Holloway v. State, F--75--734

• Decision Date: 15 June 1976
• Docket Number: No. F--75--734,F--75--734
• Citation: 550 P.2d 1352
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Martin C. HOLLOWAY, Appellant, v. The STATE of Oklahoma, Appellee.

Page 1352

550 P.2d 1352

Martin C. HOLLOWAY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--734.

Court of Criminal Appeals of Oklahoma.

June 15, 1976.

Rehearing Denied June 24, 1976.

Hubert Hargrave, Wewoka, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge.

The Appellant, Martin C. Holloway, hereinafter referred to as defendant, was charged with Murder, tried before a jury in the District Court of Seminole County, Case No. CR--72--136, and convicted of the crime of Manslaughter in the First Degree. Punishment was assessed at a term of twenty (20) years under the custody and control of the Department of Corrections of the State of Oklahoma. The defendant has subsequently perfected his timely appeal.

Briefly stated, the evidence adduced at trial is as follows: Seminole County Undersheriff Douglas Arnold testified that on the 28th day of September, 1972, at approximately 10:50 P.M., he arrived at the scene of a shooting at a home approximately one and one-half miles West of Wewoka. Other law enforcement officers were already at the scene and the witness observed a body lying on the ground a short distance behind a Cadillac which had its trunk open. A .410 shotgun was found lying near the body. In the chamber of the weapon was one spent cartridge and three (3) live rounds of ammunition. The witness further stated that he observed the body of the victim at the funeral home and that the discharge had entered the base of the chin and passed through the throat, existing out the back.

Dr. Claude B. Knight then testified that he was the medical examiner for Seminole County and that upon his arrival at the scene, he found Richard Charles Smith dead of a gunshot wound. He described the wound as a 'through and through wound' stating that the entry wound was at the front of the neck and the exit wound at the back. In his opinion death was instantaneous.

I. V. Frances Alexander testified that on the evening in question he was living in Wewoka with his mother and was walking home at approximately 10:00 P.M. when he passed the defendant's home and saw the defendant and the decedent, Alexander's cousin, sitting in the open trunk of the defendant's Cadillac. He stated that he stopped to talk to the men and had a conversation concerning drinks. He explained that there was a .410 shotgun in the trunk of the car which the deceased picked up and began to examine. The defendant told Smith to 'put my gun down' and Smith complied. The defendant then stated, 'If you do--if you touch my gun again, I'll kill you.' Shortly after that statement the deceased touched the gun again, the defendant said 'No, you don't' and grabbed the gun. Smith then reached for the gun and they both began struggling over the weapon. Subsequently the defendant took control of the gun, pumped it, put it to his shoulder and pulled the trigger. After watching Smith fall, the witness went into the house and called an ambulance. Alexander then went home.

On cross-examination, Alexander stated that Smith and Holloway were arguing over who had bought the most drinks and that they were both drinking at the time. He further stated that he called the ambulance because he could not stand the sight of his cousin's dead body. On redirect examination, Alexander stated that he never saw the deceased display a weapon or heard him threaten the defendant. He further related that the two men did not appear drunk and that Smith had not exhibited any animosity towards the defendant when he had been with them earlier in the day. The State then rested.

The defendant then took the stand and testified in his own behalf stating that on the 28th day of September, 1972, he worked until approximately 7:00 P.M. and then picked up the decedent Smith and Ural Carolina at his house. They proceeded to a pool hall where they picked up Alexander and drove to a liquor store to buy a quart of wine. Subsequently they returned to the Holloway home and they left in the Cadillac with Alexander driving to take Carolina home. When they returned the defendant went around to the back of the house for a moment and when he returned the trunk of the car was open and Smith asked him for a drink. When no drink could be found, Smith reached into the car and grabbed the gun. The defendant told Smith, 'Well, no, don't play with the gun around this house because the kids is in the house.' Smith put the gun back but in a few minutes later he grabbed it again and the defendant and Smith began 'tussling over it.' The defendant remembered the gun going off and Smith falling. The defendant further stated that he had known the victim for 16 years and that they had been very good friends.

On cross-examination the defendant stated that Alexander had been with them the entire evening from the time they picked him up at the pool hall until after the incident. He further denied threatening to kill Smith, putting the gun to his shoulder, pumping it or firing it.

Adrian Thomas then testified that on the evening of the shooting he was sitting on his front porch when he saw Smith, Holloway and Carolina drive past his house. He could not see who was driving. Ural Carolina then recounted the events of the evening up until the time he was taken home. His testimony as to those events was similar to that of the defendant. On cross-examination he stated he knew nothing of the actual shooting.

The defendant's first assignments of error essentially urge that the trial court erred in submitting to the jury certain instruction and further erred in...