
prosecutor
for the
may
order that he
find it easier to obtain convictions. The
duty
protect
first
right
this court is to
the defendant’s
impartial
to a fair and that
trial,
we
do,
will
such
avoid
situations as we are herein confronted with.
place
legislate
It is
interpret.
not our
but to
If the
Legislature finds the rule of evidence herein
out
involved
justice, they may change
moded as a vehicle of
the same
by laying
down
new
different rule.
arewe
Hence,
long
loathe to disturb
established rules of evidence such
as are herein involved which have demonstrated their free-
dom from abuses. To tinker
this time
honored and
*17
rule of evidence
tend
destroy
would
to
proven
whole-
some
this
concept that
is
of
and not
government
laws
of men.
It
tend to subject
would
a citizen to the caprice
of men and not of
It
laws.
would create the possibility
for political persecution
through
judicial
abuse of
by
the rules
power
of evidence
changing
to fit
the occa-
sion.
It may be said such is not the
case
hand and
that
is true,
where the
but,
possibility
abuse exists
is
there
always the
and the
threat,
judicial
measure of
wisdom is
in
not
immediate
in
only
justice but
anticipa-
In
tory
discernment.
fact,
judicial
true test
wis-
dom is
pronouncement
rules in
that
any case
will obviate abuses of
case
power. Every
should be meas-
ured not in its immediate effect but
In
prospectively.
no other way may, particularly
life and
as well
liberty,
be secure and this
property
continue to be a govern-
ment of laws and not of men. State v. Stout
et al.,
Okla. Cr.
Finally, say event is any this not a case the Missouri where rule can be The invoked. did not state this case that rule. The Mis- bring within souri rule is not satisfied asking preju- merely highly questions dicial If on cross-examination. the trial court desired invoke the cross-examination same, should matters up have been followed relative proof inquired about on cross-examination. could we Hence,
not to do, invoke rule this case were we inclined so disposed do. we are not so presents record a case where the state this rights prejudiced by unfair cross-exam- defendant’s were by the from could be drawn which conclusions ination, jury upon suspicion, speculation, innuendo based surmise, only, proof. procedure not inference Such highly prejudicial principles long under the established guilt Regardless the defendant’s’ state. impartial entitled a fair free from the taint trial, inquisitorial prejudice. This the defendant did have the instant case. foregoing assignment,
In
the defend-
addition to
*18
assignments of
ant
error
have
made numerous other
deserving
assignments
substantial merit. One of these
passing
to
to
court’s failure
more than
notice related
grant
ground
de-
that two
a continuance
temporarily
out
material witnesses were
fendant’s
necessary
go
into an extended
be
state.
It
not
shall
appears
point.
that
their where-
discussion of this
It
they could
been avail-
and that
have
known,
abouts were
evidence of
and that the
at the next term court,
able
most
McGinnis,
one
the absent
Franklin
witnesses,
the ef-
been to
would have
to the defendant.
It
material
plated pistol,
identified at
he
fect
a certain nickel
preliminary,
Doc Wilson have
one he saw
was the
killing,
just
him
saw
hand
before
pocket
on his
in his hand
and hold it
take it from his
plea
of self-defense,
to the
material
This was
knee.
not
granted
for the
would
continuance
term
to have
delay.
commit-
great
The crime was
a
too
entailed
have
May 21,
February
the trial set
27, 1947,
ted on
made.
request
had been
for continuance
No other
1947.
ground it was
resisted on
the motion
Here
This court
and was without merit.
made
bad faith
grant
many
a con
failure to
that the
has held
cases
con
herein
such conditions as
involved
tinuance under
Comp
error.
an
of discretion and reversible
stituted
abuse
State,
P. 794;
ton
Cr.
Dawes v.
Okla.
State,
6 Okla.
246 P.
Madison v.
482;
JONES, J., (dissenting.) agree I cannot with the J. POWELL, opinion. majority I feel that there is and due confusion, large my inability clearly heretofore in measure to proposed exception recognized to a rule derive well goes length explaining opinion great law. recognized general I find no fault as with which rule, adequately give proposition, but does not consideration exception, summarily condemns it. but thought supported by This the fact that it was necessary not deemed to set the facts in the out case, readings opinion fail to reveal the several *19 quotation mentioning of the one time otherwise problem presented real court and the involved, lower during trial, the course of the to wit: that determina- of The statement tion who was the probable aggressor. problem sup- steps of the is no are detailed to omitted, port though the the answer is furnished conclusion, length. try I I shall later to demonstrate mean. what
This has had for consideration or not court whether provisions this case should be affirmed under the of the §§ harmless error Tit. O.S.A. and doctrine, 1068, 1273, justified if or not treat- whether the record the further so, question approving exception ment the an to the rule Eng- generally prevailing in most the United States and speaking lish forbids the introduction countries which any as to bad character of the accused un- evidence good til he first introduces as to his character. majority opinion rule, details the reasons heartily agree no we there is which over which pro- opinion, though difference under the Continental prevails hearsay cedure in no evi- France such rule certainly freely dence is I do not ad- even admitted, People opinion by that. vocate See Peckham, J., 147 N.Y. 41 N.E. is discussed Shea, which judicial investigation the French method for of crime and the conduct of criminal trials. assuredly justifies
The record herein the affirmance judgment harmless error doc- entered because admittedly trine. For the cross-examination of while majority opinion the defendant too detailed went yet attorneys not for the defendant were blame- far, regard, though pointed in this less their errors were my thought balanced. it is that the errors about out, requires summary entire But demonstration evidence. majority opinion isialso contended
It exception proper case for a consideration of the is not a majority exception is in the character rule, to the (though excep- designed opinion the “Missouri rule”, before), many years adopted in other states two tion was implication being constitute treatment would opinion greater part nevertheless but the dicta, *20 exception sought. of And devoted a condemnation the disposed by application while this could of the case be harmless error the lower as nevertheless rule, stated, question being court and counsel treat the as involved, judicial and if dictum the treatment be dictum, would distinguished Courts, as from obiter dictum. 21 C.J.S., § 190.
