Biggerstaff v. State, A--15919

• Decision Date: 29 November 1971
• Docket Number: No. A--15919,A--15919
• Citation: 491 P.2d 345
• Parties: Robert Wayne BIGGERSTAFF, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 345

491 P.2d 345

Robert Wayne BIGGERSTAFF, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15919.

Court of Criminal Appeals of Oklahoma.

Nov. 29, 1971.

Syllabus by the Court

1. Instruction that homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication was improper; and should have instructed that intoxication to extent of being unable to formulate specific intent to constitute murder, accused should be found guilty of manslaughter in the first degree.

2. A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he had formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.

3. When an unlawful homicide is established and alleged to have been committed with a premeditated design to effect death, and it appears that the person charged was in such a state of voluntary intoxication as to preclude a premeditated design or intent to take life, the offense is reduced from murder to manslaughter in the first degree.

4. The advice that the accused was entitled to consult with an attorney at anytime does not comply with Miranda directive, that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.

Appeal from the District Court of Oklahoma County; Jack R. Parr, judge.

Robert Wayne Biggerstaff was convicted for the crime of Murder, sentenced to life imprisonment, and appeals. Judgment and sentence modified to First Degree Manslaughter with imprisonment for fifteen (15) years. As modified, judgment and sentence affirmed.

Bay, Hamilton, Renegar & Lees, H. A. Leatherman, Oklahoma City, for plaintiff in error.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., for defendant in error.

BRETT, Judge:

Plaintiff in Error, Robert Wayne Biggerstaff, hereafter referred to as defendant, as he appeared in the trial court, was tried and convicted by a jury in the District Court of Oklahoma County, Oklahoma, case number 35215, for the crime of Murder. The jury returned a verdict assessing defendant's punishment at life imprisonment, and on March 28, 1969, the court imposed judgment and sentence in accordance with the jury's verdict. From that judgment and sentence this appeal has been perfected. Defendant's first attempt to appeal was dismissed by this Court because the appeal had not been perfected in accordance with the rules of this Court, providing for the manner and means of perfecting an appeal. That attempt to appeal was No. A--15,557. Thereafter defendant was granted an appeal out of time, which is now being considered.

Defendant was charged with having caused the death of his wife, Jessie Slagle Biggerstaff, on November 26, 1968. The information alleged that defendant choked his wife to death on the morning of November 26th. Defendant was arrested about 10:00 o'clock that evening after which he was taken to the city jail. On the following day defendant allegedly signed a voluntary statement in which he allegedly admitted having committed the crime. The admission into evidence of this statement is cited as one of the errors committed during his trial. The second proposition argued by defendant in his supplemental brief, filed by counsel of his own choosing, complains concerning the trial court's instruction number four, in which it is asserted the trial court stopped short in stating the law concerning intoxication.

