
    SIMPSON STEVENSON et al. v. STATE.
    No. A-3512.
    Opinion Filed June 8, 1921.
    Rehearing Denied July 27, 1921.
    (199 Pac. 219.)
    (Syllabus.)
    Homicide — Manslaughter in First Degree — Sufficiency of Evidence. In a prosecution for murder evidence held sufficient to support a verdict of manslaughter in the first degree.
    Appeal from District Court, Garvin County; P. B. Swank, Judge.
    Simpson Stevenson, Callis Shirley, Sam Stevenson, and Fleet Stevenson were convicted 'of manslaughter in the first degree, and appeal.
    Affirmed.
    John M. Stanley and Monroe Osborn, for plaintiff in error.
    
      S. P. Freeling, Atty. Gen., and "W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Garvin county, rendered upon a verdict finding the defendants Simpson Stevenson, Callis Shirley, Sam Stevenson and Fleet Stevenson guilty of manslaughter in the first degree, and leaving the punishment to be fixed by the court. On the 6th day of September, 1918, the court sentenced the defendants to imprisonment in the penitentiary, each for the term of four years.

Said defendants, together with Luther Lovell, were jointly informed against for the crime of murder, it being alleged that they did hill and murder one Ollie Prince. Luther Lovell asked and was granted a severance. It appears that Lovell is a white man; that the other parties are all' negroes; that the Stevensons are brothers and that Callis Shirley is the father-in-law of Simpson Stevenson.

The evidence shows that on Sunday the 10th day of February, 1918, a number of the negroes of the neighborhood had congregated inear the Mount Zion chiirch, norHh of Hennepin; they were engaged in crap shooting and all of them were drinking more or less. Alfred Stevenson, a distant cousin of the Stevensons, and Ben Johnson, about the same degree of kinship to them, had a dispute over a dollar; the crowd agreed that they should settle it with a fair fist fight. Johnson, it appears, had the best of the fight. Callis Shirley, whom witnesses call, “John Callis”, jerked out his knife and said, “No son-of-a-bitch is going to run over Alfred Stevenson.” Johnson backed away and picked up a club; then Simpson Stevenson pointed a pistol at Johnson and said, “Don’t hit John Callis”, and Johnson dropped the club and ran away. Ollie Prince, the deceased, brother-in-law of ran away. Ollie Prince, the deceased, a brother-in-law of Ben Johnson, came np with a gun in his hand by his side. Callis Shirley caught Ollie Prince by the coat with one hand and held an open knife in the other. Alfred Williams testified that at this point, “Simpson Stevenson shot Ollie Prince, and Sam Stevenson, standing behind Simpson, shot Prince; then John Callis shot Prince in the back as he was falling ; then Fleet Stevenson called to Luther Lovell to bring him his gun, and ran to meet him; Luther Lovell gave him his gun and he shot Ollie Prince.”

Fisher Franklin testified:

“I was down the hill a piece and I heard some shooting; when I came back Sam Stevenson was shooting at Ollie Prince; he fired two or three shots; I turned and walked off.”

Sim Johnson testified:

“Ben Johnson is my brother; Ollie Prince married my sister. When the fight ended John Callis said, ‘Nobody can run over Alfred Stevenson, ’ and he pulled out his knife; Ben Johnson went backwards and picked up a stick. Simpson Stevenson said, ‘Don’t hit John Callis.’ He had a gun in his hand, and went running down there. Ollie Prince went running down there and said, Don’t double on Ben, ’ and they all met up right there. Simpson grabbed Ollie’s gun with his left hand and both their guns went off about the same time. Then Sam Stevenson shot Ollie Prince. I ran off then. ”

Nealy Prince, a cousin of Ollie Prince, testified that after the fight they all began to laugh and John Callis came up with his knife open and said, “Nobody ain’t going to run over Alfred Stevenson.”

