Opinion
No. A-10599.
September 26, 1946.
(Syllabus.)
1. Appeal and Error — Jury's Verdict on Conflicting Evidence Upheld on Appeal. Jury's verdict on conflicting evidence will be upheld on appeal.
2. Assault and Battery — Evidence Sufficient to Sustain Conviction and Sentence for Assault With Dangerous Weapon. Evidence held sufficient to sustain conviction of prostitute and bootlegger for assault upon soldier with a dangerous weapon and sentence of three years imprisonment in State Penitentiary not excessive.
Appeal from District Court, Love County; J. I. Goins, Judge.
Leamon Parks and Bertha McIntyre were convicted of assault with a dangerous weapon and they appeal. Judgment affirmed.
J. S. Batson, of Marietta, for plaintiffs in error.
Mac Q. Williamson, Atty. Gen., for defendant in error.
The defendants, Leamon Parks and Bertha McIntyre, were charged in the district court of Love county with the crime of assault with a dangerous weapon, were tried, convicted with the sentence left to the court; the trial court thereupon sentenced the defendants to each serve three years in the State Penitentiary, and they have appealed.
No appearance was made on behalf of the defendants at the time this case was assigned for oral argument, and no brief has been filed.
The evidence of the state shows that the defendant Bertha McIntyre, was a prostitute who was practicing her profession near a soldiers' camp just across the Red River in Love county, Oklahoma.
On the night in question, the prosecuting witness, who was a private in the United States Army, came to a beer tavern with several other soldiers. There they met the defendant McIntyre. She sold one of the soldiers a quart of whisky and had sexual intercourse with three of them.
The prosecuting witness testified that he went out in the car of the defendant and gave her $5, which was the price she charged him and the other soldiers for having sexual intercourse with her. He further testified that he was so drunk that he was unable to commit the act with her and demanded that she return him his money. That she refused to do so, and he grabbed her and attempted to take it from her. That she jerked loose from him and ran off yelling for the defendant Parks. That while she was gone, the prosecuting witness sat on the fender of her automobile; that she and Parks returned, and Parks, without any warning, struck him repeatedly in the face and on the arm with a sharp instrument which was either a knife or a razor.
The defendant McIntyre went back to the night spot and told some of the other soldiers that the prosecuting witness tried to "rush her" and she had two of her boy friends cut him up. She further said that he was lying in a ditch about two miles up the road, and she hoped he was dead. The proof further showed that the prosecuting witness was in a very weak condition when his soldier friends rushed him to a hospital because of the loss of blood. That one of the cuts on his face was from his forehead to his chin.
We have examined the instructions, and they were applicable to the evidence.
Since no brief has been filed on behalf of the defendants, and no assignment of error called to our attention, it is apparent that the appeal is without merit, and the judgment of conviction should be affirmed.
It is so ordered.
BAREFOOT, J., concurs. DOYLE, J., not participating.