*1 and we think is conclusive duplicitousness of the infor
mation. See also Sweat 69 Okl.
Cr.
punishment taking into is excessive we appear consideration the full defectiveness eleven,
ing in instruction number alleged leading in the absence of counsel
trial of the case and have come to the con justice require
clusion the ends of of the sentence which was im
modification
posed. judgment and sentence of the Dis- County Osage
trict Court of is therefore years imprison-
modified from a term of 4 to a penitentiary
ment in the state term years imprisonment peniten- in the state
tiary and the sentence as thus
modified is affirmed. Mandate will issue
immediately.
POWELL, J., concurs. WHISENHUNT,
Haynes Plaintiff H. Error, Oklahoma, Defendant
The STATE Error.
No. A-12077. Appeals of Oklahoma.
Criminal Court 22, 1954.
Dec.
Rehearing Denied Jan.
inflicting bodily injury, serious all of which things the defendant with the did intent to kill. defendant was tried a jury convicted; unable *3 punishment, on the agree left the same to court, penalty the trial which fixed the at years penitentiary. Judgment and accordingly, sentence was entered from appeal perfected. which this has been The defendant contends the evi support dence is sufficient ver dict, that the and trial court erred sustaining his directed motion for a ver dict. This contention is without merit. possibly evidence without discloses suspected foundation defendant unlawful wife and V. W. Brewer of by thereof made intimacies and reason alleged with intent the aforesaid assault support evi the information to kill. In that the to the effect dence was offered by assault was made the defendant shoot door Brewer’s ing through glass Cafe) at (known cafe as the Cattlemen’s Brewer and Mr. the defendant’s wife. all, shots were Six fired in 2 from the front door back and into towards the whereupon Brewer kitchen Mr. retreated the kitchen where the defendant’s wife upon. was when fired Thereafter defendant went to the back door and broke fired one and shot from the kitchen front through the the cafe at Brewer and his wife. The intended victims then Gossett, ran Durant, .plaintiff out front door with the & de Gossett following shooting fendant two other in error. shots across street in the direction of Williamson, Gen., Q. Atty. J, Mac Owen About a week before Brewer. the shoot Watts, Atty. Gen., for Asst. defendant in ing occurred defendant came to Brew error. tried get er’s cafe and his wife to leave employment, her cursed his wife and Mrs. BRETT, Judge. Brewer, whereupon proceeded Brewer error, Haynes H. Plaintiff in Whisen- whipping, the defendant a knocking hunt, below, by charged defendant was several him down times. Bryan district court of information predicated defense herein sole- Oklahoma, was county, with the crime of as- proposition ly in- kill, intent to sault with sanity what the growing out of defendant In said information was O.S.A.1951. sought prove alleged were criminal April 12, in substance that on state, county between Brewer and the relations defend- in said defendant In this it is V. W. Brewer with a connection well one .38 wife. assaulted Brewer, sup- pistol by firing one that we note record does not same proof positive direct or port any effect in his neck and shoulder taking bullet parties but criminal said intimacies with between the Choate’s wife criminal acts by Kentucky the de- hearsay court said: testified consists of been informed what he had fendant as to “In cases where seeks of the defendant’s about the actions acquittal an ground the sole of un upon anything and not Brewer Mr. mind informa soundness of caused himself. The heard saw or tion him before act received regard testimony in criminally his wife had been if corroboration. sustained little person charged timate with the he was foregoing the with In connection it is killing, with admissible to shooting that the fact discloses the every him to information of fact relate *4 the had after occurred conveyed and to him circumstance of her non-support and for divorced him act, shortly which he the or before of appears the defendant It her children. personal knowledge, tending had persuasion forestall of used all kinds show illicit relations of his wife the this record regard In even the this divorce. killed, person pur the with the he for very poor a defendant had shows that the pose illustrating state of mind of his the it discloses work Moreover record. killing the the occurred. Mc time a defendant was beer drinker and had been Commonwealth, Ky. 170 Candless v. convicted of motor operating a vehicle 1100; 301, Shepherd 185 v. Com S.W. while under influence of intoxicating Ky. monwealth, 119 85 S.W. liquor. entirely The evidence herein is Ky.Law Rep. 376. If the defendant support information, sufficient to received such information and believed conviction and and sentence. true, it it wholly immaterial, to be is upon effect so far as him is its con The defendant he contends was cerned, was, fact, it whether in true impartial fair not a and accorded And false. so this case it was judge permit refused because the falsity the truth of informa the defendant to testify concerning the tion received before the act Choate details of son one what his and Morris mind, upset that but fact his that Davis had told him about what true, be he it to believed observed between Brewer and the defend naturally a was of such nature as to cites no defendant au wife. reasonably equi his mental disturb and support thority of this contention. librium. point passed Nevertheless has been Steeley “This character is, of evidence of P. held: wherein this court course, and, hearsay generally speaking ordinary cases, and in would entirely be “Where there is evidence tending to incompetent. But when the defense show just defendant’s insanity prior insanity, irresistible, is or such an in- to and at the time of the commission impulse as sane would in law homicide, excuse competent it is for act, ought the defendant in reason testify defendant concerning state- ments why and admissions to be allowed to show how made to him his relative deceased mind affected and the causes to deceased’s im- produced moral conduct with condition. the wife of And so it the de- fendant, per- and also of defendant’s is held that generally evidence of in- knowledge sonal of such immoral conveyed con- formation duct, tending as to show actuating others, or obtained his alleged causes insanity. of defendant’s personal shortly observation