■ “Ben Johnson went backwards, and picked up a stick and started to hit Callis, then Simpson Stevenson ran up with his gun on Johnson and said, ‘Don’t hit Callis.’ Johnson dropped his stick and ran away and they followed him a little piece; about that time Ollie Prince ran down there with his gun down to his side saying, ‘Don’t double teams on Ben.’ John Callis caught Ollie Prince with one hand and drew back the other hand holding a knife. Ollie Prince started up with his gun and Simpson Stevenson grabbed it and shot him, and Sam Stevenson, standing behind Simpson, shot Ollie, then John Callis shot him. I heard Fleet Stevenson hallooing, ‘Give me my gun, Luther,’ and Luther Lovell handed him a gun and Fleet ran down there and shot Ollie Prince. ’ ’

On cross-examination he stated:

“I was convicted in this county of killing Lige Stevenson. I served a term for this, and also a term for killing another negro in Oklahoma.”

Upon a proper predicate showing that Sherman Prince and Park Prince, witnesses for the state on the preliminary examination, were out of the state, in a ¿gaining camp, their testimony on the preliminary examination was read to the jury, as follows:

Testimony of Sherman Prince:

“I was on the hill where the automobiles were; about the time I got down there Ollie Prince ran up and John Callis grabbed him and Ollie made for his gun; Simpson Stevenson grabbed the gun and shot him; at the same time Ollie’s gun went off; then Sam Stevenson shot him and X ran away.”

Testimony of Park Prince:

“Ben Johnson and Alfred started to fight and backed down the hill; Alfred knocked Ben down; then Ben knocked Alfred down. John Callis ran up and said he would not let-anybody do that; about that time Ollie Prince ran up; John Callis took hold of Ollie’s coat; Ollie made for his gun and Simpson Stevenson grabbed it and shot him; then Sam Stevenson shot Ollie and walked away; then John Callis shot him; then Fleet Stevenson ran up and shot him. ’ ’

The evidence further shows that there were five gunshot wounds in the body of the deceased.

For the defense, Melvin Taylor testified:

“I and my wife, Ollie Prince, and Alfred Stevenson stayed at Ben Johnson’s home Saturday night. The next day we all went down to where the killing took place, about 200 yards south of Ben Johnson’s; we were all shooting craps there, and they got into a dispute;.some of the boys said let them fight a fist fight and the best man will win, and some of them said all right, let them fight. This boy knocked Ben down the first lick, Ben got up and hit him and knocked him down and kicked him and some of the boys said that was enough. Alfred Stevenson got up and Fleet asked him if that was enough, or did he want to have it out'. About that time John Callis said, ‘No son-of-a-biteh will run over Alfred Stevenson,’ and he got his knife out. Ben found a little stick. About that time Simpson Stevenson ran up with a six-shooter, and Ben Johnson broke and ran. Ollie Prince ran right up in the crowd with a gun in his hand; about that time there were two shots, and then another shot and he fell. I saw Sam Stevenson wiíil a Sfesliooter; he fired three shots. I couldn’t say whether he was shooting at Sherman Prince or not.”

Luther Lovell testified:

“I live near Katie. That afternoon with Will Knight I was going over to Boyle Wright’s in a Ford car, and passing a bunch of negroes, we stopped to see what the excitement was. There was a dispute over a dice game and Fleet Stevenson said if they wanted to fight, why to fight a fair fist fight. After they fought a little, Fleet asked Alfred if he had enough, and Alfred said, ‘yes’; John Callis ran up and Ben Johnson ran back and grabbed a piece of fence post and threw it at John Callis. Callis had his knife and said, ‘If you hit me with that stick I will cut you in two. ’ Ollie Prince came up with a gun in his right hand down by his side, and says, ‘I will kill some of you, God-damn you, ’ and got up close to Simpson and Simpson grabbed Ollie’s gun with his left hand and pushed it off from him. Both guns were fired. Simpson fired another shot or two. I saw Sherman Prince shoot into the ground before the fight started. I saw Sam Stevenson shoot at Sherman Prince twice. I did not give a gun to Fleet Stevenson.”

