Fowler v. State

1931 OK CR 88, 296 P. 528, 50 Okla. Crim. 126, 1931 Okla. Crim. App. LEXIS 75

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 28, 1931
• Docket: No. A-7677.
• Status: Published

Opinion

CHAPPELL, J.

Plaintiff in error, hereinafter called ' defendant, was convicted in the district court of Kiowa county of the crime of manslaughter in the first degree, and his punishment fixed by the court ah imprisonment in ^ the state penitentiary for a period of 20 years.

The evidence of the state was that the deceased, Lov-ard Godfrey, who was a son-in-law of the defendant, had Ibeen separated from his wife; that on the evening of the homicide the defendant, with his daughter and others, had gone to the town of Roosevelt, in Kiowa county, and parked his car in the center of the street; that later the deceased parked his car near that of the defendant and a short time later approached defendant’s car and entered into a conversation with his wife; that a controversy arose between them, and deceased reached through an open window in the car and seized his little daughter and took her over to his own car; that defendant followed deceased to deceased’s ear and fired one shot into his body; that after deceased had slumped to the ground or to the running board, defendant shot him the second time, at which time he fell to the ground, and defendant, after waiting for some little time, deliberately shot him again.

Tbe evidence of the defendant was that as be came; around tbe end of tbe car, tbe deceased took tbe child nn-1 der bis arm and went with bis hand towards bis pocket, and that be shot tbe deceased thinking be was reaching for a weapon. Defendant raises no question of tbe sufficiency of this evidence.

After setting out five alleged errors in bis brief, defendant says:

“It will be seen from tbe foregoing assignment of errors that tbe sole question presented by this case depends upon tbe question of tbe correctness of tbe instructions, or tbe refusal to give certain special instructions.”

Tbe plea interposed was self-defense.

Instructions Nos. 10, 12, 13, and 13A were apparently copied from the case of Turner v. State, 4 Okla. Cr. 189, 111 Pac. 988, and No. 11 followed the case of McDaniel v. State, 8 Okla. Cr. 215, 127 Pac. 358. AJ11 of tbe instructions given by tbe court upon self-defense, except No. 10, have been approved in form or substance in Kent v. State, 8 Okla. Cr. 192, 126 Pac. 1040; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107, 1110; Gransden v. State, 12 Okla. Cr. 425, 158 Pac. 157; Brantley v. State, 15 Okla. Cr. 6, 175 Pac. 51; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Rose v. State, 46 Okla. Cr. 274, 287 Pac. 751.

In Humphrey v. State, 8 Okla. Cr. 449, 128 Pac. 742, this court condemned instruction No. 10 as not being a correct statement of tbe law. This condemnation is not sound. The instruction did not require that tbe danger must be actuajl and imminent as there stated, but required only that it reasonably appear so to defendant. Before one may take human life in bis claimed defense, tbe danger should appear to him from his standpoint as real and imminent, and that is al)l the instruction required, and is all the instruction requires in the case at bar.

The instructions mnst be considered as a whole, and, when considered together, if they fairly and correctly state the law applicable to the case, they will he sufficient.

The special instructions requested by defendant and refused by the court are in principle covered by the general instructions.

The question of the sufficiency of the instructions and the action of the court in refusing to give special instructions must always be considered and determined by the facts in each case in which they arise. Anderson v. State, 8 Okla. Cr. 91, 126 Pac. 840, Ann. Cas. 1914C, 314.

Defendant contends that the punishment of 20 years is excessive. The evidence of the state set out in this opinion is a sufficient answer to this contention.

For the reasons stated, the cause is affirmed.

DAVENPOBT, P. J., and EDWARDS, J., concur.