ÆäÀÌÁö À̹ÌÁö
PDF
ePub

found and the actual value it was represent-pleadings of the plaintiff fix the actual value ed to be as represented by the purchase price of the land at the purchase price, and the paid for the land. This is the rule the jury court by its rule fixes the same sum, not were instructed to follow, and is the correct as the actual value of the land, but as the rule of damages under the pleadings in this purchase price paid for the land, which is the same thing. Consequently, the effect of the rule given, and the rule contended for by appellant, is identical upon the same assumed facts, under plaintiff's pleadings and evidence of value.

case.

An examination of the verdict of the jury will disclose, however, that the damages found for the defendant are not measured by the rule as given by the court. Under the evidence, the plaintiff attempted to show that the land was worth $110, and was cheap at that price. Other witnesses testified that land in the vicinity, in 1913, sold at prices ranging from $100 to $135 per acre. We have above mentioned the evidence fixing the amount of sterile land in the tract from nothing to as much as 30 acres. The jury evidently believed that the tract contained some sterile land. They evidently believed that the reason the spots in the land do not produce crops is that such spots are sterile spots as claimed by the defendant; that the amount in the aggregate of such spots is 15 acres. The plaintiff conditionally estimates the barren spots on the land at 15 acres. The jury were fully justified in finding, if they did find, that the barren spots are sterile, worthless land, and such land amounts in the aggregate to 15 acres.

Assuming that the jury so found as a fact that 15 acres are worthless, then, following the rule they were instructed by the court to follow, in measuring the damages, viz. to find the difference between the purchase price, $8,800 and what it is actually worth, they evidently found that 15 acres are admittedly worthless. Then the land was actually worth $8,800, less the purchase price of 15 acres, viz. $1,650, the amount of the damages under the rule given.

The rule contended for by the appellant, viz. to find the difference between the value of the land at the time of purchase, if it had been as it was represented, and its actual value at that time, if applied, would bring what result? The plaintiff having alleged that the land was actually worth the price paid for it, $8,800, such is the value of the land at the time of purchase if it had been as it was represented. What was its actual value at that time? Assuming that the jury found that 15 acres of the land were worthless, then the value of the 65 remaining acres of land is as it was represented to be, and worth the amount of $110 per acre paid for it because plaintiff alleges the land was of that value. Consequently the 65

acres

of land was actually worth $7,150. The difference between the value of the land at the time of the purchase, if it had been as it was represented to be, that is, the difference between $8,800 and its actual value at the time, viz. $7,150, is the sum of $1,650, the identical amount of damages produced from the rule given by the court, because the

Either rule followed by the jury, after finding the amount of the sterile worthless land to be 15 acres would have produced a verdict for the defendant of $1,650 as his damages. But the jury evidently followed neither rule, for the reason they found the defendant was damaged in the sum of $1,286. In order to have reached this exact sum, and also to have found that 15 acres of the land were worthless, they evidently found that land of the character this land was represented to be in the vicinity where this land is located was actually worth more than $110 per acre; that such land was actually worth $115.60 per acre as some of the witnesses testified; consequently that 65 acres of land was of the character as represented, and was therefore worth $115.60 per acre, or $7,514; that the 15 acres of land was worthless, but that defendant was not injured to the full extent of the sum he actually paid for the 15 worthless acres of land, but that he was injured in a sum equal for the whole tract, having bought at a bargain, and the sum the land which was of the character it was represented to be was actually worth at the time, or a difference between $8,800, the purchase price paid, and $7,514, the actual value of the land at the time, viz. $1,286. Hence the jury found that this land, of the quality the plaintiff reprethe actual value of land in the vicinity of sented it to be, was actually worth more than the purchase price agreed upon by the parties, and actually worth more than plaintiff contended for it. And because defendant did not pay the full worth for 65 acres of such land, his injury by reason of paying $110 per acre for 15 acres of worthless land only amounted to the difference between the sum he paid less than the actual value of the 65 acres of the character of land represented to him he was buying and the price paid for the worthless land. In other words, he paid $1.650 for 15 acres of worthless land. He paid $7,150 for 65 acres of land worth $7.514. Hence he paid $364 less for the 65 acres of land than such land was actually worth. Therefore he was benefited in that respect to the amount of $364, and damaged to the amount of $1,650, by reason of the worthless 15 acres of land. He suffered actual damages, to the amount equal to the difference between the sum he was injured, viz. $1,650, and the sum he was benefited, viz. $364, or in the sum of $1,286.

to the difference between the amount he paid

Thereby a rule is followed by which the jury ascertained the difference between the actual value of the land at the time of the sale and the value of the land had it been as it was represented to be, which not only ignores the court's instructions and the plaintiff's allegations of value, but is the rule that is approved, and here insisted upon, by the appellant, notwithstanding the allegations of his reply, which would have made the strict application of the rule to his disadvantage.

