Bailey v. State
| Decision Date | 03 June 1975 |
| Docket Number | No. F--75--169,F--75--169 |
| Parties | Billy Daymond BAILEY, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Don Anderson, Public Defender, for appellant.
Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Jahn D. Rohrer, Legal Intern, for appellee.
Appellant, Billy Daymond Bailey, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--74--2352, for the offense of Assault and Battery with a Dangerous Weapon with Intent to Kill, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 652. His punishment was fixed at a term of forty-five (45) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.
We do not deem it necessary to recite the statement of facts, inasmuch as this cause must be reversed.
Defendant's first assignment of error alleges that prejudicial and fundamental error occurred when the trial court failed to instruct on the lesser and included offense of Assault and Battery with a Dangerous Weapon (21 O.S.1971, § 645).
We have held that where the evidence presented at trial tends to show a lesser degree of the crime, the jury should be instructed on it. Sargent v. State, Okl.Cr., 509 P.2d 143 (1973); Kent v. State, 8 Okl.Cr. 188, 126 P. 1040 (1912); Atchison v. State, 3 Okl.Cr. 295, 105 P. 387 (1909).
Furthermore, in Clemons v. State, 8 Okl.Cr. 452, 128 P. 739 (1912), this Court stated:
'. . . An assault with intent to kill to do bodily harm; for a person to do bodily harm; for a eprson cannot be killed without bodily harm being done, and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon . . .
'Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial . . .'
See, Wheeler v. State, 66 Okl.Cr. 127, 90 P.2d 49 (1939); DeWitt v. State, 58 Okl.Cr. 261, 52 P.2d 88 (1935); and Russell v. State, 9 Okl.Cr. 692, 133 P. 475 (1913).
The record in the instant case reflects that the alleged crime occurred in the environment of a barroom brawl that included at least two other distinct skirmishes. Furthermore, there exists, in the record, circumstances that could...
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...which include the applicable law necessary to resolve all the material issues raised or suggested by the evidence, citing Bailey v. State, Okl.Cr., 536 P.2d 985 (1975); Reeves v. State, Okl.Cr., 535 P.2d 706 (1975); Tarter v. State, Okl.Cr., 359 P.2d 596 (1961); and, Woodruff v. State, 74 O......
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...as a lesser included offense of Shooting with Intent to Kill. Brown v. State, 674 P.2d 46, 48 (Okla.Crim.App.1983); Bailey v. State, 536 P.2d 985, 986 (Okla.Crim.App.1975). If the circumstances reasonably indicate lack of intent to kill, failure to instruct on the lesser included offense de......
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...this offense to be a lesser-included offense of Assault and Battery with Intent to Kill. See 21 O.S.1981, § 652; Bailey v. State, 536 P.2d 985, 986 (Okla.Crim.App.1975). This Court reasoned in Smith v. State, 79 Okl.Cr. 1, 151 P.2d 74, 83 An assault with intent to kill necessarily includes ......