Bryant v. State, F--73--459
| Decision Date | 05 April 1974 |
| Docket Number | No. F--73--459,F--73--459 |
| Parties | Bill R. BRYANT, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Bill R. Bryant, hereinafter referred to as defendant, was charged in the District Court, McCurtain County, Case No. CRF--73--9, with the offense of Shooting with Intent to Kill. He was tried and convicted for the offense of Assault with a Dangerous Weapon and his punishment was fixed at five (5) years imprisonment. From said judgment and sentence, a timely appeal has been perfected to this Court.
Briefly stated, the facts reveal that on the night of January 18, 1973, Doyle Williston (the complaining witness), his brother Rufus Williston, L. J. Fisher, and another person were on a graveled country road attempting to pull the Williston pickup truck out of a ditch. The defendant, accompanied by two females, approached this group in his vehicle and stopped. The defendant and L. J. Fisher had a fight over a rifle which the defendant had lost. The defendant struck Fisher and pulled out a pistol. The complaining witness moved to his truck and removed his rifle. As he was heading back toward the defendant with the rifle, his brother Rufus grabbed the rifle. At that moment, Doyle Williston was struck with a bullet in his left side. Doyle fell, and testified that he could remember nothing else until he arose. He then chased the defendant back to his car. Doyle then saw his brother Rufus who had also been shot, lying in front of Bryant's car. The defendant drove away, and Doyle and L. J. Fisher took Rufus to the hospital.
Defendant's first assignment of error complains that the court permitted the jury to recess without any admonitions. Under Oklahoma law, 22 O.S. § 854 (1971), the trial judge must admonish the jury as to its conduct. The pertinent part of 22 O.S. § 854 reads as follows:
'The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves or with any one else. . . .'
This trial was completed in a single day with two recesses--one for lunch and another 20 minute break. The record of the trial reveals no such admonition was given to the jury at any time during the trial. The defendant made no objection to the failure to admonish, but did bring it up in the Motion for New Trial.
In Rutherford v. State, Okl.Cr., 95 Okl.Cr. 311, 245 P.2d 96 (1952), this Court recognized a distinction between adjournment as mentioned in the statute and a temporary recess where the recess is brief; however, the Court in Rutherford, supra, further concluded that 'a court, at every separation of the jury and at each adjournment in a criminal trial should give the statutory admonition and at least an abbreviated admonition referring to the previous full admonition at each temporary cessation . . ..'
It is presumed that the court officers perform their duties. Galbert v. State, Okl.Cr., 278 P.2d 245 (1954); Lime v. State, Okl.Cr.,508 P.2d 710 (1973). Where it is contended that there is noncompliance with certain statutory provisions, it is incumbent upon the one making such assertion to introduce evidence to support his contention. In Crabtree v. State, Okl.Cr., 339 P.2d 1066 (1958), this Court quoted the above language from Galbert, supra, and then said (citing 22 C.J.S. Criminal Law § 589) 'the mere failure of their record to show this does not overcome the presumption.'
The only evidence defendant offers to support this claim is that the record reveals no admonitions. Neither the defendant nor the record show that the jury acted improperly at any time, or that the lack of admonition resulted in any prejudicial injury. Therefore, we do not find that the defendant was denied a fair and impartial trial.
In his second assignment of error, defendant claims the trial court erred in allowing evidence of other offenses to be presented before the jury. Beyond questioning witnesses as to the shooting of Doyle...
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Schneider v. State, F--75--24
...need only observe that the instructions considered as a whole fairly and fully state the law applicable to the case. In Bryant v. State, Okl.Cr., 521 P.2d 402, 405 (1974), we again held '. . . if the defendant is not satisfied with the instructions given by the court, and desires additional......
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Thomsen v. State, F-76-767
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Rouse v. State, F-77-624
...that such failure deprived defendant of a substantial right." See also, Holloway v. State, Okl.Cr., 550 P.2d 1352 (1976); Bryant v. State, Okl.Cr., 521 P.2d 402 (1974). The trial court instructed on Murder in the Second Degree, Manslaughter in the First Degree, and Accident. The jury found ......
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Blanton v. City of Oklahoma City, M-77-81
...and no prejudicial conduct which might have resulted in an unfair trial. Therefore, we dismiss this assignment of error. Bryant v. State, Okl.Cr., 521 P.2d 402 (1974), and Lime v. State, Okl.Cr., 508 P.2d 710 As his second assignment of error defendant argues that the prosecutor was imprope......