[3] I can find no injury resulting from an instruction given which was not followed by the jury. And the jury evidently did not follow the instruction the court gave in this respect, but did follow a rule in measuring the damages which was just and equitable both to the plaintiff and the defendant and gave neither the benefit of a bargain. The instruction complained of is without injury to the appellant's rights, and was therefore

harmless.

[4] The second paragraph of the instruction, quoted, is complained of as prejudicial "for the reason that it is a direct charge to the jury to find some sum for the defendant in excess of the amount admitted to be owing to the plaintiff in the event the jury should find that the defendant had suffered any damages whatsoever." The language of the instruction permits of such an understanding of its meaning. The language used is as follows:

"If you find the defendant has suffered damages, then you will deduct from the amount of his damages, the amount of the plaintiff's note, and the interest thereon and sums due him on his open accounts, and return a verdict for defendant for the balance of amount."

[blocks in formation]

(Criminal Court of Appeals of Oklahoma. April 26, 1917.)

(Syllabus by the Court.)

1. CRIMINAL LAW

761(6)—INSTRUCTION— ASSUMPTION AS TO PROVOCATION OF DIFFICULTY.

"You are further instructed, gentlemen of the
The court instructed the jury as follows:
jury, that while the law permits a person to
defend himself or his wife against real or ap-
parent danger, such is defensive and not of-
fensive; and therefore you are instructed that.
a person under the law cannot arm himself and
invite and provoke a difficulty, and thereupon
assault and slay his adversary, and invoke the
right of self-defense.
gentlemen of the jury, if you believe from the
And you are instructed,
evidence in this case beyond a reasonable doubt
that this defendant armed himself with a rifle
or in conjunction with his wife, for the purpose
and sought the deceased, either acting alone
of provoking or engaging in a difficulty with
the deceased, and in furtherance of any such de-
sign between husband and wife either husband
the deceased, and thereupon the defendant shot
or wife invoke and provoke a difficulty with
and killed the deceased, then the defendant can-
not invoke the right of self-defense." Held,
that the foregoing instruction does not assume
that the appellant invited or provoked a difficul-
ty with the deceased.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1731.]

2. HOMICIDE

300(7)-INSTRUCTION—SelfDEFENSE PROVOCATION OF DIFFICULTY EVIDENCE.

Evidence examined, and held sufficient to authorize the trial court to give the aforesaid instruction in this case.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 622.] 3. CRIMINAL LAW

ROR-INSTRUCTION.

The verdict of the jury on its face specially sets forth that the jury finds that the defendant has been damaged in the sum of $1,286, from which sum the jury deducts $1,171 as the total amount of the plaintiff's claim. How could such instruction, here complained of, conceding that it is erroneous, have resulted to appellant's prejudice, when the face of the verdict gives to the plaintiff credit against the damages found for the defendant, to the full amount claimed by the plaintiff, and $1 additional? If a reversal of the judgment should be ordered in such circum-Law, Cent. Dig. § 2646.] stances, such reversal would be granted because of a clear technical error, which on its face actually wrought no injury. Reversals for such reasons should not be granted as of right, and this court ought not grant a

1038(1)—HARMLESS EB

Where no objection is made or exception taken to the giving of an instruction at the time it is given, and said instruction is partially erroneous, the giving of said instruction is not reversible error, unless some constitutional or express statutory right of the defendant has been invaded.

reversal in such case for the further reason the Constitution prohibits the reversal of a judgment for technical errors in pleadings and proceedings when upon the whole case justice has been done. Such appears to be the situation presented by this record.

Other alleged errors are assigned, but upon consideration no reversible error appears in

[Ed. Note.-For other cases, see Criminal

Appeal from District Court, Grady County; Frank M. Bailey, Judge.

Charles Bashara was convicted of man

slaughter in the first degree, and he appeals.

Affirmed.

