Flynt v. State
| Decision Date | 15 March 1950 |
| Docket Number | No. A-11080,A-11080 |
| Citation | 216 P.2d 344,91 Okla.Crim. 77 |
| Parties | FLYNT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. Where a defendant objects to the introduction of evidence which is admitted, and afterwards introduces the same evidence himself, it is not ground for reversing the judgment, although the evidence objected to was incompetent
2. Where there have been previous controversies and difficulties between the defendant and prosecuting witness, the existence of such controversies annd difficulties may be shown by either party, in order to show the state of feeling existing between them; but the trial court would not be warranted in trying the merits of such controversies, nor in entering upon a detailed examination of the facts as to who was right and who was wrong in any of these former difficulties.
3. The fact that a witness who has been excluded from the court room under the rule, remains in the court room during the trial, does not thereby make her incompetent as a witness; such fact only goes to affect her credibility as a witness, or subjects her to punishment for contempt of court.
4. There is no statute fixing the time in criminal cases which shall intervene before a case shall stand for trial after arraignment and plea of not guilty. A reasonable time must be allowed. What is a reasonable time must depend upon the facts and circumstances in each particular case.
5. Before the alleged deposition of an absent witness may be admitted in evidence, there must be a showing made that the party offering the deposition has made a substantial compliance with the statutory provisions relating to the taking of depositions in a criminal case. Tit. 22 O.S. 1941 §§ 761 to 766.
6. Where defendant did not stay the execution of a sentence by the filing of an appeal bond as required by statute, although the sentence was suspended, the same became effective immediately upon the pronouncement of the judgment, and where the time set forth in the judgment has elapsed the defendant is no longer subject to restraint pursuant to such judgment.
Darnell & Gibson, Clinton, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
The defendant, Elbert Flynt, was charged by information filed in the District Court of Roger Mills County, with the crime of assault with a sharp and dangerous weapon, with intent to do bodily harm upon one Evert Spitler. Upon trial to a jury, a verdict was rendered finding the defendant guilty, but leaving the punishment to be assessed to the court. On a separate sheet of paper attached to the verdict the jury stated, 'We recommend a suspended sentence.' The trial court accepted the recommendation of the jury and thereupon sentenced the defendant to serve two years imprisonment in the penitentiary, suspended his sentence during good behavior and defendant appeals. The evidence of the state showed that Evert Spitler and his wife in 1946 lived in the town of Hammon, and operated a cafe; that the defendant during a part of the time had worked for Spitler at the cafe. Spitler was working away from home for several weeks, and during this period of time, he received a letter from his mother-in-law advising him to return home, 'if he wanted to save his home.' Spitler returned to Hammon and accused the defendant of trying to steal his wife and break up his home. When Spitler made this statement to the defendant, the defendant quit his employment at the cafe. Later Mrs. Spitler sued Spitler for a divorce which was uncontested, and she was given custody of their small child. Four days after the divorce became final, Mrs. Spitler and the defendant were married.
Spitler testified that on the night of June 14, 1947, he was sitting in front of a barbar shop in Hammon, and saw the defendant sitting in the shop; that he was wanting to discuss with defendant the matter of the care and custody of his child, so he went into the shop and said to the defendant, 'I want to talk to you about my baby,' and defendant replied, 'To hell with you,' and reached for his pocket knife. Spitler hit him with his fist; that the defendant's dad then started striking him and defendant also struck him several times with a pocket knife, causing severe wounds on the left side of his body and on his back; that he was in the hospital about eleven days on account of these injuries.
On cross-examination, Spitler admitted that he testified at the preliminary hearing that when he went to the barber shop, he asked defendant, 'Is it as good legal as it was illegal?'
The defendant testified that after he quit working for Spitler at the cafe, that he had had a controversy with him once or twice; that on the night of the affray, he saw Spitler on the street, and that he walked into the barber shop to avoid meeting him as he did not wish to have any trouble; that Spitler came into the barber shop and said, 'Well, Creepy is that stuff any better now than it was illegal?' That he, the defendant, did not say anything, but Spitler pulled his hand out of his pockets and defendant saw he had on a pair of knucks; that Spitler then commenced to strike him and beat upon him with the knucks; that his father tried to separate them, but Spitler continued to hit him with the knucks, and defendant pulled his pocket knife and struck at Spitler several times, solely to defend himself; that he and Spitler had had fights on three occasions after Spitler's wife had divorced him, and at one time Spitler had tried to run over him while Spitler was driving an automobile along the street.
Several witnesses testified in support of the version of the affray related by the prosecuting witness and also by the defendant. It is our view that the evidence preponderated in favor of the defendant, but the state's evidence was sufficient if credited by the jury to justify them in concluding that the defendant was guilty as charged. Pictures of the body of Spitler were identified and admitted in evidence. These pictures were taken about three weeks after the assault occurred and clearly showed many lacerations, some of them apparently deep enough to be serious.
The physician who attended Spitler testified that at least one of the wounds had penetrated the chest cavity. The defendant himself suffered several lacerations in the fight, and his attending physician testified that some of the wounds sustained by the defendant could not have been made by a man's fist. The evidence was sufficient, however, to raise an issue for the determination of the jury.
The first assignment of error partains to the alleged misconduct of counsel for the state and the admission of incompetent evidence.
In the opening statement of the prosecutor to the jury, he said:
'By Mr. J. Z. Barker: Prior to June 1947 the defendant...
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Rushing v. State, F-81-206
...and then introduces the same evidence himself, it is no ground for reversal, even if the evidence was incompetent. Flynt v. State, 91 Okl.Cr. 77, 216 P.2d 344 (1950); Starks v. State, 67 Okl.Cr. 156, 93 P.2d 50 (1939). The appellant's third argument, that a police officer's testimony that o......
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Wrone v. Page, A--16283
...forthwith. For this proposition petitioner cites the cases of Ex Parte Arnett, 93 Okl.Cr. 116, 225 P.2d 381 (1953), and Flynt v. State, 91 Okl.Cr. 77, 216 P.2d 344 (1950), which stand, generally, for the rule that after expiration of the term of the sentence ordered in the judgment, cause i......
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Degraffenreid v. State, O-78-230
...have expired. In the case at bar, the application to revoke was filed Before the end of the suspended sentence. In Flynt v. State, 91 Okl.Cr. 77, 216 P.2d 344 (1950), we affirmed the conviction for assault with a dangerous weapon, noting in the opinion that since the appellant had never pos......
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Savage v. State
...court to grant exceptions. See Sutterfield v. State, Okl.Cr., 489 P.2d 1345 (1971). In his brief, appellant relies on Flynt v. State, 91 Okl.Cr. 77, 216 P.2d 344 (1950), where this Court ruled that the trial court had erred in not allowing the wife of the defendant to testify in a case with......