
    Billy Gene JENKINS, Appellant, v. The STATE of Oklahoma, Appellee.
    No. A-17666.
    Court of Criminal Appeals of Oklahoma.
    Jan. 17, 1973.
    Charles W. Adams, Oklahoma City, for appellant.
    
      Larry Derryberry, Atty. Gen., Michael Cauthron, Asst. Atty., Gen., Daniel J. Gamino, Legal Intern, for appellee.
   OPINION

BUSSEY, Judge:

Appellant, Billy Gene Jenkins, hereinafter referred to as defendant, was charged and tried in the District Court of Caddo County for the offense of Assault and Battery With Intent to Kill, After Former Conviction of a Felony and was found guilty of Assault and Battery With a Dangerous Weapon, After Former Conviction of a Felony. His punishment was fixed at nine (9) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Jesse Sikes and Jimmy Anderson, both of the age of fourteen years, testified that on the afternoon of September 13, 1971 Gary Kaulaity was attempting to break up a fight between two students in an alley by a gasoline station in Anadar-ko. Kaulaity was talking to one of the participants who wanted to fight with a belt. The defendant walked up, asked “what happened” and then left. Shortly thereafter, he returned, approached Kaulaity from behind and struck him in the back of the head with a hammer.

Norman Spence, seventeen years of age, testified that on the afternoon in question he was at the service station and observed Kaulaity working on his bicycle. Two boys were fighting and Kaulaity went over to stop the fight. The defendant approached Kaulaity and they talked for about five minutes. Defendant left and walked toward the front of the service station. Approximately four minutes later, he came back behind Kaulaity and struck him with a hammer. He testified that Kaulaity was looking in the opposite direction at the time the blow was struck.

The testimony of Dicky Callahan, seventeen years of age, did not differ substantially from the testimony of Witness Spence.

Robert Hatfield, seventeen years of age, testified that he was drinking a “coke” at the service station. He observed the defendant take a hammer from under his shirt, come up behind Kaulaity and strike him in the head with the hammer.

William Armstrong, fifteen years of age, testified that he observed the defendant go to the station, return with a hammer, and strike Kaulaity.

Ross Nixon testified that he was employed as a teacher and football coach at Riverside Indian School. He was getting gasoline at the service station when he observed a gathering of students in the alley northeast of the station. The defendant moved away from the crowd and went into the station. As he returned to the crowd, “it appeared that he had something in his hand.” (Tr. 58) He next heard a blow being struck, “flesh on flesh . . is what it sounded like to me.” (Tr. 58) He walked over toward the group and observed Kaulaity on the ground bleeding profusely. He called the police station and asked them to send an ambulance.

Edward Lonefight, the Superintendent of Riverside Indian School, testified that he was at the service station on the afternoon in question. He observed a boy running from the Champlin Station toward Gary Kaulaity. The boy “whipped out an object” and struck Kaulaity from behind. Kaulaity dropped instantly to the ground.

Alfred Crochon testified that on the afternoon in question, he was employed at Belvie’s Champlin Station in Anadarko. The defendant came in the station and stated that he wanted to borrow a hammer to pull a hubcap. Approximately three minutes later, the defendant returned the hammer to the station. He identified State’s Exhibit 1 as the hammer.

Trooper Cain and Officer McKee testified concerning the chain of custody of State’s Exhibit 1.

John McAuliff, chemist for the Oklahoma State Bureau of Investigation, testified he tested some stains from State’s Exhibit 1 and identified the stains as human blood of type “O”.

Belvie Prather testified that he operated a service station in Anadarko. He testified that he observed State’s Exhibit 1 around 5 :00 lying in a tool tray at his station. The hammer had blood and hair on it.

Dr. Roberson testified that he observed Gary Kaulaity at the emergency room of the hospital. He observed a laceration of the scalp, fracture of the skull and brain tissue extruding through the wound. Kau-laity was transferred to Oklahoma City for neurosurgical purposes.

Dr. Donaldson, a neurosurgeon, testified he examined Gary Kaulaity at the University of Oklahoma Medical Center. X-rays revealed that the bone of his skull was pushed into the left side of his brain. Kaulaity was taken to the operating room where the bone was removed from the brain and the part of the brain that was damaged was also removed. He testified 'that, in his opinion, Kaulaity would have permanent damage. Kaulaity’s blood type was classified as O positive.

Gary Kaulaity testified that he was trying to break up a fight on the afternoon in question. The defendant walked up and talked to him for several minutes. He continued talking to the boys that were fighting and the next thing he knew he was “down on the ground.” (Tr. 92)

For the defense, Mark Johnson testified that he told the defendant that Gary Kau-laity “was down there messing with Randy.” (Tr. 96) The defendant then went to the station.

On cross-examination, he testified that Kaulaity was trying to break up a fight.

Randy Hardiman testified that he got into a fight with James Lonewolf. Kaulaity walked up with a pair of pliers in his hand. He stated that if he gave the other boy the pliers that he “could have killed me.” (Tr. 99)

On cross-examination, he testified that the defendant was his uncle.

Defendant asserts several propositions of error, none of which we deem to contain sufficient merit to warrant discussion in this opinion.

The record reflects that the defendant received a fair and impartial trial and, further, that the evidence of defendant’s guilt is overwhelming. The judgment and sentence is, accordingly, affirmed.

BLISS, P. J., concurs.

BRETT, J., concur in results.  