text:
    CARNELL FRY v. STATE.
    No. A-10256.
    April 5, 1944.
    (147 P. 2d 803.)

      Utterback & Utterback, of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Bill Steger, Co. Atty., of Durant, for defendant in error.
   BAREFOOT, J.

Defendant, Carnell Fry, was charged in tbe district court of Bryan county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of 25 years in the penitentiary, and has appealed.

For a reversal of this case, it is contended:

"First: Failure of the court to give instructions requested by the defendant.
"Second: Error of the court in permitting the signed statement of the defendant to be introduced.
"Third: The verdict is not sustained by competent evidence.”

With reference to the first assignment of error, it may be noted that defendant requested eight instructions. A number of these requested instructions were given by the court, and it therefore is not necessary to consider them. In defendant’s brief, reference is made to but three of the requested instructions.

Defendant’s requested instruction No. 7 was as follows :

•‘The court instructs the jury that if the defendant is convicted of taking the life of Maggie Fry, then he could not receive or in any way share in the proceeds of any policy of insurance upon the life of the said Maggie Fry, but in that event the said proceeds of said insurance policies would be distributed to the heirs of the said Maggie Fry to the exclusion of the said defendant.”

The state introduced in evidence certain insurance policies taken upon the life of deceased, and in favor of defendant, with the usual double indemnity clause in event of accidental death of insured. These policies were competent, for the purpose of showing motive. There was also a clause in the policies which limited the payment if the life of the insured was taken by the beneficiary. The complaint is that the court refused the requested instruction, and did not instruct the jury with reference to this clause in the policy. No authority has been cited by defendant to sustain this contention.

We are of the opinion that the court did not err in refusing to give the above requested instruction. The question of “motive” in a homicide case as in other criminal cases, is a question of fact for the jury. Wharton on Homicide, pages 914-915-918; State v. Brown, 168 Mo. 449, 68 S. W. 568; Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452; People v. Pope, 108 Mich. 361, 66 N. W. 213; Roe v. State, 25 Tex. App. 33, 8 S. W. 463; State v. Woodard, 132 Iowa, 675, 108 N. W. 753.

In Mitchie on Homicide, yol. 2, page 1447, it is said:

“Where the evidence tends to show a motive, an instruction based upon the hypothesis that there was no motive is properly refused.”

And in Wharton, page 918:

“And the known existence of insurance payable to, or which might be realized upon by the accused, may be shown as indicating motive.”

The policies of insurance were introduced in evidence. The terms of the policies were for the consideration ©f the jury. It was the contention of defendant that he had not killed the deceased, but that her death was an accident. He also entered a plea of self-defense. If the jury had found in 1ns favor on either of these contentions, they would have acquitted him. If either of them had been upheld, under the terms of the insurance policies, he could have collected the face of the policies, including the double indemnity provided therein. He had the right to argue this proposition to the jury, as a question of fact, but for the jury to have been given the requested instruction would have been upon the weight of the evidence, which was a question exclusively for the consideration of the jury.

Instruction No. 25 given by the court was the same as requested instruction No. 3 offered by the defendant, with the exception that the court added the words: “and you do not believe from the evidence beyond a reasonable doubt that defendant was guilty of culpable negligence, according to the instructions herein given you.” This entire instruction is based upon the weight of the evidence. Tt is most favorable to the defendant, and certainly the addition of the clause above quoted did not deprive him of any right.

The next instruction referred to by defendant is instruction No. 27. This instruction has reference to voluntary and involuntary statements made by the defendant. The court, after excusing the jury and out of their presence, heard the evidence with reference to the making of a statement by defendant while in the custody of the officers, and prior to his trial. After hearing the evidence and this statement, the court decided as a matter of law that it was a voluntary statement made by the defendant, and was therefore admissible. This is the procedure announced by this court as proper.

After deciding this matter, and admitting in evidence the statement made by defendant, the court then presented the matter to the jury (instruction No. 27), instructing them that if they found as a matter of fact the statement had been voluntarily made by defendant, they could consider the same; and if they did not find it was voluntarily made, they should disregard it. . There is authority in this state upholding this procedure.

We are of the opinion at this time that this is a question of law to be passed upon by the court, and out of the presence of the jury, and that this responsibility should not be shifted by the court in order to let the jury pass upon the matter. The trial court should assume this responsibility, and after hearing the evidence, come to a conclusion as to whether or not, under the law, the statement was voluntary or involuntary. If it was voluntary, it may be admitted-; if involuntary, it is inadmissible.

