Townley v. State

• Decision Date: 30 September 1959
• Docket Number: No. A-12665,A-12665
• Citation: 355 P.2d 420,1959 OK CR 100
• Parties: Sam TOWNLEY, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 420

355 P.2d 420

Sam TOWNLEY, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12665.

Court of Criminal Appeals of Oklahoma.

Sept. 30, 1959.

On Rehearing Sept. 14, 1960.

SYLLABUS BY THE COURT.

1. Where there is evidence in the record from which the jury could legitimately draw the conclusion of guilt, a judgment of conviction will not be set aside upon the ground that the evidence does not support the verdict as the weight of testimony is for the jury.

2. Where two members of the jury are seen during recess, in the hall immediately outside the court chambers, briefly speaking with attorney interested in civil aspects of criminal trial, before final submission to jury, does not, in the absence of testimony that occurrence was more than casual, constitute prima facie misconduct of the jury so as to require reversal unless it be shown that defendant was prejudiced thereby.

3. Where spectator makes a spontaneous outburst in the court room during the course of a trial, it must be apparent that such remarks were prejudicial to the rights of the defendant in order to constitute reversible error. Such outburst in the instant case was not of such nature; the remarks not being inflammatory, biased, or prejudicial.

4. The granting of a continuance in a criminal case is a matter to be determined by the sound legal discretion of the trial judge and his ruling will not be disturbed by the Court of Criminal Appeals unless there is a clear abuse of that discretion.

5. A defendant is entitled to his day in court free from outside influences or impressions, psychological, or otherwise, that might tend to fix in the minds of the jury degrees of punishment, sympathy, or prejudice, through the power of suggestion, or otherwise; therefore, if the trial court finds it necessary to interrupt the proceedings of a criminal case to entertain pleas of guilty and to pass sentence upon other defendants, the jury in the case at trial should be excused from the court room and prohibited from hearing such proceedings.

6. Where admonition to the jury as to their duty and responsibility during recess or separation is given or referred to six times during course of trial, the defendant will not be heard to complain of its inadequacy where he sits silent and offers no objection, modification, or suggesting, and raises question for first time on motion for new trial.

7. Defendants coming within the terms of Tit. 22 O.S.A. Sec. 991-992 are eligible for suspended sentence, but they have no right to demand it and the matter of suspending or not suspending rests entirely with the discretion of the trial court.

8. Though defendant is not entitled to demand a suspended sentence he is entitled to have his application earnestly considered whether his conviction is the result of a guilty plea or by jury trial and the refusal of the application must not be arbitrary and must not be based upon mere whim or caprice nor upon any ground not sanctioned by law.

On Rehearing.

1. In all cases where one has withdrawn from an affray or difficulty as far as he possibly can and fairly indicates his desire for peace, and is thereafter pursued by the other party who renews the difficulty, his right of self-defense, though once lost, is revived and may be successfully pleaded by him, and thereafter his actions will be justified even to the extent of taking human life if necessary, and where the facts appear to support such a theory of defense it is fundamental error not to so instruct the jury.

2. The mere fact that accused had a dangerous weapon and used it does not take away the right of self-defense if without that fact the right would have existed; and the fact that a person is carrying a weapon unlawfully does not deprive him of the right to use it in his necessary self-defense, if he did not arm himself for the purpose of aggression.

3. Where there is a correct instruction upon a material question in a case, and in another portion of the instructions there is an incorrect statement of the law upon the same question, it cannot be said that the law has been clearly and fully given to the jury, and reversible error has been committed.

4. Discretion of court is a liberty or privilege allowed to a judge within the confines of right and justice to decide and act in accordance with what is fair, equitable, and wholesome, as determined by the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles, and analogies of the law, to be exercised in accordance with a wise, as distinguished from a mere arbitrary, use of power and under law.

5. Judicial discretion is not mere arbitrary rule, conferring on judge right to make judicial determination blindly, nor palliation for capricious discrimination, but is regulated in a measure by precedents. It is never exercised to give effect to the mere will of the judge, but to the will of the law and the judge's proper function, when using it, is to discern according to law what is just in premises.

