Bean v. State
| Decision Date | 09 June 1943 |
| Docket Number | A-10167. |
| Parties | BEAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The character of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character.
2. The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.
3. In jury trials, incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to the harmful matter they are supposed to contain.
4. Court erred in admitting evidence concerning circumstances involving alleged marital affairs of defendant, the only purpose of which evidence was to create prejudice against defendant as the same was wholly disconnected with the offense charged in the information.
5. The words "or other means whatever" set forth in statute 21 O.S.1941 § 645 which provides: "Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year," refers only to other weapons of like kind and character as the firearms or air guns specifically named in the statute.
6. Instruction which advised the jury that "if they should find beyond a reasonable doubt that defendant, with the intent to do bodily harm to D. and without justifiable and excusable cause, committed an assault upon the person of the said D. with any sharp or dangerous weapon, or by any other means whatever, with intent to injure the said D although without intent to kill him, then and in that event it would be your duty to return a verdict of guilty against defendant for assault with a dangerous weapon with intent to do bodily harm," is erroneous as authorizing a conviction for a felony where the jury might conclude under the evidence that accused merely struck complainant with his fists, as contended by defendant, in which case defendant would only be guilty of assault and battery.
7. Where the jury declares the punishment in their verdict within the limitations fixed by law, the trial court must render a judgment according to such verdict. 22 O.S.1941 § 926.
8. Where jury assessed punishment of defendant at five years in the penitentiary, the trial court exceeded his authority in modifying the punishment to four years in pronouncing judgment upon said conviction.
Appeal from District Court, Johnston County; J. I. Goins, Judge.
John Henry Bean was convicted of an assault with a dangerous weapon, and he appeals.
Reversed and remanded for a new trial.
Cunningham & Clark, of Tishomingo, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.
The defendant, John Henry Bean, was charged in the District Court of Johnston County with the crime of assault with intent to kill, was tried and convicted of the lesser offense of assault with a dangerous weapon. The verdict of the jury was for a term of five years in the State Penitentiary with a recommendation that the trial court suspend the execution of the sentence. Notwithstanding the verdict of the jury, the trial court erroneously sentenced the defendant to a term of four years in the State Penitentiary.
Dee Smith, the complaining witness, was city marshal of the town of Ravia. According to his testimony he was notified about dark on January 13, 1941, that the defendant and one Fell Mayes were drunk in the town of Ravia. He saw them passing in an automobile and pursued them in his car, overtaking them about one-half mile south of Ravia. He ordered the defendant into his car and directed the Mayes boy to follow him back to town in the car of the defendant. When the witness started to get into his car, the defendant, who was sitting in the front seat of complaining witness's car, hit him with a car crank and continued to beat upon him until he fell to the ground. He laid on the ground ten or fifteen minutes and then drove back to Ravia and called the sheriff and a doctor.
The doctor testified that he examined complainant the night of January 13, 1941, about 7 o'clock P. M. That he had several contusions and lacerations about the face and his face was also covered with blood. As to what caused the wounds, the doctor testified:
There were no fractures.
The other witnesses for the state testified as to defendant's condition which corroborated the testimony of the doctor.
The sheriff further testified that after he was notified by the complainant as to what occurred he started after the defendant and found him eight or ten miles from Ravia near Petty John Springs. That defendant admitted striking the officer but denied hitting him with a car crank, claiming that he merely struck him with his fists. The defendant was a twenty year old Indian boy.
On behalf of the defendant, his testimony consisted of proof that he was not intoxicated as alleged by the state, and some witnesses testified that after his arrest they saw defendant's hands and they were swollen and bruised.
In his own behalf the defendant testified that he had supper in a cafe at Ravia and then started out of town. That after they had driven about a mile from Ravia he became sick and they drove off the road and parked and he got out of the car and was leaning up against a big tree. About that time the complainant Smith arrived and said "Let's go." That he did not know Smith was the law and when Smith started off with him he struck Smith with his fist and they had a scuffle and he continued to beat on Smith with his fists until he fell. That he was a professional boxer, having boxed when he was in school at the Murray School of Agriculture, later boxing two years in Mexico and a year at Ardmore. That he never did have anything in his hands when he was striking Smith but only used his fists. That after the fight had ended he got a wire off of the fence and the complainant Smith took his automobile and pulled their car from a ditch where they had become stuck when they tried to turn around. That after the fight he returned to Ravia, went to his mother-in-law's, washed and had started to a dance when he was overtaken by the sheriff at Petty John Springs.
The first assignment of error is that the county attorney committed error in his cross-examination of the defendant by asking him questions about irrelevant matters solely for the purpose of creating prejudice in the minds of the jury against defendant.
The county attorney asked the defendant many questions about where he had been the night before the alleged assault. These questions established the fact that the defendant had been drinking and had been out, with a girl who lived in Ravia, all night. Sometime during that night, the exact hour of which was not known by defendant except that it was after midnight, he had married the girl but he had never lived with her after he had brought her to her home in Ravia the next morning, which was the morning preceding the alleged assault that night. After asking these questions the county attorney, over the objection and exception of defendant, was allowed to ask the following questions:
The date of the alleged assault was January...
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