Lowe v. State

1975 OK CR 181, 541 P.2d 244, 1975 Okla. Crim. App. LEXIS 444
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 22, 1975
DocketNo. F-75-195
StatusPublished

This text of 1975 OK CR 181 (Lowe 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
Lowe v. State, 1975 OK CR 181, 541 P.2d 244, 1975 Okla. Crim. App. LEXIS 444 (Okla. Ct. App. 1975).

Opinion

OPINION

BUSSEY, Judge:

Appellant, Jonas Rusty Lowe, hereinafter referred to as defendant, was charged and tried in the District Court, Okmulgee County, Case No. CRF-73-116, for the offense of Second Degree Murder. The jury found him guilty of the lesser included offense of First Degree Manslaughter, in violation of 21 O.S.1971, § 711, ¶ 2, and fixed his punishment at ten (10) years’ imprisonment. From said judgment and sentence a timely appeal has been perfected to this Court.

At the trial Everett Clayton, an Okmul-gee County Deputy Sheriff, first testified for the State that in the early afternoon of Saturday, November 10, 1973, he was dispatched to a trailer house rented by one McLemore and located in the town of Morris, Okmulgee County, Oklahoma. The trailer was described as being about eight feet wide and forty feet long, with the living room being eighteen feet long, and a diagram of the interior of the trailer was displayed upon a blackboard. Exhibit No. 1 was identified as a picture of a blood-stained mud puddle in which the body of Rubin Factor was reportedly found approximately 100 feet from the front door of the trailer. Exhibit No. 2 was identified as a picture of the trailer doorway depicting blood stains on the carpet. Exhibits Nos. 3 and 4 were identified as pictures of the deceased taken after his removal from that location, with Exhibit No. 3 revealing a slash injury near the left eye and Exhibit No. 4 a stab wound to the left side of the chest. Exhibits Nos. 1 through 4 were admitted into evidence. While in custody on that same afternoon, the defendant admitted the stabbing, after having been advised of his rights, but further stated that he had not intended to do so. On November 12, 1973, the defendant was interrogated by the prosecuting attorney after again being advised of his rights in the presence of the witness. The defendant then stated that when he became engaged in an argument with Gloria Lowe, his former wife, Rubin Factor knocked him to the floor. After being separated by other persons present, the defendant asked Jonas Lena for a knife, opened it, and slashed and stabbed at the deceased to scare him. After the deceased ran from the trailer, the defendant gave the knife back to Jonas Lena. At that time, the defendant acknowledged that a knife, then in possession of the witness, appeared to be the one so utilized.

Hattie Carter then testified that she lived near the subject trailer house, and had found a knife under a bush at her residence on the day following the fatal altercation. Upon discovery of the knife, she called Deputy Junior Stafford who took possession thereof, and Exhibit No. 5 was identified as appearing to be the same knife.

Olan Stafford, Jr., who was previously an Okmulgee County Deputy Sheriff, next [246]*246confirmed the testimony of the previous witness as to the circumstances under which he obtained possession of the knife, and further testified that he delivered the same to Deputy Everett Clayton. The knife was described as a foreign-made switch-blade with a black handle and a four inch stainless steel blade. Exhibit No. 5 was identified as appearing to be the same knife.

Deputy Everett Clayton was then recalled and identified Exhibit No. 5 as the knife he received from Junior Stafford and delivered to Agent Vernon Glenn of the Oklahoma State Crime Bureau.

Vernon Glenn, an agent with the Oklahoma State Bureau of Investigation, then testified that he received Exhibit No. 5 from Deputy Everett Clayton and delivered the same, sealed in an evidence envelope, Exhibit No. 6 to the laboratory at his headquarters for blood stain analysis.

William J. Caveny, a forensic chemist with the Oklahoma State Bureau of Investigation, next identified Exhibit No. 6 as an evidence envelope submitted to that laboratory by Agent Glenn, and containing Exhibit No. 5 for blood stain analysis. In his examination of that knife, he was able to determine that the blade contained stains which were Group B human blood. Of the four generally recognized blood types, he further testified that Group B is the second most rare.