The appellant, Charlie Bashara, was a merchant in the town of Tuttle, Okl. His place of business was located on the north side of Main street. The deceased, Selby, was engaged in the real estate business in said town, and his place of business was situated just east of Bashara's store. There was

an open space about 18 inches wide between | rifle upon him and fired the fatal shot; that the buildings occupied by these parties. In when he fired Selby had his hand inside of windy weather a considerable amount of his sweater, and was attempting to withtrash blew into this space, and Selby went draw something from it, and that he saw to Bashara and got permission to place some something move around that looked to him upright planks across this opening. Some like a ball. The witnesses for the state testime later Bashara became angry at the tifying that at the time Selby was shot he manner in which he claimed Selby was us was making no attempt whatever to draw a ing this place between the buildings, claim- gun or to make any other demonstration of ing that the manner of its use was very violence toward this applicant; that the apannoying to him and his family. After that pellant stepped out from the west side of these planks were torn down, and on the his building and told his wife to stand back, morning of this occurrence they were found and that she stood back against the wall of in the street in front of the premises. Selby the building, and that the appellant immeand his partner, Steward, got the planks and diately fired the fatal shot; that at that nailed them between the opening again. Im-time Selby was standing on his own porch mediately thereafter Bashara came out and merely admonishing Mrs. Bashara not to retore them down and threw them back into move the planks. He reeled to the rear and the street. Again they were nailed up by fell dead just inside of the front door of his Selby, and thereafter Bashara went to see a office. After his death an automatic sixjustice of the peace about it, but the jus-shooter was found buttoned up under his tice refused to do anything, and Bashara re-sweater. Several witnesses testified on returned home, informing his wife of that fact. buttal for the state that a short time after Immediately Mrs. Bashara told her husband the killing the appellant said, in explaining that she would tear the planks down if they the homicide, that at the time he shot the had to be torn down. This was agreeable deceased he was making a motion with his to Bashara, and Mrs. Bashara then proceed-right hand toward his hip pocket. This oced to attempt to tear the planks down with curred in Chickasha while he was in the cusher hands. While she was making this at- tody of the sheriff. It is evident that actempt Selby stepped out in front of his build-cording to the testimony of the witnesses ing and admonished her not to tear the for the state the crime committed here was planks down; that if they were on her prem- murder. The evidence on the part of the ises, he would tear them down himself.. Mrs. defendant tends to sustain his plea of selfBashara remarked that she did not propose defense. The parties to the transaction had to have that space used for the purpose for had some minor difficulties prior thereto, but which it had been used, and that she intend- nothing of a serious nature. Certain evied to tear those planks down. She then pro-dence was introduced tending to show that ceeded to go to a little building in the rear the deceased had on one or two occasions of her store to get an axe, and she imme-threatened the appellant. The jury found diately returned with the axe and commenc- the appellant guilty of manslaughter in the ed to knock the planks down. Selby still admonished her to leave the planks alone, and, according to the witnesses for the defendant, laid his left hand upon her and pushed her back and away from the planks. According to the witnesses for the state Selby never touched her. About this time the appellant appeared upon the scene at the west end of his store building. He says that he told his wife not to let Selby hurt her; that at that time Selby was pushing her with his hand; that he thought Selby intended to hurt her; that Selby's attention was attracted to him, and he immediately remarked, "You

first degree, and sentenced him to imprisonment in the penitentiary for a term of 10 years. From this judgment of conviction an appeal was taken to this court.

Barefoot & Carmichael, Bond, Melton & Melton, and E. E. Riddle, all of Chickasha, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Ass't Atty. Gen., for the State.

MATSON, J. (after stating the facts as above). [1] The only alleged errors relied upon for reversal in this case are the giving of certain instructions, the first of which is re-instruction No. 15, to which instruction objection was made and exception taken at the time of its giving, and which instruction is as follows:

coward, why don't you come and move these planks?" Selby was wearing a knit sweater which was entirely buttoned up in front. At this remark the defendant says he stepped back into a little building occupied by him as a dining room and kitchen just to the west of his store building, and procured his Winchester rifle, immediately returning. When he returned he says Selby made the remark, "You

