*1
561
(Okl.1974);
Motors Carey Lonnell (Okl.1974). 1110 The limitation 528 P.2d Jr., Appellant, ” * * may “and thereafter prescribed v. authorizing must be construed as modifica- Oklahoma, The Appellee. STATE of change or after a final award. tion Other- wise, meaningless this limitation is and this No. F-77-96. authorizing must be construed as
section Appeals Criminal of Oklahoma. permanent disability to be awards made amount, in a lump or periodically Dec. 1977.
sum, may court determine after the
case is submitted. difficulty time,
There is when no
manner, and are payments amount of deter hearing upon application
mined hearing is party. Orderly
either essential award, validity of an or order notice and being jurisdictional. to be
opportunity heard Co., Roofing v. Central
Nelson State Weaver, (Okl.1959); v. supra.
P.2d 866 Derr when, present as in the problem arises
cause, nothing prior to submission periodical indicates
claim for determination beyond are to accelerated
payments be 22(5). set forth in Section
limitations instance, requirements
In this An process have not been met. order
due
entered on a trial court’s own motion with greatly notice or acceler hearing,
out periodical payments pend
ated because death, process does due not afford or Kerr’s, v.
promote justice. substantial Inc.
Smith, (Okl.1961). P.2d process requires hearing
Due notice bearing the need for acceler- upon
evidence commutation,
ating periodical or payments, entering upon an order the court’s
before motion.
own
The award vacated and cause re- proceedings
manded for further not incon- expressed. with views
sistent
All the Justices concur. *2 adduced at
The evidenсe trial revealed 16, 1976, young that on black male, whom Mrs. Reba King, wife of the deceased, identified in court as the defend- ant, to the door King’s came rural home, Jones, two and a half miles west of *3 Oklahoma, in County, approxi- Oklahoma mately p. 12:15 m. Defendant asked Mrs.
King if her husband were home. Defend- Kings looking ant told the that he was for calf, runaway his Holstein and asked if had seen one. The defendant then asked water, it, receiving аnd after for a drink telephone used the and then walked out of proceeded house. He north behind the barn, approximately which was 40 feet from the house. He thereafter returned to he Kings the house and told the had found needed it rope his calf but to lead back deceased, Clyde King, home. The Mr. told the defendant that he did not have any rope probably but that he could find something King for him to use. Mr. and the defend- King gave ant then went to a shed where belt, by defendant a Mrs. 1, King as Exhibit No. with which to stood King lead his calf. shed as the defendant walked north to a fence row and then turned east. Defendant carried a rifle time, during this entire and Mrs. King iden- 3, tified State’s Exhibit No. a 30-30 lever Winchester, as appearing action to be simi- Albert, City, appel- for Oklahoma Barry which'defendant gun lar had in his lant. possession day. on that Gen., Harold T. Derryberry, Atty. Larry window, her front King From Mrs. ob- Jr., Gen., Garvin, Atty. аppellee. for Asst. along served the defendant walk the fence approximately yards. row for When the OPINION reached a point approximately defendant BRETT, Judge: King from where Mr. was yards standing Breshers, Jr., shed, King Mrs. Lonnell observed defend- Appellant, Carey left, was around to referred to as ant whirl his bend over hereinafter convicted in in the jury, slightly to a and shoot direction of the charged, tried Court, County, King Case Mrs. testified that the de- District Oklahoma deceased. CRF-76-1729, simultaneously. Mur- turned and shot for the offense of fendant No. of 21 Because the barn blocked her view of her in violation Degree, in the Second der husband, King to a Mrs. ran north window 701.2. His sentence O.S.Supp.1973, § ground on the lying saw her husband sentence of from and at an indeterminate fixed standing. then ran where he had been She pursuant (10) imprisonment to life years ten husband, seeing upon to her 701.4. From said outside O.S.Supp.1973, to 21 § house, toward the with- running the defendant has defendant and sentence judgment house, rifle, back into the she went timely appeal to this Court. out perfected photograph he obtained a her, incident and called door behind locking the father. On from the defendant’s defendant porch the front got to help. The defendant homicide, day King to that he