I feel that the so-called “Missouri rule” should be by adopted. many this court Of the Oklahoma cases cited, against proposed not one discusses the for or reasons the exception only gone to the the rule is in rule, into, apparent misconception purpose of the view the probable exception, as the an I well effect such feel impelled public in the interest to treat the issues raised by appellant in the his brief detail rather than treat- ing expressions opinion majority too much the the apprehensions might against of unfairness that result as apply an should the same rule to him as to the accused, I state. feel that these fallacies more will revealed my clearly, problem if solution stat- correct, ing problem, exception contended for, recognized why adoption I reasons is desirable. would speculative philosophy: many refrain from route of solving leading nothing, from so far as nowhere roads step. step problem, treat the matter but would anyone study testimony I do not can believe yes, of the this even evidence case, of the witnesses and not be beset doubt alone, witnesses defendant’s in self-defense under Jake Roberson acted as to whether danger apprehension well-grounded of immediate when killing in- an Ben or “Doc” Wilson even death, he shot sought refuge. bystander I him behind whom nocent majority court this doubt. now have that the feel applica- importance appreciated, then, can be It type tion of correct rules case in aiding get jury to the truth of the matter, many aptly stranger instances it has been said “is probable ag- than and determine fiction”, who was the *21 gressor. impartiality Fairness and should at all times any control the of courts, actions rule that would permit litigant right present type one the one of evi- deny litigant but at the time the dence, same the other good in con- benefit the is not accordance rule, with democracy and in a no doubt science, cannot stand, long ago except would been the citizens have corrected large represented by being dis- the state are the ones against, much criminated and under such circumstance required public general time is for the to becomeconscious by in relief of such the absence of discrimination,-—and through courageous wipe interpretations, out the courts, every- by legislation. such discrimination It seems that body’s nobody’s business. On the other hand, business lawyer, criminal for liberal rules favor- the ever alert long charged no doubt able to those would crime, ago for modification of most articulate the have become than the this rule should it the state rather have favored defendant.. although support point of this that
I out would average lawyer, criminal more it is that the well known competent by experienced than and more reason thereof attorney (who average county young too often is a the just to four serves from two man out of school who ready retire), years, attorney as a or an old about attempt attempt- if does not hesitate to matters that rule by county attorney constitute reversible er- ed would might enlightening ror. If there is this doubt, Lawyer” to read “Moman Criminal Pruiett, connection City. Publishing Company, published by Oklahoma Harlow provisions under out that point I would Furthermore, it is provided: 22 O.S.A. § Tit. may of Appeals Court the Criminal “Appeals no other: cases and following
taken the State by quashing for “1. Upon judgment or information. indictment aside an setting judg- arresting court “2. an order Upon ment. by the State.” question
“3. reserved Upon that of of the fact But. and in spite spite this, ap- state and 77 counties tried all the cases latest Court of out Appeals, to the Criminal pealed appealed 16 of them were such 1,500 eases, only con- cannot be remedy state. reasons and inroads of But the fact of the organized sidered here. in exam- feel we country, justified crime throughout *22 same the of the state deprive rule that would ining any fairness accused. accorded the rule” of so-called “Missouri would
The the adoption a homicide charged would mean that the person as is possible by rather than the dead now tried, man, of majority and rule of unfair impartial because we just and apparently court would adhere to, majority for long adhered to it so it is have pro- This an apply rule. excellent opportunity is lan- in fine vigorous announced gressive principles Brett con- in opinion the excellent guage by Judge Ex Okla. Lewis, 85 parte curred the other by judges is P. 2d but which 378, Cr. 188 322, 367, pages 377, far concerned. brushed aside as as this case is after casual I am in connection herewith, impressed, The An- study, being Eighth the provocative lecture, Before Benjamin nual N. Cardozo Lecture Delivered 2á4 City by
Association of the Bar of the York As- New Douglas Supreme sociate Justice William O. Court reported of the United on “Stare States, Decisis”, Yol. 7 of Journal the Journal Bar 21, Oklahoma February point Association dated 1950. At one Jus- 25, Douglas said: tice healthy practice (too infrequently think, I a is, “It
followed) for a court to re-examine its own doctrine. Legislative judicial correction of errors is often difficult responsible government en- to effect. should Moreover, undoing wrongs department tail the in tions. ready (save committed question. That course faithful to democratic tradi- Respect any for tribunal if it is increased stands injustice rights intervening where would encur) only to correct the errors of others but also philosophy expressed to confess its This own. was the judge Appeals a York New Court of almost century ago proclaimed duty every when * * * judge without every court to examine its own decisions, ” and to them fear, revise without reluctance.’ Ry. Cited were: Great Northern Co., Co. v. Sunburst 287 U.S. S. 53 Ct. 77 L. Ed. 358, A.L.R. 360, 85 254; Spark Plug Corporation, Aero Co. v. B. G. F. Cir., 2d Baker N.Y. 296-299; 261. Lorillard, proper proper
It is felt that case and with a rec- presence jury by ord made out of the an alert coun- ty attorney, may that this court, at a future see time, exception fit to re-examine herein involved. enough generalities. get problem.
But We to the petition For a reversal this case defendant in specifications alleged error sets out 24 of error to have *23 argues been but the brief filed made, herein his case propositions assignments four under main or of error. pages, The record herein contains over 400 us- state ing 12 witnesses chief seven rebuttal, the de- using fendant 18 witnesses. The has filed defendant very Attorney and, able brief, likewise the has General thorough demonstrated consideration. But case has required particularly re-reading re-study of the evi- dence and entire record. assignment
I shall first consider defendant’s of er- ror Three that: forcing “The Court erred defendant to trial over objection a list of when the State’s witnesses with the post office address of each had not been on de- served fendant.” presentation
The return of the sheriff on notice of day May, witnesses, on sets out that the 17th notice was served on the defendant Jake in the Roberson, jail county. in Ottawa When the case came on for trial May attorney county requested permis- on 21, 1947, sion for endorsement of additional on the in- witnesses permitted. following which the formation, court The ob- jection interposed: was object
“Mr. Nesbitt: The defendant wishes to to the endorsement of additional on witnesses the information presented for the reason that the list witnesses to the not served or within the time in the man- provided by they ner law. The Court: When were served? (Assistant Beauchamp County Attorney) They Mr. : were Saturday by They pro- served cured his the sheriff. Mr. Nesbitt: acknowledgment Monday. on The Court: Bet- proof Beauchamp: ter offer on Mr. that. Your Honor, it was served that manner because Mr. Nesbitt town, out of called out of town. Court: Does the Saturday? Monday return show it was served Mr. Saturday, Nesbitt: Shows when was served. (County Attorney) R. W. Smith happened, Mr. : What sign Mr. Allemann didn’t know was have him it. He Saturday, gave on served him him the list and took it to him. down Found that was to be it and couldn’t *24 him had morning him Monday
locate and went back All right, The Court: it on sign Saturday. received Mr. Nesbitt: endorsement of the names will be permitted. Exceptions.” the new witnesses, excluding the list of
Conclusively, on both was served permitted endorsed, witnesses to be trial, to four days prior and his attorney defendant Okla. art. sec. II, constitutional provision, and the Const, days prior be served that the notice two requiring was with. complied trial, .to to the objection that real
Thus see defendant’s we trial. just prior of the additional endorsement witnesses I con- shall next question. a serious This feature presents addresses respective to include the the failure sider or no- information either the on the state’s witnesses on account, that objected had tice. If defendant constituted it would have by defendant, showing proper two-days refused error for the court have reversible additional time, even under proper facts, continuance, or, for the defendant opportunity the attorneys give of the wit- and antecedents bias, investigate character, tes- of their something and to him, nesses against learn for trial. him to prepare better enable timony and thereby 201 P. Cr. 20 Okla. See: Goben cited. cases reason counsel for of trial
No at the time doubt toas the addresses any question to raise failed of such allege and to the omission of the witnesses from con- for defendant had counsel prevented addresses this omission had because, fact, tacting witnesses, inconvenience, the record no or caused hardship state of the witnesses that all disclosing trial and well neighbors in or near were Fairland, used lived defendant and with deceased both the acquainted if had testified And most, all, during lifetime. further ques- and had been hearing the preliminary tioned his counsel. reason by defendant ex- under the constitutional did not provision clearly rule under the decisions Further, court, applied ist. *25 to the facts in this the omission of the developed case, addresses of the state’s was the de- witnesses waived by no objection or motion for continuance fendant, setting out such omission as or for continu- grounds objection for ance having been See: 70 interposed. v. Sweet State, Okla. Cr. 107 2d Smith 443, P. v. 69 Okla. 817; State, Cr. 99 P. 2d Galbert 12 17, 527; 571, Okla. Cr. State, v. 160 P. 2d State 8 P. 332; v. Cr. 127 Frisbee, Okla. 406, 1091.
In Little v. 25 Cr. 219 State, Okla. P. 190, 424, this court said:
“The omission post office addresses certain wit- nesses for the on the list of witnesses state, the state served on the is not of- defendant, where vital, post fice addresses are known to defendant, and where each of the witnesses had testified; been cross-exam- ined at the trial.” preliminary
While the court did permit additional witnesses be endorsed on the information and just notice prior a trial, ordinarily, felony case where capital pun- might ishment would er- constitute assessed, reversible herein the error was harmless. ror, The record discloses that of the witnesses were endorsed, actually two only used in chief, the others or used rebut- being used, And it tal. was not for the rebut- necessary, course, tal witnesses to be endorsed on the information or be included the notice. See: Sweet State, supra. v.
The two on the witnesses endorsed information just after notice had been C. D. were Wil- prior trial, given, 248
son John C. D. Jones. The evidence witness strictly Wilson the evidence cumulative, John and this court has held witness. Jones, permit the en- it is error for trial court to harmless in- additional or dorsement an witness witnesses than two formation or notice furnished defendant less days prior of such witness where the evidence trial, Manning Cr. 7 Okla. is cumulative. v. State, witnesses 5 Cr. P. United States. Okla. 1029; Havill v. 367, Ferguson 53 Okla. State, 115 P. Cr. 119; 239 P. P. 2d Okla. Cr. 211; Whitworth v. 930. pistol seeing underneath
Wilson testified to floor. lifted from the Blue Goose deceased when he was hole to the location of bullet Jones testified And John from the feet north of the room about twelve on the wall de- state and for both the witnesses front end. Other have could not and such evidence testified to this, fendant *26 prejudiced his contention as it was the defendant, sought as armed, defendant, stated, deceased was pistol under de- was found to show that a witnesses and defend- from the floor, raised when he was ceased shooting south- deceased from the at the admitted ant building, portion toward rear, which was west testimony Objections of these two wit- to the front. they interposed called the time were not nesses were requested testify, upon not to strike the court was nothing pointed out to the same show the same, prejudicial. it not has held that will This court to be error for a mere technical when reverse conviction affected the result. As not have it could can see that supra Doyle Judge United States, once Havill v. said, 124] : [5 115 P. Cr. 334, Okla.