In the case of Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 143, the question of voluntary and involuntary confessions or-statements was fully discussed, and many authorities cited and revieAved. It is unnecessary to again quote them. This case has been appealed to the Supreme Court of the United States.

Instruction No. 27 was in the exact words of the instruction requested by defendant, except there was added thereto this additional clause- “and defendant must be warned that any statement made could be used against him in the trial, and that it was not necessary for him to make a statement unless he voluntarily desired to do so, and that he could have benefit of counsel if he so desired, but the fact that they may have been elicited by questions propounded to the defendant does not make them incompetent for your consideration. It is not necessary that such statements be spontaneous, that is, to proceed wholly from the suggestion of the defendant.”

This last part of the instruction was favorable to the defendant, and more favorable than deserved. Defendant in his brief says:

“We are not urging that by adding to this instruction he took from it or so changed it as to render it harmful to defendant, but the error of the court occurred in admitting this written statement.”

We may, therefore, consider the second and third assignments of error.

The defendant was charged with killing his wife, Maggie Fry, about three and a half miles south of Bennington, in Bryan county, on Monday, the 28th day of July, 11)41. He was arrested on Thursday, the 31st day of July, 1041, and placed in the county jail of Bryan county about noon. On the hearing before the court at the time of the trial, defendant testified that he was arrested on Thursday evening, July 31, 1941, and that he made a statement to the officers on the next afternoon, August 1, 1941, in the county jail. He testified that he was taken from the jail to the county attorney’s office, and there was present at the time Bill Steger, the county attorney; Alan MePheron, the assistant county attorney; and three others, Bud Taylor, the sheriff of Bryan county and Cliff Xiersey, a deputy sheriff, and Bill Barker, a deputy United States Marshal. After making an oral statement to the officers on Friday, August 1st, the assistant county attorney was called in the afternoon and he made a written statement. It was introduced in evidence, and was as follows:

“Examination by Alan B. McPheron: Q. What is your full name? A. Tony Carnell Fry. Q. Mr. Fry, do you want to make a statement to us concerning your actions on the 28th day of July, 1941, the day that Maggie Lena May Fry met her death, with the understanding that the statement is to be voluntary on your part, and that you do not have to make the statement unless you want to, and that it is your constitutional right to refuse to make the statement, and that you may have counsel to advise you and that we are offering you no reward or immunity from prosecution in order to get you to make a statement? A. I am willing to make a statement under those conditions. Q. Just tell us when and what took place the first time you and your wife, Maggie Lena May Fry, left your house on Monday, July, 1941? A. We left the house just a little before sundown that day, and started east from my house to unload a load of posts I was going to use to fix a fence. After I unloaded the posts I drove back to the road and went by my potato patch and dug some potatoes, and then went to the Indian Church and turned around and started back to where I could get another load of posts. I stopped and loaded my wagon with posts, and then we started back towards the house. When we got to a corner of the fence at the creek T stopped and unloaded part of the posts; then Maggie and I drove on to the edge of the next bottom and stopped. I told Maggie that I was going to cut some weeds for the hogs, and she said, ‘No, by G-od you aint, if theys any got them lazy boys are going to get ’em.’ I went to get off the wagon, had one foot on the hound of the wagon, and the other foot on the wheel and Maggie grabbed a short-handled hoe and hit at me; I dodged the lick and grabbed the hoe out of her hands and hit her one lick with the hoe; 1 think I hit her on the head; right after I hit Maggie the team started up and I ran up to catch them and stop them. Maggie had fallen off the seat down on the tongue and doubletree of the wagon; she fell off the tongue of the wagon between the horse on the right and the tongue of the wagon; I got the team stopped about ten or twelve steps from where Maggie fell to the ground; I went back to where Maggie was lying in the road and she braced herself up on her left arm and said something about someone trying to kill her, I couldn’t understand exactly what she did say. I started to Mr. E. S. Mason’s house for help and before I got past the wagon I stepped on the hoe that I hit her with; 1 picked the hoe up and carried it about 200 yards past the wagon and threw the hoe out into the weeds; I went by my house and called the kids but they were asleep, so I went ou up to Mr. Mason’s; just as I left my house one of the kids answered me and I told him that Maggie had fallen off the wagon and was hurt; I told Mr. Mason that Maggie had fallen off the wagon and was hurt, and I wanted him to go to Bennington and get the doctor. He told me he couldn’t see very good but would get his son, Doss Mason, to drive up and get the doctor. Mrs. Mason went over to Doss’ house and got Doss. Doss started to Bennington to get the doctor, but Doss- came back in my brother’s car with him, and said they couldn’t get either doctor in Bennington, so I went with my brother to Bennington, and Othele Fry, my brother, called the- ambulance at Durant to come and get my wife.' Q. Mr. Fry, had you and your wife had any trouble that day before you hit her with the hoe? A. Yes, on that Monday morning she had been fussing at me, all day about one thing and another. Q. Were you and Maggie married? A. No, we just started living together on July 3, 1937. I couldn’t marry her because I didn’t have a divorce from my second wife. Q. What was Maggie Lena May Fry’s condition at the time you hit her with this hoe? A. She was pregnant, and expected to be confined about the 1st or 15th of September, 1941. Q. Mr. Fry, did you carry any insurance on your wife? A. Yes, I had a family policy that covered her and the rest of the family for $500. I had that policy since some time in 1938. Q. You have read this statement consisting of two pages and it is the statement you have made to me and it is the truth? A. Yes, sir. Signed: T. C. Fry. Subscribed and sworn to before me this the 1st day of August, 1941. W. S. Gardner, Notary Public.
“My comm. ex. May 22-1942.”

