
    BLUEJACKET v. STATE.
    No. A-11165.
    April 12, 1950.
    On Rehearing May 10, 1950.
    (217 P. 2d 848.)
    Frank Hickman, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Bobby Bluejacket, was charged by information, tried by a jury and convicted of the crime of first degree manslaughter against the life of Bill Klein. The information alleged that the defendant, on May 29, 1948, shot Klein with a sawed-off shotgun inflicting upon him mortal wounds which tore away the back part of his head and killed him instantly. The jury found the defendant guilty, and fixed Ms punishment at 99 years in the penitentiary, and the court pronounced judgment and sentence in accord therewith. From this judgment and sentence the defendant perfected this appeal. The case was submitted for the consideration of this court solely upon the record. No briefs were filed in behalf of the defendant or for the state.

We have carefully examined the record and find that it presents one of the most pitiable and uncalled for altercations, resulting in Bill Klein’s death. It is pitiable because of the fact that it presents a tragic picture of misdirected youth, spending its energy in the counterfeit of youthful, gangdom. Two gangs fed by a loyalty wasted upon false idols. Idols exerting an unwholesome leadership over the weaker minds of the gang. One of these idols was Bobby Wilson, 20 years of age (a professional boxer of no mean ability), and apparently the leader of his gang. The other gang was led by Bill Klein, 21 years of age, the victim, an amateur wrestler whose breast was covered with medals of attainment in that field of sports. The defendant herein, Bobby Bluejacket, an Indian boy, was 18 years of age, the stooge to his gang leader, Wilson. Here, as in gangdom, wherever it may be.found, the leader is supposed to rule by braggadacio and bluff, except when unavailing, then he must be the master of force. In event of combat, he is supposed to be bestially brutal, commanding respect of the weaklings who follow him through fear, and demanding loyalty to the point of blind obedience. Bobby Wilson and Bill Klein had cast such roles of leadership for themselves, but they didn’t live up to their billing. They never rose above the level of bluff and spar. Instead it fell to a poor fatherless Indian boy to play the principal part in this tragedy. The record discloses that he possessed a blind loyalty and obedience to a counterfeit leadership. It shows he was swept by the current of events which happened faster than a stooge to crime could assimilate and weigh them. He discovered himself too late, caught in the maelstrom of manslaughter. Such is the disclosure of the 749 page record hereinafter reviewed.

