Pulliam v. State

• Decision Date: 19 February 1937
• Docket Number: A-9124.
• Citation: 65 P.2d 426,61 Okla.Crim. 18
• Parties: PULLIAM v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

65 P.2d 426

61 Okla.Crim. 18

PULLIAM v. STATE.

No. A-9124.

Court of Criminal Appeals of Oklahoma

February 19, 1937

Syllabus by the Court.

1. Evidence held to support conviction for murder without death penalty.

2. Rebuttal evidence in criminal case is that which is given by the state to explain, repel, counteract, contradict, or disprove evidence introduced by or on behalf of the defendant.

3. Evidence tending to clarify a disputed point may be properly rebuttal testimony, notwithstanding the fact that the same testimony might have been introduced in chief.

4. When the state makes out a clear case in chief, the fact that certain testimony was reserved for rebuttal, which would have been admissible in establishing the case in chief, but which is clearly in rebuttal of a material defense, or testimony introduced in defense, does not render the same inadmissible in rebuttal.

5. If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case, when he has not requested such instructions.

6. Where a party desires the court to give any particular instruction, or desires that the one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the instruction complained of.

7. Where, after an examination of the entire record, it appears that the defendant has had a fair and impartial trial, and that no material error has been committed by the trial court and the verdict seems to be amply sustained by the evidence this court will not disturb the verdict or judgment of the trial court.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Jesse Pulliam was convicted of murder, and appeals.

Affirmed.

By information filed in the district court of Osage county, July 11, 1935, Jesse Pulliam and one John Stacy were jointly charged with the murder of E. W. Williams, on August 24 1934. Upon his separate trial the jury found the defendant Jesse Pulliam guilty of murder and assessed his punishment at imprisonment for life. From the judgment rendered in pursuance of the verdict he appeals.

The evidence discloses substantially the following facts:

The deceased, E. W. Williams, lived a mile and a half out of Fairfax, and had been for some time prior to the 24th day of August, 1934, operating a lunch and drink stand, about seven miles east of Fairfax, on the main highway to Gray Horse and the Naval Reserve Oil field. About 6 o'clock on the afternoon of August 24th, E. C. Spencer came from Fairfax to this stand to collect a payment due on a washing machine which he had sold to Williams, and found Williams in such an intoxicated condition that he made no effort to collect. Shortly after the arrival of Spencer, Albert Stevens, who lived on a farm a mile east, came to the stand. Spencer Stevens. and Williams then drank beer spiked with alcohol furnished by Williams.

Soon after the arrival of Stevens, the defendant Jesse Pulliam and codefendant, John Stacy, driving a truck, arrived and bought two bottles of beer which were spiked with alcohol. Williams being too drunk to attend to the matter, Stevens served the beer and put in the alcohol. Pulliam and Stacy paid 50 cents a bottle for the beer and the money was placed by Stevens in Williams' pocket. Pulliam and Stacy called for two more bottles and were again furnished with the spiked beer, paying the same price for the same. By this time Williams was so drunk that he could not walk and had to be assisted by Stevens to a pallet under a tree a short distance from the stand, and Williams never got up from the pallet.

Stevens then asked Pulliam and Stacy to leave, as Williams was "clear out," and there was no one left to run the place. Stacy "set his bottle of beer down real hard and said he had paid for it and would stay all night and drink it if he wanted to." Pulliam remarked to Spencer, with reference to Stacy, that "they had better not monkey with him, he was plenty tough with the other fellow." Spencer left within a few minutes thereafter, and as he was leaving Stacy told him that he had better beat it and be going, if he didn't want to see something happen. It was about 7:30 when Spencer left. Pulliam, Stacy, and Stevens were still around the stand and Williams was unconscious on the pallet.

