Fry v. State

• Decision Date: 17 May 1950
• Docket Number: No. A-11112,A-11112
• Citation: 91 Okla.Crim. 326,218 P.2d 643
• Parties: FRY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 643

218 P.2d 643

91 Okla.Crim. 326

FRY v. STATE.

No. A-11112.

Criminal Court of Appeals of Oklahoma.

May 17, 1950.

Syllabus by the Court.

1. Where there is competent evidence to sustain the verdict of the jury the Criminal Court of Appeals will not interfere therewith even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts.

2. Every defendant in a criminal case is entitled to fair treatment on his trial, and a prosecuting attorney should not be permitted to ask questions which he knows to be illegal for the purpose of prejudicing the defendant, or to make remarks in the examination of a witness which contain unfair reflections upon the defendant. It is the trial court's duty to see that cross examination is kept within proper limits.

3. The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed; and if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto.

4. On a motion for a change of venue, if upon the examination of the affidavits and counter-affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot not be had in the county, then and under those conditions it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this court.

5. Under the provisions of Title 22, § 853, O.S.A.1941: 'The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, * * *.'

6. Where, in the trial of a capital case, a jury is permitted to separate prior to the final submission of the case, the burden is on the defendant to show prejudice or misconduct likely to result in prejudice.

7. Counsel for State and defendant are entitled to geat latitude and a wide freedom of expression in presenting their arguments to the jury. However, this latitude given to counsel does not authorize the use of prejudicial statements calculated to inflame the passion of the jury.

8. Appeals to prejudices based upon a jury's county loyalty to a resident decedent in a homicide case as against a defendant, a resident of an adjacent county, combined with an appeal to the jury's normal antipathy to paying taxes could only be calculated to prejudice the defendant.

9. Where it appears, upon a consideration of the entire record in a criminal case that improper cross examination and argument of the special prosecutor may have influenced the jury's verdict as to the severity of the penalty but not as to the question of the defendant's guilt this court under the authority vested in it by the provisions of Title 22, § 1066, O.S.A.1941, will modify the judgment and sentence imposed under such conditions, in keeping with the ends of justice, held, judgment and sentence herein imposed of 25 years excessive and is modified to six years in the penitentiary.

M. O. Counts, McAlester, Clint Braden, Wilburton, for plaintiff in error.

Mac Q. Williamson, Attorney General, Lewis A. Wallace, Ass't Att'y General, for defendant in error.

BRETT, Judge.

Plaintiff in error Leo Fry, defendant below, was charged by information in the district court of Latimer county, Oklahoma, with the crime of the murder of Lawrence Riley on March 23, 1947. The defendant was tried, and convicted by a jury of first degree manslaughter, which fixed his punishment at 25 years in the State Penitentiary, and judgment and sentence was entered accordingly. From said judgment and sentence this appeal has been perfected.

Defendant makes numerous assignments of error which will be considered in the order of the propositions presented in his brief. It appears from the record that as an afterthought the defendant Tommie Burke was charged jointly with the defendant Fry with the commission of the alleged crime. A severance was granted and Fry was tried separately and convicted and sentenced as hereinbefore indicated. On the trial there was a great deal of conflict in the evidence of the state and the defendant. These conflicts are the result of what may be termed a legal dilemma. The state was compelled to rely for its evidence in chief on the oral statements made by the defendant to Sheriff Bill Alexander of Pittsburg county, Sheriff R. D. Prock of Latimer county, Deputy Sheriff DeLoach of Latimer county, and others, as to the killing, the datails of some of which the defendant denied. By charging Tommie Burke as a co-defendant this impasse was created. This record certainly does not support a charge of murder against Tommie Burke. It presents him only in the role of a bystander and not a participant. The state gained nothing by charging Burke. The procedure adopted was unnecessary since the defendant admitted the killing, and the stories related by the officers, as well as the defendant, as to the reason and the manner thereof in the main was substantially the same. The conflicts in the evidence appear as to incidental matters. A brief resume of the evidence discloses the following uncontroverted and uncontradicted facts. It appears that the defendant Fry was 28 years of age, that he had lost a leg in an oil field accident some years prior to the crime herein involved, had an artificial leg, and at the time of the killing his home was in Hartshorne, Pittsburg county, Oklahoma, though he had formerly lived in Latimer county. Before the killing on August 23, 1947 the defendant and the decedent Lawrence Riley were friends. On Friday afternoon of August 22, 1947 the defendant and the deceased Lawrence Riley, together with the co-defendant Tommie Burke and a Mrs. Whaley, met at a beer parlor in Hartshorne, Oklahoma, around 5:30 P. M. There they engaged in beer drinking until about dark or around 8:30, when they all loaded into Tommie Burke's truck, and went to a place designated as Antonelli's and run by a Mr. Pat Mahan, where they continued their drinking until around midnight when the proprietor moved them out and closed up. Mrs. Whaley was a relative of the defendant's brother's wife. During the round of drinking at Antonelli's the victim of the killing left with Mrs. Whaley and they were gone 20 or 30 minutes. They returned about 11:30 P.M. Shortly thereafter Mrs. Whaley left with some friends. Thereafter the defendant rebuked Riley for taking her out and admonished him 'Lawrence, if I were you I would be careful with that woman. She has got some little children', to which Riley replied 'Its none of your damned business. What you need is a good working over'. The uncontradicted record shows that Fry challenged Riley to go outside. Defendant admits that he did so. A difficulty between them was prevented there, only by the intervention of Mr. Mahan who told them he did not want them to have any trouble in his place. They obliged and resumed their beer drinking until he closed up. Some time during the drinking they were joined by Jody Critchard. About midnight Riley, Burke, Critchard and the defendant got into Burke's truck and drove to Gowen where Critchard got out. The record shows from the time of the difficulty at Antonelli's there were no further words between Fry and Riley. Leaving Gowen they proceeded down Highway 270 towards Hartshorne but in Latimer county. According to the statement given to the officers by the defendant shortly after his arrest, just east of the Pittsburg county line, Riley who was then driving drove the auto onto a sideroad about 30 or 40 feet and abruptly stopped, and according to the record became the aggressor, saying 'Here is where something is going to happen'. He got out of the truck and came around to Fry's side, Burke being in the middle of the seat. Burke said 'Lawrence, there is no use of that'. The defendant opened the door and said 'Lawrence, there is no use of having any trouble'. The defendant tried to push him back with his foot, and Riley grabbed and pulled him out of the truck. The defendant tried to get away, started around the truck but Riley jerked him back and turned him around and said 'You son-of-a-bitch, this is where you get yours' and struck him on the left shoulder with some kind of heavy instrument. The record does not disclose what kind of instrument he used, nor does the record show that anything in the nature of such an instrument was found other than a wrench which belonged to the defendant and was in the defendant Fry's left hip pocket at the time the alleged assault was made upon him. Fry says the blow staggered him and the next thing he knew they were on the ground. He said Riley was on top of him, choking and beating him. He said he could hardly breathe, that he was afraid that he would choke him to death. The defendant then got his pocket knife out and stabbed Riley in the left leg he said, to get him off, as he feared for his life. The wound thus inflicted resulted in severing the femoral artery and the saphenous vein so that Riley bled to death within a few minutes thereafter. Such is the evidence of the killing as delineated by the officers, as it was told to them by the defendant and as testified to by the defendant in his own behalf.

The conflicts in the evidence that appear in the record and which no doubt played an important part in the verdict were as follows. The defendant testified the reason he remonstrated about the deceased's attention to Mrs. Whaley was because the deceased had confided in him some time before that he had a venereal disease. He did not know how, when or where or who...