Holloway v. State, F-78-426

• Citation: 602 P.2d 218,1979 OK CR 113
• Decision Date: 22 October 1979
• Docket Number: No. F-78-426,F-78-426
• Parties: Kim Denise HOLLOWAY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 218

602 P.2d 218

Kim Denise HOLLOWAY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-426.

Court of Criminal Appeals of Oklahoma.

Oct. 22, 1979.

An appeal from the District Court, Tulsa County; Raymond W. Graham, judge.

Kim Denise Holloway, appellant, was convicted of the offense of Manslaughter in the First Degree; was sentenced to thirty (30) years' imprisonment, and appeals. AFFIRMED.

Stanley D. Monroe, Appellate Public Defender, Tulsa County, for appellant.

Jan Eric Cartwright, Atty. Gen., William S. Flanagan, Asst. Atty. Gen., Kay Jacobs, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Kim Denise Holloway, hereinafter referred to as defendant, was charged by information with the crime of Murder in the First Degree, in the District Court, Tulsa County, Oklahoma, Case No. CRF-77-2020, and was found guilty by the jury of Manslaughter in the First Degree in violation of 21 O.S.1971, § 711. She was sentenced to serve a term of thirty (30) years' imprisonment in the State penitentiary, and from said judgment and sentence she has perfected this appeal.

Sometime between 10:30 to 11:30 in the evening of July 31, 1977, the defendant by her own admission shot and killed Willa Gray in the parking lot of an apartment complex in Tulsa, Oklahoma.

The defendant urges in her first assignment of error that the evidence was insufficient to bind her over for trial on the charge of First Degree Murder. We find this argument to be without merit. The State is not required at preliminary hearing to present evidence which would be sufficient to convict at trial. State v. Edmondson, Okl.Cr., 536 P.2d 386 (1975). It is well established that a preliminary hearing is not a trial to determine the guilt of the accused, but only the two issues: Was a crime committed, and is there reasonable cause to believe the defendant committed said crime. Roberts v. State, Okl.Cr., 561 P.2d 511 (1977). We find from our review of the transcript that testimony taken at the preliminary hearing presented sufficient evidence by the State from which the examining magistrate could find the public offense alleged in the information had been committed, and there was sufficient cause to believe the defendant had committed the offense. Turner v. State, Okl.Cr., 549 P.2d 1346 (1976). And where there is competent evidence in the record the reviewing court will not interfere with the determination of the finder of fact. Tabor v. State, Okl.Cr., 582 P.2d 1323 (1978).

The defendant's second assignment of error contends the lower court erred in not granting a continuance due to an irregularity in the information. The alleged irregularity is that the information did not use the language of 21 O.S.Supp.1976, § 701.7, to wit, "with malice aforethought," but rather used, "with a premeditated design."

Thus, the defendant argues, the State was permitted to allege one set of circumstances and allowed to prove another. This assignment of error is clearly without merit. The defendant entered a plea of not guilty, and the general rule is that a plea to the information waives all defects in the information except those which go to jurisdiction. Williams v. State, Okl.Cr., 579 P.2d 194 (1978). The alleged irregularity was not jurisdictional and was therefore waived by the plea. The lower court was correct in refusing a continuance.

The assignment of error, even when considered on the merits, is not well taken. A statement of the acts constituting the offense, in ordinary concise language, and in such manner as to enable a person of common understanding to know what is intended is all that is required by 22 O.S.1971, § 401. The information in question certainly meets that requirement. The test of the sufficiency of an information is whether the defendant was in fact misled by it and whether a conviction under it would expose the defendant to the possibility of subsequently being put in jeopardy a second time for the same offense. Williams v. State, supra.

The defendant argues in the third assignment of error that the trial court erred in admitting into evidence two photographs of the body of the deceased contending the photographs were gruesome, prejudicial and inflammatory. We have carefully examined the two photographs and observe that each is an 8 X 10 black and white photograph which depicts the body of the deceased lying face down in the parking lot. Neither photograph is gruesome nor grotesque in nature. We have previously held that the introduction of photographs in a homicide case is largely within the discretion of the trial court and that if the evidence has probative value which outweighs the danger of prejudice to the defendant, the evidence is admissible. Jones v. State, Okl.Cr., 542 P.2d 1316 (1974). Pictures of this sort are useful in establishing the corpus delicti of a crime, and we thus conclude that the trial court did not abuse its discretion in allowing the introduction of these exhibits. Dodson v. State, Okl.Cr., 562 P.2d 916 (1977); Selsor v. State, Okl.Cr., 562 P.2d 926 (1977); Roberts v. State, supra. We therefore find that the defendant's third assignment of error is without merit.

In the fourth assignment of error, the defendant complains the lower court allowed the District Attorney to ask a question of one of the defendant's character witnesses which concerned a subject outside the scope of direct examination. The question to which the defendant objected was, "Were you at the Morning Star Apartments on July 31, 1977?" The witness' response was "No, I wasn't." This question and answer was so innocuous that the error, if any, was harmless, and we find that this assignment of error is without merit. Potts v. State, Okl.Cr., 502 P.2d 1287 (1972), cited by the...