249
attain-
proceedings
be
cannot
correctness
“Absolute
establishment
very
courts;
in our
best
even
ed,
enforcement
any
render
other rule would
inoperative.”
practically
criminal laws
Judge
v.
Edwards
Furman,
comments
See, also,
N.S.,
44 L.R.A.,
P. 956, 963,
131
This duty it is the trial court committed ror has been inspection record, the entire of this on an court, any injury from material if defendant suffered determine injury appears, error will such error. Unless such Cr. ground 7 Okla. State, for Mitchell v. reversal. Okla. Cr. al. State, et v. 124 P. Needham 1112; 563, 104, Cr. 84 Okla. 2d 32 P. Andrews 430, 92; 2d 491. P. overruling urged court erred next that the
It for continuance. motion defendant’s May court that on discloses
The record
May
setting
for trial for
this case
order
entered an
May
continuance,
motion for
filed a
counsel
and on
McGin-
Franklin
state of
from the
on the absence
based
alleged
very
material
to be
nis, whose
proved
no one else. McGin-
could be
to matters that
preliminary hearing, his testi-
at the
nis had testified
had been cross-ex-
mony
and he
been taken down,
had
length by
Defendant
for defendant.
counsel
amined at
testimony
sought
Wilmouth,
of one Walter
also
prelim-
at the
He had not testified
rebuttal evidence.
alleged
hearing.
in the
inary
that McGinnis was
It is
*27
Washington,
of
and
in the State
Lake,
town Moses
they
and that
were
California,
somewhere
Wilmouth
year.
fall of that
time
return
some indefinite
taking
sought
purpose
for
No continuance was
depositions, but a continuance for the term
desired.
departed
that
The record reflects
these two witnesses
following
preliminary hearing in
March. The trial
possibility
court was faced
that the witnesses
might
if
come
so
that time some
never
and
that
back,
might
dead
the other
the more than 30
witnesses
jurisdiction
for
out of the
of the court. The affidavit
as to their
continuance did not set out sufficient facts
or effort so
them,
communications with
whereabouts,
regard.
too indefinite
How-
do. The affidavit was
proposed
if the
evidence
two
witnesses
ever,
not cumula-
vital to the defense of the
and
defendant,
duty
furtherance
court,
would be the
tive,
necessarily
justice,
granted
to have
a
continuance,
Compton
for the
but to reset for a later
term,
time.
Cr.
I told him I he didn’t for sure was, know ‘why you go up and I said, don’t there and tell Wilson I don’t leave, want no trouble’ Defendant further admitted that had been armed pistol with a under his belt since dark about and stand- ing cigar portion near the case in the southwest party cafe, that he observed Wilson and his in booth *29 drinking number two beer. The further showed recently that Jake Roberson and his son had sold the longer Blue Goose no Cafe, was used as a cafe but parlor, Langston, as a beer to one Kenneth and that Rober- actually Langston assisting son’s was son, Gene, in wait- ing on customers, but that the defendant was not work- ing just standing though but he testified that he around, agreed Langston couple had to assist for a after weeks purchase. Langston upon was not called to affirm this. The evidence Gene Roberson was to the effect that when Wilson first came he and his father shortly get supper, thereafter left for home to and that get the son tried to the father to return to the cafe night, but that he insisted. Thus' the record in- dicates that the defendant armed himself look- and.was ing sending messages reason of trouble, to Wil- son, whom the uncontradicted evidence shows have been conducting peaceable up himself as a customer at least to the time of the demand Roberson that he leave. testimony If McGinnis’s had shown that Doc Wilson gun had the in his hand he or when arose his booth, though that hé shot such first, would have evidence, been to that of the defendant cumulative son (the being testimony Gene and Jack Blalock latter’s importance. impeached), rebuttal would have been of But gun seeing McGinnis denied Doc Wilson’s hand after though leading he booth, arose answer questions any McGinnis would not who fired state shot away or the first his evidence that he shot, moved from the booths when first shot was he fired, hitting identified that shot first the booth. He was asked: you away
“Q. come to move How from the booth? A. I Q. Because saw the bullet hit the booth. did Where say. the bullet come from? A. I don’t I couldn’t know, Q. Where did the bullet hit the booth and what booth * * * was it? A. It hit on the corner there somewhere. Q. Did the got bullet hit the up booth before Doc * * * got up. after? A. It was after he Q. Didn’t see any gun in got Doc’s up hand? A. Not after he I didn’t. * * * you Q. Did look shooting around while the going on? A. Not after the first Q. shot was fired. You didn’t look after the first shot was fired? A. Not after that shot hit the booth.”
The booths portion were in the northeast of the build- ing, standing and defendant was por- in the southwest tion of the room from the so that booths, from the evi- dence McGinnis, if deceased, could not fired, have fired the first because shot, the first McGin- shot, nis hit one of stated, booths, that caused him *30 away to move shooting fast. The defendant admitted toward Doc Wilson and the booths. From this record we cannot see where evidence of McGinnis could have any been to benefit the defendant. It tended to show trying up that the defendant to stir trouble send- ing messages public to the deceased while he was in a place right where he had a and that be, even if de- might ceased have been armed that defendant fired the first shot, McGinnis testified that he did not see gun got up. place hand Wilson’s after he In the helping appear it defendant, would that such evidence hurt would have and must be him, that such assumed was the reason counsel for fit defendant saw not to use
254 from such evidence could have concluded jury it. The the deceased get defendant was attempting that he could him so attacking some move towards make jury caused might him. This have shoot evidence as- of murder and have defendant guilty have found the the defend- finding or life penalty. sessed the death By mur- rather than manslaughter, ant of first guilty degree the benefit defendant the jury apparently gave der, jus- of the evidence view doubt the most favorable every assessing most lenient tified. And trial court was 15 penitentiary. in the years the punishment 356, of Madison 6 Okla. Cr. State, The case v. as sup- cited Ann. Cas. 1913C, 484, P. 617, been has since long continuance, his motion for porting supra. v. State, overruled. See Andrews by this court - Wilmouth was Walter proposed had been and if he indicated, rebuttal character, have, inadmissible been would present testimony did not at the Elaine Wilson the reason that the witness her hus- told her and Wilmouth had testify trial gun- Roberson that Jake band and one Jack Stafford for Doc Wilson. ning grant this court that the rule of
It has
been the
long
trial
in the
discretion
continuance is largely
ing
for continu
of an
overruling
application
and the
court,
has
error unless there
not constitute reversible
ance will
in a denial
as results
of discretion
such an abuse
been
81 Okla.
State,
Frazier v.
See
right.
a substantial
Cr. 305,
Okla.
State,
Scott
84;
161 P. 2d
v.
Cr.
Cr.
8 Okla.
see Litchfield
115 P. 2d
763;
it is said:
where
N.S.,
45 L.R.A.,
P. 707,
may ap-
for a continuance
an application
“Although
*31
if
the trial
yet
upon
face,
its
upon
to be good
pear
255
for
asked
testimony
record discloses the fact
testimony
prob-
would be
or that such
would
cumulative,
a
not
of
jury
influence the action
ably
finding
a conviction
not
verdict,
upon appeal.”
will
be reversed
163 P.
See, also, Owen v.
Okla. Cr.
State,
195,
Graham v.
This court held in 11 Okla. Cr. Petty State, 438, 147 P. that:
“An affidavit continuance on the of the ground of material absence who are out of the witnesses, state, which states that the defendant their expects procure of attendance the next term to be sufficient court, should state the of grounds such so that expectation, court may determine whether is reasonable.”
And further:
“In refusal ac- reviewing continuance on count absent witnesses, record will be examined, and the evidence adduced at the trial be consider- will ed by this court for the purpose whether determining made was such showing as made it the duty court to grant the continuance.”
