MATSON, P. J.
(after stating the facts as above). Of the various errors assigned we deem it only necessary to give full consideration to those relative to the charge of misconduct on the part of the special prosecutor.
The motion for a continuance on account of the absence of the witness Os Neal was properly overruled. There was no abuse of discretion in denying the continuance. There is no showing of any greater likelihood of having obtained the attendance of this witness at a subsequent term of court, had the cause been continued. Furthermore, the record discloses that the testimony of the witness, if present, would have been cumulative of that introduced at the trial.
The errors assigned relative to the instructions and refusal to give requested instructions are not sufficiently meritorious to require of themselves a reversal of this judgment. An examination of the instructions given convinces us that the trial court fairly covered the law of the right of a son to defend his father. For a full discussion of this right see the opinion of this court in Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102.
We now revert to that assignment of error which we deem the most serious, and which, in view of the conflicting nature of the testimony and the unsatisfactory evidence of guilt, is considered sufficiently prejudicial to require that this defendant be granted a new trial. It has frequently been held by this court that the improper remarks of a prosecuting officer, objected to at the time, will be considered and construed in reference to the evidence, and, if it appears that the improper argument may have determined the verdict, a new trial should be granted. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Mulky v. State, 5 Okla. Cr. 75, 113 Pac. 533.
During the course of argument of counsel employed to assist in the prosecution, it was stated “that McBroom called Howell a black republican son of a bitch, and that said McBroom is not a republican.” Counsel for the defendant objected, and the court instructed the jury not to consider the fact that McBroom was not a republican. Counsel further stated “that he had known the parents of this prosecuting witness, and that he did not blame the prosecuting witness for wanting to fight him for calling him that, that his mother was a splendid woman, and that he don’t know but that the flowers are growing on her grave, and that he don’t know but that her spirit has gone above.” These remarks objected to, and the court instructed the jury not to consider remarks of counsel. Further in the argument the following argument was objected to and the court overruled the objection and permitted the remarks to stand: “Fourteen Mile creek is known as Dead Man’s Valley, so many men have been murdered who now sleep there in their graves, and their bones are bleaching all over that country.”
This prosecution was based on section 1756, Compiled Statutes 1921, which provides:
“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”
Defendant was found guilty of the crime defined by section 1764, Compiled Statutes 1921, which provides:
“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”
The jury assessed the maximum punishment provided by the statute for the latter crime. The prosecuting witness himself testified that, before old man McBroom or this defendant struck him with a knife, he had struck at old man McBroom with his fist. He admits that he struck the first blow. On this proposition there seems to be no conflict. The defendant says that the prosecuting witness ran his hand in his pocket and jerked out a knife and “made for my father,” that the prosecuting witness was tripped and fell, and that his father backed off from the prosecuting witness a step or two and that the prosecuting witness made for his father again, and it was not until this time that the defendant cut him with a knife in order to protect his father. There is also no dispute in the record as to the fact that this defendant
only cut the prosecuting witness once, that he and his father immediately left the scene of the difficulty, but that the prosecuting witness went into his barn and procured a monkey-wrench which he threw at old man McBroom and this defendant, who were then leaving the place. This is admitted by the prosecuting witness, and the incident itself shows that the prosecuting witness was angry at that time at old man McBroom and Willie McBroom, and a consideration of the entire record indicates that there was more animosity against the McBrooms on the part of the prosecuting witness than on the part of this defendant against him. The evidence in this case is not such as to require or demand the severest penalty of the law for the lower grade of felonious assault defined by section 1764, supra. Had the jury not been appealed to in the manner above indicated, we seriously doubt whether this defendant would have been found guilty of any grade of felonious assault. There is no evidence to indicate that he entered into the dispute and controversy that resulted in the cutting of Howell until such a time as this defendant believed his father, an old man, was in danger of being cut by Howell. We have no sympathy for one who resorts to the use of a knife in defending himself. The brave man never does that, but there is some excuse for this defendant in view of the fact that he was a frail man and had but one hand, and was unable to fight with his fists. It must also be remembered that on the spur of the moment this all happened. These parties had been friends. The prosecuting witness said that there had never been a hard word between him and this defendant. The prosecuting witness was at that time boarding with the mother of this defendant, and there appears no reason from any of the testimony on the part of the state or on the part. of the defendant why this defendant should want to inflict a serious injury upon the prosecuting witness.
A conviction of a felonious assault under this evidence ought not to be permitted to stand. It will forever brand this young man as a felon. We do not believe the evidence is susceptible of a fair construction which should impute a felonious intent on the part of this defendant to kill or to commit serious bodily injury upon Howell by the use of the knife.
Free access — add to your briefcase to read the full text and ask questions with AI
MATSON, P. J.
(after stating the facts as above). Of the various errors assigned we deem it only necessary to give full consideration to those relative to the charge of misconduct on the part of the special prosecutor.
The motion for a continuance on account of the absence of the witness Os Neal was properly overruled. There was no abuse of discretion in denying the continuance. There is no showing of any greater likelihood of having obtained the attendance of this witness at a subsequent term of court, had the cause been continued. Furthermore, the record discloses that the testimony of the witness, if present, would have been cumulative of that introduced at the trial.