Stevens testified that while he was getting the beer for Pulliam and Stacy, there were some words between them and the deceased that after he had helped Williams to the pallet and asked Pulliam and Stacy to drink their beer and leave, Stacy said that he had paid for his beer and was going to stay there and drink it. Witness told them that he did not have anything to do with the joint, only just as a friend of Williams. That some time after Spencer had gone and while defendant Pulliam and Stacy were present, after dark, witness was struck a blow over the eye with some instrument which he took to be a glass, he was struck a second blow over the eye, and a piece of glass later worked out of his forehead. This was on Friday evening, and he was unconscious from the time this second blow landed until the following Sunday. At the time he was struck and rendered unconscious he had about $2.50 or $3 in his pocket, that was missing thereafter.

Bill Stevens, a son of Albert Stevens, testified that with his uncle Lee Van Cleve, he drove to this stand looking for his father. The car lights flashed on his father's body, and they put him in the car and carried him home and later took him to the hospital; that at the time he noticed on the ground nearby some other object which might have been the body of a man. That his father's pockets were turned inside out and his money was gone. That it was about 9 o'clock when he arrived home with his father.

Mrs. Zollie Williams, widow of the deceased, testified that her husband sometimes stayed at the stand at night and sometimes he came home at night; that on the afternoon of the day before he was injured he was at home and was carrying his money in a brown billfold in a pocket in the bib of his overalls; that she saw six $10 bills and more fives than he had tens in his pocketbook when he opened it to give her $15 that afternoon; that he just pulled the corners of the bills up to show her the money.

A search of the place that night showed that the pallet on which the body of E. W. Williams was found was "pretty well soaked with blood." Some three or four feet away was a considerable amount of blood in which was broken glass. On the ground outside of the stand and east of the pallet was a winch handle. The inside of the stand, a shack eight by twelve, was in a disorderly condition, the icebox was open, and on the floor, inside the door, was found a claw hammer having a broken handle, on which was fresh blood and hair. The clothing of the deceased contained no coins, but in the watch pocket of the trousers, underneath the overalls, were five $1 bills.

Williams was yet alive and was taken to the hospital, where he died about noon the next day. He had a large scalp wound and a compound fracture at the base of the skull sufficient to cause immediate unconsciousness and paralysis. The wound had been made by some blunt instrument such as a hammer, and was the cause of E. W. Williams' death.

The defendant, Pulliam, and codefendant Stacy were the last persons seen at the scene of this murder. They spent that night in Ponca City, where they tried to borrow some money. Pulliam returned to Shidler the next day, but left about noon and went to Seminole. From Seminole he went to Texas, then to New Mexico, where he worked under an assumed name. He was apprehended in June, 1935, and brought back to the state for trial.

When the state rested the defendant demurred to the evidence and asked the court to direct the jury to return a verdict of not guilty.

Jesse Pulliam, as a witness in his own behalf, testified that he was 25 years old, had been living at Shidler, engaged in driving a truck for Curnutt and Pulliam, his brother-in-law and brother; that on August 24th he drove into the Naval Reserve Oil field with his cousin, John Stacy, to move a house; that after quitting work that evening they drove to Slim Williams' beer joint; that Albert Stevens and E. W. Williams were there. Stacy asked for a bottle of beer and Williams asked if we wanted it spiked, Tracy said, "Yes," and he said, "No." After drinking the beer there was an argument between Tracy and Stevens, who was pretty drunk; then all four drank each another bottle of spiked beer. Stevens then told Stacy to go away from there. Stacy answered he would go away when he got ready; he had paid for the beer and was going to drink it. Stevens made a pass at Stacy, and Stacy hit him and knocked him down with a beer bottle. Williams came out to take a hand in it, and witness told him to stay out. That he had seen a pistol in Stevens' pocket, and when Stevens reached back for this pistol, witness hit him over the head with a beer bottle and knocked him down. Stacy was out by the truck and Williams was on the west side of the shack.

He further testified that he never owned the hammer introduced in evidence and did not have a hammer that evening; that he did not hit Williams with a hammer; that they reached...