needed yelled door and Mrs. a rural to was summoned he had shot his Officer Wоodie phone to use the because Oklahoma, Jones, where replied that she had seen residence King calf. Mrs. in a behind done, asleep shed had a gun what had that she found wearing King calling Mrs. The defendant police. that she was the house. description given run north fit then observed clothes house, again day. not see him After from the did King previous on Mrs. testimony, Mrs. day. Following transported was arrested diagram King a blackboаrd Headquarters, made de- City Police the Oklahoma explained topography Sr., farm and father, Breshers, Carey fendant’s land. where de- police headquarters summoned *4 questioned. was to be fendant Mrs. King
On cross-examination stated polite, pro- that was used no the defendant City Po- Heath was the Oklahoma Mike and fanity, that demeanor conduct and the lice who defendant. questioned Officer that were normal. She related she heard advising that the defend- He testified her gunshot one but not see husband did their ant his father of all constitutional and there fall. also related that was noth- She the rights, took a statement from he verbal body, from her and no taken husband’s to writ- which later reduced was theft from the personal property premis- of statement, ing. identified as This written es. 1-A, thereupon Exhibit was State’s No. being Heath as the one identified Officer then that Officer parties stipulated defendant, bearing the which he took from the City Police Ercanbrack Oklahoma Department signatures arrived at the scene and se- the the defendant and both until other father, cured the area various units of into defendant’s and was admitted police arrived. department the day same the witness evidence. On that the the took the defendant back to scene of Knox, photographic Bruce tech- Officer homicide, and the the showed Police City Depart- nician for the Oklahoma belt, he officer where had tied the State’s ment, photographs stated he took 1, on farm post Exhibit No. a fence and the 16, the and February scene on identified pond the had thrown the where through Exhibits those State’s Nos. 5 rifle. The was at that 30-30 belt found Exhibits photographs. State’s Nos. time, the the rifle was retrieved from 8,12 through thereupon and 13 were admit- pond King and a hаlf miles north of the one ted into evidence. day. The officer residence Cravens, investigator Don for technical in court. both items identified City Department, Oklahoma tes- Police Chapman, A. J. chief medical examin- Dr. to take attempted finger- tified that he Oklahoma, er testified the State of crime was prints at the scene of the body of autopsy he on the performed them because identify any unable to examining On Clyde King February on 17. “smudged.” were testified that He that: the witness observed body, had of his head top “entire victim’s] [the also related that he been blown off.” He of the complete was evulsion “[T]here rec- portion of what large observed “a completely That the brain [he] brain. tissue,” about two feet brain ognized as the call across what we out of head torn fragments of and several body from the vital just above the the mid brain or what splatters appeared “skull bone of the with cerebellum centers brain tissue,” a 30 radius within foot to be brain is con- center of the brain that or the body. left in the skull. in coordination cerned com- hemispheres cerebrum Woodié, officer, arresting testi- “So Jim and also out of skull during investigation pletely of this lacerated fied fragments and/or 1976. When she saw him she bullet lacerated it,” asked if he “did and he answered “no.” The skull itself was fragments. bone he did why asked involved all bones She fractured. It multiply police, replied surrender to the and he scalp and the extended into all areas they would not believe him. Ms. Lowe stat- massively. torn po- ed that she had the defendant call the across the wound greatest “The distance happen lice to ask what would if he turned being about nine scalp itself in the itself the police. himself over to She testified and a half inches.” police dispatcher’s that she did not hear the 13, photograph Exhibit No. hung conversation because the defendant witness, graphically up telephone, called his mother with injuries. these The witness deter- depicted conversation, whom he had a short then gunshot death to be a mined the cause of premises. left did not see him She approxi- entered wound to head which