The state produced an array of 16 witnesses, who testified substantially as follows : On Saturday afternoon before the killing on May 29, 1948, Charles Jackson was playing pool with Don Meeker, Bobby Bluejacket, the defendant, Bobby Wilson, and Larry Frazier came into the pool hall. Wilson asked Charley Jackson if he was a friend of Bill Klein, to which the reply was “I am a very good friend”, whereupon Wilson asked him “Will you take a message to him for me? Tell him there is a guy looking for him”, to which Jackson replied “Where will he find the guy”? To the question Jackson asked, Wilson said “out at the Rightway Rink tonight at 8 or 8:30 o’clock.” He was told to tell him not to bring a posse, someone would get hurt. Apparently, the message was conveyed to Bill Klein who the record reveals was of a pugnacious, overbearing, turbulent and violent disposition, given to fighting. Shortly afterwards Bluejacket, Wilson and Frazier met Herbert Spencer outside the pool hall and arranged for a sawed-off shotgun. They went to Spencer’s home and got the gun and brought it back. The gun was in three pieces wrapped up in paper, together with 4 shells. They brought Bluejacket back and let him out in front of the Rialto Theater. They then took the gun wrapped in a funnypaper to Wynn’s hamburger stand at Utica and Pine Streets in Tulsa, Okla. They left it with Mr. Whitehead, who placed it beneath the counter, we presume not knowing what the package contained. They then left and returned later. Frazier asked Mr. Whitehead for the gun. The paper came off the gun and they assembled it right there in the hamburger stand. Frazier then gave the gun to Bluejacket and, according to the evidence, the testimony of Bill Russell Gordon, Bluejacket loaded it with two shells and handed it back to Mr. Whitehead, and asked him to put it back under the counter. Again they left. That evening about 7:30 Robert Klein in response to the dare sent him by Bobby Wilson asked Robert Greer to drive him out to the roller rink. He was accompanied by six or seven of his followers. There he met Bluejacket and asked him if he was Wilson. He was informed that he was not but identified Wilson. In the Wilson crowd was Bluejacket, Frazier, Zuniga and several others.. Upon Wilson being identified to Klein he approached Wilson and they engaged in a conversation. Klein said “I understand you have been looking for me”, the answer was “Yes, I have something I want to settle with you. Come out and stand up and fight like a man”. Whereupon, the record shows Klein pointed to his wrestling medals displayed on his chest and said “This is the way I fight”. Wilson was Avrapping a handkerchief around his hand apparently in preparation to striking Klein. Klein told him to remove it, and Wilson backed up into the hamburger stand. Apparently Klein told him to remove it again and upon his refusal so to do he struck him a backhanded blow. Klein had his other hand in his pocket, and Wilson said “he has got a gun” meaning Klein, and further said to Bluejacket “get that thing, you better come up with the gun”. Whereupon Bluejacket told Mr. Whitehead, the manager of the hamburger stand, to give him the gun. Mr. Whitehead refused and told them to get out, that he did not want any fighting in there, that he would call the police. Wilson and Klein walked out, and Wilson put on some kid gloves. Klein took off his coat and took his pipe out of bis pocket and said “I have no gun. It is a smoking pipe”. While this was going on just outside the stand Bluejacket told Mr. Whitehead to give him the gun, which Mr. Whitehead again refused to do. Bluejacket jumped over the counter and got it. He took it outside and levelled it on Klein. Wilson said “if he starts wrestling, cut him down”. Wilson hit Klein a couple of times. Bluejacket told him several times to stand still, that if he took another step he would kill him. Klein stooped to pick up a rock, held it, and looked at Bluejacket for a little while, putting it down. Klein told Wilson he wanted to get the guy with the gun “nobody is going to hold a gun on me and get away with it”. Bluejacket kept croAvding Klein all of the time as he held the gun on him. The state’s evidence further shows that Bluejacket was admonished by Charley Jackson to put that gun down. Bluejacket told Jackson to get back or he would shoot him. Boland Sanders, another state’s Avitness, said he told Bluejacket not to shoot Klein. Bluejacket said “I am not going to shoot him with one barrel, I will shoot him Avith both”. Klein told Bluejacket to “take the gun off of me”, and he kept telling him to get the gun off him. According to the state’s evidence Klein continued to move back toward the stand, that Bluejacket kept coming forward all of the time. Bluejacket pushed the gun up, it went off when Bluejacket was about tAVO feet from him. It hit him back of the ear and shot off the back part of his head. Bluejacket ran, and said “I didn’t know it was loaded”. In this connection the state offered proof that some one told Bobby Wilson to get between Klein and Bluejacket because the gun was loaded. This statement was made in the presence of Bluejacket. The defendant attempted without success on cross-examination of some of the state’s witnesses to show that Klein carried a gnn all of tbe time. It was vigorously denied by them. The state’s case further discloses that a policeman, who appeared on the scene immediately following the killing, examined the gun and found upon inspection that the left barrel thereof had been fired; that three policemen made a test of the gun and found that immediately after the shooting the left barrel of the gun fired in the killing could be fired with the trigger but the right barrel would not fire. The state’s case further shows that Klein had been a wrestler in Southwestern Institute of Technology, Weatherford, and Oklahoma A. & M. College.

The evidence offered on behalf of the defendant Bobby Bluejacket was produced by seven witnesses. In substance, it was that he had been reared by his mother and that he had never known his father. The record discloses that he had three brothers and one sister. It appears from the record at the age of 10 he had some juvenile trouble and was sent to the Pauls Yalley Training School. Shortly thereafter he was paroled, only to be sent back again. In 1945 he ran away and went to New York City at the age of 15. He lied about his age and registered for the draft and was inducted into the army. Shortly before that one of his older brothers, Dennis, was killed in Romania in the service of his country. His brother, Tommie, Avas captured in the Battle of the Bulge. Finally, when 16 years of age, his true age was discovered and he was discharged from the army. Later, with his mother’s consent he enlisted.

