Cook v. State

• Decision Date: 19 December 1945
• Docket Number: A-10502.
• Parties: COOK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

164 P.2d 652

81 Okla.Crim. 337

COOK v. STATE.

No. A-10502.

Court of Criminal Appeals of Oklahoma

December 19, 1945

Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.

Louis Henry Cook was convicted of assault with a dangerous weapon and sentenced to serve a term of five years in the State Penitentiary, and he appeals.

Affirmed.

Syllabus by the Court.

1. Where the defense of insanity at the time of the commission of the crime is presented, this issue, under our practice, is submitted to the trial jury together with the facts in the case. (For a full discussion of this question, see Rice v. State, Okl.Cr.App., 158 P.2d 912.)

2. Where it is desired that special instructions be given, it is the duty of counsel to prepare the instructions in writing and present them to the trial court. When this is not done, a case will not be reversed or relief given unless fundamental error, which is prejudicial to the defendant, has been committed.

3. Instructions examined and found to have fully covered the issues presented by the evidence.

4. This court does not have the right to order the trial court to enter an order suspending the sentence when this action is taken by reason of 22 O.S.1941 § 991.

Mathers & Mathers, of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.

BAREFOOT Presiding Judge.

Defendant Louis Henry Cook, was charged in the District Court of Oklahoma County with the crime of assault with intent to kill, was tried, convicted of assault with a dangerous weapon, and sentenced to serve a term of five years in the State penitentiary. From this judgment and sentence he has appealed.

In the brief of defendant, all assignments of error are discussed together, and will be so considered here.

A brief statement of the facts as revealed by the record is necessary. The defendant had married in September, 1936. Prior to their marriage, his wife informed him that the prosecuting witness, James Houston Johnson, had raped her when she was sixteen years of age. On July 5, 1943 the defendant went to the home of the prosecuting witness whom he had never before known, and asked if his name was Johnson. Upon being told that it was, defendant stated, 'I think you owe my wife an apology.' He then related what his wife had told him about witness having raped her seven years prior thereto. After a lengthy discussion, in which Johnson told him that nothing like that had occurred, and that he did not even know his wife, the defendant left, stating to the witness, 'Let's just forget it.'

On July 9, 1943, defendant returned to the home of the prosecuting witness, and when Mr. Johnson opened his door, defendant stated, 'I have decided that you are the one.' Witness invited him to come in and talk it over, and he answered: 'No. You talked me out of this once before, and we are not going to talk it over this time.' Just as the wife of Johnson entered the room, defendant pulled a gun and put it to Johnson's back, and said, 'Let's get going.' They started out of the front door, and Johnson stumbled, and when they came near the automobile, defendant pushed Johnson, and he fell, and defendant shot him through the head. Defendant immediately entered his car and drove away, and soon appeared at the police headquarters and gave himself up. On the same evening he made a written statement to the officers, and this statement was introduced in evidence.

Mrs. L. C. Valbracht testified for the State. She lived in one side of the duplex occupied by the Johnsons, and witnessed the difficulty from the time defendant and Mr. Johnson went out of the house onto the porch. She followed them, and attempted to keep defendant from taking Mr. Johnson to his automobile, and from shooting him. Her testimony was that the prosecuting witness did nothing but comply with the orders of defendant; that he said nothing to defendant, and defendant shot him without cause. The wife of the prosecuting witness corroborated the testimony of her husband and of Mrs. Valbracht. Defendant also corroborated this testimony up to the point of the shooting, but testified that the prosecuting witness said his wife was a liar, and that everything went black, and he did not know or realize what had happened until he awoke in a sanatorium in Oklahoma City, some time thereafter.

Defendant's wife testified that the prosecuting witness had raped her seven years prior to this difficulty, in an apartment house in Oklahoma City. This occurred some time before her marriage to defendant. She told defendant about it prior to their marriage, and they had talked about it at intervals thereafter. She had not told her mother or sister with whom she lived until shortly before July 5, 1943. The mother-in-law of defendant, two of his sisters and his...