Wade v. State, F-77-833
| Decision Date | 17 July 1978 |
| Docket Number | No. F-77-833,F-77-833 |
| Citation | 1978 OK CR 77,581 P.2d 914 |
| Parties | Charles E. WADE, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Charles E. Wade, hereinafter referred to as defendant was charged in the District Court, McCurtain County Case No. CRF-77-40, with Murder in the Second Degree, in violation of 21 O.S.Supp.1976, § 701.8. He was tried by a jury and found guilty. He was sentenced to a term of twelve (12) years' imprisonment and appeals.
In his first assignment of error the defendant contends that the trial court erred when it overruled his demurrer to the State's evidence. Under this assignment of error the defendant argues that there was no direct proof that the "bullet which killed the victim came out of the pistol held by the defendant." This assignment of error is patently frivolous. The State's witness, Leo Howard, testified that he saw the defendant point his pistol at Della Golston and heard the shot fired; that he first thought that the shot had missed Della Golston, that the defendant was standing seven feet away from the victim when the shot was fired, that Della Golston collapsed on the floor and blood was flowing from her mouth; and that thereafter the defendant held the victim's head in his arms and stated, "he wasn't trying to do it." The defendant's pistol was recovered by police officers at the scene of the homicide and the parties stipulated that if the pathologist conducting the autopsy of Della Golston testified he would state that the victim died as a result of a gunshot wound.
As his second assignment of error the defendant contends that there was not sufficient evidence to convict the defendant of Second Degree Murder. The uncontroverted evidence in the instant case is that the defendant, in violation of 21 O.S.Supp.1976, § 1272.1, had in his possession a loaded pistol in an establishment where beer or alcoholic beverages are consumed. This is a felony punishable under the provisions of 21 O.S.Supp.1976, § 1272.2. The evidence further established that Della Golston died as a result of a wound inflicted by a bullet fired by the defendant from his pistol. Homicide is Murder in the Second Degree when perpetrated by a person engaged in the commission of any felony other than those enumerated in the First Degree Murder Statute although without premeditated design to effect the death...
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