Richardson v State

Richardson v State
1944 OK CR 55
151 P.2d 73
79 Okl.Cr. 42
Decided: 07/26/1944
Oklahoma Court of Criminal Appeals

(Syllabus.)

This is a companion case of that of Gene Murphy v. State of Oklahoma, 78 Okla. Cr. 31, 151 P.2d 69, this day decided by this Court. The syllabus in that case is adopted as the syllabus in this case.

1. Indictment and Information-Assault With Intent to Kill Includes Offense of Assault With Dangerous Weapon. Where one is charged with the crime of assault with intent to kill, under Tit. 21, O. S. 1941 § 652, he may be convicted of assault with a dangerous weapon under Tit. 21, O. S. 1941 § 645, as an included offense.

2. Evidence-Trial-Intent Provable by Circumstantial Evidence and Is Question for Jury. Where intent is necessary in the commission of a crime, it is a question for the jury, under all the facts and circumstances, of each individual case. It may be proved by direct or circumstantial evidence.

3. Trial-Sufficiency of Instructions in Entirety. All of the Instructions given by the court should be considered and where they fairly and fully present the issues involved, and no fundamental error occurs whereby the defendant has been prejudiced or deprived of a substantial right the case will not be reversed on appeal.

4. Same-Refusal of Requested Instructions. It is not error to refuse requested instructions which do not pertain to the issues involved, or which have been covered by the general instructions.

5. Same-Failure to Instruct on Included Offense not Error When not Justified by Evidence. Tit. 21, O. S. 1941 § 641, defining assault and battery, may be an included offense where one is charged with assault with intent to kill under Tit. 21, O. S. 1941 § 605, but it is unnecessary to instruct the jury under this statute when the facts do not justify.

Appeal from District Court, LeFlore County; Wm. S. Hall, Judge.

Bill Richardson was convicted of the crime of assault with a dangerous weapon, and he appeals. Affirmed.

A. G. Windham and Clyde Followell, both of Poteau, for plaintiff in error.

Page 43

Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Foster Windham, Co. Atty., LeFlore County, and James Babb, both of Poteau, for defendant in error.

BAREFOOT, J. Defendant, Bill Richardson, was charged in the district court of LeFlore county jointly with Gene Murphy and others, with the crime of assault and attempt to kill; demanded a severance, was tried and convicted of the included crime of assault with a dangerous weapon, and his punishment assessed by the jury at two years in the state penitentiary. From this judgment and sentence he has appealed.

This is a companion case of that of Gene Murphy v. State 79 Okla. Cr. 31, 151 P.2d 69, this day decided by this court. The facts and assignments of errors are the same. The only difference is that the codefendant Gene Murphy fired the shots, and this defendant was driving the car. The defendant in this case was given a sentence of two years in the penitentiary, and his codefendant, Gene Murphy, was given four years. It is, therefore, unnecessary to review the evidence and the law as announced that case.