Banker v. State

• Decision Date: 18 April 1936
• Docket Number: A-9012.
• Citation: 56 P.2d 1205,59 Okla.Crim. 213
• Parties: BANKER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

56 P.2d 1205

59 Okla.Crim. 213

BANKER v. STATE.

No. A-9012.

Court of Criminal Appeals of Oklahoma

April 18, 1936

Syllabus by the Court.

In a prosecution for assault and battery with a deadly weapon with intent to kill, the denial of defendant's motion for continuance held to have been an abuse of discretion, in view of the facts as shown by the record.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Ott Banker was convicted of assault and battery with a dangerous weapon with intent to do bodily harm, and he appeals.

Reversed.

Meacham Meacham & Meacham, of Clinton, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for the State.

DOYLE Judge.

The information in this case filed in the district court of Custer county February 13, 1933, charged that W. D. McCombs Doc Thomas, and Ott Banker, did in said county on or about the 11th day of January, 1933, commit the crime of assault and battery with a deadly weapon, to wit, a razor, with intent to kill one Dennie Dexter.

The record shows that defendant R. D. McCombs pleaded guilty, and after serving time was released from the penitentiary some time in December, 1934, and that defendant Doc Thomas upon his separate trial was acquitted.

Upon appellant's trial, the jury returned a verdict finding "the defendant, Ott Banker guilty of assault and battery with a dangerous weapon, without justifiable or excusable cause with intent to do bodily harm, although without intent to kill, as charged in the information, and are unable to agree upon the punishment. However, if possible under the law, ask the Court to show leniency in passing sentence."

On the 17th day of April, 1935, after motion for a new trial had been filed and overruled, the court rendered judgment and he was sentenced to imprisonment in the state penitentiary for a term of 15 months. To reverse the judgment he appeals.

Frank Sturgis testified: "I was at Harry's Café, and I saw there was something going on at Dexter's Café, down about the middle of the block, I saw R. D. McCombs come out, I walked down there and just as I walked in Doc Thomas had hold of Dennie Dexter, when he turned his head I saw blood, Dennie said, 'Frank, don't let that fellow get away, he cut me with a razor."'

W. S. Currell testified: "My place of business is two blocks east of Dexter's Café, I saw R. D. McCombs, Dock Thomas and Ott Banker there, R. D. McCombs said, 'Give me a razor,' but I did not see anybody give him a razor. That Banker held Dennie's head while McCombs cut him."

Clayton Bingenheimer testified: "I went down there and Dennie was having trouble with Doc Thomas, trying to put him out of the restaurant, and Banker was kinda over against the east wall, I turned around and walked back to Harry's Café to call the law, as I came back Doc was crossing the street and there was another fellow over there. Dennie said, 'There goes the fellow that cut me.' The fellow he pointed out was R. D. McCombs."

Ida Bingenheimer testified: "I have a confectionary first door east of Dexter's Café, I heard a racket in the café and followed my son. Ott Banker was standing on the side walk, when he saw me he ran, Doc Thomas was in the restaurant scuffling with Dennie, and Dennie was trying to put him out. Then I saw Doc Thomas run down the street."

Frank Russell testified: "I was going west up Frisco, I saw T. B. George come out of this place and run across the street, when I got up to the café Dennie Dexter and Doc Thomas were fighting, Dexter finally threw him out of the café and pushed out Banker and McCombs and maybe another one, they asked him to go back in and they went back in and the rowing started again, I walked up to Harry's café to find a policeman, there was no one there, so I went back and Dennie threw him out again. Ott Banker slipped the McCombs boy a razor and I went back to Harry's café and asked the girl there to call the police office and tell them to send some one down there to stop the fight, when I came back down there Dennie Dexter's neck had been cut."

The complaining witness, Dennie Dexter, was not called as a witness.

The defendant, as a witness in his own behalf, testified: "I was sitting in my car in front of Dexter's Café, R. D. McCombs came along and went into the restaurant. An argument started in there and I got out and went to the door, Doc Thomas and T. B. George got into a scrap, Dennie asked me to help take them out of there and I did. Dennie said, 'Come and get him, I am going to hit him,' and Dennie had a pop bottle in his hand, I took him and shoved him out of the door and I said, 'Doc, don't go back in there.' R. D. McCombs lives in Oklahoma City. The day before I saw him about Dennie's place all doped up on whisky. I did not have a razor any time that evening and didn't hand R. D. McCombs or anybody a razor, I didn't see a razor there that evening. Dennie came out and I said, 'Dennie, get in the car and I'll take you to the hospital,' and Clayton Bingenheimer said, 'No, I will take him,' and I sat around there until Edd Phelps arrested me. I never at any time had hold of Dennie Dexter, the only time I touched him was when I took the pop bottle out of his hand to keep him from hitting Doc with it. Doc Thomas was drunk and W. D. McCombs was crazy drunk."

The record shows that after the jury retired to deliberate upon its verdict the foreman sent to the court a note which reads:

"Is it within our power to assess a sentence and

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