"You are further instructed. gentlemen of the jury, that while the law permits a person to defend himself or his wife against real or apparent danger, such is defensive and not offensive; and therefore you are instructed that a person under the law cannot arm himself and invite and cow-provoke a difficulty, and thereupon assault and slay his adversary, and invoke the right of selfdefense. And you are instructed, gentlemen of the jury, if you believe from the evidence in this case beyond a reasonable doubt, that this de

ard, I will plug you one," and accompanied this remark with a motion of his right hand to his breast; that thereupon he levied his

fendant armed himself with a rifle and sought this conflict on the part of this appellant. the deceased, either acting alone or in conjunc- As we view the evidence, from his own testion with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, timony, the appellant is at least guilty of and in furtherance of any such design between manslaughter in the first degree. The teshusband and wife, either husband or wife in- timony of his wife would also corroborate voke and provoke a difficulty with the deceased, this view. The testimony of the only other and thereupon the defendant shot and killed the deceased, then the defendant cannot invoke the witness for the defendant does not show a right of self-defense." justification or excuse for the homicide.

The contentions of counsel for appellant that this instruction is erroneous are as follows:

"The court clearly in this last language assumes without sufficient testimony, which point was controverted, that the defendant, to carry out the design which he had formed to slay the deceased, and in furtherance of such design and conspiracy between him and his wife, invited or provoked a difficulty, etc. If there were any testimony tending to show a collusion or conspiracy between the defendant and his wife, certainly the jury should have been permitted to have passed upon and determined that issue." "The court in the case at bar, in giving the instruction complained of, very strongly intimates a conspiracy or collusion between the defendant and his wife to provoke a difficulty with the deceased for the purpose of slaying him. We doubt if there is sufficient testimony in the record warranting the court to charge upon an issue of conspiracy by and between the defendant and his wife; but if there be such testimony, certainly a jury should have been permitted to determine this issue; and the detriment to the defendant by the court's assuming such state of facts cannot be calculated."

We cannot agree with these contentions. First, said instruction does not assume that the defendant invited or provoked a difficulty. The instruction assumes nothing. It will be noted that the court instructed the jury that if they believed beyond a reasonable doubt from the evidence that the defendant armed himself and sought the deceased, either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design did provoke a difficulty with the deceased, and thereupon killed him, then the defendant could not invoke the right of self-defense. The clause, "If you believe from the evidence beyond a reasonable doubt," qualifies everything that follows it in the sentence. This was a correct exposition of the law, as this court has repeatedly held in the following cases: Moutry v. State, 9 Okl. Cr. 623, 132 Pac. 915; Koozer v. State, 7 Okl. Cr. 336, 123 Pac. 554; Rollen v. State, 7 Okl. Cr. 673, 125 Pac. 1087.

[2] As to the further contention that the foregoing instruction is not warranted by sufficient testimony in the record, we conclude that this contention is not meritorious. We have carefully examined this record and reach the conclusion that the acts and conduct of the appellant and his wife on the occasion of this homicide disclosed a state of facts which fully authorized the giving of this instruction. Considered then, from all the angles complained of, we are of the opinion that the trial court did not err in giving the aforesaid instruction on the law of self-defense.

[3] It is also contended that the court erred in giving instruction No. 19, as follows:

tlemen of the jury, relative to certain previous "Evidence has been offered in this case, gendifficulties and threats, and certain opprobrious epithets alleged to have been used by the deceased as against the defendant. You are instructed that even though you should believe from the evidence that the deceased used such epithets and engaged with the defendant in previous difficulties, such previous difficulties nor epithets cannot serve as a justification or defense in this case, unless you should find the what he did under the evidence and the instrucdefendant justifiable and excusable in doing tions given you in this case."

An examination of the record discloses that no objection was made or exception taken to the giving of this instruction. In the absence of any such objection or exception, an erroneous instruction could not be ground for reversal unless fundamentally wrong. The instructions are to be considered as a whole, and we find that in this case the court, by instruction No. 17, fully informed the jury relative to threats and former difficulties. In instruction No. 17 the court, among other things, said that such threats were competent for consideration by the jury, together with all the other facts and circumstances in the case, "in determining the guilt or innocence of this defendant." Considered as a whole, and in view of the fact But it is contended that the court should that the defendant under his own testimony have gone further and instructed the law to and that of his witnesses is at least guilty of be that, if after any such design on the part manslaughter in the first degree, this court of the defendant to seek the deceased for cannot say that there was prejudice in the the purpose of engaging in a difficulty he giving of this instruction, which counsel for abandoned such design and then thereaft- the defendant did not see fit to object to at er his life was put in immediate danger, he the time. It is the duty of counsel to call would have the right to defend himself. the trial court's attention to alleged errors The court is only required to instruct up-in instructions, in order that he may have on the law as applicable to the facts. In this an opportunity to correct them; and, where case there was not a syllable of evidence this is not done, this court has repeatedly falling from the lips of any witness on either held that only such errors in the instruc

tional and plain statutory rights of the de- alleging that the said affidavit was false, and fendant will be considered.