In connection Avith the killing herein invloved it appears that Bluejacket had been told about Bill Klein and Bill Klein’s many fights. It appears from the record that Klein was arrogant, quarrelsome and wanting to fight all the time, many times with boys smaller than he was, and was pictured to have been unmerciful in his attitude. The peculiar thing about the situation herein involved, but illustrative of the gang conflicts, Wilson did not know .Klein and Klein did not know Wilson. Wilson was championing the cause of his gang and Klein defending his conduct on a prior occasion. It appears that on May 27, 1948, LeAvis Rodrigues, a member of Bobby Wilson’s gang, and four other boys belonging to the Wilson crowd, were riding in Kenneth Card’s father’s car being driven by Kenneth Card, whose wife was also in the car. They came up behind another automobile at a stoplight at Third & Boston streets in Tulsa, Okla. At the time they made the stop some girls about 15 years of age were passing doAvn the street and the boys in the Card ear whistled and one of them said “Maybe, when you grow up, we will get acquainted with you”. Immediately Klein, an occupant in the car in front, got out and came back, according to the defense evidence and said “I heard what you said”. He opened the door and jumped in the car and said “Let’s drive out in the county. I am going to whip you all one at a time”. He got out when they stopped in front of the Diamond Bar. He still wanted to fight but none of the occupants of the Card car were inclined so to do. So he left. The defense offered further proof of his violent and turbulent disposition in relation to his fights and willingness to fight, under the limitations and conditions prescribed in Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438, and cases therein cited. Also, in Jenkins v. State, 80 Okla. Cr. 328, 161 P. 2d 90, 162 P. 2d 336.

On May 29 Bluejacket, who knew nothing of the Rod-rigues episode with Klein, went to Doc’s pool hall at Third and Boulder, where he met Bobby Wilson and Bud-die Wilson and Rafael Zuniga. From them he heard for the first time about the encounter between Rodrigues and Klein and the other people in the Card car the day before. It was determined that Bobby Wilson would fight Klein at Pine and Utica streets in the vicinity of the Right-way Skating Rink and the Whitehead hamburger stand. (Klein was informed of this fact in the manner as here-inbefore delineated.) A boy by the name of Harrison advised that Klein always carried a .25 automatic pistol. He said Klein drew it on him, and not to have anything to do with him. Harrison subsequently told them he might be bluffed, however, with a gun. The record shows Bluejacket suggested they get a gun, since they believed Klein would be armed. A boy by the name of Spencer, who was present, volunteered an old sawed-off shotgun which they later procured. They were told that Spencer had no shells, but he did find one or two as testified to by Bobby Wilson. It was said they didn’t need them to bluff Klein. As hereinbefore stated in the state’s case, the gun was left at Whitehead’s hamburger stand and later the gun was assembled and replaced under the counter for safekeeping. Bobby Wilson came to the hamburger stand. Shortly thereafter Bluejacket got a coke and went outside. Bluejacket was sitting on the bumper rail in front of the stand when Klein came up and asked him if he was Wilson. He said he was Bluejacket and Klein said “You are not the fellow I am looking for”. When Klein made his appearance he was followed by six other boys, members of his gang. Klein then went to the stand where Bobby Wilson and Zuniga and others were. He asked “Which of you fellows is looking for trouble”. Bobby Wilson said “no one”. The defense evidence discloses that Klein then reached into his pocket as though going for a gun. Wlison told him to take his hand out of his pocket. Klein then pointed to some medals he had won wrestling and said “these entitle me to fight anyway I want to”. Klein’s hand was still in his pocket and Wilson said “grab his left arm, Blue”, and Bluejacket grabbed at Klein’s arm and missed it, and Klein said “O.K., you two guys get out of here, and I mean get out”. Klein then slapped Wilson. Wilson said to Bluejacket “you had better come out with that thing”, Bluejacket said he told Mr. Whitehead to give him the gun and Mr. Whitehead said he would not. Bluejacket said he then jumped over the counter and came out with the gun. Whitehead had ordered them out of the cafe. Wilson and Klein were just outside the door of the hamburger stand. Wilson and Bluejacket told Klein to take his hand out of his pocket. He did and said “you see I don’t have anything”. Bluejacket denied the conversation about the pipe. He then put on his kid gloves, and then they began to fight. All the time Bluejacket held the gun on Klein. They fought for awhile and Wilson said “as far a.s I am concerned the fight is over.' Let’s shake hands and forget it.” Bluejacket said Klein said “I am not going to fight you, I am going to get the boy with the gun, or that son of a bitch over there”. He then walked over and picked up a rock in his right hand and said “I am going to crush your skull with it,” speaking to Bluejacket. Wilson said “Let’s drop the whole thing”, but warned Bluejacket not to turn his back. Bluejacket testified Klein said “I will not let anybody get by with putting a gun on me”. Somebody told Klein to drop the rock, and Klein said “If he shoots me my friends will follow him to the end of the world if they have to to get him”. Bluejacket kept telling him to “drop the rock or I’ll shoot you”, and somebody hollered “you know that gun is loaded, Bobby”. Wilson said “He told Bluejacket to throw the gun down and run. You don’t want any trouble”. Then, “Take the gun and grab a cab and get out of here”. Buddy Wilson said Bluejacket said to Klein “if you don’t drop that rock, I will pull the trigger”. Klein threw up his arm and Bluejacket testified he came up with the gun and hit Klein in the head with it, and it exploded striking him in the ear and tearing the back part of Klein’s head off. Bluejacket said he did not know what he did or said at that time. He further testified he did not pull the trigger, but that the gun was accidentally discharged, and that he had no intention of killing Klein. Moreover, he sought to prove that, on cross-examination of the state’s police officers who tested the gun, that only by being hit, could the gun be discharged. In this way he sought to show that that was the only way that the firing pin would come in contact with the shell and explode the cap. In this connection, Bluejacket admitted on cross-examination he was experienced in the use of firearms; that during his service in the army he had fired .45 automatics, submachine guns, automatic rifles and bazookas. Furthermore, on cross-examination of the defendant, it was disclosed that, in addition to the juvenile record brought out by his counsel in chief, he had been convicted of second degree burglary, petit larceny, and recently had been convicted of assault and battery against his wife.