After this statement was made, defendant went with the officers to the scene of the crime and there located and found the hoe with which he said he had struck his wife, on a hill-side about 200 yards from where her body was found.

Prior to making this statement, the defendant on the night of the killing of the deceased had told witnesses and the officers that his wife had been accidentally killed by falling from the wagon, and that at the time she fell he was 60 yards from the wagon, cutting weeds for his hogs, and that when he returned to the wagon he found his wife, and that he went by his home and informed his children that his wife had been killed accidentally and he hurried to the residence of E. S. Mason, a neighbor, some distance away, and asked him to go for a doctor. They could not secure a doctor in Bennington, and an ambulance came from Durant and took the body of his wife to Durant. She died before reaching the hospital. This same story wns told bv the defendant after his arrest on Thursday, July 31, 1941, and was not deviated from until Friday, August 1, 1941, when he changed his story and told the officers that lie had struck his wife Avith the hoe, as revealed by the statement heretofore quoted.

We realize that the question of how far officers may go in this state toward questioning a defendant prior to the filing of charges, or taking him before a magistrate, is not only a delicate question, but has now become one of major importance in this state. Of late we have referred to this matter in cases hereafter cited. The Supreme Court of the United States, in a very recent case, had this question under consideration, as applied to violations of the federal statutes. In the case of McNabb et al. v. United States, 318 U. S. 332, 63 S. Ct. 608, 613, 87 L. Ed. 819, the court had before it the question of confessions made by six defendants Avho Avere arrested by F. B. I. officers and held in the custody of state officers for a period- of six days. They Avere, after Avritten statements had been obtained from them, charged Avith the violation of a federal statute, and the written statements Avere introduced in evidence against them. These defendants were at no time taken before a committing magistrate, nor Avere they permitted to talk Avith friends or relatives or to have the opportunity to consult an attorney prior to the taking of the written statements. They were continuously questioned by the federal officers during the time above stated. The Supreme Court held that the written statements Avere not admissih’e, using the foU.OAAT.ng language:

