Wofford v. State, F-76-854

• Decision Date: 08 September 1978
• Docket Number: No. F-76-854,F-76-854
• Citation: 584 P.2d 227
• Parties: Geary Wayne WOFFORD, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 227

584 P.2d 227

Geary Wayne WOFFORD, Appellant v. The STATE of Oklahoma, Appellee.

No. F-76-854.

Court of Criminal Appeals of Oklahoma.

Sept. 8, 1978.

An appeal from the District Court, Creek County; Charles S. Woodson, judge.

Geary Wayne Wofford, appellant, was convicted of the offense of Murder in the Second Degree; was sentenced to ten (10) years to life imprisonment; and, appeals. AFFIRMED.

Lantz McClain, Sapulpa, for appellant.

Larry Derryberry, Atty. Gen., Michael P. Kane, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Judge:

Appellant, Geary Wayne Wofford brings this appeal from a conviction for Second Degree Murder, under the provisions of 21 O.S.1971, § 701.2, and sentence of ten (10) years to life imprisonment in the State penitentiary. At trial, the State's evidence showed defendant and two accomplices went to decedent's home on August 5, 1974. Decedent, who was 70 years old and had advanced heart disease, apparently died of a heart attack after being tied, beaten and robbed.

Defendant's first assignment of error is that the trial court erred in refusing to grant his motion to dismiss the charge because of the State's failure to arraign him within the statutory time. Title 22 O.S.1971, § 470, provides that a defendant must be arraigned within 30 days from the day he is ordered held for trial upon a preliminary information charging the commission of a felony. The defendant in the instant case was ordered held for trial on May 7, 1975, and his arraignment was set for May 19, 1975. However, he was not arraigned until June 23, 1975, on which date he entered a plea of not guilty without filing any motion to quash or set aside the information. We have previously held that a plea to the merits of the charge will act as a waiver of any irregularity in the proceedings prior to that point. Ex parte Norris, 88 Okl.Cr. 450, 204 P.2d 291 (1949); Stucker v. State, Okl.Cr., 493 P.2d 84 (1972). For that reason, the defendant is not now entitled to complain of the delay in holding the arraignment.

In his second assignment of error, the defendant contends the evidence was insufficient to establish the crime of Murder in the Second Degree, since the State failed to establish a causal link between death of the victim and the commission of the crime, as opposed to being merely coincidental in time. Here, the victim had a pre-existing heart condition. The evidence reflects his body was discovered bound with an electrical cord, a wet towel was tied around his mouth and face, and there was a bruise over his forehead. There was further evidence that personal property of value was taken from the victim's home. At trial, a pathologist expressly testified that in his opinion it was the physical and emotional stresses of the situation that affected the operation of the victim's heart and led directly to his death. In Chase v. State, Okl.Cr., 382 P.2d 457 (1963), we held that one will be held liable for homicide if one accelerates the death of a person in poor physical condition, even though the injury inflicted would not have killed a healthy person and although the condition from which the victim was suffering would itself probably have been fatal. We find the testimony on the part of the State, if believed, was more than sufficient to sustain the conviction. Accordingly, we find this assignment of error meritless.

Third, the defendant argues the trial court committed error in admitting the testimony of a pathologist in response to a hypothetical question which briefly described the situation in the Latham home, and then asked whether that situation accelerated the death of Mr. Latham:

Q. Now, Doctor, do you have an opinion, assuming Hershel (sic) Latham, the man you examined there, had been the evening of his death the preceding night from the day you examined him working in the yard cutting hedge, talking to his wife at nine thirty on the telephone, or thereabouts, and his son around nine fifteen and was in the security of his own home, a man with a heart condition that you have indicated that you found there, the ancient heart condition that you found there, suddenly was confronted with his front door being opened as revealed on State's Exhibit 34, and he being tied up as shown on State's Exhibit Number 31 and 4, and his face covered with towels, one being wet and tied behind his back, behind his head, do you have an opinion as to whether or not that excitement and trauma, considering the blow you found on the head and the sum total of your observations that you found there that you saw, as to whether or not the stress and emotion of that type of situation aggravated and speeded up the death of Hershal (sic) Latham, please, sir?

Defendant maintains there was no basis in fact for the question. He contends the hypothetical included facts never placed in evidence, particularly the statement that the victim's face was covered with towels, with the resulting insinuation of strangulation. We note the victim's wife testified that she came home to find the house in disarray, her husband lying on his back in the kitchen with his hands underneath his body. He had a knot on his forehead and a trickle of blood from his mouth, and there were deep bruises around his arms and legs where they were tied. On direct examination, the wife testified the victim had a towel over his face, fastened under his head. On cross-examination, she stated her husband had a tea towel twisted and tied tightly over his eyes around his head; a wet turkish bath towel folded lengthwise was tied over his face to the lower part of his chin from the forehead.

It is well settled that a hypothetical question on direct examination is sufficient if it fairly states such facts in evidence as are relevant and material and sufficient to the formation of an accurate opinion by an expert witness, but it is not necessary such facts be clearly proved. City of Duncan v. Sager, Okl., 446 P.2d 287 (1968). Furthermore, it is error to assume, in a hypothetical question, material facts alleged but not theretofore established by competent evidence. Cities Service Gas Co. v. Eggers, 186 Okl. 466, 98 P.2d 1114 (1940).

This Court in McBirney v. City of Tulsa, Okl.Cr., 505 P.2d 1403 (1973), adopted the reasoning of the Wisconsin court in Rausch v. Buisse, 33 Wis.2d 154, 169, 146 N.W.2d 801, 809 (1966):

" '. . . In other words, a party has a right to an opinion of an expert witness on the facts which that party claims to...