Stevens v. State

• Decision Date: 27 June 1951
• Docket Number: No. A-11385,A-11385
• Citation: 232 P.2d 949,94 Okla.Crim. 216
• Parties: STEVENS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 949

232 P.2d 949

94 Okla.Crim. 216

STEVENS v. STATE.

No. A-11385.

Criminal Court of Appeals of Oklahoma.

June 27, 1951.

Syllabus by the Court.

1. Where a psychiatrist testifies that in his opinion defendant was insane at the time of the commission of the alleged crime, and no expert witnesses testify to the contrary, but there is competent testimony from lay witnesses concerning the actions, demeanor and conduct of the accused at the time of the alleged assault from which the jury could reasonably conclude that defendant was sane; the jury was not bound to accept the evidence of the psychiatrist, and their verdict on this disputed issue will be sustained on appeal.

2. In considering the sufficiency of the evidence, the function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude the accused is guilty as charged.

3. Where the evidence revealed that in regard to an absent witness due diligence had been made to secure his attendance by the issuance of a subpoena to the county of his residence, and his testimony was cumulative, it was not error to permit the reading of his evidence taken at a preliminary trial.

4. Where a juror qualifies on his voir dire and states that he has no bias or prejudice against the defendant and has no opinion as to his guilt or innocence, and after the trial it is shown without contradiction that the juror had discussed the case and had expressed an opinion prior to the trial as to the merits of the case, all of which was unknown to the defendant or his counsel until after the rendition of the verdict, the defendant is entitled to a new trial.

5. In a criminal case where the plea is in the nature of a special defense it must be supported both by evidence and requested instructions, in writing, to be available on appeal.

6. If a juror has prejudged the guilt of the defendant before hearing the sworn testimony, then it cannot be said that the defendant had a trial before an impartial jury.

7. The constitutional guaranty that in all criminal prosecutions the accused shall have the right of trial by an impartial jury means a jury not biased in favor of one party more than another; indifferent; unprejudiced; disinterested. This right to have an impartial jury cannot be abridged, and therefore the body of the triers should be composed of men indifferent between the parties, and otherwise capable of discharging the duty of jurors. Whether in the practical administration of justice the right is infringed is necessarily a judicial question, and whether, in a particular case, a proposed juror has the state of mind which will render him impartial, is a question of fact which it is the duty of the court trying the case to decide, in the exercise of its sound judicial discretion.

8. It has been uniformly held by this court that on matters of discretion the decision of the trial court will not be set aside unless there appears to have been a manifest abuse of discretion.

9. By abuse of discretion is meant an apparent erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application.

Kelly Brown, Muskogee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

The plaintiff in error Kirby Stevens, defendant below, was charged by information in the district court of Haskell county, Oklahoma, with the crime of assault with intent to kill, T. 21, § 652, O.S.A.1941. More particularly it was alleged that on August 4, 1947, armed with a 45 caliber automatic pistol he shot Olen Smith, city marshal, with intent to kill. To this charge the defedant entered a plea of not guilty by reason of insanity. He was tried on said charge by a jury, convicted and his punishment fixed at 1 year in the penitentiary.

