Johnson v. State
| Decision Date | 16 October 1963 |
| Docket Number | No. A-13332,A-13332 |
| Citation | 386 P.2d 336 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | Joe Allen JOHNSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
Syllabus by the Court
1. When a defendant deliberately engenders an affray, deliberately using therein a lethal weapon, it must be considered to be within his intent that death should result from the affray as a natural and probable consequence of his acts where the death is directly attributable to the affray and not resulting from some independent intervening cause.
2. Where an accused commits an assault designed to produce injury or death upon officers of the law, and injury or death does result without any intervening cause, but from an instinctive retaliatory force, the accused is criminally responsible.
3. Although this Court has upheld the right of counsel to the exercise of wide latitude in cross-examination, the scope of cross-examination rests largely in the discretion of the trial court, and the limiting of cross-examination of a witness concerning matters purely collateral and not germane to the issue by the court is not error.
4. The matter of continuance is addressed to the sound discretion of the trial court, and when counsel does not exert due diligence in procuring records before the cause goes to trial, he cannot attack said discretion in overruling his request for continuance.
5. The question of excessiveness of punishment must be determined by a stody of all the facts and circumstances in each particular case, and the Court of Criminal Appeals does not have the power to modify a sentence unless we can conscientiously say that under all facts and circumstances the sentence is so excessive as to shock the conscience of the court.
Appeal from the District Court of Tulsa County; Robert Simms, Judge.
Joe Allen Johnson was convicted of the murder of High Greer, Tulsa Police Officer, and appeals. Affirmed.
John D. Harris, Tulsa, for plaintiff in error.
Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.
Joe Allen Johnson, hereinafter referred to as defendant, was charged by information with the premeditated death of Hugh Greer, Tulsa Police Officer. Upon a verdict of Guilty by the Jury, he was sentenced to Life Imprisonment in Oklahoma State Penitentiary, and from said Judgment and Sentence, he now appeals.
From the record, it appears that shortly before midnight on April 26, 1962, the defendant and one Danny McGinnis, went to the Safeway Store located at 1706 South Boston, Tulsa, for the purpose of burglarizing same.
Attempting to gain entrance to the establishment by prying the lock from the rear door of the store, they were interrupted by the approach of a police cruiser, summoned by a Mr. Elwood J. Allen, who had observed them attempting to open the door. Defendant fled down an alley, entering the back porch of J. B. Hillenburg, 1725 South Baltimore, where he secreted himself in a small bathroom, just off the back porch. The defendant had been observed on the back porch by Mrs. Hillenburg, who related the occurrence to her husband. He, in turn, transmitted this information to Officers Hugh Greer and Ray Burch, who were searching the area for the burglars. The officers went through the house to the back porch where the testimony of Officer Burch discloses (in substance) that:
After emptying his gun, the defendant, having received a bullet wound in the chest in the affray, staggered up the street where he was disarmed of Officer Greer's gun and placed under arrest by Tulsa Police Officer, Charley Jones.
Officer Greer's body was taken to Hillcrest Medical Center where an autopsy was performed by Dr. Leo Lowbeer. Two bullets were removed from the body of the deceased and both were sent to the FBI Laboratory in Washington, D. C., along with the .38 caliber Smith and Wesson Pistol of Officer Greer and the .38 Special Military Police, Smith and Wesson of Officer Burch. The non-fatal bullet removed from Officer Greer's body was identified by Mr. Cortlandt Cunningham, FBI Balistics Expert, as having been fired from Officer Greer's .38 caliber Smith and Wesson, however, the bullet which had been identified by Dr. Lowbeer, as the one producing Greer's death, was so badly mutilated, Cunningham could not determine whether it had been fired from the .38 Smith and Wesson belonging to Greer or the .38 Special Military Police, Smith and Wesson belonging to Burch.
The State introduced testimony of Charley Jones, Vice Squad Officer, Tulsa Police Department; Johnny Lee Thurber, who shared a room with the defendant, Johnson, at the hospital after the shooting; and officer Bill Harp, Tulsa Police Officer. All of these witnesses testified that the defendant, Johnson, had admitted shooting both officers and the most comprehensive admission made by the accused was related in the testimony of Officer Bill Harp; he testified that:
'We asked Johnson if he would care to tell us his side of the story as to what took place on the night of April 26th. He told us that he had been drinking at Mary's Club on East 6th Street with a subject by the name of Danny McGinnis; stated that Danny told him that he knew where (OBJECTION, OVERRULED) * * * said that Danny told him he knew where they could make a good score and obtain some beer (OBJECTION, OVERRULED). That he knew where they could get two or three cases of beer; that they had been drinking earlier in the evening; Danny obtained a car at approximately 11:30 P.M. and they drove to the Safeway Store, at Seventeenth and Boston; stated that he and Danny took turns trying to open the back door of the Safeway Store, while the other would stand on the street corner watching for the police, and he stated that he was standing on the north side of Seventeenth Street, which is just at the south end--at the north end of the Safeway Store, when he saw a police car coming and he yelled 'jiggers' and ran, and from that time on he never saw Danny McGinnis again; stated that he ran south down the alley from Seventeenth and Boston, jumped a fence into a back yard, opened the door to a screened porch and went inside and when he got inside he went on into a bathroom, located on the north end of this porch and was hiding in there until he heard the officers come into the house; stated he heard the officers talking when they came through the front door of the house and they came through the house, came to the back porch. One of them opened the back door and pulled him out of the bathroom onto the back porch. At that time he heard one of the officers tell the other one, 'give me the handcuffs.'
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