W. L. Knight testified:

“I was with Luther Lovell. I think it was about 2:30 when we stopped there. We had been there about 30 minutes when the fight took place. I saw Ben Johnson pick up a club; the best I can tell he threw it at John Callis and ran away. I saw Ollie Prince with a gun in his hand down by his right side; he threw the gun down on Simpson Stevenson, and Simpson grabbed the gun and shot him. I think he shot twice. Ollie Prince fell and I think he fired two shots at him after he fell. I saw Sam Stevenson shoot at Sherman Prince. John Callis was not doing anything that I know of only just helping them fight. I didn’t see Sam Stevenson shoot Ollie Prince before or after he fell.”

Callis Shirley testified:

“I live a mile south of Katie. The Stevenson boys live about a mile west. The killing occurred about six miles, maybe seven, southwest. I drove over to Stevenson’s that day. After dinner Simpson, Sam and Fleet got in my car and we started over to Inman Prince’s place; on the way we saw the crowd and stopped; they were shooting craps; Ollie Prince took me down on the branch and gave me two or three drinks of whisky; we came back and he borrowed a dollar and a half from me to get into the game again; the fight started over a dollar. Fleet said, ‘Let them fight, if they will fight a fair fight. ’ They fought around; Alfred Stevenson was down and Ben Johnson was kicking him; Fleet picked him up and asked him if he had had enough; he said ‘yes.’ Alfred Williams said, ‘Beat hell out of him Ben, or get that dollar,’ and I said, ‘Ben, let him alone, all of you men can’t double on Alfred Stevenson while I am here.’ Ben said, ‘What in hell is it to you?’ I said, ‘Ben, I ain’t going to let all you boys double on this one boy,’ and he got a club and started at me .with it. I stepped backwards and got my knife out and told him if he hit me I would cut him in two. He threw the club at me and just missed my head. Ollie Prince came running down there with a gun in his hand, holding it down by the side of his leg and said, ‘I will kill some of you sons-of-bitches,’ and stuck his gun into Simpson Stevenson’s breast. Simpson caught the gun with his left hand and threw it off and shot him; both guns went off at the same time; Simpson shot him in the left breast and Ollie fell. I think he shot him twice, and maybe more, I don’t know. I saw Alfred Williams fired a shot, then he stepped behind a tree and fired two or three shots towards where Ollie Prince was. I didn’t see Sam Stevenson shoot Ollie Prince; I did not shoot Ollie Prince, because I had nothing to shoot him with; I know that Fleet Stevenson did not get a pistol from Luther Lovell and he did not shoot Ollie Prince.”

Simpson Stevenson testified:

“Inman Prince is my brother-in-law. He lives about two miles southwest of where the killing took place. We were passing on the road about 100 yards from where the crowd was and heard them laughing and talking and we stopped and got out of the ear. When the fight started Alfred Williams took out his automatic and Ollie Prince had his gun. Fleet told them to let them have a fair fight. Williams stuck his automatic back in his hip pocket. The fight started and the crowd ganged around; about the time the fight was over John Callis came over and said, ‘There ain’t no use in all you fellows getting in on Alfred Stevenson, Ben has got his dollar.’ Ben said, ‘No.’ Alfred Williams said, ‘We will kill the son-of-a-biteh or get the dollar,’ and John Callis said, ‘I ain’t going to let all you fellows get on Alfred Stevenson.’ Ben ran back and got a stick; John Callis ran his hand in his pocket and got his knife out, and said, ‘If you hit me with that club I will cut you in two.’ Ben threw the club and ran home. Ollie Prince ran right in and threw his gun right in my stomach and said, ‘You son-of-a-biteh, I will cut you in two.’ I grabbed the gun with my left hand and shoved my gun into his breast and shot him. I shot to kill, because he was going to shoot me. He shot first, I shot him again in the side as he was falling; I don’t know whether or not I shot him any more; I might have, he still had the gun in his hand.”