See Presley v. 76 Okla. Cr. 134 P. 2d approving rule announced Petty v. State, supra. Because the facts I above find no recited, error on the part the court to grant a continu- refusing ance in this case.
For consideration remaining specification necessarily and for a clear error, understanding I must issues, now review evidence. as here- And, tofore stated, over witnesses used. To quote were freely would I unduly lengthen opinion, so shall to summarize the as a attempt keeping whole, I quotations direct the minimum. summarize would undisputed evidence, relevant evidence and then disputed *32 256
and refer to finally the line of claimed to testimony incompetent by parties.
The record discloses that time the killing the defendant a about 60 years was man of age; ruptured had and and no for match a asthma, per- physically sonal encounter Doc he with the deceased That Wilson. had lived in 1904 for county except Ottawa since seven and been a farmer until 1941 eight had when years, in Fairland, except the Blue Goose Cafe purchased out for months couple each, he sold a of times about three his son re-purchased. then Roberson and Gene operated the cafe until three up prior killing, about weeks they That they Langston. when sold one Kenneth around and promised they stay that Langston would him for There couple with the business a of weeks. help agreement. no deceased knew this had of the deceased Doc Wilson,
Elaine Wilson, wife Roberson and for Jake the Blue Goose Cafe worked kill- or six months until about prior his son fiv.e some called had commonly “Doc”, her husband- ing; Ben, over s->me Roberson, defendant,' with Jake words He accused Jake a skeeball machine. gambling with Elaine Wil- enough that friendly were cheating, they but prior September and kept working Jake, son Elaine Roberson, Jake 22, 1947, the shooting February and Walter Wilmouth Bud Botts Doc Wilson, Wilson, one car about 7:30 Goose Cafe Botts’ the Blue left and to around Afton, riding spend and drove to evening cafe and a “Y”, visited evening together, a social they when started At midnight had been drinking. all Jake Rober- Doc Wilson and Botts’ car, to return home beat about got up a Roberson son had and fight, about his that Wilson was Wilson using fists; face or 150 and was weighed pounds and age years cut Roberson down and Roberson and that he got husky Bud and his knife, number of places Wilson of Jake. Doc off or helped Botts pulled pull the circumstances as to dispute there is a point At his were wife that Wilson Jake claims fight. up beating car and that Wilson out back his wife “told Wilson and that he out got wife knocked Doc home”; and let’s go to stop fighting him about and beat of him him a-straddle got down heavy to get that he managed the face with his fists; *33 Doc Doc and cutting commenced farm knife and open I do.” last thing kill if it’s the “I said: will you Wil- that was Botts, drunk, Botts testified that he, car and trouble back and his had some son wife him, Roberson beating on top Wilson later saw Elaine Wil- the fight. started but he did know who that testified but beating her, that Doc was son denied car to go Bud Botts’ entered had the cafe and left they not get there and would kept sitting but Botts home, another out and tried get and that Doc key got his he was could not and that but home, to take them party his feet had to Botts who car talking standing by out got Jake Roberson and that out the door hanging knocking struck Doe, around and car and went on top getting fought Jake, and that Doc him down, Doc back Botts pulled and Bud that she of him and her hand cut on she got and that off Jake and off of Jake. Doc in helping pull Jake Doc Wil- is that after this undisputed for about from the Blue Goose away kept and his wife
son Rober- and Gene Roberson after Jalee that but months, five February around Langston to Kenneth the cafe son sold arrangements made had purchaser the new and her with to return to the him, Blue and work Goose for begin Tuesday. working Doc Wilson then Spavinaw, evening bnt he returned to Fairland Saturday, February and about o’clock she met him Cozy they cup at the Cafe and each drank a of coffee Lang- and then went the Blue Goose to talk to Kenneth job. they they ston about the When entered found Gene attending Roberson and Jake Roberson bar, was also Wilsons cafe. The ordered a bottle of beer and a Langston few minutes later the Robersons left, then came over conversed with Doc and Wilson Wilson, left cafe back door.
Jake Roberson testified that he and his son went supper and returned in 20 then or 25 minutes just tending Gene to work bar, went and that he visited cigar around near the case near the center of room. gun That he was armed before he first Wil- saw carrying gun long and had been for a son, time. He Hopkins, saw Doc Wilson’s wife a booth and Vearl sitting with her. Later he Doc booth, saw Wilson recognize another also man that he did not at. they time; were the second east booth from the building; or front end of the that Doc and his Wilson *34 facing wife Doc were on the that defend- west, outside; stayed building ant in the back end of the about an hour shooting or hour and half a before the that occurred; Henry Hopkins, Henry’s boy “Shine” little Schubert, cigar talking Jess Goins were there with him near the case. along
There four were booths the north side of building, commencing from or the east, and the front, building long, was feet with the about front door a box east coke and beer box and bar end, with counter along cigar south in order from the side east. The case was west the bar. There a about partition 15 feet in from the west end of the and a counter building and stools in center but no food was served end, west there. To the marble juke west the booths was a box, machine and stove.
As heretofore testified that when stated, one Franklin McGinnis his to the fact called attention that Doc Wilson was in booth two that he suggested McGinnis: tell Wilson you don’t there and “Why go up I leave, Avant no don’t trouble.” evidence shows that as McGinnis moved from booth two towards away the ice boxes a was fired. Of all the pres- shot witnesses Blalock ent, only defendant, his son and Jack Gene, Avould that Doc Wilson had a shot at testify gun Jake and Blalock the tes- Roberson, impeached by of John timony Jones, Wanda Black and Jones, Bessie Betty testified right who after Cox, shooting Blalock to John Jack came Jones’ home and the pres- ence said Avhen asked Jones: “Did Jake persons, kill Doc in cold blooded murder?” Blalock answered: guess I he Doc did a not have Jones also did, gun.” stated that returned he to town Blalock and he repeated the statement. It that Blalock was re- appears to some of and also lated these witnesses that Jones’ broth- Paul er, died from wounds that received Jones, gunshot during the trouble between the defendant and Doc Wil- son beer Blue Goose parlor. testified that just
The defendant as he was getting home and had taken from ready step so go counter that he saw Doc Wilson stand cigar up his hand and him, booth with levelled at pistol bullet Doc fired and the hit defendant the back of the the defendant ducked and moved a neck, couple steps from belt and his shot Wilson over, grabbed gun *35 two or three and that Wilson ran to the bar times, over got somebody, behind Jones, later found to be Paul kept pistol pointed held Jones at with one hand and stopped defendant and defendant walked to a booth, over and stood that Wilson from behind Jones there, came away, and shot at defendant second some six feet time gun and defendant shot fell back that Wilson’s twice; knocking lunged de- Wilson at floor, defendant, lap; fendant and fell on Gene down defendant’s Langston gave Roberson and came over and defendant gun Langston, his his brother and and then went with get son to neck could not locate a his wound dressed, got doctor and to the home of Minnie Roberson and went Stacy a Dr and dress the back of come two wounds Stacy testify, his neck. Dr. did not but Dr. Letcher of had Miami at the trial testified that he examined the day shooting, two wounds the after the which were about they apart opinion an inch and that bullet were fragments thereof. wounds, any signs find
The officers and others failed to in the or furniture back of where defend- bullets walls standing, points but did find bullet marks at ant was of where the defendant Sheriff Allemann tes- stood; east ceilings, all tified that he searched walls, floors, fixtures, found a bullet had struck the first where booth eight knocked a off about front and sliver wood inches found a on from the that he bullet the floor be- floor; edge found bar, booths and the one tween the pried ceiling that he the bul- over the second booth, mark in third let and found bullet the wall out, gun Every bullet from defendant’s account- booth. ed for.
Dr. Chesnut testified he examined the W. G. night February body “Doc” on the of Ben or Wilson *36 the he 1947, after and that had a wound shooting on the the right that same bullet entered the ring-finger, the third rib of the body through part chest right three inches from the toward the that nipple shoulder, ranged downward that Wilson died from this wound.
n Jess Goins testified that he was at Doc Wil- looking son when arose in the he Jess booth; was near standing Jake Roberson and a little Goins stated that behind; Wil- son did not have his arms raised and that did not he see any his that Doc a or gun hands, took so to- step ward the bar which was across the aisle south, did not see until Jake the and he shooting started, saw Jake with his gun toward the front of shooting the build- and at ing that Wilson, Wilson behind a man got but Jake shot and hit that that man; Wilson came out and grabbed Jake and they went floor the and Goins came from around between the bar and case and cigar Wilson on his lying was face that he no saw gun his or on hands the that he laid Wilson oxi floor; his that so far as back; he knew man Jake the was only that did any shooting. Defendant’s counsel introduced the statement that Goins signed which it stated was that he could tell who was doing shooting.