Upon an examination of the entire record we find no error prejudicial to the appellant, and the judgment is accordingly affirmed.

that the said defendant at the time knew that it was false, and that the same was filed in said divorce proceeding for the purpose of procuring service of summons by publication; the material allegations contained in

DOYLE, P. J., and ARMSTRONG, J., con- said affidavit so filed being as follows:

cur.

(13 Okl. Cr. 312)

WEST v. STATE. (No. A-2426.)*: (Criminal Court of Appeals of Oklahoma. April 26, 1917.)

(Syllabus by the Court.)

1. WITNESSES 52(7) - COMPETENCY-WIFE AGAINST HUSBAND.

In a prosecution against a husband for willful and corrupt perjury in making a false affidavit in a suit for divorce against his wife in order to obtain service of summons by publication as required by the statutes of this state, the wife is a competent witness for the state on the trial of such criminal prosecution.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 132-134.]

2. CRIMINAL LAW 824(1)-HARMLESS ERROR-INSTRUCTIONS-PENALTY.

Where the statute fixes the maximum punishment for a crime, but fails to provide a definite minimum punishment therefor, and the court instructs the jury as to punishment practically in the language of the statute, and no more definite instruction as to the minimum term of imprisonment is requested by counsel for the defendant, the giving of such instruction in the absence of such request is not prejudicial

error.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1996, 2004.]

3. CRIMINAL LAW 1186(1)-HARMLESS ERBOR-INSTRUCTIONS.

Mere technical objections to the wording of the court's instructions do not meet with the favor of this court. The judgment of conviction will not be reversed on the ground of misdirection of the jury unless in the opinion of this court, after the examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right of the defend

ant.

[Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 3215-3217, 3219, 3230.]

"That the said defendant did not know whether said Rhoda A. West was at the time in the state of Oklahoma; that the last time he had heard of her was about 18 months prior thereto, and at that time the said Rhoda A. West was in St. Louis, in the state of Missouri; that he was unable to procure service of summons upon the said Rhoda A. West within the state of Oklahoma for the reason that he did not know her whereabouts; and that her whereabouts could not be ascertained by any means within his control."

The state clearly established upon the trial every material allegation of the offense. The only testimony introduced on behalf of the defendant was as to his previous good reputation for truth and as a law-abiding citizen.

Two alleged errors are called to the attention of this court by reason of which counsel for appellant claim that this judgment should be reversed: First, that the court erred in admitting the testimony of Rhoda A. West, the wife of appellant, over his objection and exception; second, that the court erred in failing to instruct the jury as to the minimum punishment which could be inflicted for said offense.

Section 5882, Revised Laws 1910, provides: "Except as otherwise provided in this and civil cases are applicable also in criminal cases: the following chapter, the rules of evidence in Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event munications made by one to the other except on on a criminal trial be permitted to disclose coma trial of an offense committed by one against

the other."

[1] It is contended on behalf of the appellant that perjury committed under the circumstances as above set forth is not a crime committed against the wife within the meanRoy T. West was convicted of perjury, and ing of the above statute, and that therefore he appeals. Affirmed.

Appeal from District Court, Oklahoma County; George W. Clark, Judge.

Pruiett, Sniggs & Tripp, of Oklahoma City, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for

the State.

the wife is an incompetent witness against her husband in such a proceeding. With this contention we cannot agree. It may be admitted that, if our statute was simply a declaration of the common-law rule, then the wife would be incompetent to testify in this MATSON, J. This was a prosecution proceeding. Under the common law neither against the appellant lodged in the district the wife nor the husband were competent witcourt of Oklahoma county charging him with nesses either for or against the other, but the crime of perjury, in that in said court, from the necessity of things an exception in an action which the appellant had then obtained to this rule, and the rule was enpending against his wife, Rhoda A. West, for larged upon to the extent that in criminal divorce, the said appellant filed a false affi- prosecutions against one for personal viodavit in order to procure constructive serv- lence committed upon the other either the ice of summons upon the said Rhoda A. West wife or the husband, as the case might be, by publication, the information in substance were permitted to testify against the other For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied June 2, 1917.

« ÀÌÀü°è¼Ó »