State of Oklahoma v. Jenkins

Okemah, Oklahoma,criminal defense lawyer represented the Defendant charged with first degree murder.

W.C. (Bill) Jenkins was convicted of the crime of manslaughter in the first degree and appeals. He does not deny that he shot and killed the deceased, one Roy Bradburn, but insists that such killing was in his necessary self-defense. Certain legal propositions, hereinafter discussed, are presented which make it necessary to consider the relationship existing between the defendant and the deceased prior to the fatal difficulty.

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In Rhea v. Territory, 3 Okla. Cr. 230, 105 P. 314; Saunders v. State, 4 Okla. Cr. 264, 266, 111 P. 965, Ann. Cas. 1912B, 766, it was held that the defendant was not justified in killing the deceased because he had made threats against him. It must appear that the deceased was attempting to carry such threats into execution. In this case, the defendant, under his own testimony, was the aggressor and intended to either kill or be killed. One who seeks and brings on an affray cannot shield himself under a plea of self-defense. Young v. State, 11 Okla. Cr. 22, 141 P. 285.

The law of self-defense is solely and emphatically a law of necessity; it does not imply the right of attack and could not avail the defendant if he was the aggressor, or if the fatal difficulty was sought for by him, or was provoked by him by any willful act of his own reasonably calculated to bring it about, or if he voluntarily or of his own free will entered into it, no matter how hard he was pressed or how great his danger became during tile progress of the difficulty. Rollen v. State, 7 Okla. Cr. 673, 125 P. 1087; Montry v. State, 9 Okla. Cr. 623, 132 P. 915.

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Proof of threats is admissible only after evidence tending to show some overt act on the part of the deceased at the time of the killing sufficient to furnish a predicate for a plea of self-defense.

Assuming the defendant's testimony that at the time of the shooting the deceased took a couple of steps backward and made a motion with his hand to his right side accompanied by the statement, "You come down here for trouble and you can get it," would constitute such a predicate, and the trial court should have admitted the excluded evidence, it does not follow that the error was a material or reversible one. The defendant's own testimony shows conclusively that he deliberately armed himself and went out to meet his adversary for the purpose of killing or being killed. Thus entering into a mutual combat, he deprived himself of the right to plead self-defense. Johnson v. State, 69 Okla. Cr. 51, 111 P.2d 265; Green v. State, 54 Okla. Cr. 450, 23 P.2d 506; Riley v. State, 40 Okla. Cr. 323, 268 P. 996; Crowell v. State, 42 Okla. Cr. 392, 276 P. 518.

Also, as previously observed, the defendant was permitted to show that the deceased was a dangerous, quarrelsome, turbulent person, that he carried a pistol, that in the year 1934 he shot and killed two men and wounded another and that he had made threats against the defendant. Therefore, the rejected evidence was largely cumulative.

On the question of mutual combat, the facts in this case have heretofore been stated. We are at a loss to understand how under these facts the position can be taken that it does not come clearly within the law as to mutual combat under the many decisions of this court. The law is so clearly stated by Presiding Judge Furman in the early case of Koozer v. State, 7 Okla. Cr. 336, 123 P. 554, that we quote the syllabus:

"Where a defendant without real or apparent necessity voluntarily enters into a mutual combat with another, in which he takes the life of his antagonist, such killing will not be in self-defense, but the defendant will be guilty of either murder or manslaughter, according to the circumstances and nature of such combat.

"'Where a defendant has sought or provoked a difficulty with the deceased, in order that he might have an opportunity or pretext for killing or inflicting serious bodily injury upon him, and in such combat does kill the deceased, the defendant is guilty of murder, it matters not how hard pressed he may have been in the conflict, unless after such provocation had been given, and before the fatal blow was struck or shot was fired, it appears from the evidence that the defendant abandoned such intention and in good faith sought to withdraw from the conflict. If this appears from the evidence, then the defendant's right of self-defense would revive, and he would have the same right to defend himself as though he had not furnished such provocation.

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"Where the killing was done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the defendant cannot justify on the ground that it was committed in self-defense, and it will be manslaughter at least, unless the defendant can prove that before the mortal stroke was given he had refused any further combat and retreated as far as he could with safety, and that he killed his adversary of necessity to save his own life or his person from great bodily harm."

Finding no prejudicial error, the judgment of the trial court is affirmed.