Gann v. State

• Decision Date: 23 December 1964
• Docket Number: No. A-13325,A-13325
• Citation: 397 P.2d 686,1964 OK CR 122
• Parties: Charles GANN, 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 686

397 P.2d 686

Charles GANN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13325.

Court of Criminal Appeals of Oklahoma.

Dec. 23, 1964.

Syllabus by the Court

1. A party is entitled to have the jury instructed on the law governing the issues according to his theory, providing such theory is tenable as a matter of law, or finds possible support in evidence.

2. A defendant is entitled to an instruction covering his theory of defense, even though under the facts it may appear ridiculous, but even under such conditions the instructions must correctly state the law. If such an instruction cannot be prepared on defendant's theory within the provisions of law, then trial court is not required to so instruct.

3. An assault with intent to kill necessarily includes an assault with intent to do bodily harm; for a person cannot be killed without bodily harm being done, and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon.

4. Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial.

5. All citizens residing in this State, having the qualifications of electors, of sound mind and discretion, of good moral character, and who have never been convicted of any infamous crime or served a term of imprisonment in any penitentiary for the commission of a felony, are competent jurors to serve on all grand and petit juries within their counties. 38 O.S.A. § 28.

6. A juror who stood mute when he should have spoken, practiced a deception on the court and the defendant, and the deception was as to a matter reflecting on his credibility.

7. New trial must be granted where a prospective juror did not answer correctly the material questions propounded by the court in qualifying the jury, and where such juror was accepted on the jury which tried the case. A new trial must be granted under such circumstances, irrespective of whether the concealment was deliberate or unintentional.

Appeal from the District Court of Sequoyah County; C. F. Bliss, Jr., Judge.

Charles Gann was convicted of the crime of assault and battery with a dangerous weapon with intent to do bodily injury, and appeals. Reversed and remanded for new trial.

Fite, Robinson & Summers, Muskogee, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

JOHNSON, Presiding Judge:

Charles Gann was convicted in the district court of Sequoyah County, Oklahoma, of the crime of assault and battery with a dangerous weapon with intent to do bodily injury, and sentenced to a term of three years in the state penitentiary. Appeal has been perfected to this Court.

This defendant was charged, with two other boys, Dale Boyd and Carl Matthews, with the crime of assault with intent to kill. It was alleged in the information, among other things, that these boys 'did commit an assault with intent to kill upon the person of another, to-wit: William Borin, by then and there beating the said William Borin and pushing him down stairs and kicking him and stomping him with their feet, and hitting him with their fists, with the unlawful and felonious intent then and there upon the part of said defendants to kill the said William Borin, with such force and violence as was likely to produce death', etc.

A short statement of the evidence becomes necessary. William Borin, the prosecuting witness, 56 years of age, lived in an apartment on the second floor of a building referred to as the Remer Locker Building. Helen Long and a Mr. Grisham also lived in the building.

On the night of the difficulty Mr. Borin testified that he was in his apartment, and his car was parked on the well-lighted street in front of the building. He had undressed when he heard a noise like a hub cap falling on the pavement. He went to the window, and saw two boys near his car, with another car parked directly behind his. He watched a few minutes, and saw the boys lift the turtle back of their car and take out a jack, and start towards one of the wheels of his car. He called to them, and they got back in their car. Witness then dressed, and went out in the hall. The two boys he had seen and another one were standing in the hall, near the back stairway. Witness testified that he walked up to them and asked, 'What was you fixing to do to my car down there?' They denied having been near his car, and he told them he would not argue with them, but would go and call the law, turned and went down the hall to the steps leading down to the front door of the building. About the time he got to the head of the stairs he heard one of the boys say, 'let's get him', and he was grabbed from the back around the neck. Witness fell and caught the banisters, one on each side. He testified that Dale Boyd then came up and beat him with a beer can, and that the other two boys were kicking and hitting him. Dale broke his hold on the banister they got him up and 'kicked, pushed and stomped' him, and he fell part way down the steps. There was a landing half way down. The boys came on down, picked him up, 'and did the same thing several times' and when witness was on the last step, they threw him out on the sidewalk. He stated that this defendant and Carl Matthews dragged him down the sidewalk to the corner of the building, and then down the side of the building to the rear, and placed him under the back steps. He testified that the third boy, Dale Boyd, was following and kicking and stomping on his feet. After they were behind the building, and had placed him under the back stairs, one of the boys said, 'He has had enough', and the three of them left.

The prosecuting witness called for help, and Helen Long went to his aid. She secured the help of the other tenant, Mr. Grisham, and they got Mr. Borin up the steps to his apartment. The police were called, and an ambulance, and Borin was taken to a hospital in Fort Smith, Arkansas.

A police officer testified that he answered a call to the apartment house, and found Mr. Borin on his bed, with 'blood and bruises all over his face', and that he had a broken leg. Another police officer testified to making an investigation the following morning, and to finding what appeared to him to be blood on the floor at the top of the stairway, and down the staircase.

Helen Long testified that the three boys had been at her apartment and were standing near the back door, the one leading to the stairway at the back, when Mr. Borin came out and approached the boys. He said something about them 'messing around his car' and told them he was going to get the police, and started toward the front stairs. She closed her door, but looked out again and the four were at the top of the steps, and she again closed her door. Fifteen or twenty minutes later she heard a groan, and found Mr. Borin on his hands and knees, under the back stairs. She got help and they carried Mr. Borin up to his room. That he had 'a big, raw bloody place under one eye;' that he was 'bloody all over', and one leg was broken.

Bill Young testified that he helped place Borin in the ambulance, and that he had blood all over his face, and was suffering with one leg. He testified to later finding a hub cap on the ground at the back of Mr. Borin's car, near the right wheel.

Dr. Kilpatrick of Fort Smith testified to treating Mr. Borin in the hospital and stated that he had received several injuries, and a fracture of the left hip, in the joint, and that he had bruises on his chest and face. He stated that the hip required open surgery of the hip joint, and 'several threaded steel pins were used'; and that time for healing was not less than three months under the most favorable circumstances, and ordinarily around six months or even a year. That the bruises around the face and chest could be from fists or kicking, but the fracture of the hip joint was not likely to have been caused by such force.

The defendant testified in his own behalf, and produced one witness, Dale Boyd. They both testified that they had been together since 1:30 or 2 o'clock in the afternoon; that they had played snooker and visited several beer taverns, and each had drunk four or five beers during this time. Dale Boyd and his defendant visited Helen Long in the Remer Locker Building and when they started to leave about 10 p. m. they could not get defendant's car started. While they were making an effort to do so, Mr. Borin called down and asked what they were doing around his car. They testified that they went back up to Helen Long's apartment to call Carl Matthews to come and give them a push to start the car. That Carl came up the back stairs, and they were just leaving when Mr. Borin came out of his room and accosted them. That none of them ever hit, kicked or pushed the complaining witness, and they did not see any of the others do so. That he fell down the steps. Dale Boyd testified that after Borin had fallen down the steps, Carl and Charles picked him up and dragged him around to the rear of the building. That he himself never did touch Borin. He testified that Carl ran up to Borin from behind, stopped him at the head of the stairs, there was a scuffle, and the prosecuting witness fell down the stairs. He admitted that he 'pulled his arm', he didn't know why he did it, but he did not intend to hurt him. When they got to the bottom of the stairs, defendant and Carl picked him up, one under each arm, and dragged him to the corner of the building, where defendant turned him loose, and Carl dragged him on behind the building.

The defendant sets out six assignments of error in his brief. The Court feels that it need only discuss assignments five and six in detail. However, the Court would bring to the trial court's attention...