Jennings v. State, A--17396

• Decision Date: 14 February 1973
• Docket Number: No. A--17396,A--17396
• Citation: 506 P.2d 931,1973 OK CR 74
• Parties: Gary Leo JENNINGS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 931

506 P.2d 931

Gary Leo JENNINGS, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17396.

Court of Criminal Appeals of Oklahoma.

Feb. 14, 1973.

Carroll Samara, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., and Fred Anderson, Asst. Atty. Gen., and Amy Hodgins, Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge:

Appellant, Gary Leo Jennings, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Oklahoma County on two Informations, heard together by agreement, for the offense of Assault and Battery with a Dangerous Weapon drawn under 21 O.S.1971, § 645. His punishment was fixed at one year in the county jail for each offense. From said judgments and sentences, a timely appeal has been perfected to this Court.

Briefly stated, the facts adduced on the trial reveal that on the evening of April 3, 1971, Max Wayne Chadwick, after finishing work at the Tip and Sip Club, walked over to a table to which a friend had invited him for a drink. As he stood at the table, the defendant's companion bumped into him. Chadwick turned to the man who had bumped into him and said, 'Hey man, watch it,' whereupon the defendant's companion hit Chadwick in the eye. Chadwick testified that at this point the defendant, Jennings, turned Chadwick around, at which time he felt a sting in his stomach. Chadwick then knocked the defendant down and held him until Bob McDermitt, the club manager, came over.

There was some conflict in the testimony as to exactly what happened next. McDermitt testified that he came over and grabbed the defendant, whereupon Chadwick let the defendant go. The defendant stood upright, but jerked loose, reached behind McDermitt and apparently struck him with a sharp object which caused a hot poker sensation. McDermitt next testified that he pushed defendant away and drew back to hit defendant with a blackjack, but it flew out of his hands. A scuffle ensued during which McDermitt hit defendant with a chair. Defendant got back up and McDermitt was again struck in the stomach with a sharp object. Neither Chadwick nor McDermitt ever saw a knife, but another State witness claimed that he saw one in defendant's hand.

After the incident both Chadwick and McDermitt went to a hospital for treatment of puncture wounds.

Defendant took the stand and testified that he participated in a fight that he did not start, but denied ever having a knife, or stabbing anyone.

The defendant's first contention, on appeal, is that the evidence was insufficient to sustain the verdict. Learned counsel for defense cited Martin v. State, 67 Okl.Cr. 390, 94 P.2d 270 to support this contention. In that case defendant was also charged and convicted of a knifing and the court held that there was not a sufficient line of proof of the kind and character of the knife used.

The case at hand is readily distinguishable from the cited case in that there are many additional facts and much more testimony that the defendant did commit the offense charged. In the cited case no one testified seeing a knife, where in the case at hand, Herman Curtis Cummings, a State's witness, testified that he saw a knife. In the cited case there was much conflict in the testimony as to what actually happened, but in the present case there was very little conflict on relevant issues. The only conflict there was concerned such issues as how long defendant had been at the scene prior to the incident and the amount of light in the room. Neither of these issues, which are in conflict, shed any reasonable doubt on defendant's actually committing the offense.

In Tharpe v. State, Okl.Cr., 358 P.2d 232, a case in which there was much conflicting testimony as to who started the altercation, this Court stated:

'This court has uniformly held that a jury's verdict upon disputed questions of fact will not be disturbed on appeal where there is any competent evidence in the record reasonably tending to support the same.'

There is competent evidence in the record in the instant case and the clear weight of authority is that if there is testimony from which different inferences can be properly drawn, the jury's determination will not be disturbed. Hudson v. State, Okl.Cr., 399 P.2d 296. See also Mills v. State, 73 Okl.Cr. 98, 118 P.2d 259, Maxwell v. State, Okl.Cr., 360 P.2d 959, and Blanton v. State, Okl.Cr., 357 P.2d 243.

Defendant next contends that the verdict is excessive; however, this assignment of error has little merit. In Bond v. State, Okl.Cr., 453 P.2d 299, the Syllabus by the Court stated:

'Where the record amply supports the verdict of the jury, the punishment imposed is within the range provided by law, and the record is free of any error which would justify modification or reversal, the judgment and sentence must be affirmed.'

In the instant case defendant was sentenced to serve one year in each case for a total of two years, where he possibly could have received five years for each offense. This verdict is clearly within the range provided by law and is not excessive.

Defendant's next contention is that the court refused to give an instruction on the lesser included offense of Assault and Battery, but this contention cannot be sustained. This Court stated in Murphy v. State, 79 Okl.Cr. 31, 151 P.2d 69:

'It is true that it is the duty of the court to submit to the jury every degree of assault which the evidence in any reasonable view of it suggests. But there is nothing in the evidence here that indicates an assault and battery. The weapon here used was a deadly weapon per se.'

See also Fennell v. State, Okl.Cr., 396 P.2d 889 and Austin v. State, Okl.Cr., 419 P.2d 569.

In the instant case the victims had definitely been attacked with a dangerous weapon and no reasonable view of the evidence could require an instruction on simple Assault and Battery.

Moreover, this Court has held in the early case of Jones v. State,12 Okl.Cr. 255, 154 P. 689 (February 7, 1916) as follows:

'Where there is evidence that might tend to lessen the offense, or to reduce the crime to a degree lower than that charged in the indictment, or information, it is the duty of the trial court at all times to fully instruct the jury as to the law upon such lower degrees, or included offense. But where there is no evidence to support such lower degree, or included offense, it is not only unnecessary to instruct thereon, but the court has no right to ask the jury to consider such questions.

'In the case at bar, if the evidence of the state is to be believed, this plaintiff in error was guilty of assault with intent to kill--and nothing less. Upon the other hand, if his testimony must be believed--that is, testimony offered by him in his defense--then, he was guilty of no crime whatever. The jury...