6. Diminution of record on appeal may not be effected by inclusion in one record matters that occurred in the trial of another separate and distinct case in order to demonstrate what may be an arbitrary rule of court, the effect of which is to deny due process; each such record must be judged upon its own content relative to diminution since diminution of the record is to perfect the record in the appellate court so that it may correspond in all particulars with the original file in the office of the clerk of the trial court.

An appeal from the District Court of Oklahoma County; W. R. Wallace, Judge.

Sam Townley was convicted of the crime of assault with a dangerous weapon and appeals. Modified and affirmed.

On rehearing.

Reversed and remanded.

Miskovsky & Miscovsky, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., J. W. (Bill) Berry, County Atty., Oklahoma City, for defendant in error.

NIX, Judge.

The plaintiff in error, Sam Townley, who shall hereinafter be referred to as the defendant, was convicted in the District Court of Oklahoma County upon an information charging the defendant with the crime of assault with a dangerous weapon. He was tried before a jury who found the defendant guilty, but could not agree upon the punishment and left the same to be fixed by the trial judge, who sentenced defendant to the state penitentiary for a term of eighteen (18) months.

The defendant properly lodged his appeal in this court seeking reversal upon nine assignments of error, innumerated and stated as follows:

'1. The verdict is contrary to law and evidence adduced during the trial and the court committed error in overruling defendant's demurrer to the evidence.

'2. Several members of the jury were subjected, in the course of the trial, to influences of a prejudiced and biased person, to-wit: one Howard K. Berry, attorney at law, and counsel for prosecuting witness in the civil damage suit, who is also the brother of the prosecuting official.

'3. The court committed error in ruling upon evidence during the course of the trial.

'4. The county attorney made improper, inflammatory, and grossly prejudicial remarks during the course of oral argument.

'5. The proceedings were interrupted by improper, prejudicial, inflammatory, and biased exclamations of a spectator.

'6. The court committed error in denying defendant's Motion and Affidavit for Continuance, forcing him to trial in the absence of a material eye-witness.

'7. During the progress of the trial, and on at least one occasion, prisoners clad in jail garb were paraded in the court room under heavy escort of armed guards in the presence and in plain view of the jury.

'8. The court failed to admonish the jurors not to read the newspaper accounts of the proceedings. That, in the course of the trial, and upon submission of this cause, several of the jurors read imperfect, inaccurate, and incorrect newspaper reports of the trial, appealing to the passion and prejudice of readers, and containing adverse comments on the probable guilt of the accused; said jurors were improperly and erroneously permitted to bring said newspapers into the jury room during their deliberation upon the verdict.

'9. Defendant was deprived of the right to have the trial court consider and determine his application for suspended sentence in the exercise of sound, lawful, and legal discretion, unimpaired by and free from injection of considerations not sanctioned by law, and that said deprivation constituted denial of due process and equal protections of the laws under the State and Federal constitutions.'

Though some of the contentions of error are without merit and do not justify discussion herein, there are some assertions that have given the court much concern. Before engaging discussion as to these advancements, it will require a brief recital of the facts from which the case arose. Counsel for defendant is to be commended upon the presentation to a good brief and therein contained is an accurate summary of the testimony. The state has not filed a brief in this case, thus the summary is not questioned. It adheres closely to the transcript of the testimony and is worthy of recital:

'In its evidence in chief, the state produced the following witnesses: Bill Billingsley, the victim of the alleged assault; Geneva Montgomery Billingsley, the then girl friend of said victim, and later his wife; and Sherman Brown, a deputy sheriff of Oklahoma county.

Bill Billingsley testified, in substance, on direct examination, as follows:

A slight disagreement developed between him and his girl friend on the night of this alleged crime; while having this discord, Billingsley drove east on Reno Street, in Oklahoma City, turning right into South Eckroat, and then drove about twenty yards south to a point where he parked his car. Approximately fifteen minutes later, an...