Walters v. State

• Decision Date: 16 June 1965
• Docket Number: No. A-13600,A-13600
• Citation: Walters v. State, 403 P.2d 267 (Okla. Crim. App. 1965)
• Parties: Eugene Wendell WALTERS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 267

403 P.2d 267

Eugene Wendell WALTERS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13600.

Court of Criminal Appeals of Oklahoma.

June 16, 1965.

Syllabus by the Court

1. A peace officer may, without a warrant, arrest a person: (1) For a public offense, committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. (4) On a charge, made upon reasonable cause, of the commission of a felony by the party arrested. Title 22, O.S.A. § 196.

2. A peace officer is a trespasser when he attempts to arrest without a warrant for a misdemeanor not committed or attempted in his presence, and the person sought to be arrested may resist arrest.

3. The right to resist an unlawful arrest, however, is limited and varies with the circumstances.

4. If the official character of the officer is known to the person sought to be arrested, or if the officer informs him of his official character and his reason for the arrest, and the person sought to be arrested has no reason to apprehend any treatment other than detention, he is not justified in the use of a deadly weapon in resisting the arrest.

5. The fact that an original arrest may have been unlawful does not affect the jurisdiction of the court, and it does not preclude trial of the accused for the offense.

6. The admission of evidence in rebuttal is largely a matter addressed to the sound discretion of the trial court and its ruling thereon will not be reversed in the absence of a showing that the court's action was a manifest abuse of discretion.

7. The instructions have been carefully examined and considered as a whole and found to correctly and adequately state the law applicable to the instant case.

8. The granting of a new trial on the ground of newly discovered testimony is a matter largely within the trial courts discretion and is not to be exercised except when there is reasonable probability that, if such evidence had been introduced, different results would have been reached.

9. Where evidence is urged by defendant on a motion for new trial on the ground the same is newly discovered, it must be established that the same, if existing at the time of trial, could not have been procured before trial by the exercise of due diligence, and failure to do so constitutes a bar to a new trial on such ground. Title 22, O.S.A., § 952.

10. Under the above rule, the defendant is precluded from taking advantage of the evidence he did not use and which the records show was available to him at the trial on the merits.

An appeal from the District Court of Oklahoma County; Boston W. Smith, Judge.

Eugene Wendell Walters was convicted of the crime of Assault with a Dangerous Weapon, After Former Conviction of a Felony, and appeals. Affirmed.

Mart Brown and H. A. Bud Carter, Oklahoma City, for plaintiff in error.

Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Eugene Wendell Walters, hereinafter referred to as the defendant, was charged in the District Court of Oklahoma County with the crime of Assault with Intent to Kill, After Former Conviction of a Felony. He was tried by a jury, found guilty of the lesser and included offense of Assault with a Dangerous Weapon, After Former Conviction of a Felony; and was sentenced to Ten Years in the penitentiary. From that judgment and sentence he has filed his appeal in this Court, alleging numerous assignments of error.

It will be necessary to outline the facts of the case, which will be lengthy--due to the voluminous, repetitious, and unnecessary testimony allowed to be admitted during the trial, and on the Motion for New Trial.

The defendant was being arrested on a complaint signed by his wife for Assault, and while enroute to the police station, pulled a gun on the police officer, hitting and striking him, causing the car to jump a curb and stop against a fence. The fight continued, and the officer was shot in the stomach but was able, with the help of a witness, to keep the defendant there until another officer arrived to disarm him.

