Lime v. State

• Decision Date: 29 March 1973
• Docket Number: No. A--17315,A--17315
• Citation: 508 P.2d 710
• Parties: Thomas Dewey LIME, and Martinez Lime, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 710

508 P.2d 710

Thomas Dewey LIME, and Martinez Lime, Appellants, v. The STATE of Oklahoma, Appellee.

No. A--17315.

Court of Criminal Appeals of Oklahoma.

March 29, 1973.

Miskovsky, Sullivan & Miskovsky, Oklahoma City, for appellants.

Larry Derryberry, Atty. Gen., Kay Karen Kennedy, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Presiding Judge:

Appellants, Thomas Dewey Lime and Martinez Lime, hereinafter referred to as defendants, were charged, tried and convicted in the District Court of Blaine County, Oklahoma, for the offense of Manslaughter in the First Degree. Their punishment was fixed at twenty-one (21) years and one (1) day imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

Briefly stated, the evidence at the trial adduced that on November 2, 1968, Dr. George B. Roop, an osteopathic surgeon, was summoned to the home of defendants to examine one Pearl Old Bear. Dr. Roop testified that Pearl Old Bear's condition was serious, that she appeared to have been 'pretty terribly abused,' that her head was bruised, that there was considerable blood and that she was in a coma. She was then taken by ambulance to the hospital in Clinton. Dr. Gary Hays testified that he subsequently examined Pearl Old Bear at the hospital on the same date and testified that she was partially paralyzed, had a contusion on the right side of her head and had other lacerations and bruises. The doctor testified that he performed surgery to remove a blood clot from her brain. The doctor further testified that the brain damage and injuries sustained by the victim could have been caused by a severe blow to the skull, that the victim's condition deteriorated and that she died on November 5, 1968. A subsequent autopsy by Dr. Hays indicated that the brain injury was the only cause of death and that the brain injury would have occurred 24 hours or more earlier.

Jo Anne Bowman testified that in the early morning hours of November 2, 1968, she saw Martinez Lime grab the victim by the shirt and hit the victim's head against the wall three times.

Wayne Harrington then testified that he saw the defendants beat the victim and kick her, that Martinez Lime also stomped the victim and that Thomas Lime struck the victim with his fist.

The defendants did not testify in their own behalf, nor did they present any evidence.

Defendants first contend that the district attorney, in closing argument, misrepresented the substantive law concerning the misdemeanor-manslaughter doctrine and, therefore, the trial court erred in failing to declare a mistrial or admonish the jury. With this contention this Court cannot agree.

The district attorney, in his closing argument, stated without objection:

'We have set out in the information, ladies and gentlemen, two instances, two reasons why under the law in this case, we believe, that the defendants are guilty of manslaughter in the first degree. The first is that they in fact were engaged in the commission of a misdemeanor, the misdemeanor is assault and battery and to that extent I suppose they are guilty of it, that they are guilty, ladies and gentlemen of the death, the homicide that resulted from the assault and battery. Assault and Battery is a misdemeanor and if you find that they were committing that misdemeanor and that from the commission of that misdemeanor, the assault and battery on Brownie, a death occurred, her death occurred, then they are guilty of manslaughter in the first degree, even though they had no motive to have her receive a death sentence from that beating.'

He also later stated without objection:

'The only evidence goes to whether or not they were committing the misdemeanor of assault and battery on Brownie and her death resulted and/or they killed her in a cruel and unusual manner, thus making it manslaughter in the first degree.'

Defendants argue that under Oklahoma law, the felony-murder doctrine requires that the precedent felony must constitute an independent crime not included within the resulting homicide; and that the same rule of law should apply to the misdemeanor-manslaughter doctrine. Defendants cite no authority for their contention concerning the equivalence of the two doctrines, but urge that the misdemeanor relied upon cannot be an includable offense to the homicide, since to otherwise hold would allow the jury to find defendants guilty of manslaughter in the first degree, without finding that defendants acted in a cruel and unusual manner.

This Court has held on numerous occasions that if the misdemeanor-manslaughter doctrine is relied upon to obtain a conviction of manslaughter in the first degree, then the unlawful act constituting the misdemeanor must be the proximate cause of death. Logan v. State, 42 Okl.Cr. 294, 275 P. 657; Stumblingbear v. State, Okl.Cr., 364 P.2d 1115; and Gallaway v. State, Okl.Cr., 492 P.2d 368.

In Logan v. State, Supra, this Court...