before competent is It also and admissible as act, if it is admissible is of tending provocation.” to show naturally reasonably nature as to poise Commonwealth, affect his mental to an Choate v. extent Ky. irresponsible render him that it would involving S.W. acting under its crime of influence.” maiming when he had been he deprived was not opinion that the de of substantial of Hence we are true, right. Particularly, permitted foregoing is been have fendant should in view of fact that circumstance the information every fact and detail why his in of the matters on which he had been showing how purpose However, ap higher it is rose indis formed no than affected. mind was infidelity. proof record, cretions without of acts defend parent, from this infidelity Mrs. information The allusions to other received never ant ques appears in the largely state of disturbed Whisenhunt his condition in re acts propounded show counsel and than such mind other infidelity. suspicious We factual acts of highly lation of which discretion figments that while build therefore of the mind'could imaginative detailing permit enlarged discloses further court’s refusal to fiction. which the things matters and did the court informed constituted the character but defendant had the details relate reversible he received at bar it which error case general information son, Morris and others. father, O.S.A.1951. error. from his hearsay) consists (all information This *5 The defendant next contends that testimony effect he largely to the had 14, giving 13, of instructions 15 and that Brewer came his been informed 16 on self defense constituted error. In took her work his wife and to house for this we assertion accord for opened up they (in this connection plea no self where discloses a o’clock, get ready to cafe about five interposed. defense was Instructions 6:30) ; brought that Brewer breakfast applicable all be to the facts cases should work sometimes later her after than home proper interpreta and all deductions and usual, her took to Texas to and once tions to of them parents. that he He testified had visit her presented or covered Fin evidence. her bought Brewer that been informed 309, State, 849; ley 181 v. 84 Okl.Cr. P.2d this connection (in Mrs. dresses some 404; 86, State, Mead 65 Okl.Cr. 83 v. P.2d bought the defendant’s she Brewer testified 286, State, Oglesby v. 56 Okl.Cr. 38 P.2d defendant further dress). The wife one 32; 21, State, Okl.Cr. Stokes v. 86 189 wife Brewer took defendant’s that testified 838, 424, rehearing quoting 190 P.2d P.2d wreck on Colbert of a scene (cid:127)out to the Shepherd State, from v. 209, 51 Okl.Cr. afternoon, road after work one and further 421, 422, 300 P. wherein was said: Brewer and defendant’s wife had attended “The instructions of the court should together party one time where there was conform charge in the informa- He drinking. also some testified he had tion and the interposed defense and to been informed on another occasion his testimony in the case.” took her son and wife another to child State, 675; Smith v. 90 Okl.Cr. 210 P.2d preview picture them, show and left State, Adams v. 93 Okl.Cr. 228 P.2d around, to stating going she walk 195. Insofar evidence herein is con- related to him that son Brewer cerned the defendant no made issue of gone had drive-ins to and his to self defense. It was therefore error to in- several times. There was at gether no struct the on self defense. Neverthe- tempt testimony "of the at corroboration less we do not see how giving of said these incidents offered either to instructions could constitute reversible error son or the defendant’s since the in way no prejudiced We are of the Morris. friend rights the defendant’s but in fact were fa- proper have been it would him, vorable to otherwise mere surplusage. extensively detail State, Hagan v. 76 Okl.Cr. 134 P.2d he said disturbed which his state matters 1042,1045,wherein the rule is stated: mind, record discloses the defend giving permitted testify to the sub “The of an instruction ant was which told, necessary things hence is not under he .stance of evidence is
371
error,
way
acquitted.
same
no
nature
when the
of his acts he must be
State,
defendant.”
prejudiced
rights
Kennamer v.
57 P.2d
59 Okl.Cr.
646;
State,
Gallagher
v.
Okl.Cr.
instruction will not
giving
of such
P.2d 562. But as hereinbefore indicated
if
justify
giving
a reversal of the case
legal
responsibility
test of criminal
un
deprived
same the defendant was
der
Oklahoma
T-21, 152,re
Statutes
proper
or
right
substantial
defense. Jones
capacity
specting
commit crime
test
State,
v.
141 P.2d
responsibility
criminal
fixed at
ap-
rights
loss of such
or
does not
defense
point
capacity
where accused has mental
pear herein,
ground
no
hence
reversible
to distinguish
right
between
as-
wrong,
error seems to be involved.
applied
particular
act and understand
Thereafter
the defendant com
consequence
nature and
of such act. Galla
plains
he offered certain
instruc gher
State, supra;
State,
Owen v.
1, 2, 3,
and 5 on the
548;
Okl.Cr.
163 P.
Tittle
temporary insanity
emotional or
at the time
to submit the defendant’s 1, 2, 3, 4 and which
fused were not includ inadvertence some and to which original
ined case-made made reference is December
court handed down case-made does In the amendment Petitioner, INVERARITY, D. P. any objection exception appear that give said court’s refusal to was saved to Peace, ZUMWALT, W. Geo. Justice instructions, provided in Title requested County, Township, Craig State of Vinita O.S.1951. 831 and § Oklahoma, Respondent. properly preserved record was not Thus the No. A-11978. appeal toas predicate Appeals of Oklahoma. apparent ex no such Criminal Court of It instructions. *7 appear none ceptions taken since were Jan. 1955. amend original or the either court ment to the case-made. exception re to its grant an not now
could instructions, for requested to fusal jury the trial court
after the verdict power grant has no Russell structions. procedure applicable The same 194 P. applicable would be given instructions instructions, exceptions to the requested appear give them must refusal
court’s
record.
However, carefully ex we have requested in compared the
amined given which were those with
structions we find that of not insanity and defense emotional insanity as in de
by reason 1, 2, 3, 4 and were
fendant’s in the instructions
substantially covered objection court. No
given any of the instruc saved exception was repeatedly It has been held given. so