“Quite apart from the Constitution, therefore, we are constrained to hold that the evidence elicited from the petitioners in the circumstances disclosed here must be excluded. For in their treatment of the petitioners the arresting officers assumed functions which Congress has explicitly denied them. They subjected the accused to to pressures of a procedure Avhich is wholly incompatible with the vital but very restricted duties of the investigating and arresting officers of the Government and Avhich tends to undermine the integrity of the criminal proceeding. Congress has explicitly commanded that 'It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest United States commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial * * .' * * * 18 U. S. C. A. 595. Similarly, the Act of June 18 1934, c. 595, 48 Stat. 1008, * * 5 U. S. C. A. 300a, authorizing officers of the Federal Bureau of Investigation to make arrests, requires that ‘the person arrested shall be immediately taken before a committing officer.’ Compare also the Act of March 1, 1879, c. 125, 20 Stat. 327, 341, * * * 18 U. S. C. A. 593, which provides that when arrests are made of persons in the act of operating an illicit distillery, the arrested persons shall be taken forthwith before some judicial officer residing in the county where the arrests were made, or if none, in the county nearest to the place of arrest. Similar legislation, requiring that arrested persons be promptly taken before a committing authority, appears on the statute books of nearly all the states.
“The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent desregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealons as well as the despotic. The lawful instruments of the criminal law cannot be entrusted to a single functionary. . The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts shoxild not be heedless when appropriate situations call for its application.
“The circumstances in which the statements admitted in evidence against the petitioners were secured reveal a plain disregard of the duty enjoined by Congress upon federal law officers. Freeman and Raymond McNabb were arrested in the middle of the night at their home. Instead of being brought before a United States Commissioner or a judicial officer, as the law requires, in order to determine the sufficiency of the justification for their detention, they were put in a barren cell and kept there for fourteen hours. For two days they Avere subjected to unremitting questioning by numerous officers. Benjamin’s confession was secured by detaining him unlawfully and questioning him continuously for five or six hours. The McNabbs had to submit to all this without the aid of friends or the benefit of counsel. The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in Avilful disobedience of law. Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy Avhich Congress has enacted into law.
“Unlike England, where the Judges of the king’s bench have prescribed rules for the interrogation of prisoners while in the custody of police officers, we have no specific provisions of law governing federal law enforcement officers in procuring evidence from persons held in custody. But the absence of specific restraints going beyond the legislation to which we have referred does not imply that the circumstances under which evidence was secured are irrevelant in ascertaining its admissibility. The mere fact that a confession was made while in the custody of the police does not render it inadmissible. Compare Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262; Sparf v. United States, 156 U. S. 51, 66, 15 S. Ct. 273, 39 L. Ed. 343 [345]; United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 157, 44 S. Ct. 54, 57, 68 L. Ed. 221 [225]; Ziang Sun Wan v. United States, 266 U. S. 1, 14, 45 S. Ct. 1, 3, 69 L. Ed. 131, 148. But where in the course of a criminal trial in the Federal courts it appears that evidence has been obtained in such violation of legal rights as this case discloses, it is the duty of the trial court to entertain a motion for the exclusion of such evidence and to hold a bearing, as was done here, to determine whether such motion should be granted or denied. Cf. Gouled v. United States, 255 U. S. 298, 312, 313, 41 S. Ct. 263, 65 L. Ed. 647 [653, 654]; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Nardone v. United States, 308 U. S. 338, 341, 342, 60 S. Ct. 266, 84 L. Ed. 307 [311, 312], The interruption of the trial for this purpose should be no longer than is required for a competent determination of the substantiality of the motion. As was observed in the Nardone case (U. S.), supra, ‘The civilized conduct of criminal trials cannot be confined within mechanical rules. It necessarily demands the authority of limited direction entrusted to the judge presiding in federal trials, including a well-established range of judicial discretion, subject to appropriate review on appeal in ruling on preliminary questions of fact. Such a system as ours must, within the limits here indicated, rely on the learning, good sense, fairness and courage of federal trial judges.’ 308 U. S. at page 342, 60 S. Ct. at page 268, 84 L. Ed. 307.
“In holding that the petitioners’ admissions were improperly received in evidence against them, and that having been based on this evidence their convictions cannot stand we confine ourselves to our limited function as the court of ultimate review of the standards formulated and applied by federal courts in the trial of criminal cases. We are not concerned with law enforcement practices except in so far as courts themselves become instruments of law enforcement. We hold only that a decent regard for the duty of courts as agencies of justice and custodians of liberty forbids that men should be convicted upon evidence secured under the circumstances revealed here. In so doing, we respect the policy which underlies Congressional legislation. The history of liberty has largely been the history of observance of procedural safeguards. And the effective administration of criminal justice hardly requires disregard of fair procedures imposed by.law.
“Reversed.”

It will be noted that the Supreme Court holds that federal officers cannot question persons arrested, under the conditions as they existed in the instant case, and take from them written statements which can be introduced in evidence against them.

But this court has uniformly held that the taking of statements and confessions made by defendants were admissible in evidence, if they were voluntarily made. Kirk v. Territory, 10 Okla. 46, 60 P. 797 ; Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A., N. S., 849; Simonson v. State, 33 Okla. Cr. 113, 242 P. 279; Howington v. State, 35 Okla. Cr. 352, 250 P. 941; Williams v. State, 38 Okla. Cr. 1, 258 P. 1066; Edwards v. State, 46 Okla. Cr. 77, 288 P. 359; Wood v. State, 72 Okla. Cr. 364, 116 P. 2d 728; Lucas v. State, 26 Okla. Cr. 23, 221 P. 798. And that they could be made to peace officers while under arrest. Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015; Cooper v. State, 31 Okla. Cr. 165, 237 P. 865.

