Sharp v. State

• Decision Date: 27 October 1965
• Docket Number: No. A-13554,A-13554
• Citation: 407 P.2d 593
• Parties: Dallas Quinton SHARP, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 593

407 P.2d 593

Dallas Quinton SHARP, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13554.

Court of Criminal Appeals of Oklahoma.

Oct. 27, 1965.

Rehearing Denied Nov. 24, 1965.

Syllabus by the Court

1. All instructions given should be considered, and where they fairly and fully present the issues involved and no fundamental error occurs, case will not be reversed on appeal.

2. Instructions must be considered as a whole and individual sentences should be considered in light of entire charge.

3. Questioned words in an instruction should be interpreted in favor of consistency with remainder of instruction rather than isolated to create conflict within instruction.

4. Homicide is murder when perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any human being. 21 O.S.A. § 701.

5. A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.

6. A design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution.

7. An instruction defining a statutory offense should be in the terms of the statute or in words of similar import.

8. Instruction setting out statute on which prosecution was based practically in language of statute is not erroneous.

9. The testimony of experts is not conclusive on the issue of defendant's mental capacity as law makes no distinction in weighing evidence between expert testimony and evidence of other character.

10. The weight and credibility of the opinion of the expert witness is for jury.

11. Counsel for a defendant must not only object to alleged improper statements of county attorney in his argument to jury, but must go further and move the court to exclude such remarks and instruct jury not to consider them for any purpose; but when this is done, such remarks do not constitute reversible error unless they are of such character that error could not be cured by the withdrawal of remarks.

12. Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury, and enough must appear of record to advise the appellate court of what preceded the alleged objectional remarks, and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

13. When entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant's counsel, and trial judge overrules the objection to such argument, Court of Criminal Appeals will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of defendant; but presumption will be indulged that trial judge ruled that such argument was permissible as reply argument.

14. In ruling upon demurrer to information, it was only incumbent on trial court to determine whether information was reasonably certain as to offense charged and was couched in such language as to enable a person of common understanding to know what is intended so that he may prepare his defense, and so that a judgment of acquittal or conviction would be a bar to subsequent prosecution for the same offense.

15. 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.

16. It is the general rule that one who can comprehend the difference between right and wrong is capable of testifying as a witness.

Appeal from District Court of Beckham County; Charles M. Wilson, Judge.

Dallas Quinton Sharp was convicted of the crime of murder, sentenced to suffer the death penalty, and appeals. Affirmed.

H. C. Ivester, Sayre, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Dallas Quinton Sharp, hereinafter referred to as the defendant, was convicted for the crime of murder, and on May 20, 1964 by the judgment of the district court of Beckham County, Oklahoma, was sentenced to suffer death by electrocution on August 15, 1964, within the walls of the State Penitentiary at McAlester, as by law provided.

The court-appointed attorney for the defendant has perfected his appeal to this Court.

The penal code of Oklahoma Title 21 O.S.A. § 707, provides:

'Every person convicted of murder shall suffer death, or imprisonment at hard labor in the State Penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.'

In the case at bar, the defendant was tried before a jury in a court of competent jurisdiction, was represented by competent counsel, was advised of his constitutional rights; was found guilty of the charge of murder, and sentenced by the jury to the punishment of death, as provided in the state statutes.

After reviewing the record submitted to this court, we are of the opinion that the defendant was provided all the formalities of law essential to the taking of human life, and that his trial, conviction and sentence of death has been in accordance with the law of Oklahoma.

In his petition in error counsel cites twenty-three assignments of error, which he treats in his brief under four general assignments. After discussing the proceedings of the trial of this defendant, we shall consider the defendant's petition in error, as outlined in counsel's brief supporting that petition.

It appears from the record submitted to this court that the defendant, Dallas Quinton Sharp, was charged with the murder of his wife. The information filed against him alleged in substance that on the evening of December 10, 1963 the defendant did, with premeditation, kill his wife. The defendant was arrested and committed to the Beckham county jail early on the morning of December 11, 1963. He was afforded a preliminary hearing on December 20, 1963 and was bound over for trial in the district court of Beckham County.

The district court appointed Mr. H. C. Ivester to represent the defendant at his trial. On December 23, 1963 the defense counsel filed an 'Application for Medical Attention', in which he requested that the defendant be committed to the Western State Hospital at Fort Supply, Oklahoma, for ninety days observation to determine his mental condition. On December 24, 1963 in open court and preliminary to arraignment in the district court, at which the defendant was present with his attorney, as well as with his father and mother, the following transpired:

The defendant admitted his true name as charged, and stated his age to be thirty-one years. The court advised the defendant that he was charged with a felony, murder, for which the punishment prescribed by law is life imprisonment or death. He was then advised by the court of his constitutional rights, his right to counsel, and the consequences of his plea. At the same hearing, the court formally appointed Mr. Ivester to serve as his defense counsel. The court then ordered that the defendant be committed to the Western State Hospital at Fort Supply, Oklahoma, for ninety days observation, to determine his mental competence to stand trial.

On February 13, 1964 the report from the Western State Hospital, signed by H. B. Witten, M. D., Superintendent, was filed with the district court clerk. That report stated:

'In the opinion of our staff Quinton Dallas Sharp in competent in the legal sense of the term. He knows the difference between right and wrong and is capable of assisting in his own defense. We feel that his case should be dealt with by the court, rather than by committing him to a mental hospital.'

The district court, following the defendant's release from the Western State Hospital, set the defendant's arraignment for 10:00 A.M., Wednesday, February 19, 1964. On that day, prior to his arraignment, in open court, at which the defendant was present with his counsel, the defendant was advised by the court that he might have an additional 24 hours to answer the information which had been filed against him. The defendant waived his right to have 24 hours in which to plead, waived the reading of the information, and entered his plea of not guilty.

April 23, 1964 the defendant filed his demurrer to the information, contending that the wording of the information was not sufficient to charge the defendant with the crime of murder, and that the allegations were insufficient upon which to force the defendant to stand trial for murder.

On the same day, the defense counsel filed a second 'Application for medical attention', in which he contended the defendant was entitled to receive medical care, which was not provided him at the Western State Hospital.

The defendant then, on the same date, filed an application for change of venue, contending that he could not receive a fair and impartial trial in Beckham County.

A hearing was had May 1, 1964 on the defendant's demurrer to the information, his application for medical attention, and his application for change of venue.

The defendant waived his application for change of venue, defense counsel stating: 'I filed an application for change of venue, just for a matter of record. I then talked with the defendant in the case,...