Defendant testified in his own behalf and related that on November 25, 1968, he and his wife returned from Amarillo, Texas, arriving at their home in Oklahoma City at approximately 6:00 P.M. He related that they had both been drinking and that he was drunk at the time of returning to the apartment. He testified that he went into the bedroom and laid down on the bed, passed out and awoke again at about 11:00 P.M., when he discovered his wife was gone. He said that he sat around and drank until about 3:00 A.M. on the morning of November 26th, when his wife returned to the apartment. He testified that his wife decided to take a bath because she was going to work at 7:00 A.M. that morning. He said when she finished bathing she couldn't get out of the bathtub, so defendant helped her out of the tub; she then fell in the kitchen and defendant proceeded to help her to the bed. Defendant testified this happened about 4:30 or 5:00 A.M. According to defendant's story, he had observed the bruises on her face when she came in at 3:00 A.M. that morning, and in response to his questions, she said that a man by the name of Lewis caused the bruises. He related that about 4:00 or 5:00 A.M. he called his brother, Harold Biggerstaff, in Oklahoma City, and told him that something was wrong with Jessie and asked him to come over and help him, but his brother refused to do so. About an hour later he called his sister in North Canton, Ohio, and related essentially the same information to her. He testified further that about 7:30 on the morning of November 26th, he went to get some beer; then he went back to his apartment and stayed until about 8:00 A.M., when he went out to get some more beer, which they both drank. He said he had to keep an appointment with a friend at Fifteenth Street and North Central Street, and about 9:15 A.M. he went to see Mr. Floyd Nickerson, but he wasn't there; so he visited his aunt who lived on Southwest Twenty-Third Street; and at about 10:00 A.M. he went to a liquor store to get a bottle of liquor and then went back to his apartment. He related that when he arrived at the apartment his wife was in bed; that they had a couple of drinks; he cooked some bacon and eggs, which they both ate; and he then left the apartment again to go to the post office in Capitol Hill. He continued that about noon he went to a beer joint on Southwest Twenty-Fifth Street; and from there he went to 1400 Southeast Twenty-Ninth Street to the Budget Auto Sales, where he stayed and looked at cars until about 6:30 or 7:00 that evening. When he left the auto sales, one of the salesmen drove the car; he went to the Holiday Inn on Interstate 35 and had two drinks; that he then returned to the apartment and discovered his wife lying on the Floor without any clothing on. He said he thought she was just drunk and put a pillow under her head and a blanket over her; and that he fooled around, had a few more drinks and the next thing he knew the policeman was looking at him. In his testimony, defendant specifically denied that he caused the death of his wife. He asserted that he was drunk when they arrived home, that he drank more during the night, and that he had drunk considerable liquor the following day. According to defendant's testimony he slapped his wife only one time, about 10:00 the morning of November 27th, when she threw the portable television at him.

The only testimony offered by the defendant was that of the defendant himself. He did not produce the man 'Lewis,' who he said beat-up his wife; nor did he produce Mr. Floyd Nickerson, with whom he claimed to have had an appointment.

To support the charge of murder against the defendant, the first witness offered by the State was Harold M. Biggerstaff, defendant's brother. On direct examination this witness testified that about 4:00 A.M. on November 26, 1968, the defendant called him on the telephone. When the prosecutor asked the witness to state what his brother said to him on the telephone, the witness replied, 'He said, I believe, now--I was pretty well sleepy, but, I don't know much about it, I can tell you about what he said. 'I believe Jess is dead. Will you come over? " He identified 'Jess' as being defendant's wife, Jessie. Defendant's brother testified that he did not go over to defendant's apartment that night, but he did go later that evening, after he received a second telephone call from his sister in Canton, Ohio. At his request, about 10:00 P.M., an Oklahoma City Police Officer met the witness at a laundromat near the defendant's apartment and they proceeded together to the apartment. He related that when they reached the upstairs garage apartment he proceeded up the stairway, knocked on the door and when there was no response he took hold of the doorknob and opened the door. He related that he saw his brother laying in bed and saw defendant's wife lying on the floor; however, he did not enter the apartment.

On cross-examination this witness related that he is four years older than defendant. He stated that the reason he did not respond to defendant's telephone call at 4:00 A.M., was because the defendant was pretty much of a drinker and frequently made foolish calls to him; and he thought this was another foolish telephone call. He testified also that defendant was drunk every time he had seen him during the last ten (10) years; and that defendant was drunk when he and the officer reached the apartment. This witness went to the police car and 15 or 20 minutes later the officers brought the defendant down and put him in the car with the witness. He related that the defendant had been in the Dallas Veteran's Hospital as a result of an automobile accident; that defendant's leg had been broken and he lost one eye in the accident. He related that he rode to the police station with defendant and they arrived there about 11:00 P.M., and by that time defendant was beginning to sober up.

The next witness offered by the State was Officer Ron McEwen, a homicide detective with the Oklahoma City Police Department. He related that he and his partner, Officer Bill Hooten, interrogated the defendant at the City Jail at approximately 9:00 A.M. on November 27th. Defendant objected to this witness testifying concerning the alleged voluntary statement rendered by defendant....