Jack Stoffer swore that he Doc Wilson on the saw floor after the and saw shooting somebody something slip On under him. cross-examination say he could not who under and his slipped testimony soxnethixig Wilson, very was He indefinite. was the third booth and bul- let through eggs went his sack of that on the table was of the booth. or
The about 9:30 10:30 at shooting happened night and the that Wilson’s undisputed body evidence when a .38 calibre black- nickel-plated raised for removal found under about two-thirds pistol handled him, from to his that assistant way hip knee; piece county attorney, Beauchamp, picked up gun. A away. feet The from the handle five six was found later given to Sheriff Allemann. gun. was Yearl belonged showed that gun claimed Wilsons, Hopkins friend Hopkins, a month out his car about gun someone stole this to Dewey to the that he prior reported shooting .and to that Gene Rober- marshal; prior town Hallam, init son from him and gun kept had borrowed the for about a Gene denied borrow- cafe month. Roberson to keep asked him Hopkins but testified that ing gun, *37 to the it for him three a prior or three and half weeks that only days; and he it for four or five shooting kept blunt-nose shells and borrowed six Hopkins got pistol from him about or 10 that days shooting; nine before time he was Doc Wilson was gun the next saw the when it that had lifted from the and two shells floor, empty Dewey and three shells it. When loaded snub-nose to im- Hallam testified for not defendant, sought was Hopkins’ point. peach testimony were, Sheriff Allemann identified five shells that taken from the under were gun exploded found two Wilson; a and were unexploded and one shell was snub-nose two standard shells. that talked to
Charley B. Earls testified he deceased and he just sitting while was prior shooting if the second and that he was intoxicated he could booth, just not tell that had out of the cafe when it; stepped he came that he shooting but back never in; started, hand, a Doc Wilson’s but did see one Jake gun saw hand and saw Doc Wilson Jake’s grip arm, Roberson’s not but did see shooting. actually Ben Grigsby testified that Wilson sober, though was the undisputed evidence showed that Wilson had consumed a number beers. further testified that he saw Grigsby Wilson arise from booth and a or so step take toward bar, he could see his hands and that he never had a gun; did not he see just heard shooting, it; did not know who did the shooting.
Henry Schubert did see just heard the any guns, thought the first shots, shot came from the front toward Roberson; that he quickly. left
There were number of witnesses who testified to fist Doc fights Wilson had been involved, his readiness to fight when drinking. Jess Pennington, former city marshal of had a Fairland, couple fights Doc Wilson when him for arresting disturbances, and one time at a dance jerked he was into dimly light- ed room beaten up with brass and he knucks, learn- ed that Doc afterwards Wilson used them. that the verdict argues jury
the result passion created prejudice through introduction evi- improper prejudicial, incompetent and under this contention under dence, argues sub- four divisions, [That] follows: “It error to
(1) an attack on defendant’s permit *38 and character for reputation turbulence and violence when not defendant had offered a word of as his evidence to and nor it in character, way.” issue reputation put any (2) “It was reversible error permit to the introduc- of as other tion to crimes which defendant was to have committed.” supposed
(3) “It error to was permit inquiry cross-exam- as to acts ination of violence and specific turbulence.” “It to (I) was error permit County to Attorney of inquiry make to repeated defendant as specific acts then offer of kill deceased, violence and threats to com- no proof whatever that such acts of violence were mitted and such threats made.” ques-
This to a consideration a line us brings state, and the counsel for both the defendant tioning by and not summarized above. do
I have read record several times, the entire took the wit- not the defendant find material error until coun- his questioned ness allowed to stand was as, difficulties to his heard other sel, only having competent, which deceased had been engaged, which was into difficulties, but details such entered a number witnesses produced error. defendant Also, deceased, with the fights who testified as to personal other per- with having fights heard of deceased having contrary for defendant, sons. And a number of witnesses diffi- to details were permitted testify law, as far as had with the deceased back culties which they incidents not definitely were shown Many these 1943. of the defendant knowledge prior come to the have difficulties deceased involving the homicide, being persons. and other he had heard of Doc Wilson
Defendant testified that but Jess Penning- one Pennington having fight, Jess and he ton about with fights deceased, testified two Wil- fight into out the first details, setting went that he hit Wilson son arrest and over resisting off and got head and it went pistol Pennington with and then had fist fight shot in the leg, Wilson, later at a him. That dance at Jim birthday subduing Doc Wilson beat witness with brass Pennington May’s, went into details of Pennington fight. knucks. of these fights is silent to which record
265 homi- after not or before had or of, heard whether cide. Wil- Doc testified to jailer, once county
Sam Laswell, to the coming, to the trial, prior three or four son, years loud drunk, he that was one night office sheriff’s this ever no that was evidence There boisterous. attempted It further notice. came to defendant’s threats made that the deceased the witness to show testify. not so did to but witness someone, whip detailed cross-examination, in tactics of the prosecution tactics no than the were worse majority opinion in their examination. the defense attorneys It is settled all to “win.” well They were trying deceased are acts violence specific .uncommunicated be may permitted and that while defendant inadmissible, de- he heard of difficulties to had testify those actual- ceased the fact that difficulties involved, not be establish- thereof ly may occurred or details 32 2d 88; Okla. Cr. P. 410, Brock 55 State, ed. See 227, 125 P. 2d Cr. and in Short v. Okla. State, 194 P. Okla. Cr. citing Elliott v.
court said: self-defense is case, pleaded, a homicide
“Where, is to acts specific and there support same, if to on of the deceased known may, the part violence be the defendant to shown evidence.” prior homicide, I here method of proper proving would stress the is on When a the stand reputation. put witness general can be only to attack defend he character, asked, to the chief, general the examination as reputation is in and he whose character will person question, testify to facts either particular be favor- permitted but such when the able or witness person, unfavorable then may subject cross-examination, ashed, testimony, particular view to test the value *40 facts.
So, there then, was serious error here about brought the by defendant and in his favor. that on So cross-ex- amination the under the county attorney situation, ques- tioned defendant his which concerning carrying gun, he admitted he had done years, while the operated for. and cafe, had continued to do con- since, questioned him cerning near shooting deceased’s home and for de- yelling ceased to come and out, questioned defendant concerning other alleged acts of examination violence, follow- —such the pattern ing introduced counsel for defendant his by examination of defendant and defendant’s witnesses who sought to show the character of the for deceased violence and turbulence. doWe not deem this error prejudicial on the of part the reasons hereinafter detailed. state.for
The
did
state
offer
qualify and
for
witnesses
the
the
purpose
showing
character
the defendant
the
community in which he lived for
being
quarrelsome and
turbulent
nor to
person,
show
acts of
specific
violence
the
part
the defendant of
which
deceased had knowl
The
edge.
propensity
for violence and
turbulence was
inferentially brought
the attention
only
strictly
by
and
jury
cross-examination, except
of Elaine Wilson as
testimony
de
difficulties between
ceased and
and her
unobjected to,
defendant,
testimony,
that when
worked for defendant,
she
that she
seen
had
him lots of times when he was
drinking get
gun;
a rebuttal
Tobe
concern
Wilson,
testimony
witness,
the defendant
shooting near deceased’s
ing
home,
rule
by reason
affirmed in
competent
Tallon
210
Cr.
P.
State,
309,
v.
Okla.
