
    JOHN FOYE v. STATE.
    No. A-6204.
    Opinion Filed Dec. 17, 1928.
    (272 Pac. 491.)
    T. M. McCombs, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, John Foye, was tried for the murder of Zack Foreman. The jury returned a verdict finding him guilty of manslaughter in the first degree, and assessing his punishment at imprisonment in the penitentiary for a term of four years.

From the judgment rendered in pursuance of the verdict, he appealed by filing in this court on April 27, 1926, petition in error with case-made.

The errors assigned are that the court erred in overruling motion for new trial; that the court improperly instructed the jury on the law of self-defense.

Plaintiff in error is not represented in this court, and no brief in support of the assignments of error has been filed.

The facts and circumstances preceding the homicide are not disputed.

It appears that there was a dance at the home of Sam Hair, a mile and a half west of Redland, ¡Sequoyah county. After mid-night, the deceased, Zack Foreman, the defendant, John Foye, his brother-in-law, Buddy Youngblood, and Bud Johnson engaged in a game of poker, and, after playing for some time, a dispute arose. The defendant and Young-blood left the room; shortly afterwards the deceased and Bud Johnson left the room. It was then between 4 and 5 o’clock. As Foreman was passing from the porch to the front gate, the defendant, standing near the corner of the home, shot him with a pistol; the bullet entered the back of his head; he died within a few hours.

Bud Johnson testified: “We were playing on the floor, there was a dispute about the deal, John Foye com-, menced taking his money out of the pot and started up with his hand going towards his pocket, Zack Foreman got up with his back against the east wall and his hand down in his pocket, John Foye rushed Zack with his knife, and said, ‘Zack, don’t come out with nothing, if you do, I will cut your God-damn head off.’ Zack said, ‘You might as well cut, because I am coming out.’ Youngblood rushed Zack on his right, about that time Zack came out with his gun and they both ran out of the room, John Foye went out first, followed by Buddy Youngblood. Three or four minutes later Zack went out. Before he went out he stuck his gun in the scabbard in his overalls, he stepped off the porch and went straight towards the gate, which is 15. or 20 feet from the porch, as I came out the front door I saw John Foye with his head stuck around the corner of the house, he was holding his gun in his. hands and he shot Zack Foreman as he was walking towards the gate. Zack Foreman did not have anything in his hands when he was shot.”

Albert Bills testified: That he was standing watching the poker game when a dispute arose, and the defendant and the deceased both stood up; defendant grabbed the deceased, and said, “Zack, don’t you pull that gun, I will put my knife in your back; he had a pocket knife in his hand; Zack said, “You might as well cut, I am going to come up,” and the defendant ran out the door; Zack Foreman said, “I ain’t got a word to say, the money on the floor is Bud Johnson’s, I am going home”; that Zack Foreman, Bud Johnson, and witness stayed there in the room 15 or 20 minutes; then they started out together, and witness saw the defendant standing at the corner of the house when Zack Foreman was going towards the gate out towards his home; the defendant had his gun pointed in the direction of Foreman, and shot him just before he reached the gate; that Zack Foreman’s back was towards the defendant when the shot was fired.

Sam Hair testified that he was out in his lot when he heard the racket and started towards the house, and was standing at the end of the porch when the gun fired; then he saw John Foye trotting off towards the woods behind the house; that he saw Zack Foreman walking towards the gate when the shot was fired, and he fell forward on his face, within 3 feet of the gate; that he and others help to pick him up, and they found a pistol in a scabbard in his clothes.

Dr. Wood, physican and surgeon, testified that he was called to attend the deceased, and found him lying on the porch of Sam Hair’s house with a bullet wound in the head. The ball had entered the temporal ridge, and ranged upward, and lodged behind the right eye; that he arrived there about 6 o’clock in the morning, and the deceased died within an hour.

As a witness in his own behalf, the defendant testified ; “That trouble started over the poker game; Young-blood and Johnson both grabbed the deck and threw it over to Zack, and he would not let me cut it. I reached over to get the cards, and Bud Johnson came up with his knife and cut me across these three fingers. We all had our hands down, and when I went to get up he and Zack both stepped back and Zack took his gun and it hung; he clicked it three or four times, and Bills grabbed hold of him. I just passed out to the end of the porch. Frank Wallace was standing there, and I said, ‘Give me my gun, I am going home.’ Wallace pulled it out and said, ‘Here it is.’ I went up to the northeast comer of the yard, I could not get over the fence. Zack Foreman was coming out the door; he looked first one way and then the other; and people were going in every direction. There were 36 or 40 there. It seemed to me that it was my time to shoot, because he was looking for me and Bud, they trying to keep him back in the house, and I shot. I was afraid of him, and I knew if he saw me he would kill me. He had his gun in his hand. I was standing 10 or 15 feet from the northeast corner of the house when I fired the shot.”

We have examined the whole record with care, and find no. material error in the rulings of the court in the admission or rejection of evidence.

The instructions given fairly presented the law of the case, and were as favorable to the defendant as he had any right to demand.

It is apparent that justice has been done, and, finding no error prejudicial to the substantial rights of the defendant, the judgment rendered on the verdict is affirmed.

EDWARDS and DAVENPORT, JJ., concur.  