Gist v. State

1973 OK CR 192, 509 P.2d 149
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 9, 1973
DocketA-16982
StatusPublished
Cited by7 cases

This text of 1973 OK CR 192 (Gist 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
Gist v. State, 1973 OK CR 192, 509 P.2d 149 (Okla. Ct. App. 1973).

Opinions

OPINION

BUSSEY, Judge:

Appellant, Norma Jean Spagner Gist, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of McCurtain County, Case No. CRF-70-210, for the offense of Shooting With Intent to Kill. Her punishment was fixed at ten (10) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Winfred Canant testified that on December 11, 1970 he was employed as elementary principal of two schools in the Idabel public school system. At about 4:45 p. m., he was alone in the school building. About two hours earlier, he had paddled the defendant’s son Sol for his conduct in school. The defendant walked inside to where he was standing and said, “Well you did it” and he replied, “Yes, I did, he forced me to. He put a tack in a boy’s seat and he knew the boy was going to sit on it and knew the boy was going to hurt himself and knew he would get a spanking, and I gave him a couple of licks.” (Tr. 43) She walked to the front door and called her son’s name. He said, “Before he gets in here tell me what he told you when he got home.” The defendant stated to him that “she wasn’t there to do any talking and all she wanted me to do was to hit her.” He replied that he had no reason to hit her. She swung at him with her purse and he ran out of the building. He ran about fifteen to twenty feet down the sidewalk with the defendant following him. He looked back and saw the defendant pull a gun out of her purse. A bullet hit the ground and he said, “Norma Jean.” She shot him in the arm and it knocked him about five feet back from her to the ground. The defendant was about six or seven feet from him when the shot was fired. He shouted for help and when no one came to his aid, he rose, walked twenty-five feet to his car, and drove himself to the hospital. On cross-examination, he testified that on two occasions she had asked him not to paddle her child but did not state why she didn’t want him to.

James Hedrick, Jr. testified that on December 11, 1970 he was employed as a VISTA volunteer working in Idabel. That afternoon he gave the defendant a ride home between 4 and 4:10 p. m. Upon arriving at her home, she asked him to take her to Central Elementary School so she could speak with the principal. They proceeded to the school where he and Sol remained in the car while defendant went inside the building. He next observed Canant emerge from the building followed by the defendant. Canant proceeded toward his car with the defendant still following. The defendant produced a gun fired one shot at the ground. Canant grabbed for the defendant or the gun and the defendant fired a second shot. Canant grabbed his left arm and fell to the ground. Canant called for help and subsequently got up, got into his car and drove away. The defendant returned to Hed-rick’s car and asked him to take her to the Sheriff’s Department.

Deputy Sheriff Cooper testified that he was in the Sheriff’s office around 5 :00 p. m. on December 11. The defendant came in and said, “My name is Norma Jean Gist and I just shot Winfred Canant and I want to turn myself in.” (Tr. 125) A .32-caliber revolver with two empty shells in it was found_ in the defendant’s purse.

The defendant called several character witnesses who testified that she had a good reputation in the community as a law-abiding, peace loving citizen and that they were aware of Sol’s physical condition.

The defendant testified that her son Sol was born with a birth defect, hypo-spadia, and as a result of his condition, “His urine passage is directly to the outside of his body and any abrupt jar or anything messes up his urine strain. He has to sit down [151]*151to urinate until the last stage of this surgery.” (Tr. 169) She testified that Sol had undergone surgery and check ups at Children’s Memorial Hospital in Oklahoma City. She spoke with each of Sol’s teachers about his condition and had a conversation with Mrs. Boling and Mr. Canant the prior afternoon. On December 11, she received a call from her mother because Sol had been paddled at school. She proceeded home and had a conversation with Sol. She went to Central Elementary School and observed Canant talking on the telephone. She stated, “Well, you did it” and he said, “Yes, I did.” (Tr. 174) Canant stated to her that he wanted to know what Sol had told her and he started out the door. She told Canamt to leave Sol alone and followed behind him. She told him, “I told you never to paddle my son.” (Tr. 175) Canant turned around and observed her with a gun. He said, “No, let’s talk about it.” She said, “I told you never paddle my son, he can’t stand it.” Canant said, “I’ll paddle you” and started toward her. She fired two shots. She then asked Mr. Hedrick to take her to the Sheriff’s office where she informed Deputy Cooper that she had shot Mr. Canant.

The first proposition asserts that the trial court’s rulings and comments prejudiced the defendant’s case. We have carefully reviewed the record and are of the opinion that this proposition is without merit. We specifically observe that the trial court did not err in sustaining objections to defendant’s questions on cross-examination concerning Canant’s prior general relations with black people. We have previously held that a witness cannot be impeached on collateral or immaterial matters. White v. State, Okl.Cr., 458 P.2d 322. We next observe that the trial court did not take sides on ruling on motions at trial. The record clearly reflects that the trial court’s rulings were proper. We further observe that the trial court did not err by participating in the questioning of some witnesses in attempting to clarify a fact in issue for the jury’s benefit. The trial court did not in any manner indicate his views of matters at issue. In Garner v. State, Okl.Cr., 500 P.2d 865, we stated:

“ * * * A trial judge has the right to ask of any witness such questions as will tend to elicit the truth so long as the judge does not by his questions and conduct indicate his views of matters at issue. * * * ”

The second proposition contends that the court erred in overruling defendant’s motion to suppress evidence of the gun. Defendant argues that the gun was seized from her purse before her formal arrest. We are of the opinion that the evidence does not support defendant’s contention. At the suppression hearing, the defendant testified that “they never took my purse until they got ready to put me into the cell and they said they had to lock it up and they just took it and put it in the safe.” (Tr. 10) It is thus readily apparent that the purse was not seized until after the defendant’s arrest.

The third proposition asserts that the trial court erred in refusing to give defendant’s requested instruction of self-defense. We need only observe that the trial court refused defendant’s requested instruction because the same instruction was given in different form. The record reflects that the court gave six instructions dealing with the issue of self-defense, thereby rendering defendant’s requested instruction unnecessary. In the early case of Martin v. State, 5 Okl.Cr. 355, 114 P. 1112 (1911), the Court stated:

“* * * The instructions requested and refused relate to the law of self-defense. No useful purpose could be served by a repetition of the same thing in different language, and it was clearly not error for the court to refuse requested instructions which were substantially similar to those given. * * * ”

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Related

Frederick v. State
2001 OK CR 34 (Court of Criminal Appeals of Oklahoma, 2001)
Lloyd v. State
1982 OK CR 184 (Court of Criminal Appeals of Oklahoma, 1982)
Wilson v. State
1981 OK CR 158 (Court of Criminal Appeals of Oklahoma, 1981)
Irvin v. State
1980 OK CR 70 (Court of Criminal Appeals of Oklahoma, 1980)
Gist v. State of Oklahoma
371 F. Supp. 541 (E.D. Oklahoma, 1974)
Gist v. State
1973 OK CR 192 (Court of Criminal Appeals of Oklahoma, 1973)

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Bluebook (online)
1973 OK CR 192, 509 P.2d 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gist-v-state-oklacrimapp-1973.