Jackson
2d
179 P.
“The defendant has opened up of deceased timony showing reputation general violence and and had con- further testified turbulence, specific of violence committed the de- cerning acts ceased which were within the of the defendant.” knowledge
In Porter v. P. 699, 8 Okla. Cr. State, 1912, adhered court, syllabus by the prepared court, to the rule that stat- general mentioned, we have heretofore *41 ing:
“Where the character or of the accused reputation is not an of element the crime charged, prosecution cannot it of put by issue evidence his bad offering unless the defendant first offers of character, evidence his character. The good then rebut prosecution may by evidence bad character.” Furman
However, Judge of the body opinion did make the statement:
“The fact that in issue the appellant placed general reputation of the as to his deceased being dangerous man did not in issue.” the character of for place appellant peace
It seems that the nature the cross-examination tended to show that defendant an all-around bad man and a I no horse thief. have fault to find with this case. The the state for not exception that contends would sanction all of the asked on cross-examination questions Porter case, any. not There might sanction are set forth to enough say. expression not facts have
might been It dicta. would on depend whether not self-defense had been pleaded there doubt as to who was the probable aggressor. Porter State, v. So, can be supra, only said to rule that support general until the accused introduces evidence char- good acter, the state introduce may his bad character. I no And, find fault this rule. stated, I do not find, question where the at issue however, here- in has ever been squarely before this court and the rea- sons for the exception sought considered. reason by of the
Therefore, question treatment on trial the court and the for de- attorneys both the fendant then state, and on the attor- appeal by the writer of this neys, dissent deems it to de- necessary termine not only the correctness of the cross-examination but also the allowed, admissibility as substantive evidence of the factual situation thus attempted inferentially.
If evidence of the character of the defendant tur- bulence and violence would on behalf competent then the error in state, permitting question cross- examination of defendant’s witnesses as to specific acts violence defendant not shown have been within knowledge deceased was overcome failure show the violent acts of deceased of which he had came to heard, his knowledge prior to the homicide, pointed heretofore out.
This Radney court Okla. Cr.
P. held: 913, 917, that,
“The rule is well settled a ordinarily, may party not complain of an error which himself has invited, or he has either waived, or expressly impliedly. This rule to a clearly applies case where one party re- sorts to incompetent where the opposite evidence without objections, replies with
party evidence 269 same In character. both such are fault [parties] case, and neither can complain this court of the admission of exclusion of the (1 the court Wig. below.” Ev. 2nd Ed. 15 par. is cited.)
See, Creek also, v. 16 Okla. P. State, Cr. 184 492, 917, holding: “The cross-examination of a witness is not to con-
fined to the particular questions nor the asked, precise subjects called to his on attention, direct examination. The correct rule is to allow the cross-examination to ex- tend to any matter not to the foreign subject-matter of examination chief, which tends to limit, explain, or the same.” modify
If the deceased arose booth two the Blue Goose beer parlor and fired at then defendant, defendant, able to being avoid the conflict or protect himself other had a to fire wise, right back at the deceased nec his essary if self-defense. But even deceased was armed or not in fact armed, unless he made some act overt toward or caused using defendant think gun, that he was to fire on attempting him, defendant not be would justified firing to do so and kill deceased, his opponent would constitute murder. Jenkins See: v. 80 Cr. 161 P. State, Okla. P. 2d 2d 336; Okla. Cr. Young P. 285.
At the vital the determination question trial, for was whether the deceased jury was the aggressor whether was the aggressor. question
For a clear and im- understanding let us first consider the settled rules of plications, law in this as such to the jurisdiction rules defendant. apply for something the defense important
It was know quiet of the character the deceased being or for violent and citizen, being peaceable quarrelsome, *43 270 more or less' as one’s will be persuasion
turbulent person, and such evidence such traits of by character, affected of deceased’s probabilities throw might light rule that character general reputa action. The by acts, tion be. but must specific may proven in the reputation community one’s proven general by in question. he resides for the traits character where deceased for violence general then, reputation, whether admissible this turbulence, case, but is received or not, known the defendant for did, the deceased sole what purpose showing probably the deceased and not thought what probably oc is one of objective to do. The going inquiry ivas on Evi belief. subjective Wigmore not of See: currence, is cited with 3rd par. approval which dence, Ed., 83, 75, 5 Okla. 113 court v. Cr. Mulkey 1911, this State, P. 532. in order for defendant show
It is also important, of violence his apprehension the reasonableness if deceased, any, acts of the deceased show violent difficulty. had to the knowledge he have may prior which 16 Okla. Mathews State, supra; See: Sweet v. v. State, supra. Cr. 184 Elliott 468; P. said J., case, court, by Jones,
In the first above : 823] 107 2d Cr. P. Okla. [70 from such defendant derived knowledge “The of the violent otherwise, well as observation, personal liability attack per- deceased and temper is most circumstance important sons without- cause, "of the rea- the accused standpoint from the determining and from him, the danger apprehended by sonableness the conduct of the défendant estimate might which deceased, upon him, of the attack made the character assailant as as that from his well might expect he what deem necessary guard the moment might himself against.” Sneed v. Territory Oklahoma, Okla. 86 P. Cas. 354 70, Ann. cited.
The court also quoted from Mulkey v. State, supra, as follows: *44 a
“As general the of evidence the of rule, character the deceased must be confined to his general reputation, and of evidence particular acts of is violence inadmissible unless they were directly connected with that involved ** * the homicide. under But, the facts which the evi- dence here tends to these prove, prior assaults and acts of being known to the violence, defendant, were impor- tant circumstances in determining from the standpoint of the defendant the reasonableness of the ap- danger * * prehended by him v. has
Mulkey
State,
also
supra,
quoted
been
approval
the case of Edwards v.
58
State,
Okla. Cr.
A late
from
case
another
jurisdiction
the
approving
above
principle
with clear
law,
and
discussion,
citing
Sneed v.
is
Territory, supra,
653,
Jones v.
182
State,
Md.
In the case within there was evidence of made threats by deceased against and threats by made de- fendant against deceased. This court in Saunders v. State, 4 Okla. Cr. 111 P. Ann 264, Cas. 965, 966, 1912B, said:
“On trial for where the is murder, plea self-de- there is other fense, where some evidence than threats tending support proof communi- plea, threats, cated uncommunicated, latter as a admissible; to be circumstance considered in connection with all oth- ,er in case the state of determining de- ceased’s toward the feeling defendant and who was the probable aggressor the fatal and for difficulty, no oth- er purpose; not former, only that purpose, but determining defend- what also as circumstance might apprehended the overt reasonably from have
ant acts any, if he made deceased, demonstrations difficulty.” at the fatal time Wigmore pars. 110, 3rd also, Evidence, Ed., See, supra. State, and Jenkins v. uncom- communicated and between The distinction principle that be- on the municated threats rests same probability of the de- show the character used to tween reputation communicated de- to show ceased’s act, par. Wigmore apprehension. 1 on Evidence, fendant’s Mulkey supra. State, v. Ill, may good
But character deceased subject proof until the state attacked made 72 P. 2d Okla. Cr. Miller defendant. that the defendant and not Thus it is found 520. inquiry. up opening field the election of state has Many *45 jurisdictions rule but this is the otherwise, hold in Oklahoma. principle criminal fundamental of ais
Likewise,
of the defendant cannot
im-
character
be
the
law
puts
by
peached
his char-
unless he
or attacked
the state,
introducing,
good
of
character.
acter in issue
evidence
Pressley
supra;
and
v.
Okla.
Miller
State,
See
v. State,
thirty-
majority opinion cites
There can be i.s Kirk 11 Okla. also Cr. but homa ; see says: court P. where availing statutory himself of defendant, “A becoming in his has
privilege a witness own behalf, voluntarily changed from his status defendant to wit- consequently may be cross-examined within and ness, usual and thus be discredited and boundaries, impeach- ed.” after the defense
So, attacks the character deceased, may be rebutted introduction of evidence showing as a citizen. reputation peaceable deceased’s But that is half and in only my the matter, opinion courts and members of cannot feel juries but as help so, mind in search any and itself in doubt, truth, finding would want to know something propensity accused for being quarrelsome and turbulent. A trite but expressive is phrase “What for the applicable: is sauce goose sauce for the Such as gander.” against the deceased as is, we have admitted to aid seen, purely jury question as to determining who was probable aggressor. Then in the interest fairness and justice, at the election having of defendant half gone way, why should we not go the whole and way admit evidence, the moral character of the nor his defendant, rep- utation for truth and nor his record for veracity, past crime in general, but into the sure, permit inquiry same limited traits of character defendant seeks to probe into concerning the deceased? The fairness of such a rule is And apparent. while a search of the authorities discloses surprisingly few cases where this has question been fully treated, fewer where clearly adopt- it is “the ed, voice of one in the crying wilderness,” and the justice wisdom the principle is most ap- pealing persuasive. from majority quotes opinion six-volume
and remarkable and recognized Wigmore work authority, on Sections and and also 1, quotes Yol. Evidence, 194, all for from reasons the page 650, involving general a careful of this perusal rule. work reveals However, author had ex- something say the to the concerning to ception the rule the has label- majority opinion ed the “Missouri rule.” Said he at under Sec. page 472, 63 of Yol. 1 of on Wigmore Evidence: if the
“Moreover, deceased’s character for peaceable- ness has thus been introduced same by defendant, principle would then justify prosecution (plain- tiff) in character for introducing violence, defendant’s by way of exception the rule Sec. ante.” 57, [That defendant’s bad character not be offered him may .against until he introduces character.] evidence of good
Thus Wigmore advocates an to the rule exception that he establishes in quotations from his work set out in majority opinion.
