Hamit v. State
| Decision Date | 02 March 1929 |
| Docket Number | A-6405. |
| Parties | HAMIT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the record shows a plea of not guilty entered to a charge in the information some time prior to the first trial, under such circumstances another arraignment and plea of not guilty were unnecessary and it was not error for the trial court to deny additional time to plead prior to the retrial of the cause.
It is the duty of the defendant who applies for a continuance to exhaust all of his legal remedies to obtain the presence of his witnesses, and this should affirmatively appear in the application for continuance, otherwise the application will be bad on its face, and it is not an abuse of discretion for the court to overrule the motion for continuance.
The granting of a new trial to a defendant convicted of manslaughter upon an information charging murder is not a bar to another trial under same information for the higher offense.
Record examined and evidence held sufficient to sustain the conviction.
Additional Syllabus by Editorial Staff.
Action of court in permitting state to call defendant after defendant had closed his testimony and the state had closed except in rebuttal, held not erroneous and not to require defendant to give testimony against himself.
Appeal from District Court, Garvin County; A. C. Barrett, Judge.
H. H Hamit was convicted of manslaughter, and he appeals. Affirmed.
Bowling & Farmer, of Pauls Valley, for plaintiff in error.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
The plaintiff in error, hereinafter referred to as the defendant, was tried in the district court of Garvin county on a charge of murder and convicted of manslaughter and sentenced to serve a term of six years in the state penitentiary at McAlester. Motion for new trial was filed, considered, and overruled, exceptions duly saved, and the case appealed to this court.
The testimony on behalf of the state, in substance, is as follows: Dr. N.H. Lindsay testified as to the effects of the wounds upon the body of the deceased, and stated they were sufficient to produce death.
T. G. Readnour testified he was a brother-in-law of the defendant; that he was a member of the school board of Oak Dale community; that the defendant, Mr. Hamit, the deceased, and Mr. Livingston were also members of the school board; that he, the deceased, and defendant had always been ordinarily friendly; they were neighbors, close together; that he and defendant went to Pauls Valley on the 3d day of July, 1924, in his wagon; that before they got to town defendant had some whisky, I judged it to be corn whisky; defendant took a drink out of a quart fruit jar, I also took a drink, and John World took a drink of it; we arrived in Pauls Valley about noon, put up our team, and went up town; I met the deceased at the Farmers' Store, and he asked me if Old Hellcat Hamit was in town, and I told him Hamit was in town, and deceased said, let's hunt him up and get this business straightened up. I did not see anything out of the ordinary in the statement of the deceased; I told him I wanted to go down to Carl Ballard's store a few minutes and I would be back and we could get together pretty soon. When I came up to the Farmers' Store, Mr. Hamit and Mr. Livingston were there; they were on Charles avenue, running east and west by the side of the Farmers' Grocery, when I went up the first conversation I remember, Mr. Livingston said he went to the county superintendent and county attorney, and there was nothing we could do about having the boys arrested who had been tearing up the school property until we located who the boys were that were tearing it up. I do not remember how the deceased was dressed; when I went up deceased and I sit down on some sacks and Mr. Hamit kindly set down in the back of a delivery truck; after we got through with this school business, Mr. Livingston said, I know something if I would tell would surprise you, and Mr. Hamit said, why not tell it, and by God you are not the man you ought to be if you don't tell it. Mr. Livingston told him it did not pertain to the school business and Mr. Hamit just laughed and said that was all right then; Mr. Livingston said, I understand you God damn fellows want me off the school board and I am going to quit, and Mr. Hamit says, No, I don't want you off the board; and Livingston said, you said you did, and Mr. Hamit said, no, I did not say that, and he said you told Readnour the other day, and he said you were going to resign off the board, and he said, "I did, you God damn fellows get who you please." And defendant told him to stop cussing him, he had not done anything, and Mr. Hamit told him to go away and let him alone, that he had tried to start trouble with him a number of times and Mr. Livingston said, "You God damn you ------." I did not catch what he said, and they both raised up on their feet at the same time. When Livingston was raising to his feet he said, "God damn you," and after he got to his feet, "God damn you old man, listen," and defendant was on his feet by that time. I did not see anything in Mr. Hamit's hand when he got up, did not see his knife until after he had done the stabbing; when the deceased told him to listen, defendant told him to go away and leave him alone; they were both using profanity; it looked like Hamit just punched him with his thumb and finger and walked past, and he was right in front of him and just stretched out and punched him, and I seen the knife after he turned around. At the time Hamit punched the deceased with his knife I could not tell what Livingston was doing with his hands; he had some political cards in his hand and was using his hands in making gestures; Livingston did not make any attempt to strike the defendant after the defendant punched him with his knife; at the time this occurred I was about three feet away from Tom (meaning the deceased). When I started off with Livingston across the street to Wright's store, the defendant said he would be there when we got back. He shut up his knife and stuck it in his pocket; defendant was standing in front of the store door when we left; when defendant struck the deceased, the deceased stepped back off the curb and asked me to go get a doctor, and said, "He got me." At the time defendant punched the deceased looked like he just backed off; I could not tell because Mr. Hamit was between me and the deceased. I do not know what the deceased was doing with his hands, he was just standing there and asked me to get the doctor. I took him to Wright's Grocery Store and put him in a grocery truck and drove to Drs. Johnson & Lindsay's office. I helped undress the deceased and prepare him for the operation; we found a box of snuff and a lead pencil in his pockets.
On cross-examination witness stated he and defendant Hamit came to town, unhitched the team and went to the hardware; it was about 12 o'clock, I went from the hardware store to McArthur's store; both the defendant and deceased were there when I got there. The Farmers' Grocery or McArthur's store was on the corner of the street; when I met Mr. Livingston he asked if Hellcat Hamit was in town, and I told him he was, and he said, let's get together and attend to this business. I saw the deceased and defendant talking and went over to where they were, when I got there we sat down on some sacks of feed, Livingston was about two feet away from me. Mr. Hamit sat down in the back of a truck or delivery wagon about two feet from us; Mr. Livingston told defendant that the county superintendent said we could do nothing until we found out who the boys were who had been destroying the school property; deceased then mentioned what he knew if he would tell them and the same conversation was practically repeated as given in the direct examination.
Crockett Scrivener testified in substance that at the time of the trouble he was running a store next door to the Farmers' Grocery and there was a space of about ten feet between the stores. Dorsey Bryant was working for the witness; their attention was directed to loud talking; when they heard this noise I walked out toward the front, and knew who they were there was some cursing and loud talking; I was listening to the talking and saw Mr. Readnour and Livingston standing right straight north of the Farmers' Grocery Store door; Livingston and Hamit both were standing when I saw them, and I heard him say a time or two, you fellows had better go away and leave me alone, or something to that effect, and used some kind of profanity; I did not hear either of the others say a word; at the time Livingston was not making any gestures, he was just standing there without making any motion that I could see. When I first walked up to the door I saw Mr. Hamit, looked like he had pulled something out of his pocket, and he was talking very loud; I guessed it to be a knife, he opened it up, then shut it, and put it back in his pocket, and the second time he pulled it out again and opened it up; I don't know just what he said now, he just kindly took a step back and stabbed Livingston; I could not tell for sure what part of Livingston's body the lick took effect on; when deceased was struck he just kindly caught himself with his hand and put it down in the bib of his overalls and kindly held himself. Mr. Hamit immediately went into the grocery store and said, "get the law, I will be here." I did not at any time understand any remarks made by Livingston. The only time I could tell he was saying anything was after he was stabbed he said something to Readnour, and they turned and went across the street. Dorsey Bryant was over at the door; I don't remember...
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