528 P.2d 739 (Okla.Crim.App. 1974), F--74--182, Murray v. State

• Docket Nº: F--74--182 and F--74--218.
• Citation: 528 P.2d 739
• Party Name: Ronald Dean MURRAY, and Danny Lee Grizzie, Appellants, v. The STATE of Oklahoma, Appellee.
• Case Date: November 18, 1974
• Court: Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 739

528 P.2d 739 (Okla.Crim.App. 1974)

Ronald Dean MURRAY, and Danny Lee Grizzie, Appellants,

v.

The STATE of Oklahoma, Appellee.

Nos. F--74--182 and F--74--218.

Court of Criminal Appeals of Oklahoma.

November 18, 1974.

Rehearings Denied Dec. 4, 1974.

Don Anderson, Public Defender, Oklahoma County, Okl., for appellant Murray.

Bulla & Horning, Oklahoma City, Okl., for appellant Grizzle.

Larry Derryberry, Atty. Gen., Kenneth L. Delawhaw, Jr., Michael Jackson, Asst. Attys. Gen., Jeanette Haag, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellants, Ronald Dean Murray and Danny Lee Grizzle, hereinafter referred to as defendants, were charged and tried in the District Court, Oklahoma County, Case No. CRF--73--2426, for the offense of Murder in the First Degree. They were convicted for the offense of Murder in the Second Degree and their punishment was fixed at a term of not less than ten (10) years, nor more than Life imprisonment, and from said judgments and sentences timely appeals have been perfected to this Court.

Since these two defendants were tried together, and the results of both appeals are the same, we are consolidating the two appeals in this one Opinion.

We do not deem it necessary to recite the facts in this case due to the ultimate conclusion reached herein.

The defendants both contend that the trial court erred in refusint to grant their Motion for Severance. The granting or denying of a Motion for Severance is a discretionary matter with the trial court and this Court will not disturb the trial court's ruling, absent a showing that prejudice resulted therein. See Curcie v. State, Okl.Cr., 496 P.2d 387 (1972). However, in the instant case the respective defenses of

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Grizzle and Murray were mutually antagonistic. Grizzle's testimony and confession were such that only Murray could have done the shooting, while Murray's testimony and confession were such that only Grizzle could have done it.

Denial of a severance in the instant case resulted in pitting defendant against co-defendant. To try both together was, in effect, to try each on the confession of the other. The Illinois Supreme Court in the case of People v. Braune, 363 Ill. 551, 2 N.E.2d 839 (1936), recognized this situation where defense of co-defendants was mutually antagonistic, each exculpating himself and inculpating the other:

'The...