Donald Johnson, M.D., specializing in pathology, then testified that he performed an autopsy on the body of Rubin Factor, a 17-year-old male, 5 feet 6 inches in height, weighing approximately 145 pounds, and determined the cause of death to have been massive hemorrhage into the space normally occupied by the lungs as a result of a stab or puncture wound which penetrated the lungs and heart. The wound was described as being about five-eighths of an inch in width near the entrance, somewhat underneath the left nipple, and approximately three inches in depth. Exhibit No. 4 was identified as a picture depicting that injury upon the deceased. On hypothetical examination, he testified that this injury was compatible with that which could be produced by Exhibit No. 5, and that to inflict the wound with this exhibit would require considerable force. He also observed a two and one-half inch laceration extending deep into the skin above the left eyebrow, and two abrasions about the eyebrow measuring one-half and three-quarters inch. Examination of the blood revealed a blood alcohol concentration of 0.21% weight per volume, and he further expressed the opinion that the deceased had been intoxicated.

Jim Darnell, a relief police officer in Morris, next testified that he was summoned to the subject location on November 10, 1973. There were several people present upon his arrival, and the defendant approached him with his hands out and stated, “take me in, I did it.” (Tr. 115) Somewhat near the trailer house he found the body of a person identified to him as Rubin Factor lying in the mud. He could not locate a pulse and radioed for an ambulance and other assistance as the victim appeared to be dead. Stains resembling blood spots were discovered on the carpet in the trailer house. Other officers soon arrived taking charge of the investigation and placing the defendant in custody.

James Thomason, an apprentice technician for Buchanan Funeral Home, then testified that he was sent to Morris on November 10, 1973, where he found a person lying in the mud with wounds on his left forehead and chest. He could not locate any vital signs, but administered cardiac massage while transporting him in an ambulance to Okmulgee Memorial Hospital.

Wayne Payne testified that he was at a carwash near Morris on November 10, 1973, when he discovered a person he subsequently recognized as Rubin Factor lying in the mud in an alley. As he approached, the victim emitted a snort, or gasp. The witness then attempted to wipe some of the mud from the victim’s face, but the latter could not speak. The victim was alone when discovered, but several others, includ[247]*247ing the defendant, soon gathered about him. While a young girl was holding the victim’s head in her lap and wiping mud from his face, the defendant said that he was sorry. This witness also confirmed the aforesaid inculpatory remark of the defendant upon the subsequent arrival of Officer Darnell.

The remaining six witnesses testifying in behalf of the State were among those present at the time of the subject altercation, and included: Lindell Berryhill; Richard Factor; Yarma Tarpaleechee; Jonas Lena; Gloria Ann Lowe, a sister of the deceased and former wife of the defendant; and Lyna Mae Artusse. Collectively, their testimony tended to establish that the deceased, Rubin “Hutke” Factor, the defendant, and several other persons were gathered at the McLemore trailer house in Morris in the early afternoon of the day of the fatal altercation.

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Related

LaRue v. State
1965 OK CR 81 (Court of Criminal Appeals of Oklahoma, 1965)
Sandefur v. State
1969 OK CR 265 (Court of Criminal Appeals of Oklahoma, 1969)
Moulton v. State
1970 OK CR 154 (Court of Criminal Appeals of Oklahoma, 1970)
Little v. State
1945 OK CR 1 (Court of Criminal Appeals of Oklahoma, 1945)
Thacker v. State
1933 OK CR 119 (Court of Criminal Appeals of Oklahoma, 1933)
Rambo v. State
1917 OK CR 35 (Court of Criminal Appeals of Oklahoma, 1917)
Janeway v. State
71 P.2d 130 (Court of Criminal Appeals of Oklahoma, 1937)
Flowers v. Page
1967 OK CR 210 (Court of Criminal Appeals of Oklahoma, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
1975 OK CR 181, 541 P.2d 244, 1975 Okla. Crim. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-state-oklacrimapp-1975.