Van Buskirk v. State - 1980 OK CR 38, 611 P.2d 271

Rule:

21 O.S.1971, § 716: "Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree."

Facts:

On July 9, 1977, during an argument between Teddie Van Buskirk and her boyfriend, Robert Rose, the pair stopped in a low place between two hills on the road from Allen to Ada, Oklahoma. Rose was ordered to get out of the car, and he was thereafter struck by Van Buskirk’s vehicle. Van Buskirk then drove away, leaving Rose in the roadway. Subsequently, Rose was struck by another car moving at a high speed. Van Buskirk was convicted of manslaughter, and she appealed. Van Buskirk argued that the trial court incorrectly instructed the jury on manslaughter, failed to give certain other instructions to the jury, and that the evidence did not sufficiently support her conviction.

Issue:

Did the trial court err in instructing the jury on Manslaughter in the Second Degree?

Answer:

No.

Conclusion:

The court held that a crime was committed when Van Buskirk abandoned the victim in a position of peril. Van Buskirk could have reasonably anticipated that another vehicle might hit Rose; therefore, the jury was properly instructed on the charge of manslaughter as articulated in Okla. Stat. tit. 21, § 716 (1971). No error resulted from the trial court's refusal to give defense-requested instructions because the instructions given adequately covered the subject matter. The court held the evidence supported her conviction.