Sam Stevenson testified:

“It was about 3:30 in the afternoon when we stopped and went to where the crowd was. After the fight stopped John Callis told the boys there was no use of doubling on Alfred Stevenson. Ben Johnson backed off a piece and got a club about two feet long and threw it at John Callis and ran away. Ollie Prince threw has gun down on my brother. Simpson grabbed the gun with his left, hand, shoved it off and shot him twice, as well as I remember; it seemed like there were several guns firing; Sherman Prince shot at me two or three times, and I shot at him twice and he broke and ran. I didn’t shoot Ollie Prince either before or after he fell, and John Callis did not carry a pistol there that day and Fleet Stevenson did not get a pistol from Lnther Lovell and did not shoot Ollie Prince. ’ ’

Fleet Stevenson testified:

“When the dispute started, Alfred Williams whipped an automatic out of his hip pocket and said, ‘Take on to him Ben, let’s get the dollar or beat hell out of him.’ I said, ‘Boys if they are.going to fight, let them fight fair, you boys get back with your guns.’ About the time the fight was over I asked Alfred Stevenson, ‘Have you got enough?’ and he said, ‘Yes’. I said, ‘Well, get up and go home.’ Alfred Williams said, ‘Ben, have you got your dollar?’ Ben said, ‘No.’ Williams said, “Well, by-God, let’s get it or kill him.’ John Callis said, '‘You fellows can’t double team on Alfred Stevenson.’ ”

The defendants also offered testimony of several witnesses to the effect that their reputation for being quiet, peaceable and law-abiding citizens was good.

The first error assigned and argued in the brief is that the verdict is contrary to law and contrary to the evidence, and for this reason the court erred in refusing to direct the jury to return a verdict of acquittal.

In the defendants’ brief it is argued “that so far as Simpson Stevenson is concerned the evidence shows that he acted in his necessary self-defense when he fired the fatal shot ; that as to Callis Shirley, Sam Stevenson and Fleet Stevenson, no conspiracy having been shown, and they not having advised or encouraged Simpson Stevenson to kill the said Ollie Prince, the state was required to show that they actually participated in the commission of said crime prior to the fatal shot.”

This court has uniformly held that where the testimony is conflicting, the credibility of witnesses and the weight to be given their testimony is a matter for the jury to determine, and unless the evidence fails so far to support the verdict that the necessary inference is that the verdict is the result of passion and prejudice, this court will not disturb a verdict of guilty upon the' weight of the testimony.

In this ease it is sufficient to say that the evidence on the part of the state shows that the defendant Simpson Stevenson was assaulting Ben Johnson with a pistol and the defendant Callis Shirley was assaulting Ben Johnson with a knife when Ollie Prince, Johnson’s brother-in-law, came to his assistance, and was shot by Simpson Stevenson; that each of the other defendants participated in the commission of the homicide by shooting deceased.

A defendant cannot avail himself of the plea of necessary self-defense, if the necessity for the defense was brought on by his own deliberate and lawless acts, and any defendant who fired any one of the shots that struck deceased is guilty of at least manslaughter, where such shot contributed to deceased’s death, even if the shot was not necessarily fatal, and though the shot fired by some other defendant was necessarily fatal. Under the evidence it was a question for the jury to determine as to whether or not the necessity for shooting deceased by the defendant Simpson Stevenson, as testified to by said defendant and his witnesses, was brought on by his own deliberate and lawless acts, and it was a question for the jury to determine whether or not the shots fired by the other defendants contributed to the deceased’s death. On this phase of the case the court instructed the jury:

“That if any defendant fired a shot into the body of said Ollie Prince after he was dead or mortally wounded, and if you believe that such shot in no way contributed to the death of such deceased, then such defendant would be guilty of neither murder nor manslaughter and you should return a verdict of not guilty as to such defendant, unless you find from the evidence beyond a reasonable doubt that such defendant at the time and place alleged in the information aided, abetted, assisted or encouraged Simpson Stevenson to unlawfully, wilfully, feloniously without authority of law and without jutifiable or excusable cause, kill the said Ollie Prince.”

The instructions of the court to the jury were more favorable to the defendants than they should have been.

We have given this case our most careful consideration, and our conclusion is that the testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict, and we have found no error in the record prejudicial to the substantial rights of the defendants. It follows that the judgment appealed from, should be, and accordingly is affirmed.

MATSON and BESSEY, JJ., concur.  