Opinion
No. A-6178.
Opinion Filed November 24, 1928.
1. Appeal and Error — Affirmance — Absence of Briefs or Argument. In a felony case, where the defendant appeals from a judgment of conviction, and no briefs are filed or argument presented, this court will make an examination of the case-made, and, if no material error is apparent, will affirm the judgment.
2. Homicide — Evidence Sustaining Conviction for Manslaughter in First Degree. In a homicide case, evidence held to sustain conviction for manslaughter in the first degree.
Appeal from District Court, Tulsa County; W.B. Williams, Judge.
Johnnie Justice was convicted of manslaughter in the first degree, and he appeals. Affirmed.
H. Tom Kight, for appellant.
Edwin Dabney, Atty. Gen., for the State.
Appellant, Johnnie Justice, was by information charged with the murder of one Willie Harris by shooting him with a pistol. On the trial of the case, he admitted the killing, but pleaded justification in necessary self-defense. A verdict of manslaughter in the first degree was returned against him, but the jury were unable to agree upon the punishment. Motion for new trial was duly filed and overruled. He was by the court sentenced to imprisonment in the penitentiary for the term of 10 years. To reverse the judgment, an appeal was taken by filing in this court on April 14, 1926, a petition in error with case-made, but no brief has been filed.
The errors assigned question the sufficiency of the evidence to support the verdict and alleged errors in the rulings of the court in the admission and rejection of testimony.
The evidence for the state shows that the killing occurred about 2 o'clock in the morning at the Beach Hotel on North Greenwood, city of Tulsa, and that the deceased died about 10 o'clock that morning.
The evidence of the attending physician shows that the bullet entered the upper part of the buttock, penetrated the intestines, and caused twelve intestinal punctures.
According to the testimony of Helen Barrett, she was on the watch that night at the Beach Hotel, which was conducted by her sister. This hotel occupied the two upper stories of the building, and about 2 o'clock in the morning Mrs. Justice came in with her brother, Mr. Pratt. She asked for a room, and witness assigned her to room No. 107. Witness occupied the adjoining room. Mr. Pratt left, and Mrs. Justice asked her for paper and a pencil to write a note to her husband, then asked her to call a boy to carry the note. Witness went to the third floor for a boy, and, as she was coming back, Willie Harris came in, and Mrs. Justice asked him if he would carry the note, and he said he would. As witness went to her room, Harris was standing waiting at the door. That she heard somebody coming up the stairs, and a woman screamed and said: "Oh, Oh, Johnnie! Johnnie! don't do that." Witness ran out in the hall, and Willie Harris was going up the stairs to the third floor. Johnnie Justice pulled a pistol, put his left arm around the post at the foot of the stairs, and shot Willie Harris. He was near the head of the stairs when he was shot. Justice then put the pistol in his pocket and went out. That Mrs. Justice ran into witness' room and ran under her bed just before her husband fired the shot. Witness went to Willie Harris at the head of the stairs, and he said: "He shot me for nothing."
Maud Horn testified that she worked at the hotel, and occupied a room on the third floor on the north side of the hallway; that she was in bed when she heard the gun fire, and she got up, put on a robe, and went into the hall-way. Willie Harris was lying on the floor, and said, "Lady, I am dying, that man shot me for nothing; get a doctor." Several persons gathered, and he said: "I am shot through the hip, if I live I am going to get Johnnie."
As a witness in his own behalf, the defendant, Johnnie Justice, testified that his age was 31 years; that he had been living at Claremore for several years; that at the time of the shooting he was working for his brother-in-law, Mr. Pratt, who conducted a Turkish bath house in Tulsa; that he met his wife at the train about 12 o'clock that day, and took her to her sister's, then went back to work; that evening she came to where he was working, and stayed about an hour, then he sent her to the Beach Hotel to get a room, and her brother, Mr. Pratt, went with her; that it was then about 12 o'clock at night; that about an hour later he went to the Beach Hotel; that that afternoon he let a man that took a bath have $10 on a pistol, and he carried the pistol, wrapped in a newspaper, with him to the hotel; that, when he reached the head of the stairs, he heard a noise in the room where his wife was supposed to be, and heard his wife say: "My God, please don't do that," and heard a man say: "Every woman that comes in here I have to have a date with and if you don't give it to me I will take it away from you;" that he pushed the door open, and the fellow was trying to throw his wife on the bed; that he rushed in and tried to hit him over the head with the pistol, and it fell out of his hands on the floor; that the man grabbed the barrel, and he got the handle, and, as they were struggling, the pistol went off, and again fell on the floor; that he picked up the pistol and went out, got a taxi, and went to Claremore.
It is the province of the jury to try the issue joined by a plea of not guilty, and, if the evidence for the state, uncontradicted, will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.
The record discloses that the trial was in all respects fair, and we are unable to find anything in the record to create a doubt as to the correctness of the result or warrant us in interfering with the judgment. The judgment herein against the defendant, Johnnie Justice, is accordingly affirmed.
EDWARDS and DAVENPORT, JJ., concur.