Jones v. State

ORDER DENYING PETITION FOR REHEARING

Appellant was heretofore sentenced to suffer death for the offense of First Degree Murder in violation of 21 O.S.Supp. 1974, § 701.1, ¶[ 9, in Case No. CRF-73-2221 of the District Court, Oklahoma County, and upon appeal that sentence was thereafter affirmed by the Opinion of this Court rendered in the above entitled cause on November 14, 1975.

Upon Petition for Rehearing, Appellant concedes that evidence introduced by the State was sufficient to establish a premeditated murder of the child victim by strangulation, but contends that the homicide was not perpetrated while in violation of 21 O.S.1971, § 843, as required under the aforesaid statute. The argument is seemingly that the latter statute prohibits child abuse only and does not encompass an intentional strangulation. In our previous opinion we rejected the contention that this statute applies only to an accused who is the parent, guardian or one in loco *1335 parentis to the child victim. The proof introduced by the State established that death was caused by intentional strangulation following blunt force trauma to the head sufficient to cause brain injury. Premeditated design is an element common to all cases of First Degree Murder. The latter statute prohibits the willfull or malicious injury of a child and this would clearly include strangulation. We are therefore of the opinion that this proposition is wholly without merit and Appellant’s Petition for Rehearing is hereby denied.

It is therefore ordered, adjudged and decreed that the Order of this Court staying execution of sentence herein pending appeal be dissolved and the Clerk of this Court is directed to issue Mandate forthwith.

It is further ordered, adjudged and decreed that the judgment and sentence herein appealed from be carried out by the electrocution of the Appellant, Ben Wiley Jones, Jr., by the Warden of the State Penitentiary at McAlester, Oklahoma, on Wednesday, March 3, 1976.