Rex V. Barrett, the officer who was shot, testified that he had gone to 608 North Dewey on November 1, 1963, on orders from police headquarters to pick up Walters on a complaint signed by his wife in front of the station captain. That he could get no answer at the apartment, and was starting to leave when Officer Gay arrived. That Mrs. Walters and another lady drove up across the street and motioned to them to come and talk to them. She told the officers that defendant had beat her up, and that he was there in the apartment because his car was parked behind the building. They went back, knocked three or four times--yelling that they were the police and wanted to talk to him. The door finally opened, started to close again, and Officer Barrett stuck his foot in the door and pushed it slightly. They entered the apartment and defendant was standing in the middle of the room. There was another man in the room, but he did not enter into the conversation. Then Officer Barrett told defendant that his wife had signed a complaint against him, and that it was nothing personal with them, but that he would have to accompany them to the police station and he could post a $20.00 bond and be released until such time as he had to appear in police court. The officer searched Walters and found a gun, later identified as a .38 calibre Owlhead pistol, and stuck it in the left front pocket of his trousers. Then the officers took defendant out of the apartment, walked him down to Officer Barrett's car, and placed him in the right side. Officer Gay then walked back to his car, at which time Officer Barrett took his own service revolver out of his holster, and put it in the middle of his stomach, under his belt. As he was preparing to start the car, he noticed the other gun in his pocket was uncomfortable and he removed it from his pocket and put it under his belt also, making two guns under his belt. He was just starting to pull out into the street, when he heard the defendant say, 'I am going to kill you, you son-of-a-bitch'. He turned and the defendant had a small calibre pistol pointed at his head. Defendant reached over and got the .38 Owlhead pistol from the officer's belt, and put the small calibre pistol back in his right front coat pocket. The officer testified he was trying to get the car stopped, and defendant reached over and got the officer's gun in his right hand; took the other gun and started hitting him over the head with it at least three times. The officer testified that he was able to knock the gun out of the hand that he was hitting him with. This was the.38 Owlhead that he had removed from the defendant earlier. The officer stated he then grabbed the barrel of the other gun (the officers service revolver), and that the defendant must have opened the door with his other hand, because the door came open, and they continued the struggle outside. The officer was still holding onto the barrel of the gun trying to keep from being shot. When they were approximately twenty feet west of the car, the defendant got the gun out of the officer's hand, and he testified as follows:

'A. Well, after--I had a hold of his right arm and he was on the west side of me and I was on the east side toward the car and he--I had may hand clamped on his right arm and that was the arm that had the gun in it but some way he got the gun in his left hand. Just how, I don't know. The next thing I knew it was over to my right a little bit and he shot me.

Q. Where were your hands at this time?

A. Well, both of my hands was on his right arm because that was the one that the gun was in.'

And, further:

'A. After he shot me I begged him not to shoot me anymore and when the bullet first hit me it almost knocked me down and as soon as I could I grabbed him and we started scuffling there back to the car and he was still cussing me and saying I am going to kill you, you son-of-a-bitch and of course he was saying that prior to the shooting, too, and I was still fighting and actually I never did strike him, all I was doing was holding his arm trying to keep him from shooting me again. We were about 20 or 25 ft. west of the car when he shot me and we struggled back to the car, we struggled around the car there a little after I was shot and he still had the gun and I was still trying to get it, I had my hand on his right arm and we scuffled there around the car. At first we went back to the side of the car and scuffled around in back of the car and he leaned me up against the back of the car and I remember that particularly because, well, it hurt real bad and then, one of us, I don't know which one, tripped the other one and we fell. We went down behind the car there between Dewey and the sidewalk and right there in the dirt and I was on top and I had, I believe he got the gun over in his right arm, I'm not sure which hand he had it in but whichever hand he had the gun in, I couldn't ever get to the gun but I had my knee on his arm and I was holding his arm so he couldn't shoot me again and the gun was kinda waving in the air and I was--even though I was still trying to get the gun, I never could get it and I was holding him down there trying to get the gun at which time I noticed about a middle aged man with a stick come out of the building there and he came up there and he told the Defendant, he said, 'Lay that gun down or I am going to hit you over the head with this stick' * * * Officer Gay, or a big officer came running south down Dewey there and he run up there and he could see the gun waving around and he stopped--the Defendant had his head on the ground and he stepped on the Defendant's head and his heel caught him right in the eye, at which time he put his foot on his head and he still...