Bailey v State

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Bailey v State
1935 OK CR 57
47 P.2d 219
57 Okl.Cr. 152
Decided: 05/24/1935
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Assault and Battery Conviction for Assault With Dangerous Weapon Sustained. Information held sufficient and held further that the evidence sustains the verdict.

Page 153

2. Appeal and Error Harmless Error Lecturing Jury on Desirability of Reaching Verdict. The calling in of a jury by a trial judge and lecturing them on the desirability of reaching a verdict is not to be commended; but a statement in substance that another trial would be expensive to both the state and the defendant and that they should reason together and reach a verdict if they could do so conscientiously is not necessarily reversible error.

Appeal from District Court, Rogers County; Ad V. Coppedge, Judge.

Garrett Bailey was convicted of assault with a dangerous weapon, and he appeals. Affirmed.

Kight, Johnson & Kight, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

EDWARDS, J. Plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of assault with a dangerous weapon and was sentenced to a term of two years in the state penitentiary.

At the time charged, defendant, with a woman companion and with one Pryor Couch, went from Tulsa to a rodeo on a farm near Claremore. They picked up an unidentified person on the way and took him with them. Considerable drinking, betting, and disorderly and boisterous conduct occurred there. A fist fight ensued in which complaining witness and defendant participated, and, as this subsided, defendant went to the car of his companion, took a shotgun from it, and fired three times, one or more shots taking effect and wounding Swimmer Baldridge. Defendant denies that he fired the shots, but claims they were fired by Pryor Couch while he was endeavoring to prevent him from shooting. The parties appear to have been more or less intoxicated. Some argument is made that the information is insufficient. Defendant filed a demurrer

Page 154

which was overruled, but he did not assign this as error in the motion for a new trial or the petition in error and thereby present the question to this court. Indulging all intendments and inferences, the information is sufficient.

Defendant next argues the evidence does not sustain the judgment. The rule is settled by many decisions of this court that where there is a conflict in the testimony or where different inferences may be drawn from it, its weight is for the jury and the judgment will not be interfered with unless there is no competent testimony to support it or unless it appears to have been influenced by passion or prejudice. There is a conflict, but there is ample testimony to warrant the jury in finding defendant guilty.

It is further argued the court erred in his remarks to the jury when the verdict was delayed. His remarks expressed his wish that they should reach a verdict. They were improper, but we are of the opinion that they did not injure defendant. McClendon v. State, 19 Okla. Cr. 382, 200 P. 464; Montgomery v. State, 19 Okla. Cr. 224, 119 P. 222.

Other assignments of error are argued but none are of sufficient importance to require special discussion.