Schmitt v. State

1935 OK CR 46, 57 Okla. Crim. 102, 47 P.2d 199



A person may resist a trespass on real property in his possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.


Defendant was charged with murder for shooting and killing a man who had stolen some corn and watermelon from his field. The fatal shot was fired as the man rode away in a car. The trial court convicted defendant of manslaughter in the first degree. On defendant’s appeal, the appellate court affirmed the conviction.


Could defendant be convicted of manslaughter for fatally shooting the victim who had stolen property from him and who was already riding away?




The irresistible inference from the testimony on the part of the state was that the killing was a felonious homicide. There was sufficient evidence before the jury to justify a verdict finding defendant guilty of murder, because according to his own voluntary statements to the officers, admissions deliberately made within an hour after he fired the fatal shot, there was no pretense or claim on his part that the shooting was done in self-defense. Considering that, together with the testimony of the witnesses for the state and the physical facts, the killing was wholly without justification.

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