Appeal from the Court of Common Pleas of Oklahoma County; Carl Traub, Judge.

Clarence Ray Lewis was convicted of the crime of Aggravated Assault; was sentenced to serve 90 days in the county jail, and appeals. Affirmed.

Charles W. Stubbs, Oklahoma City, for plaintiff in error.

G.T. Blankenship, Atty. Gen., for defendant in error.

MEMORANDUM OPINION

BUSSEY, Judge.

¶1 Clarence Ray Lewis, hereinafter referred to as defendant, was charged, tried and convicted in the Common Pleas Court of Oklahoma County for the crime of Aggravated Assault; his punishment was fixed at 90 days in the county jail and from said judgment and sentence a timely appeal has been perfected to this Court.

¶2 Briefly stated, the evidence at the trial revealed that the defendant went to the home of Delphia McBrayer, an ex-girlfriend, at approximately 9:30 p.m. on September 9, 1968. Mrs. McBrayer was walking toward Carl James' automobile when the defendant started bothering her. Carl James testified that he attempted to intercede in her behalf and he was struck in the head. He had no memory of what followed until he awoke in the hospital, wherein he remained a week. Mrs. McBrayer testified that the defendant threw the initial blow, a fight started and she ran into the house to call the police. James was lying on the ground when she returned outside, and was carried by stretcher to an ambulance. The defendant was her former boyfriend and had not been invited to her premises the night in question. Mrs. McBrayer's eleven year old daughter looked out her window and observed the defendant strike James with a large rock.

¶3 Officer O'Shea answered the call to the McBrayer residence and found James lying in the grass. James was very bloody, his lips and eyes were swollen and he had several cuts about the face and neck. The officer found a bloody rock, weighing approximately ten pounds near the body.

¶4 Dr. Martin examined James in the emergency room of the hospital at approximately 11:30 p.m. on September 8th. He testified about the extent of the injuries.¹

¶5 Hiawatha Williams, the defendant's employer, testified that the defendant and Mrs. McBrayer had visited in his house the day prior to the fight. The defendant came to work the day after the fight "all messed and bruised up" and had a cut on his right hand. The defendant testified that James started the fight and cut him with a knife during the course of the battle. He admitted striking James with his fists several times, but denied using a rock.

¶6 The trial court properly instructed the jury relative to all issues presented, including self-defense. The jury chose to believe the testimony of the State's witnesses and found the defendant guilty, fixing his punishment well within the range provided by law.

¶7 Although there are several assignments of error urged in the Petition in Error, none possess sufficient merit to be dealt with in this opinion; suffice it to say, that the evidence amply supports the verdict of the jury, the court properly instructed them; the punishment imposed was well within the range provided by law; and the record is free of any error which would justify modification or reversal. For these reasons, the judgment and sentence appealed from is affirmed.

NIX, J., concurs.

BRETT, P.J., not participating.

Footnotes:

¹ "A. He had some lacerations, as I recall, across the bridge of his nose. It seemed that we could feel some bone fragments. There was a massive swelling of the left eye, and the left eye was more protuberate than the right eye. There was some hemorrhage in the subconjuctival space of the left eye.

Q. What is that?

A. That is to say there was a little bleeding on the surface of the eye. I didn't detect any damage inside the globe. When we felt around the boney edge of the eye we thought we felt some fracture of the lower boney rim of the orbit. His left eardrum was blown out. There wasn't any blood coming from it. As I recall, he had laceration in the left eyebrow. He was unable to clench his teeth correctly. And on X-ray there was indeed a fracture of the neck of the left jawbone, also a fracture of the point of the chin, if you will, and there was a bruise or contusion of the right back part of the skull, right posterior-occipitalis."