188 P. 890 | Okla. Crim. App. | 1920
It is first contended that the trial court erred in overruling defendant's motion for a continuance on account of the absence of Dr. H.W. Mier, who it is alleged would testify, were he present, that on the next day after the alleged killing the witness examined the defendant and found him suffering from a blow on the left side of his head, which rendered defendant incapable of knowing or understanding what he was doing; also, that he knows of no other competent person who will testify to such facts. It is also alleged that the said witness is out of the state and beyond the jurisdiction of the court, and that the defendant will take the witness' deposition, and asks that the cause be continued until the next regular term of the court for that purpose.
The court very properly overruled the motion: (1) Because there is no showing of any facts disclosing any diligence on the part of the defendant to procure the attendance of this witness, or to take his deposition prior to the commencement of the trial; (2) because there is no showing that the whereabouts of the witness are known to *384 the affiant (defendant), or that there is any likelihood of taking his deposition or procuring his attendance should the cause be continued until the next regular term of court; (3) because the material facts stated in said application were testified to by other witnesses during the trial, and the competent evidence would only be cumulative. For all of which reasons, no manifest abuse of discretion on the part of the trial court in overruling the motion appears from the record.
It is next contended that the trial court erred in permitting the witness Mrs. Childers to testify, over the objection of the defendant, to the statements made by the deceased concerning the facts and occurrences at the time of the commission of the alleged homicide. The court admitted this evidence as a dying declaration on the part of the deceased.
We have carefully examined the record, and this court is of the opinion that the record discloses a sufficient showing that at the time the deceased made said declarations he realized that death was impending, and was at that time without hope of recovery. Under such circumstances the declaration was properly admitted. Paden v. State,
Lastly it is contended that the court erred in refusing to give instructions Nos. 1 and 2, requested by the defendant. Said instructions read as follows: *385
"I charge you that if you believe from the evidence or have a reasonable doubt thereof, that the deceased assaulted the defendant unlawfully, with some heavy instrument and struck him on the head or face, and by said stroke rendered him unconscious at the time and during this period of unconsciousness defendant shot and killed the deceased, and at the time he fired said shot defendant was in such a state of mind that he did not know what he was doing, or know the consequences of his act, then you will acquit the defendant.
"I charge you if from the evidence you believe, or have a reasonable doubt thereof, that the deceased assaulted the defendant unlawfully with some heavy instrument and struck him on the head or face, and by said stroke that the defendant was bereft of his reason, he shot and killed the deceased, and that at the time he fired said shot the defendant was in such a state of mind that he did not know what he was doing, or know the consequences of his act, then you will acquit the defendant."
These instructions were properly refused. There is not any evidence in the record which would support the theory that defendant was unconscious at the time of the commission of this homicide, neither is there any evidence whatever that defendant was temporarily insane. The excerpts taken from the defendant's testimony above copied in the statement of the case show that if the defendant had any defense whatever for taking the life of the deceased, it was based solely on the ground of self-defense, and the court gave the defendant the benefit of this defense in the instructions given. This court has repeatedly held that the trial court is not required to instruct upon any theory of defense unless there is some evidence to support the same. Newby v.State, 17 Okla. Cr. ___,
Finding no evidence in the record in this case which would authorize the court to give the instructions requested, it was clearly not error to refuse the same. In fact, the evidence that the defendant killed the deceased in self-defense is very meager, and the trial court's action in giving the benefit of that defense to the defendant was favorable to him.
This record discloses a homicide committed by the defendant when he was evidently greatly intoxicated, perhaps to such an extent that he was incapable at the time of forming any premeditated design to take life, and for that reason the jury found him guilty of manslaughter in the first degree. The verdict was a humane and merciful one, and fully warranted by the evidence.
Finding no error in the record prejudicial to the substantial rights of the defendant, the judgment is affirmed.
DOYLE, P.J., and ARMSTRONG, J., concur.
