Hodges v State

Hodges v State
1939 OK CR 81
92 P.2d 590
66 Okl.Cr. 422
Decided: 07/07/1939
Oklahoma Court of Criminal Appeals

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

On rehearing.

Roy Hodges was convicted of the crime of manslaughter in the first degree, and appeals. Judgment modified by reducing sentence from seven to four years, and, as modified, affirmed.

For former opinion, see 65 Okla. Cr. 277, 85 P.2d 443.

O. A. Cargill, Howard K. Berry, and Bob Howe, all of Oklahoma City, and Ogden & Thompson, of Ardmore, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.

BAREFOOT, J. This case has been briefed and oral argument had upon rehearing. We have again carefully examined the record. It has been very forcibly argued that the information in this case should have defined the term "assault and battery," that being the misdemeanor which defendant was found guilty of committing in the perpetration of the homicide in this case. The court, in his charge to the jury, instruction No. 14, advised the jury "that a misdemeanor is every crime other than those which are or may be punishable with death, or by imprisonment in the penitentiary," and that if defendant attempted with force or violence to do corporeal hurt to the deceased by slapping or pushing him, he would be guilty of a misdemeanor, but if he did not do so with an intent to do corporeal hurt to the deceased by force or violence, the same would not be a misdemeanor. He also instructed the jury if the act was

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committed in a spirit of frivolity or fun, the defendant would not be guilty. It appears to us that this instruction was very fair to the defendant and was as favorable as he could have possibly requested.