Such is the record from an evidentiary standpoint. In some particulars the evidence is conflicting, but the conflicts do not extend to any material points. In any event, it was the jury’s province to weigh the same and determine the defendant’s guilt or innocence. In considering the sufficiency of the evidence to support the jury’s verdict, the “Criminal Court of Appeals is limited to ascertaining whether there is a basis, in the evidence, on which jury can reasonably conclude' that defendant was guilty as charged”. Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924, 926; Peterson v. State, 86 Okla. Cr. 302, 192 P. 2d 286, and numerous other cases to Same effect. The evidence herein is sufficient from which the jury could reasonably conclude the defendant was guilty of the crime of manslaughter.

We have examined the instructions and find they present the defendant’s theory of his defense, and are otherwise in keeping with the law.

This case presents the hazards incident to membership in a gang, whether it be organized for crime or impulsively bred in undirected high school rivalries. Its temper is uncontrollable and its acts unpredictable. This is necessarily true because a gang insanely acts from impulse and not from reason. Its leadership is generally unblessed by wisdom and its methods seldom peaceable. Its bent is usually destruction and, as in the case at bar, sometimes not even short of death. Men, however, when faced with the temptations of a gang, find their powers of perception circumscribed and their wills watered down. It takes character and courage not. to be swept by the current of the gang, and its unworthy leadership. Unfortunately Bobby Bluejacket was not so disposed. Though intending only to play the role of stooge to the champion, he found himself suddenly cast in the principal role of the killer.

The record being free from prejudicial errors amounting to a denial of a fair and impartial trial, the judgment and sentence of the trial court is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.

On Rehearing.

BRETT, J.

On petition for rehearing, having again reviewed the record herein, and in light of cases of a similar nature, Maloon v. State, 38 Okla. Cr. 34, 259 P. 173; Littleton v. State, 19 Okla. Cr. 461, 200 P. 716; Wing-field v. State, 89 Okla. Cr. 45, 205 P. 2d 320; Hood v. State, 70 Okla. Cr. 334, 106 P. 2d 271, and recognizing that one of tlie objects of modern institutional custody is reformation, and because of the extreme youth of the defendant, he being a mere boy 18 years of age, the judgment and sentence herein imposed, under the authority of Title 22 O.S.A. 1941 § 1066, is hereby modified to a term of 25 years and as so modified is affirmed.

JONES, P. J., and POWELL, J., concur.  