The errors assigned relative to the instructions and refusal to give requested instructions are not sufficiently meritorious to require of themselves a reversal of this judgment. An examination of the instructions given convinces us that the trial court fairly covered the law of the right of a son to defend his father. For a full discussion of this right see the opinion of this court in Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102.
We now revert to that assignment of error which we deem the most serious, and which, in view of the conflicting nature of the testimony and the unsatisfactory evidence of guilt, is considered sufficiently prejudicial to require that this defendant be granted a new trial. It has frequently been held by this court that the improper remarks of a prosecuting officer, objected to at the time, will be considered and construed in reference to the evidence, and, if it appears that the improper argument may have determined the verdict, a new trial should be granted. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Mulky v. State, 5 Okla. Cr. 75, 113 Pac. 533.
During the course of argument of counsel employed to assist in the prosecution, it was stated “that McBroom called Howell a black republican son of a bitch, and that said McBroom is not a republican.” Counsel for the defendant objected, and the court instructed the jury not to consider the fact that McBroom was not a republican. Counsel further stated “that he had known the parents of this prosecuting witness, and that he did not blame the prosecuting witness for wanting to fight him for calling him that, that his mother was a splendid woman, and that he don’t know but that the flowers are growing on her grave, and that he don’t know but that her spirit has gone above.” These remarks objected to, and the court instructed the jury not to consider remarks of counsel. Further in the argument the following argument was objected to and the court overruled the objection and permitted the remarks to stand: “Fourteen Mile creek is known as Dead Man’s Valley, so many men have been murdered who now sleep there in their graves, and their bones are bleaching all over that country.”
This prosecution was based on section 1756, Compiled Statutes 1921, which provides:
“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”
Defendant was found guilty of the crime defined by section 1764, Compiled Statutes 1921, which provides:
“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”
The jury assessed the maximum punishment provided by the statute for the latter crime. The prosecuting witness himself testified that, before old man McBroom or this defendant struck him with a knife, he had struck at old man McBroom with his fist. He admits that he struck the first blow. On this proposition there seems to be no conflict. The defendant says that the prosecuting witness ran his hand in his pocket and jerked out a knife and “made for my father,” that the prosecuting witness was tripped and fell, and that his father backed off from the prosecuting witness a step or two and that the prosecuting witness made for his father again, and it was not until this time that the defendant cut him with a knife in order to protect his father. There is also no dispute in the record as to the fact that this defendant
only cut the prosecuting witness once, that he and his father immediately left the scene of the difficulty, but that the prosecuting witness went into his barn and procured a monkey-wrench which he threw at old man McBroom and this defendant, who were then leaving the place. This is admitted by the prosecuting witness, and the incident itself shows that the prosecuting witness was angry at that time at old man McBroom and Willie McBroom, and a consideration of the entire record indicates that there was more animosity against the McBrooms on the part of the prosecuting witness than on the part of this defendant against him. The evidence in this case is not such as to require or demand the severest penalty of the law for the lower grade of felonious assault defined by section 1764, supra. Had the jury not been appealed to in the manner above indicated, we seriously doubt whether this defendant would have been found guilty of any grade of felonious assault. There is no evidence to indicate that he entered into the dispute and controversy that resulted in the cutting of Howell until such a time as this defendant believed his father, an old man, was in danger of being cut by Howell. We have no sympathy for one who resorts to the use of a knife in defending himself. The brave man never does that, but there is some excuse for this defendant in view of the fact that he was a frail man and had but one hand, and was unable to fight with his fists. It must also be remembered that on the spur of the moment this all happened. These parties had been friends. The prosecuting witness said that there had never been a hard word between him and this defendant. The prosecuting witness was at that time boarding with the mother of this defendant, and there appears no reason from any of the testimony on the part of the state or on the part. of the defendant why this defendant should want to inflict a serious injury upon the prosecuting witness.
A conviction of a felonious assault under this evidence ought not to be permitted to stand. It will forever brand this young man as a felon. We do not believe the evidence is susceptible of a fair construction which should impute a felonious intent on the part of this defendant to kill or to commit serious bodily injury upon Howell by the use of the knife. Taking that view of the evidence, it is apparent to our minds that the inflammatory remarks of the special prosecuting officer were calculated to influence the minds of the jurors and to arouse their prejudice against offenses of this character and thereby against the defendant himself. The argument was not legitimate. Counsel went beyond the bounds of fair argument to discuss matters outside of the record and of a very inflammatory nature. These were not matters of common notoriety or of public history, but were matters peculiarly within the knowledge. of th'e one making the argument. They were highly improper as comments upon matters not in evidence and not legally competent and admissible in evidence. The fact that the trial court instructed the jury not to consider some of these remarks to some extent alleviated the injury, but we are unable to disabuse our minds of the conviction that, all the evidence considered, the jury would not have found this defendant guilty on such a state of facts of a felonious assault, had not their minds been inflamed by such a line of argument.
Were this not a close case on the facts, a different result might and probably would be reached by this court, but where the evidence of guilt is so unsatisfactory, and the remarks so clearly prejudicial, we cannot escape the conclusion that this defendant would either have been acquitted of the charge or else have been found guilty of a lower degree of assault. For such reason, therefore, the judgment is reversed,
and the cause remanded to the lower court, with instructions to grant the defendant a new trial.
BESSEY and DOYLE, JJ., concur.