Smith v. State

I think the evidence on behalf of the state was sufficient to raise an issue of fact for the determination of the jury, under proper instructions, as to whether the injuries sustained by the prosecuting witness were of such nature that the weapon used by the accused would come under the definition of a "dangerous weapon" from the manner of its use, as has been many times defined by this court.

I agree that a pair of shoes are not dangerous weapons per se, but in this case the manner of their use in stomping and kicking an unarmed woman was sufficient, in my opinion, to require this court to hold that the evidence was sufficient to sustain the conviction.

I could unduly lengthen this dissent by presenting the arguments which are contrary to those stated in the opinion, but it is sufficient to refer to Ponkilla v. State,69 Okla. Cr. 31, 99 P.2d 910; Bean v. State, 77 Okla. Cr. 73,138 P.2d 563; Beck v. State, 73 Okla. Cr. 229, 119 P.2d 865; Tipler v. State, 78 Okla. Cr. 85, 143 P.2d 829.

For these reasons, I respectfully dissent.