Johnson v. State, F-79-441

Citation621 P.2d 1162
Decision Date28 October 1980
Docket NumberNo. F-79-441,F-79-441
PartiesElbert Emil JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BUSSEY, Judge:

On appeal from a conviction for Murder in the First Degree in Oklahoma County District Court Case No. CRF-78-4422, wherein punishment was fixed at life imprisonment, appellant Elbert Emil Johnson, hereinafter referred to as defendant, contends in his first assignment of error that the trial court erroneously restricted his cross-examination of witness Donald Walton thereby depriving him of presenting the defense of insanity. In addition thereto defendant contends that the trial court erroneously denied instructing the jury on the issue of defendant's sanity at the time of the homicide.

Defendant attempted during cross-examination to elicit testimony regarding Mr. Walton's opinion of the defendant's ability to distinguish between right and wrong at the time of the shooting to which the trial court sustained an objection. While it is true that a non-expert witness may state after testifying to the acts, conduct and appearance of the defendant whether such acts, conduct and appearance impressed him as being rational or irrational a proper foundation must be laid upon which the trial judge determines whether the proffered testimony justifies an inference of insanity. Rice v. State, 80 Okl.Cr. 277, 158 P.2d 912 (1945). As stated in Lac Coarce v. State, Okl.Cr., 309 P.2d 1113 (1957), a proper predicate must be laid for a non-expert witness to state his opinion upon the issue of a defendant's sanity.

In the case before us we have carefully examined the evidence presented and find that the trial court did not erroneously restrict defense counsel during cross-examination of Mr. Walton. Had defendant wished to pursue the matter he could have called Mr. Walton as his own witness or other witnesses attempting thereby to establish a proper foundation upon which the witness could render an opinion on the issue of defendant's sanity. We note also the testimony of defendant; however, this testimony was insufficient to rebut the presumption of sanity. There was no mention during defendant's opening statement that he intended to present a defense of insanity. The defendant cannot be heard now to complain of the court's refusal to give instructions on insanity when no independent evidence was presented tending to prove insanity. Stevenson v. State, Okl.Cr., 486 P.2d 646 (1971). We therefore conclude that defendant's first assignment of error is not supported by fact or law and is accordingly without merit.

We next address defendant's contention that the trial court's instructions concerning the issue of intoxication misstated the law to the jury thereby confusing the issue to such an extent that defendant did not receive a fair trial.

The particular instruction to which defendant objects, Instruction No. 5, provided:

Voluntary intoxication is not a defense to the commission of a crime, but if the defendant was intoxicated to the degree that he was incapable of malice, or of entertaining a pre-meditated design to effect the death of the deceased, the element of malice aforethought, in the charge of Murder In The First Degree, is lacking.

"Voluntary intoxication is not a defense to the elements of homicide including the act being committed in a heat of passion, in a cruel and unusual manner, or by means of a dangerous weapon.

"Mere intoxication is not sufficient to render a person incapable of malice or entertaining a pre-meditated design to effect the death of another. In this case whether the defendant was intoxicated to the degree of rendering himself incapable of malice or entertaining the design set forth in the first paragraph of this instruction, is for the jury to determine from all of the evidence."

The above instruction when considered with the other instructions given by the court sufficiently addressed the law pertaining to intoxication and homicide. In Sharp v. State, Okl.Cr., 407 P.2d 593 (1965), we held in our syllabus:

"Evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death. And this question is for the jury to determine."

For the reasons set out above, it is the opinion of this Court that the trial court adequately instructed the jury on the issue of intoxication and homicide.

In defendant's third and fourth assignments of error he contends that the trial court's instructions were erroneous on the issue of the lesser included offense of manslaughter in the first degree and that said instructions failed to properly submit to the jury the issue of circumstantial evidence of malice aforethought. These contentions are totally without merit. When the instructions given by the trial court fairly and fully present the issues involved additional requested instructions are properly refused. 1 Fish v. State, Okl.Cr., 505 P.2d 490 (1973); York v. State, Okl.Cr., 449 P.2d 927 (1969).

In his fifth assignment of error defendant contends that the trial court erroneously overruled his motion for mistrial urging in support thereof that the prosecuting attorney committed reversible error during his closing argument to the jury. That part of closing argument which is alleged objectionable appears in the transcript of trial as follows:

" 'Manslaughter in the first degree is defined as homicide when perpetrated without the design to effect death in the heat of passion, but in a cruel and unusual manner by means of a dangerous weapon.' You get into a fight with somebody and you knock them down and he hits his head on a rock and it kills him, you didn't mean to kill the man. You meant to hit him and you wanted to knock him down, but you didn't want him to hit his head on the rock. That's...

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11 cases
  • Brecheen v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 27, 1987
    ...Commentaries, p. 226 (Christian's 15th Ed.1809). Therefore, the instruction correctly stated the applicable law. Johnson v. State, 621 P.2d 1162 (Okl.Cr.1980). V Appellant further contends in regard to the "breaking" instruction that the prosecutor misstated the law by arguing to the jury c......
  • Stouffer v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 18, 1987
    ...accidentally as Ivens and appellant struggled for the gun. The comments were reasonable arguments of the evidence. Johnson v. State, 621 P.2d 1162 (Okl.Cr.1980). Appellant claims the prosecuting attorney improperly expressed his opinion of appellant's guilt. He cites us to an exchange in wh......
  • Jones v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 26, 1982
    ...is unable to form the requisite intent is a question for the jury on proper instructions from the bench." See also Johnson v. State, 621 P.2d 1162 (Okl.Cr.1980); Biggerstaff v. State, 491 P.2d 345 (Okl.Cr.1971); Copperfield v. State, 37 Okl.Cr. 11, 255 P. 590 (1927); Beshirs v. State, 14 Ok......
  • Morris v. State, F-85-10
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • December 27, 1988
    ...and accurately state the applicable law, this Court will not disturb them. Lamora v. State, 717 P.2d 113 (Okl.Cr.1986); Johnson v. State, 621 P.2d 1162 (Okl.Cr.1981). Appellant's second assignment of error is therefore For his third assignment of error, appellant asserts that his September ......
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