Byrum v. State

• Decision Date: 27 October 1932
• Docket Number: A-8399.
• Citation: 15 P.2d 1096,54 Okla.Crim. 173
• Parties: BYRUM et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

15 P.2d 1096

54 Okla.Crim. 173

BYRUM et al. v. STATE.

No. A-8399.

Court of Criminal Appeals of Oklahoma

Oct. 27, 1932

Rehearing Denied Nov. 18, 1932.

Such petition was properly excluded because it was hearsay and did not tend to prove any fact in controversy in the criminal prosecution.

Appeal from District Court, Grady County; W. G. Long, Judge.

Ottis Byrum and Oscar Hembree were convicted of assault with a dangerous weapon, and they bring error.

Affirmed.

It was proper to inquire of accused, for purpose of affecting credibility as witness, how many times he had plead guilty of vagrancy in courts of his county.

C. T Lane, of Norman, Jim Hatcher, of Chickasha, and Ben F Williams, Homer Cowan, and T. R. Benedum, all of Norman, for plaintiffs in error.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.

CHAPPELL J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Grady county of the crime of assault with a dangerous weapon, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

The evidence of the state was that the defendants resided at Maud, Okl.; that on the evening of the shooting a long-distance call was placed from Maud to Tuttle asking for Homer Cherry; that, as soon as the parties were told that he was in Tuttle, they hung up the receiver; that a telephone call was put in by defendant, Byrum, from the home of one Sparkman, in Maud; that Byrum admitted that he put in this call, but claimed it was for another party; that defendants the same night, with masks over their faces, went to the home of Cherry; that, when Cherry opened the door in answer to a call of one of the defendants, they covered him with guns, ordered him to "stick 'em up," and pushed their way into the room, and commanded him to turn his back and walk toward the light; that, as he did so, they called to Mrs. Cherry and ordered her to come out; that she went into another room, obtained a pistol, came back to the door into this room, and said, "Stick 'em up yourselves"; that one of the defendants fired a shot which struck Mrs. Cherry in the right breast, the bullet lodging near the back; that immediately the lights went out and several other shots were fired.

Mrs. Cherry testified positively that she knew the defendants, and that they were the ones who came into the house and shot her. Cherry said he thought the defendants were the parties; that, as the parties fled from the house, they made some tracks. After they were arrested, the sheriff took one of Byrum's shoes and testified that it exactly fitted the tracks made by one of the parties as they fled from the house.

The defense was an alibi. Defendants contend that this evidence is insufficient to support the verdict of the jury.

The evidence of the state and that of the defendants is in direct conflict. This conflict was for the jury, and their verdict will not be disturbed where there is any competent evidence supporting the same. There is sufficient evidence in the record to support the verdict of the jury.

It is also contended that the trial court erred in admitting certain irrelevant, incompetent, and immaterial evidence. These particular assignments of error relate to questions asked and answers given by the defendant, Byrum, on his cross-examination. The first questions complained of are those in which counsel for the state asked Byrum how many times he had pleaded guilty to vagrancy in the courts of his county. It appears from the record that defendant attempted to evade making a direct answer to this question, but counsel pressed him by repetition thereof.

It is contended that the state could only ask Byrum, to affect his credibility, whether or not he had been convicted of a felony or of some crime involving moral turpitude. In Strickland v. State (Okl. Cr.) 284 P. 651, 653, this court said:

"The question presented is the right of the state to show that the defendant had been convicted of a crime under the terms of a city ordinance, where the same was an offense under the state law. This court has repeatedly held that where the defendant has been convicted of a crime that fact may be shown. Davis v. State, 15 Okl. Cr. 386, 177 P. 621; Whitlow v. State, 24 Okl. Cr. 307, 218 P. 162; Smith v. State, 34 Okl. Cr. 396, 246 P. 1104.

Under the sections of the statutes above quoted, it is only necessary to show that the defendant has been convicted of a crime. It would not be proper to introduce proof of petty offenses defined by city ordinance, such as running stop lines, overparking, and the like, which are not made crimes by state law, to discredit the witness. It is the taint of conviction for crime which discredits the witness, and not the tribunal in which the conviction was had. Keeping a disorderly house is a crime under the state law, and a conviction for such crime may be shown irrespective of what tribunal the same was had in, for the purpose of discrediting the witness."

Vagrancy being a crime under our state law, it was proper for the state to inquire of the defendant, for the purpose of affecting his credibility as...