Dunbar v. State

• Decision Date: 12 November 1942
• Docket Number: A-10076.
• Citation: 131 P.2d 116,75 Okla.Crim. 275
• Parties: DUNBAR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

131 P.2d 116

75 Okla.Crim. 275

DUNBAR v. STATE.

No. A-10076.

Court of Criminal Appeals of Oklahoma

November 12, 1942

Syllabus by the Court.

1. The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprizes the defendant of what he must be prepared to meet.

2. For information held sufficient to charge the offense of assault with intent to kill by attempting to shoot at another, see opinion.

3. "An assault is any wilful and unlawful attempt or offer with force or violence to do a corporeal hurt to another" or by any threatening gesture, showing in itself or by words accompanying it, sufficient to cause a well founded apprehension of immediate peril.

4. An attempt to commit a crime consists of the following elements First, the intent to commit the crime. Second, performance of some act toward commission thereof, Third, the failure to consummate its commission.

5. Overt act is sufficient to complete offense of attempt to commit crime, if it goes far enough toward accomplishment of offense to amount to commencement of its consummation.

6. "Attempt to commit crime," as distinguished from mere preparation, consists of a direct movement toward consummation of intended crime after preparations have been made.

7. If upon the trial additional instructions are desired, it is the duty of counsel to reduce them to writing and request that they be given, and if he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct the jury upon some material question of law, and that the defendant has been deprived of a substantial right.

8. If upon the trial special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case, where he has not requested such instructions.

9. Where a verdict is irregular in form, but is not objected to at the time it is returned, and the court given an opportunity to have the jury correct it, every intendment and inference will be indulged to uphold it, and where from an examination of the verdict, and the entire record, the intent and purpose of the jury as expressed in the verdict may be clearly ascertained, it will be upheld.

10. Upon information charging assault with intent to kill by attempting to shoot at another, as defined by first part Penal Code. Sec. 652, 21 O.S.1941, where the instructions of the court submit the included offense of assault with intent to do bodily harm, with any sharp or dangerous weapon, or who attempts to shoot at another with any kind of firearm with intent to injure, but without intent to kill as defined by Penal Code, Sec. 645, 21 O.S.1941, the verdict was: "We the jury *** 'find the defendant guilty of assault with a dangerous weapon' as charged in the information and assess his punishment at imprisonment in the State penitentiary for one year." Held, that the verdict is sufficiently definite and certain as to the included offense, and is in effect a verdict of guilty of an attempt to shoot at another with intent to injure, although without intent to kill.

11. For evidence held sufficient to sustain conviction of appellant of crime of assault with a dangerous weapon, by attempting to shoot at another, with intent to injure, but without intent to kill, see body of opinion.

Appeal from District Court, Mayes County; N. B. Johnson, Judge.

Charles Dunbar was convicted of felonious assault, and he appeals.

Affirmed.

A. Lee Battenfield, of Pryor, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE Judge.

Appellant was tried on an information which, omitting formal parts, charged that Charles Dunbar did in Mayes county, on or about the 15th day of May, 1940, commit the crime of assault with intent to kill in manner as follows:

That on the day aforesaid, he did unlawfully, wilfully, intentionally and feloniously, make an assault upon one Floyd M. Henry, with a certain weapon, to-wit, a Winchester, which he then and there had and held in his hands, that he did then and there go to his automobile and take therefrom said Winchester, and did then and there load said Winchester by putting in the chamber of said Winchester shells or leaden bullets, and did then and there brandish said Winchester, bringing it up in position to shoot, did point said Winchester at and towards the said Floyd M. Henry, who at said time did run and escape into and through a certain garage nearby to the M. K. & T. Depot, nearby; that said Charles Dunbar followed and pursued said Floyd M. Henry with said Winchester with the unlawful and felonious intent, then and there on the part of him the said Charles Dunbar to kill him the said Floyd M. Henry, contrary to, etc.

