Barham v. State

1973 OK CR 402, 514 P.2d 417, 1973 Okla. Crim. App. LEXIS 550
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 14, 1973
DocketA-18105
StatusPublished
Cited by10 cases

This text of 1973 OK CR 402 (Barham v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barham v. State, 1973 OK CR 402, 514 P.2d 417, 1973 Okla. Crim. App. LEXIS 550 (Okla. Ct. App. 1973).

Opinion

OPINION

PER CURIAM:

Appellant, Lee Boyd Barham, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County, Case No. CRF-72-402, for the offense of Shooting with Intent to Kill, After Former Conviction of a Felony, his punishment was fixed at a term of not less than twenty-five (25) nor more than thirty (30) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

Briefly stated the evidence adduced that on the evening of February 26, 1972, two uniformed Tulsa Police Officers, responded to a call to a Tulsa residence where it had been reported that a white male was in the front yard with two guns in his hands. The officers knocked on the door, which was answered by a man later identified as defendant’s nephew. After a brief conversation with the nephew, defendant, for no apparent reason, reached both hands around his nephew and shot the police officers. Both officers then left the residence and were taken to a Tulsa hospital by another officer who had arrived on the scene. Approximately ten minutes later, Officer Roy Hunt arrived at the residence and proceeded to the north side of the front porch. He announced that he was a police officer and advised defendant to drop the guns which he had in each hand. Defendant’s nephew stepped between defendant and the police officer, attempting to reach for the guns, at which time defendant raised his right hand and fired a shot at Officer Hunt. Officer Hunt stepped back off the porch and shortly thereafter heard someone say that they had the guns and they were both empty. Officer Hunt and other officers went into the residence and placed defendant under arrest.

Defendant testified that he was seventy-three years old, partially blind and had for the past year been in severe pain from injuries received in an automobile accident. He testified that he had been drinking excessively and steadily and also taking medication for the two weeks prior to the incident and that he could not remember anything that happened on the evening in question. He admitted a conviction of two felonies in Arkansas in 1940. Defendant’s twin brother and a cab driver testified that *419 they observed the defendant on the evening in question and that he was highly intoxicated and acting crazy.

Six character witnesses testified in defendant’s behalf. The State called in rebuttal the officers who were involved in the incident and testified that even though defendant had been drinking, that he was not so intoxicated as to not know what he was doing.

The first two propositions assert that the trial court erred in permitting the assistant district attorney to go into detail upon cross-examination of defendant’s prior offenses and improper argument to the jury concerning the prior offenses. We concur. The record reflects that on cross-examination of defendant the following transpired:

“Q. Well, was it second degree murder or was it manslaughter, Mr. Barham ?
“A. Manslaughter; gave me 21 years.
“Q. Gave you 21 years for manslaughter? Well, is second degree murder in Arkansas the same as manslaughter in Oklahoma ?
“A. I imagine it is, I don’t know.
“Q. Well, what were you sent down for other than manslaughter; was there a shooting?
“A. Well, if that’s what it is; it was second degree or manslaughter, either one. Why, it was one of them.
“Q. Well, did you shoot somebody ?
“A. That’s what? [sic]
“Q. Did you shoot somebody ?
“A. Yes, sir.
“Q. Who’d you shoot ?
“A. My wife.
“Q. What did you shoot her for ?
“A. Caught her with another man.
“Q. All right. Do you recall, Mr. Bar-ham, telling the warden of the penitentiary in Arkansas that you shot her because you don’t know what you shot her for, you don’t remember what you shot her for; you had been drinking and you don’t know why you shot her ?
“A. No, I did not.
“MR. HOPPER: Mark this. Just mark it 14 14A, and 14B.
(State’s Exhibits Nos. 14, 14A, 14B were marked for evidence.)
“MR. HALL: If the Court please, I would object to it on the same grounds that it’s remote in time. There’s no question about the prior conviction.
“MR. HOPPER: Goes back to an inconsistent statement, your Honor, that Mr. Barham just made on the witness stand.
“THE COURT: May I examine it, gentlemen ?
“MR. HOPPER: Yes.
“THE WITNESS: I told the warden' — ■
“THE COURT: Wait just a minute. Where is the inconsistency, Mr. Hopper? I won’t read the whole thing, it would take up time, most definitely. Yes, it was an inconsistent statement to what he testified to under oath, but he was subjected to perjury—
“MR. HOPPER: At this time the State will offer State’s—
“THE COURT: And I’m overruling the answer. An as to that, are you offering that?
“MR. HOPPER: At this time, the State would offer State’s Exhibit No. 14 into evidence.
(State’s Exhibit No. 14 was offered into evidence.)
“MR. HALL: If the Court please, I make further objection for, your Honor, the Court’s ruling. I think the only part that should be admitted would be the inconsistency. It’s calculated to prejudice this defendant.
“MR. HOPPER: For the purpose, your Honor, of showing inconsistent statements—
“THE COURT: No, I don’t think so. He’s testifying under oath and that would show the inconsistency. I will admit it; Exhibit No. 14 will be so admitted.
(State’s Exhibit No. 14 was admitted into evidence.)
*420 “MR. HOPPER: Thank you, your Hon- or.
“Q. (By Mr. Hopper) Mr. Barham, I have in my hand here a document, State’s Exhibit No. 14, that has been admitted into evidence, which shows a commitment to the State Penitentiary in Arkansas. Now, you remember when you went there, Arkansas, don’t you ?
“A. Yes, sir.
“Q. To the penitentiary? Do you remember signing a document, Mr. Barham, with these words on it: Description of Crime: (Prisoner’s Statement) Subject states that on February the 21st, 1940, he killed his wife with a 32-20 gun; is that correct ?
“A. Yes, sir.
“Q. All right.

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Bluebook (online)
1973 OK CR 402, 514 P.2d 417, 1973 Okla. Crim. App. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barham-v-state-oklacrimapp-1973.