Fay v. State
| Decision Date | 10 September 1937 |
| Docket Number | A-9257. |
| Parties | FAY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. A conviction appealed from and appeal pending at the time of a subsequent prosecution and trial will not support a plea of former conviction.
2. Where two or more persons are injured by a single criminal act, there are as many separate and distinct offenses as there were persons injured by the unlawful act, and as affecting a plea of former jeopardy it matters not whether a trial for one of such offenses resulted in a conviction or acquittal; there being no difference between pleas of "autrefois convict" and "autrefois acquit."
3. This court holds that where two or more persons are injured by a single criminal act there are as many separate and distinct offenses as there were persons injured by the unlawful act.
4. The instructions of the court considered in their entirety correctly advised the jury as to the law applicable to the facts.
5. There are no errors in the record warranting a reversal.
6. A careful consideration of the evidence convinces the court that it is sufficient to sustain the judgment.
Appeal from District Court, Okmulgee County; S. L. O'Bannon Judge.
John Fay was convicted of assault with intent to kill, and he appeals.
Affirmed.
Kenneth B. Kienzle, of Shawnee, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for the State.
The plaintiff in error, for convenience referred to as the defendant, was convicted of assault with intent to kill, and was sentenced to serve a term of six months in the state penitentiary. Motion for a new trial was filed, considered and overruled. The defendant saved the record and has appealed to this court.
The defendant was by information charged with an assault upon Genella Brewer, a school girl, by striking her with his car. J. P. Fisher, testifying for the State, stated: "I was driving an oil truck in the same direction the defendant was driving; I estimated the defendant was driving at a speed of seventy-five or eighty miles an hour; just about a block and a half north of where he struck Genella Brewer he passed me; the defendant drove so fast I looked at my speedometer and saw I was driving forty-seven or forty-eight miles an hour; I had only time to look up when the defendant struck Genella Brewer."
Roy Snelson, testifying for the State, stated in substance that defendant's car stopped approximately 108 feet from where the defendant struck the child. The witness further stated one of the tires left a mark on the pavement estimated at 120 feet-by another witness at 75 steps. The witness Snelson stated that by the zigzagging of the defendant's car he was having trouble in getting his car under control.
The defendant in his testimony claims before he got into the school zone he was driving about thirty-five or forty miles an hour, and that on coming into the school zone he slowed down to about thirty-five miles an hour. The defendant stated he did not see the child when he got into the school zone.
There is no dispute in the testimony that the defendant was driving at an unusual rate of speed in the school zone when he struck Genella Brewer, nor is there any dispute that the child was bruised and injured. Unless there is some error prejudicial to the rights of the defendant and such an error as would warrant this court in reversing the case, the evidence is sufficient to sustain the verdict and judgment.
The defendant in his petition in error has assigned eleven errors alleged to have been committed by the trial court which he insists is sufficient to warrant this court in reversing his case. The only assignment of error we deem necessary to consider is assignment No. 10, which is: "That the verdict of the jury sustained the defendant's plea of former jeopardy and should have been sustained by a verdict of not guilty."
Section 21, art. 2, of the Constitution of Oklahoma, is as follows:
Section 2678, O.S.1931 (22 Okl.St.Ann. § 522), is as follows: "When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information."
The information charged that on the 26th day of September, 1935, the said defendant did unlawfully, willfully, feloniously, wrongfully, and intentionally make an assault upon the person and body of the said Genella Brewer, with an automobile which he, the said John Fay, was then and there driving upon the public highway, and with such force as was likely to produce death, cut, strike, and wound her, the said Genella Brewer, with the unlawful and felonious intent of him, the said John Fay, her, the said Genella Brewer, to kill and murder.
The record discloses that before the trial began the defendant filed a plea of former jeopardy, and insists that this was the same offense as the one upon which he was formerly tried and convicted in No. 3749, in the district court of Okmulgee county, and which case is mentioned in the verdict of the jury as numbered and set forth above. The defendant in his brief refers to the case No. 3749, and leaves the impression that the trial of No. 3749 was for an assault upon Genella Brewer. The record does not bear him out in this statement, for the reason that the record shows he was tried and convicted in No. 3749 of an assault upon Betty Joe Brewer and not Genella Brewer.
The record further shows that the defendant was tried, convicted and sentenced at the January, 1936, term of the district court of Okmulgee county, for the crime committed by him on Betty Joe Brewer. That he was tried and convicted at the July, 1936, term of the district court of Okmulgee county, for the crime committed on Genella Brewer, the July term being a separate term of court from the January term. The defendant insists that his plea of former jeopardy should be sustained for the reason that the injury to Genella Brewer occurred at the same time that Betty Joe Brewer was injured by the defendant's car, and the defendant further contends that the injury to Betty Joe Brewer and the injury to Genella...
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