Upchurch v. State

• Decision Date: 28 August 1936
• Docket Number: A-9025.
• Citation: 60 P.2d 395,59 Okla.Crim. 412
• Parties: UPCHURCH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

60 P.2d 395

59 Okla.Crim. 412

UPCHURCH v. STATE.

No. A-9025.

Court of Criminal Appeals of Oklahoma

August 28, 1936

Syllabus by the Court.

1. In a prosecution for murder, circumstantial evidence held sufficient to sustain conviction of manslaughter in the first degree.

2. The existence of a motive for the commission of a crime is not indispensable to a conviction, but proof of motive is always competent against the defendant. Motive is but a circumstance, and the existence or nonexistence of motive is immaterial where the guilt of the defendant is clearly established.

3. Where, after an examination of the entire record, it appears that the defendant had a fair and impartial trial and the verdict seems to be amply sustained by the evidence, this court will not disturb the verdict or the judgment.

Appeal from District Court, Washington County; H. H. Montgomery Judge.

Floyd Upchurch was convicted of first-degree manslaughter, and he appeals.

Affirmed.

J. R Charlton and Chas. W. Pennel, both of Bartlesville, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for the State.

DOYLE Judge.

Appellant, Floyd Upchurch, was convicted in the district court of Washington county of the crime of manslaughter in the first degree and his punishment assessed at twelve years' imprisonment in the state penitentiary.

The information in substance charged that in said county on or about the 8th day of February, 1935, Floyd Upchurch, the defendant, did willfully, unlawfully, and feloniously make an assault upon one Harry Payne with a club about three inches in diameter and two feet long, with the premeditated design to effect the death of said Payne, and did then and there strike and beat the head and face of said Payne, thereby inflicting certain mortal wounds with the felonious intent on the part of him the said Floyd Upchurch to kill and murder the said Harry Payne.

From the judgment rendered June 29, 1935, in conformity with the verdict of the jury, he appeals.

The only errors assigned are that the evidence is not sufficient to sustain the verdict, and that the court erred in not granting a new trial.

A substantial statement of the evidence is as follows:

Elbert Kester testified that he lived in Bartlesville; was acquainted with Harry Payne in his lifetime and the place he lived, on the south side of First street, between Rogers and Morton; that about 8:30 on the morning of February 8th, he saw smoke coming out from under the roof of the house where Harry Payne lived; that with Frank Vanley he went to the house, entered the back door, and saw the body of a man lying on the floor in the front room, and a blaze of fire about a foot high around the body; that he poured water on the body to put the fire out, and then took hold of the man's feet and started to drag him out, and found that the body was stiff; that he told Vanley to call the fire department. The front door was locked, and the back room was full of salvage and junk. The fire department got there and put out the fire about 9 o'clock. There was blood on the floor and blood spots on the ceiling. A club or stick was laying on the floor near the dead man's hand and a five-gallon can was on the floor near the body. That he knew Harry Payne, the deceased, in his lifetime, and knew him to be badly crippled in both feet and one hand was crippled.

G. H. Glessner testified that he lived at 210 South Bucy, Bartlesville, his house being one block west and one block south of where Harry Payne lived; that the day before Payne was found dead, he was passing the house and heard loud talking in there; that he went in, and Floyd Upchurch, sometimes called "Red," was there. He asked them, "What's going on in here?" Payne said: "Nothing much. Have you got any money?" He said, "I think I have thirty-five cents." Payne said: "I want to borrow it." And he gave it to him. Payne went out and came back in about an hour with some whisky. Upchurch and Payne drank the whisky, except that witness took one drink with them; that Payne slapped witness on the side of the head, and Upchurch spoke up and said: "Harry, I would not do that, somebody is liable to tear your head off by doing stuff like that." Payne called Upchurch a bad name, and Upchurch said, "Don't call me no red headed son of a bitch, if you do I will tear your damn head off." That Upchurch had a stick of wood in his hand about sixteen inches long, looked like it had been sawed with a buzz saw. Witness took hold of the stick, and Upchurch threw it down by the stove. That Upchurch and Payne had another scuffle before he left there about noon; that he saw the same stick there the next morning on the floor in front of Harry Payne's face; that the stick had blood on it. That he saw Upchurch and Payne again about 2 or 3 o'clock in the afternoon of that day and they were intoxicated; that when he arrived at Payne's house the next morning one of the Kestler boys and one of the Vanley boys were there; that Harry Payne, the deceased, was about fifty-five years old.

William Peyton testified that he lived on the west side of the block and Harry Payne lived middleway of the south side; that the day before Harry Payne was found dead, he saw him with Floyd Upchurch, and they were cranking a Ford truck that belonged to Mr. Payne; it was raining that day; that he saw them again that afternoon and saw Upchurch late that evening standing in the front door of Harry Payne's place.

Lyle Fernald testified that he was carrying a paper route and saw Red Upchurch and Harry Payne about 6 o'clock at night February 7th; they were on Cudahy street, between Blythe and Cass; they were trying to get their car started; that they were drinking; that Harry asked him to take a drink and to crank his Ford, and he tried to crank it and it kicked back, so he left them.

Francis Wine testified that he saw Harry Payne and Floyd Upchurch trying to get the car started about 6 o'clock in the evening; one said they could get the car started and the other said they could not; and then Upchurch left, and about ten minutes later Harry left and took some groceries with him.

Mrs. Blalock testified that she lived a couple of blocks west and a block north of Harry Payne's place; that a few minutes before 9 o'clock that night she saw Harry Payne with another man; they were quarreling about a truck that was stuck below her house; it had been stuck there since about dusk; they were cursing one another; and when they walked away one was carrying a five-gallon gasoline can.

James Conway testified that: "I live in Dewey, I was acquainted with Harry Payne during his life time and I know Red Upchurch. They came to my house a few days before Payne was killed to buy some junk. The old man was driving the car. Upchurch said, 'You see that damn son of a bitch?' I said, 'Oh, you ought...