again before he was arrested. a half inches above the mately two and The defendant was then called to testify slightly upward and eyebrow, traveling testimony in his own His about the behalf. right. Chapman Dr. testified that shooting events were sub- leading up would have to person firing projectile However, stantially King’s. similar to Mrs. line with the vic- very nearly in have been did state that had not lost a calf on vision. tim’s line of day story but had used that so he could evidence, the rested Fоllowing this State Kings, lonely. talk to the because he was demurrer to its case and the defendant’s King, After he received the belt from Mr. evidence, termed a mo- properly more *5 calf, imaginary to lead his Holstein acquittal, for directed verdict of tion row, north the fence tied the belt walked relating sup- motions overruled. Other on a east post, carrying and walked evidence, the in court of certain pression walking riflе. While he heard noise like a defendant, of and dismissal identification shot, backfiring, car or a turned to his left were also overruled. jurisdiction lack of post and hit a with the barrel of the rifle for the the case presenting In it to discharge. caused He related Woodie, Police Jim Jones Chief Officer or that his hand was not on the lever action Breshers, Sr., de- Carey Kerr and Raymond weapon, nor had he cocked trigger of father, testify called to in an fendant’s were pulled trigger. action or lever the involuntariness of effort to establish Though making signing he admitted to and statement, State’s Exhibit the defendant’s the written identified as statement State’s police Both officers stated No. 1-A. 1-A, the defendant testified Exhibit No. at questioned po- the defendant was when wrong, the statement was because he awake, he was alert and headquarters lice and had not known what had been scared on around him. going knew what was He testified that another saying. he was at father testified that The defendant’s an incorrect statement giving reason for advised of time was he or the defendant no thought police that time he was that at Further, rights. he re- their constitutional the truth. He further would not believe both he and the though that even lated harm the related that he did not intend to rights of re- signed the waiver defendаnt Kings, gun “just that the went off but statement taken at flected on the written he was not accident.” He testified that neither he nor the de- police headquarters, was a guns familiar with and that he “bad read it or understood it. fendant shot.” friend, Lowe, girl the defendant’s
Fay Following testimony the defendant testify. It was estab- was next called to his case and moved for a directed rested person acquittal, that she was the first to come of which was overruled. lished verdict objections and He also renewed all motions into contact with defendant the cause. All during that she saw the made the trial of the homicide. She related again were overruled. p. at 9:00 m. on approximately rebuttal, they the testi- father testified that were not instruct- the State offered In Lowe, Jr., rights with whom the on their constitutional before mony of Leon ed prior to the staying they been nor did read or questioning, defendant had under- testimo- only the homicide. Lowe’s date stand the admonition reflected the first targets with was that he had shot at ny Exhibit No. 1-A. paragraph State’s on several occasions. read, They could they related that both distraught question- were so at the time of closing Following argument, motions and ing unable to make intel- they were instructions, the was submitted to case jury ligent waiver. for determination. Jones, Oklahoma, Ray- Chief of Police of the defendant asserts Originally, Kerr, and mond Officers Heath Wood- from him and the statement taken ie, City Depart- the Oklahoma Police 1A, was as Exhibit No. ment, testified that defendant was oral- law, obtained a matter of illegally his ly rights advised of constitutional at any physical the statement and that further any ques- time of arrest but was asked as a found or seized result said evidence point. They at that related that at tions bеen interrogation should have unlawful was asleep the time of defendant’s arrest he suppressed. condition, and in a weakened but that juvenile, Because Police the time arrived Jones Head- 16, O.S.1971, the dictates of age quarters, he alert and knew what was 1109(a), applicable are and must be strict- § arriving going