December 10, 1940, the jury rendered the following verdict: "We the jury duly drawn, impaneled and sworn in the above entitled cause do upon our oaths find the defendant guilty of 'assault with a dangerous weapon' as charged in the Information and assess his punishment at imprisonment in the State penitentiary for a period of 1 year."

December 16th, defendant filed motion for new trial.

On January 29, 1941, said motion coming on regularly for hearing, at the close of the arguments the court overruled the motion and pronounced judgment as follows:

"The Court: Mr. Dunbar, you were heretofore tried in this case, and the jury by their verdict found you guilty as charged in the Information, found you guilty and fixed the punishment at one year. Do you have anything to say other than what your attorney has stated in your behalf why the Court should not pronounce sentence at this time?

The Defendant: No, sir.

The Court: Under the jury's verdict, it becomes my duty to sentence you to a term of one year in the state penitentiary at McAlester, Oklahoma, at hard labor.

Mr. Battenfield: To which judgment and sentence of the Court, the defendant excepts.

The Court: Let the record show that the defendant gives notice of his intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, and in the presence of the County Attorney, the Court Clerk and the Court, and for good cause shown the defendant is given 60 days in which to make and serve a case-made, the State is allowed 10 days thereafter in which to present amendments, and 5 days time in which to serve and file the case-made and the court will fix the appeal bond at $1,000.00."

Briefly stated, the record discloses the following facts: That on the date alleged, complaining witness Henry was living with his wife and six children of tender years on a rented farm, about four miles northwest of Mazie. The defendant, Charles Dunbar, a married man, with his wife and son were living on what is called the old Kennedy Ranch, and he was foreman of what is known as the Dunbar Ranch, owned by defendant's brother, Ralph Dunbar, Sr., and his son Ralph, Jr. Henry left his home that forenoon, went to Mazie, and from there drove on to Pryor, and returned to Mazie about three o'clock that afternoon, parked his car, went in to the Neal Brother's Garage. Partitioned from the garage is their country store, and behind the service station is their repair shop.

The complaining witness, Henry, testified: "O. L. Hutchins Dwight Neal and Charles Dunbar were in the building, I spoke to Mr. Hutchins, and as I went out I asked Mr. Dunbar, the defendant, when Ralph Dunbar would be up, Ralph Dunbar was defendant brother's son, Ralph Dunbar, Sr., and Ralph, Jr. were running cows on what was known as the Kennedy land down there, Dunbar said he didn't know, then says: 'Oh, by the way, are you going to bring that wire home you got?' He says, furthermore, 'I don't believe you had a bit of right to get that wire,' I says, 'Ralph, Jr. gave me permission when I got the wire' then he cussed me and said that Ralph, Jr. did not tell me to get the wire, I told him that he did. He brought up different things in profane language and accused me of stealing the wire that I had gotten from Ralph, Jr., he called me a damn liar, again and again. He called me everything but a gentleman. I said 'come and go with me, I will prove it to you,' his car was right in front of the garage. He walked to his car and took a Winchester rifle from the car, and was loading it with shells out of a paper box, as I came up, he slipped a shell into the magazine, I was still facing him and he jerked down the lever, and when he pulled the lever back that way it cocked the gun, he was cussing me all the time, and just as he got the gun straight up from his hip to his shoulder I ran in through the garage, into the grocery department and turned to the right, as I started to run he said, 'Stop you dirty son-of-a-bitch, or I will shoot you.' I didn't stop but went on through the door into the grocery department and into the back room where the mechanics worked, I stooped down so he could not shoot me going through there, as I went around the east end of the building he was at the northwest corner of the garage, I looked over my shoulder as he went around the corner of the ice box, with this rifle all the time aimed at me. I ducked down and ran around the corner of the Mayo house, out through the back lot, over the fence and over to the Katy depot and stayed there until I saw defendant drive away, then I went back to the store and got my car, I was not armed in...