Cook v. State, A--15802

• Decision Date: 28 July 1971
• Docket Number: No. A--15802,A--15802
• Citation: 487 P.2d 1373
• Parties: Hiawatha COOK, 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 1373

487 P.2d 1373

Hiawatha COOK, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15802.

Court of Criminal Appeals of Oklahoma.

July 28, 1971.

James Clark, Ardmore, for plaintiff in error.

Larry Derryberry, Atty. Gen., Robert H. Mitchell, Asst. Atty. Gen., for defendant in error.

BUSSEY, Presiding Judge:

Hiawatha Cook, hereinafter referred to as defendant, was charged with the offense for Murder in the District Court of Carter County, and was convicted for Manslaughter in the First Degree; his punishment was fixed at forty (40) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

Briefly stated, the evidence at the trial adduced that on January 4, 1969, one Milton Sanders was shot to death at a club east of Ardmore. Wayne Warthen, an investigator for the District Attorney's office, testified about investigating the shooting; he also took photographs and received a pistol and cartridge cases. Deputy Kelty testified that he was the first officer to arrive, and observed Milton Sanders lying face-down in a pool of blood.

Roscoe Wilson, the operator of the club, testified that he had loaned Sanders money and received a pistol from him as security. Sanders came to his club the evening of January 3, and repaid the money. Sanders asked him to keep the pistol for him so he would not have to carry it around. He became sick and went home. He later received a call from Bob Scribner, the person he left in charge, stating that Sanders wanted his gun back. He told Scribner to give him the gun.

Bob Scribner testified that he gave Sanders his gun, and Sanders left. He later was sitting in the back room, where a dice game was in process, when he heard two shots and looked up, and he saw the defendant with a gun. He saw Sanders running, and observed the defendant following him. He heard one more shot, and then saw Sanders fall to the floor. The defendant snapped the gun twice after it was out of bullets and Sanders was on the floor.

Willie Thompson testified that he was in the back room at the crap table. The defendant brushed into Sanders, and snatched some of Sanders' money that was laying on the table. Sanders asked the defendant to put his money back, and flipped his coat back, revealing a pistol in his pocket. The defendant grabbed the pistol from Sanders' pocket and pointed it at his forehead. Several people yelled at him to put the gun down, and he dropped it to his side. In a matter of seconds, he raised the gun up and started shooting. Sanders was backing up with his hands in the air. Everyone in the room started to run, and he heard five shots.

Richard Clark's testimony was substantially the same as that of Thompson. He testified that after the shooting, the defendant stated that, 'I'm a cold blooded m.f. finger.' and that, 'There's the two s.b.'s I should have killed.'

Willie Benson's testimony was substantially identical to the two previous witnesses', with the exception that he heard six shots. The defendant snapped the gun twice after it was empty, and stated, 'Who has got some more damned shells?'

Ray Lamberts, a firearms specialist, testified that because of the damage to the bullet, he could not positively state it had been fiired from the pistol. The catridges that were submitted to him had been fired in the pistol.

The parties stipulated that if Doctor Warner were present, he would testify that he performed an autopsy on the body of Milton Sanders. Sanders' body had six bullet holes, and the cause of death was multiple gunshot wounds.

Richard Stoughborough testified for the defense that Sanders had previously accused him of taking money from him while they were gambling. He attempted to pull a gun, but was stopped.

The defendant testified that he was at the club at the dice table, and that he had two dollars in his hand when he brushed Sanders, who thought he had taken his money. Then Sanders pulled out his gun and started toward him. He managed to take the gun away from him, and Sanders started to reach into another pocket. He knew that Sanders carried a knife, and to protect himself he started shooting. He denied that Sanders was backing up, and that he was following him. He admitted prior convictions for Armed Robbery and Assault with a Dangerous Weapon.

The first proposition asserts that the trial court erred in refusing to provide the defendant a Transcript of the Preliminary Hearing at the State's...