on around him. After at the states, 1109(a) ly adhered to. Section City Department, Oklahoma Police the de- pertinеnt part: again rights, fendant was advised of “Questioning of children—Counsel—Pros- replied he understood them. When Attorney. (a) District No in- ecution — arrived, they the defendant’s father gained by questioning formation child together orally seated read follow- against shall be admissible into evidence at the appears top admonition which child unless about questioning State’s Exhibit No. 1-A: alleged by any offense law enforce- “DATE: 1976 PLACE: investigative agency, officer or or ment *6 TIME; OCPD, Det. Robbery Homicide & court, the employee Department of the or 11:30AM. RELATIVE TO: HOMICIDE presence done in the of said child’s is KING, OF CLYDE WM/65 OC- legal JESSIE attorney, or the parents, guardian, 2/16/76, 12:30 PM child, CURRING: the and not until the custodian of Rd., Spencer Jones OKC. parents, guardian, and his or or child legal fully shall be ad- other custodian “I, undersigned, the CAREY LONNELL legal of their constitutional and vised BRESHERS, JR., Street, of 901 N.E. 67th including right repre- to be rights, OKC, being years age, born at Los by every of the stage sеnted counsel at 10/22/59, Angeles, California on do here- to have coun- right proceedings, by make state-to MIKE appointed by paid court out of sel HEATH, WOODIE, JIM TED GREGO- if parties the court fund are without RY & CAREY LONNELL BRESHERS means; provided, sufficient financial SR., they having first them- however, public that no aid or other legal selves as & FA- POLICE OFFICERS legal service shall make or charitable THER, I at- knowing may have an contemplated for compensation claim tornеy my present in behalf and that I do herein.” any not have to make statement nor in- myself any criminate in I make manner. record reflects that five witnesses my voluntarily, this statement own beginning called of trial for the were at will, free knowing in to deter- such statement purpose hearing an camera against any be me in could later used mine voluntariness defendant’s law, and his court of I declare that this state- written statement. The defendаnt threat, Honor, any may without coer- “MR. ALBERT: Your I ask ment is made benefit, or offer of cion, favor offer of preliminary question?
favor, leniency leniency or offer of Yes, “THE sir. COURT: whomsoever, and any person persons or Officer, “Q. Albert) (By Mr. what kind attorney, I afford an that if cannot of weapon is that? the court free of appointed by be one will (By Witness) “A. It’s a 30-30 lever may that I I also understand charge. rifle, action sir. Winchester time аnswering questions stop “Q. right. you put your All Did mark desire, stop questioning I or weapon? on that consulting attorney.” purpose original) (Emphasis No, sir, “A. I did not but I have the this, all serial number Following the defendant answered memorized. to him and then both the put questions “Q. You memorized the serial number? signed his father the state- defendant and Yes, “A. sir. ment, min- looking it over for several “Q. purpose What was the of memoriz- utes. ing the serial number? facts, this Considering foregoing “A. that I wouldn’t have to So mark that all the dictates opinion is of the property up. This is a stolen rifle O.S.1971, 1109, complied were with of 10 § I property and did not want to mark this officers, further, the fact that up, sir.” on the statement signatures appear
their
the aforementioned admonition
containing
As this Court noted in Holt v.
facie evidence that all constitution
prima
is
State, Okl.Cr.,
(1973),
knowledged so, I am of give doing no reason
could facts a convic- opinion support that the Degree Manslaughter in the First
tion for years. twenty-five a sentence of justify a committed misdemeanor
The defendant rifle in the whirled and fired the
when he at a distance of of the deceased
direction expert He not an marks-
eighty yards.
man, is devoid of evi- and the record support tending or circumstances
dence was com- conclusion that the homicide premeditated design ef-
mitted with Clearly this the death of the deceased.
fect O.S.1971, of 21 purview within
falls
§711: the first manslaughter
“Homicide in the cases:
degree design without a perpetrated
“1. When engaged while by person
to effect death
in the commission of misdemeanor. WHITE, Appellant,
Connie Elizabeth
v. Oklahoma, Appellee.
The STATE F-77-17.
No. Appeals of Oklahoma. of Criminal 2, 1977.
Dec.