From a factual standpoint this case presents an unusual situation. Psychiatrically speaking it appears what may have been a clear case of epileptic fugue, scientifically defined as 'a disturbance of consciousness in which the patient performs purposeful acts, without remembrance of his actions, after the period of the fugue has passed'. On the other hand it may have been the result of a drunken spree. Briefly, the facts, as revealed from the record herein, were as follows, to wit: On the 4th day of August, 1947, the defendant, a veteran of World War II, his father Jim Stevens, and his brother Frankie Stevens had been building a hay rack on a farm out of Stigler. The day was quite hot. The defendant Kirby Stevens had not been feeling well all afternoon and complained of his head. They quit work about 4:30 p. m., and came to town for supper. The defendant's sister Faye Harper, worked as a waitress at the Chuck Wagon Cafe in Stigler, so they went there for supper. Before going there however they stopped at a beer parlor and drank a bottle of beer. There was delay in getting their steaks fixed, and during that time the defendant and his brother Frank went to the beer parlor and Frank drank two bottles of beer and he said, Kirby drank about half of a bottle. Returning to the cafe, Kirby's sister asked them what kind of salad they wanted. Kirby told her he would come and help her fix it. She went to the kitchen and got some things out of the ice box and turned around to find Kirby Stevens' gun jammed up next to her. Faye screamed and Frankie Stevens and his father went to the kitchen where Kirby had his 45 automatic pistol drawn on Faye and pointed right at the middle of her chest. The father pushed her away around some boxes and Frankie began to grapple with Kirby for the gun, during which time the pistol was discharged several times, probably as many as 5 shots. He threw the gun at Frankie Stevens and Smith. Frankie said to Kirby 'don't do it, Kirby. For God's sake, put it up'. In the scuffle that followed over the gun Jim Stevens finally wrenched the pistol from Kirby's hands. At this point Olen Smith, city marshal, and George Cooper, policeman, who had been called to the cafe, came in and Smith made an attempt to hit Kirby with a blackjack. Frankie Stevens jerked it from his hand and threw it to one side. At this point in the melee Kirby removed Marshal Smith's pistol from the holster and started firing again. Somebody hit Olen Smith on the head and dazed him but no one knew who did it. Kirby emptied Smith's gun, then picked up his own, put another clip into it, and started shooting again. He shot his father, who fell, from a wound in the eye and arm. Olen Smith was shot in the chest and arm and the leg. Frankie Stevens was shot in the shoulder. By this time the fight had moved out the back door of the cafe into the alley. The county attorney, Howard Young, had just gone to the postoffice across the street from the cafe. He heard the shooting. He saw Olen Smith go in then come out bleeding. He attempted to assist him and got him to Jim King's car, and Kirby fired hitting Mr. Young. The bullet hit Young in the spine and he is a permanent cripple from paralysis as a result thereof. Thereafter he shot Mr. Hefley, a bystander, who was in the vicinity of Mr. Howard Young. The defendant was heard to tell his father to get back, and his brother 'to get back so he could shoot Olen Smith'. He was also heard to say in reference to George Cooper 'Stop, George, or I will shoot you. If you don't back up, I am going to shoot you'. Finally after his ammunition was exhausted he was overpowered by Officer Cooper and Mr. Winton who put him in jail. This in substance constitutes a delineation of the chronology of this tragic event. Fortunately none of the parties shot were killed, though some of them suffered permanent bodily injury, particularly Mr. Young.

The state's evidence as to causal factor of Kirby Stevens' conduct was in substance revealed by the following evidence: Olen Smith said that from the expression of his eyes he couldn't say he looked insane. It was his first thought Stevens was intoxicated but whether he was, he could not say, because he had no proof of it. Stevens, he said, appeared to be as cool as he could be. He thought he heard him say 'I want to kill the son of a bitch'. George Cooper testified in this regard that the defendant appeared to be drinking, but he couldn't swear he was crazy. Howard Young testified that from his observation of Kirby Stevens the expression on his face, in the eyes, he looked just like any other drunk at the moment of the alleged crime. He was just on a drunken spree. It was his positive opinion Stevens was drunk. These three witnesses for the state in connection with the admitted fact the defendant had drunk some beer constitutes the case as to the causal factors of Stevens' berserk conduct. In this connection it is well to here note that the defendant had no difficulty with any of his victims and harbored no ill will towards any of them.

The evidence on behalf of the defendant as to the factual causes of his strange demeanor and acts on the occasion in question were in substance as follows: Jim Stevens, the father of the defendant, said Frankie said when he came into the kitchen 'Dad, he has another blackout'. Mr. Jim Stevens testified that he told Mr. Smith and George Cooper when they came into the cafe, and they asked who were out there that he told them 'my boys, and one of them has a complete blackout from all accounts'. That thereafter he went back and wrestled with him until they got the gun from him, and he then got Mr. Smith's gun and he got shot in the eye and arm. He said Kirby Stevens was like a wild man. He said he did not hear Kirby tell him to get back. He did not know Kirby had the gun he testified. Frankie Stevens testified as to Kirby Stevens' condition, that he had never seen his face look that way before. He said it was white, and a blank expression, and he acted as though ...