Havenar v State

Havenar v State
1945 OK CR 69
160 P.2d 411
81 Okl.Cr. 74
Decided: 07/11/1945
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Scope of Review Where no Brief Filed- Affirmance. Where defendant appeals from judgment of conviction and no brief is filed, nor appearance for oral argument made, Criminal Court of Appeals will examine record for jurisdictional errors only. If no fundamental error appears, the judgment will be affirmed.

2. Homicide-Evidence Sustained Conviction for First-Degree Manslaughter. In prosecution for murder, record examined, evidence held sufficient to sustain conviction for manslaughter in the first degree, instructions clearly stated the law applicable to the issues of the case, no fundamental errors are found, and judgment of district court is affirmed.

Appeal from District Court, Washington County; James T. Shipman, Judge.

Leo Havenar was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Fred M. Hammer and Hall & Cotten, all of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., for defendant in error.

Page 75

JONES, J. The defendant, Leo Havenar, was charged in the district court of Washington county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 25 years in the State Penitentiary, and has appealed.

The defendant allegedly stabbed his brother, George Havenar, causing his death, on or about May 18, 1939. Under the evidence of the state, the homicide occurred while the two Havenar brothers were on a trip by taxi between the cities of Bartlesville and Nowata. Immediately after the alleged homicide, the defendant fled and was not arrested until after a lapse of more than two years.

The evidence showed that the defendant had been paroled from the Kansas State Prison at Lansing, on May 16, 1939, just two days before the homicide. The deceased was employed as a roustabout on an oil and gas lease near Nowata. On the afternoon of tile homicide, defendant and deceased were both considerably intoxicated.

The taxi driver who drove them from Bartlesville to Nowata testified that he saw the defendant with a knife in his hand and saw blood on the deceased's shirt while they were in his taxicab. He testified that defendant admitted having stabbed his brother. When they arrived in Nowata, George Havenar was dead. The taxi driver testified that defendant threw a knife out of the car and that, later, after it was disclosed that George Havenar was dead, he took the sheriffs of Nowata and Washington counties to the spot where the knife was thrown. The officers found the knife at that place. A doctor of Nowata testified that the deceased met his death by a single stab wound in the heart.

Page 76

There is other evidence in the case, including the testimony of the defendant, which presented a conflict for the determination of the jury.

There has been no brief filed in this case and no appearance made on behalf of the defendant at the time the case was set for oral argument.