One of the most discussions the prob- interesting lem now before this court is contained an opinion by Chief Justice Strong Commonwealth, Thomas, 287 S.W. Ky. 235, though did not fit nec- court see to overrule its former decisions, for the the case essary adoption rule, nevertheless presents a for the rule that is con- strong argument being court: sidered. Said the
“In statutory the absence of a rule the contrary, by general three traits of character, provable reputation, the main issue in may investigated litiga- affecting .as but such is more introduced tion; frequently testimony to affect of a or a rebuttal witness credibility if he has testified as a than as party witness substantive Those testimony. may three traits which be proved are: For truth and (1) general reputation veracity; (2) for And it morality; (3) peace quietude. is the failure text-writers and in their forma- courts, tion of the correct rule of be- practice, distinguish three that has tween the some confusion and produced produced clearly also what to be an appears illogical the introduction position denying substantive tes- third trait timony prosecution .the prove
275 quietude tbe defendant peace of reputation for bad investigated being involves the issue nature of when the testimony prove traits to that it. It the universal law is by com- may the (1) (2) introduced be Nos. monwealth never equally testimony. well It is as substantive classifi- third in the the character involved settled that credibility impeach the may introduced to cation not be testifying himself including for a defendant of a witness, prosecution, of character those traits in a criminal since veracity of bearing the on the truthfulness have no * * * the witness. peace [as to character evidence such therefore, “If, competent quietude] made deceased is thus and as as to the testimony for the of defendant on behalf substantive purpose applies) showing (in it cases to the character of of difficulty, aggressor in the would who the testimony as character the same seem to follow that reputation general likewise defendant would to the the light of Alabama and the courts on the same issue, throw and App. 5 Ala. State, cases of Cook v.
Arkansas so held the 227 147 Ark. 524, 59 So. Carr v. 11, 519, any find been unable to have however, S.W. 776. We, adopting rule as so an- criminal on law text-writer nounced nor has court of those this states; the courts any opinion to find. have been able done so we opinion, Wigmore, § [Since has Yol. 3rd Ed. 63, 1, adopted for and Missouri has come out rule.] the rule, rejecting to that the for it seems The reason astray jury and the cannot be led deceased not on trial of the testi- the introduction as to do him harm so mony introduction to admit its as but character; possibly against result on trial defendant would as jury justice by inducing miscarriages con- peace general reputation for .of his bad him because vict guilt quietude the of- of his rather than because * * *” on trial. fense many from Oklahoma and different Connecticut, In where, may the issue not, states, and thus in the trial homicide, made self-defense is ag- controversy the deceased was arises whether gressor, show character the deceased throw light probabilities on the of the deceased’s because action, Supreme Court of that state in State Padula, Conn. A. holds such evidence inadmis- chiefly ground “logically sible [the use applicable such evidence is], to the accused as deceased.” But this court is under no such inhibition *48 particular for such reason, because of the rule Miller supra. Wigmore’s v. State, further Prof. comment at page Wigmore 468, Yol. on 7, is: Evidence, “* * * why principle but not let it be offered, Certainly, the accused has invoked the issue? lay experience, always these two terms of evidence are looked for.” Tingley
Also in 16 Okla. Cr. P. State, 599, 184 639, recognized principle this court in a measure here in- upheld right volved when it after the state, improper defendant introduced evidence to relation- show ships prove between the deceased and defendant’s wife, that the defendant had been involved with a woman bad character.
Also in case of 55 O’Neal v. Cr. State, Okla. charged 31 P. 2d a case where defendant 886, 887, was being a case did where murder, place general reputation by attempting his in issue good his the court said: show character, prosecution persistent- “Defendant next contends the attempted reputation ly bad to introduce evidence of put reputation in he had not defendant when issue. questions assignment is directed to various touch- This evening ing defendant’s conduct on the homicide tending negro porters to show ill toward the will in a the hotel and that he bellicose state mind. Certainly reputation cannot attack the state of a de- reputation instance, first fendant evidence only part is admissible on the of the state after a defend point. has ant introduced evidence on this Whitlow v. questions pro State, Okla. Cr. 218 P. 162. pounded sought and the evidence introduced and to be complained introduced here of do not constitute an at reputation. They tack on defendant’s are directed rather tending to matters connected with the homicide and light upon throw the motives and intent defendant and plea to refute the of self-defense. There is no material point.” error on this approval
The court then cites with the case of Wil- liams v. 4 Okla. Cr. 1114. P. upon
In York New trial murder, the accused, giving tending after show that he acted in may prove general reputation self-defense, quarrelsome, deceased that of a vindictive, vio- person, reputation lent and that such had come to de- knowledge prior fendant’s to the homicide, but such evi- dence is not received to that the show deceased was the aggressor, said the court: for, *49 competent purpose,
“If for that similar evidence could given reputation as be to the as bear- defendant, ing probability aggressor.” on the that he was the
People 177 v. N.Y. 70 Rodawald, N.E. 5. But 408, 1, in it is Oklahoma received to shoAvthat deceased was the aggressor. People’s Loan & Co.
See: Inv. v. Ins. Travellers Co., citing 8 151 F. 2d Cir., 524, Carr v. Ark. 437, State, 147 announcing 227 S.W. the Arkansas rule to 776, be: question “The Arkansas rule is that of self- where reputation party is involved, defense the of each to the peace quietude for encounter ing as is admissible tend- probable aggressor, to shoAv one was the but offering party proof the such to evidence is restricted general reputation specific of and cannot introduce in- applies civil ac- to a rule stances such conduct, arising a crim- tion as to of the encounter well out as prosecution.” inal Attorney the to General has called attention 130 S.W. case of State v. Mo. Robinson, 1939, question treat 2d has been where involved well keep proof in It is in Missouri the ed. well to mind that being quarrel reputation dangerous, of deceased’s for establishing person to some is restricted and turbulent community general reputation in in the such traits may proven character be which he was and such known, having specific violence no connec acts Naylor, 1931, tion or State with relation defendant. Mo, 2d In in Mis 40 S.W. 1085. other words, inquiry prob souri is made what the deceased to show thought ably he and not what the defendant would did, it came admissible without reference to whether do, is knowledge in addition, of defendant or not. But, proper specific has been set Oklahoma, out, case, as part may, if acts of on the deceased known violence prior to the be shown evi the defendant homicide, probable is state of mind but received show dence, knowledge produced of deceased’s accused pur dangerous character, rather than for violent and probably pose showing did. what deceased supra, the court State v. Robinson, Nevertheless, said: development historical discuss the need not “We testimony respect circumstances with law what The character of the character admissible.
to traits of aspects. may in two If he tes- involved accused tifies, become impeached may veracity for truth and * * * reputation re- other His same spect witnesses. *50 of traits character to essential involved always he is trial as for which is relevant offense demonstrating an aid in testi otherwise innocence; Ms mony (as bad) establishing good reputa his well as his respect tion with thereto would be inadmissible. But to preclude unjust possibility a of the bad condemnation, speaking, generally may character of an not be accused, subject inquiry upon made the -until matter of the trial involving he tenders an issue his character. Of course, appellant’s upon attack did the character of deceased not go purpose to discredit deceased a witness. Its was probability aggressor to evidence the as to who ivas ** * appellant’s plea and to substantiate of self-defense. reasoning The same which allows an accused to show reputation admissibility his victim’s bad underlies the of reputation. the accused’s bad An accused entitled representing a fair trial. is the the victim So, too, may and all do to that crime be curbed. It will not citizens, only say part bearing upon of the evidence Impartial justice an cannot issue admissible. be dis pensed present by allowing litigant given type one upon bearing an ultimate evidence issue wJvile of factual denying adversary right same time his present equal said issue evidence version in quality. App. herent states: State Mo. Jones, v. 588, 589, ‘(4.) The character of the for accused violence may inquired into where the homicide occurs under render circumstances which whether the act doubtful grounded ap committed in under a well self-defense prehension danger, gen immediate but his character erally may investigated.’ Upon appeal, not be this court (79 441) judgment en banc Mo. affirmed the of the Court * * stating Appeals, 79 Mo. loc. cit. 446: we find * * although point no in the record reversible error *’; ‘(4)’ specifically place do not discussed. We upon ground ruling instant the broad stated in State supra. We here hold that where an accused Jones, factual tenders the issue the bad character of the plea of his assault to substantiate his of self-de victim thereby scope inquiry beyond fense he extends the gestae opens up inquiry the res aud all probative quality having like value on the merits said *51 * * ultimate factual issue. mine.] Mo. [Italics [344 531]. S.W. 2d The reasons for the rule announced by the Missouri court and as above, elsewhere stated are herein, most and in compelling, so in especially jurisdiction view of the rules we have in adopted favor of the defendant as set out Mulkey v. Brock v. Saunders State, State, and State, Sweet v. hereinbefore quoted.
I therefore feel that it was not error for the county attorney to attempt inferentially show his cross-ex- amination complained of, the defendant’s for propensity and turbulence violence. in addition to the reasons And, heretofore given supporting admissibility evi- dence of Elaine Wilson and Tobe' Wilson acts concerning turbulence part defendant the de- towards ceased and near deceased’s record in- home, dicates was within the I knowledge feel deceased, such evidence for competent the. reasons here- immediately I feel that given. inabove a homicide case where the is; plea of has self-defense been and there interposed, doubt who as-to was the and on defendant aggressor, predicated first evidence of the deceased’s offering reputation toas been a having quarrelsome and turbulent violent, person, the state may show reputation the accused for the traits, same of character by showing general reputa- tion in the community which he lives for such traits, or in view of tlie rule in favor defendant set out Sweet v. State, supra, showing specific incidents if it can be shown the deceased had knowledge such incidents, providing that defendant sought show incidents of specific which he had to the knowledge prior homicide.
I would emphasize only defendant has the key to the door. He if he may, chooses, closed. keep of the repu- subject -when he elects to Only np open may and turbulence for tation of the deceased violence the defend- Should made to himself. inquiry like be where community ant a reputation person quiet peaceable citizen, being lives no doubt turbulence, for his deceased be noted violence re- facts be But should the the door would be opened. avoid carefully expect one versed, might the defend- is with inquiry. this field of The initiative *52 and still clothes is an asset in any contest, which ant, if had a he is, him the that state; over advantages with to create the possibility so with past fraught violence of the that the seriously eyes he would be prejudiced can the sub- a fair jury by-pass not receive trial, ject. fail- county attorney
There were instances where the ed offer further of the acts about proof to violent And defendant was cross-examined. counsel defend- ant cross-examined. And counsel for defendant com- about that the to show plain indicating state, good this, further This conten- should have offered proof. faith, the of such evi- presupposed admissibility tion, course, instance. And if such had dence the first been offered it would have been to have known necessary deceased had instances of knowledge specific vio- lence to an sought bur- probably impossible shown — den in most instances. Due to the already great length I shall not detail the opinion, this cross-examination and that done in the complained majority has been of, Suffice to opinion. there to be doubt as say, appeared the correct rule of law to follow the admission of line evidence. This contested hotly case, where over 30 witnesses testified. The on both attorneys question sides the the argued admissibility the evi- rulings dence out of awaiting the presence jury, actions been all their have court, appear representing best of each was faith, though vigorously his side. State, in the case of Jackson v.
This court held
Cr.
“When a defendant takes the witness to cross-examination the same rules subject govern by If asked if he did not make some specific other witnesses. and he denies it, statement certain individual if state available whom should, produce party faith this made. In the absence of bad statement was is not reversible error.” necessarily in Allen
This case is cited approval 72 Okla. Cr. 2d 835: P.
From state of record is another reason there effort of the state to show cross-examination why character of defendant for turbulence and the bad vio- detailed, as heretofore does not constitute preju- lence, acts dicial and that is: error, concerning specific in- in each violence committed allegedly defendant, of counsel for defendant as to the objection stance over *53 of the defendant’s testimony, was, the answer competency of the state part sir.” There was no on'the “No, attempt on the to show that the acts violence specific alleged other inferred from of the defendant with part persons, the the of the were within knowl- cross-examination, nature did not attempt and the state edge deceased, of the defendant for turbu- the general reputation show in community the lived. lence and violence record that such acts com- There is no in the were proof In or not whether determining mitted the accused. error, constitutes any admission of evidence reversible this and viewing record must be considered, the whole it is of the jury, the verdict record with together entire questions admission the erroneous that apparent not constitute reversible did on cross-examination asked error. also Kennamer v. Tit. 22 1068; §
See O.S.A. supra, 2d and v. State, 57 P. Tingley 59 Okla. Cr. holding: conviction judgment
“This reverse court will un- admission on the ground improper rec- of the entire after an examination less it appears, complained the error that of the court opinion ord, or constitutes justice, of has resulted in a miscarriage statutory constitutional or a substantial violation of a right.” testimony
I do of Sheriff Allemann not feel alleged changes Kenneth Langston concerning cafe following in location of articles things in the on the issues case, ? shooting, any bearing on the light of time so far any was waste as shedding state, I or hurt helped crime. cannot see where the defendant. is that the trial defendant complaint by final be- motion for new erred in overruling trial,
court the judgment the evidence is insufficient support cause of conviction. heretofore recited, my summary
To the evidence deceased, feared the add I that whether might deceased might justified believing and was had an jury opportunity him attack firearms, Defend- testimony. defendant’s own from the judging answered, on direct examination, ant asked follows: “Q. Doc had fights Do whether Wilson know you Q. A. sir. Do you other persons? Yes,
difficulties with *54 general community reputation know what his was respect being quarrelsome, around Fairland with a fighting, thing person? turbulent A. I some- knowed Yes, sir, Q. reputation, good about it. What or was that pretty rough.” bad? A. it was Well,
On cross-examination he was and answered asked, follows: you “Q. having Did Doc ever know of Wilson a knife gun fight? Q. or in a A. sir. When that? A. Yes, gun February.
I Q. know had that the 22nd of I mean any you other than time time claim he had at you using gun, Fairland; did hear ever of him a knife, weapon fight? club or in a A. I No, sir, don’t think so. * * * Any fights Q. you Doc these Wilson don’t had, know who started them? A. I started it know who talking Q. fights you me. I am about these other claim you you having, hear him about don’t know who started you? fights, really those A. I do don’t no.” No, know, jury
There number of were remarkable matters the had to meditate on: The absence of bullet marks on the parlor; south or back end of the Blue Goose beer how graze Wilson could shoot Roberson so as to the back of they apparently his neck when faced each other, shoot- ing one bullet from booth a distance of fifteen around according step- feet, the second time, Roberson, ping range out behind from Paul six Jones, again grazing seven and the bullet feet, the back of de- only why fendant’s neck one inch from other wound; physician night dressed the wound dif- who ficulty light testify did to throw further on this why people no more than the wound; defendant, impeached, and Jack Blalock who son, able to were gun finally, why see a Wilson’s neither hand; and, prosecution inquired Langston, nor the defense of Kenneth owner of the Blue about the facts of the shoot- Goose, ing every opportunity from when had he, evidence, *55 view every move the defendant and the deceased. These matters were mysteries. there
Though was conflict and contradictions, much left conjecture concerning some points, neverthe less there is evidence in ample record support verdict of jury and judgment of the court based there on. See the recent case of Osborn v. 86 Okla. Cr. 2dP. 176, 177, J., holding: Jones,
“Conviction in a murder case will not be reversed as not appeal sustained the evidence unless there is no substantial tending show that guilt the defendant, or unless it fails so far to support ver- dict inference necessary is that acted jury from partiality or was prejudice, controlled undue influence.”
No substantial error I appearing, dis- respectfully sent.
MATTHEWS STATE. May 3,
No. A-11210. 1950.
(218 393.) 2d P.