The Supreme Court of the United States, in the case of Hebert v. Louisiana, 272 U. S. 312, 47 S. Ct. 103, 104, 71 L. Ed. 270, 48 A. L. R. 1102, cited in the McNabb case, says:

“Whether state statutes shall be construed one way or another is a state question, the final decision of which rests with the courts of the state. The due process of law clause in the Fourteenth Amendment does not take up the statutes of the several states and make them the test of what it requires; nor does it enable this court to revise the decisions of the state courts on questions of state law. What it does require is that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as Taw of the land.’ Those principles are applicable alike in all the states, and do not depend upon or vary with local legislation. Castillo v. McConnico, 168 U. S. 674, 682, 683, 18 S. Ct. 229, 42 L. Ed. 622 [624, 625 ]; West v. Louisiana, 194 U. S. 258, 261, 263, 24 S. Ct. 650, 48 L. Ed. 965 [968, 969]; Patterson v. Colorado, 205 U. S. 454, 459, 27 S. Ct. 556, 51 L. Ed. 879 [880], 10 Ann. Cas. 689; Pullman Co. v. Knott, 235 U. S. 23, 25, 35 S. Ct. 2, 59 L. Ed. 105 [110]; Enterprise Irrig. Dist. v. Farmers’ Mut. Canal Co., 243 U. S. 157, 166, 37 S. Ct. 318, 61 L. Ed. 644 [649]. The Supreme Court of the state having held that the two statutes must be taken together in determining the penalty intended, we must accept that conclusion as if written into the statutes themselves. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 73, 31 S. Ct. 337, 55 L. Ed. 369 [375], Ann. Cas. 1912C, 160. All that would be open in this court under the due process clause is whether the state had power to impose the penalty fixed, by the statutes as thus construed. Rawlins v. Georgia, 201 U. S. 638, 640, 26 S. Ct. 560, 50 L. Ed. 899 [900], 5 Ann. Cas. 783. That the state had such power is not questioned, but only that the statutes rightly construed show that the power has been exercised. On this question, as we have said, the decision of the Supreme Court of the state is controlling.”

It has been the established practice in this court in the early cases for the question of whether a confession is voluntary or involuntary to be submitted to the jury. The cases heretofore cited fully state this rule. But in the later cases we have urged upon the district judges the duty and responsibility of first deciding this question as a question of law, and this question should not be submitted to the jury because there is mere conflict in the evidence, but the court should judicially determine in his own mind whether the facts justify as a matter of law its submission. If the court decides that it is a voluntary statement and admits it, we do not see that the defendant can complain that the issue is then submitted to the jury as a question of fact. It gives the jury the right to pass upon it as applied to the facts, but the appellate courts pass upon the question as a matter of law, and if they determine that the statement is involuntary under the law, they have the right to so hold.

This principle is well illustrated in the Lyons Case, supra. In that case the cotirt rightfully held that the first confession was' involuntarily made and under the law was inadmissible. In the instant case there is no evidence that any cruel or unusual punishment was administered to the defendant, or that any threat, or promise of immunity that would cause the defendant to be likely to tell an untruth from the fear of the threat, or hope of profit from the promise. The only irregularity was the holding of the defendant in custody, the questioning of him by the officers, and the taking of the written statement prior to the filing of charges, and at a time when he had not been given an opportunity to consult with an attorney, and to see his friends or relatives.

There can be no question but that too many citizens of this state are being arrested, and confined in the jails and penitentiary of this state for an unusual period of time without being taken before a magistrate as provided by law, and without being given the opportunity of consulting with their relatives, or to have an attorney to represent them, and they are held in custody, and questioned continually and in some instances force and unusual punishment is inflicted to secure from them a confession. The ferreting out of crime is to be commended. But it should be done in the manner provided by law. The statutes of our state provid e:

“The defendant must, in all cases, be taken before the magistrate without unnecessary delay.” 22 O. S. A. 1941 § 181.
“When the defendant is brought before a magistrate upon an arrest, either tvith or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.” 22 O. S. A. 1941 § 251.

In the case of Smith v. State, 77 Okla. Cr. 142, 140 P. 2d 237, 238, a statement was made under facts very similar to those here presented. The trial court admitted the statement as having been voluntarily made, and this ivas upheld. In the opinion we stated:

“In the Lyons Case, above referred to, we said: ‘There are very few instances when all the facts are taken together but will show one’s guilt, if he is guilty, and it is not necessary that a confession be obtained in every case to the end that the guilty party may be properly brought to justice. The facts in the instant case clearly demonstrate this.’
“As there stated, it is not always necessary to secure a confession in order to secure a conviction. The facts in this case emphasize this point even better than does the Lyons ease. Here the state had two eyewitnesses to the homicide, and other evidence sufficient to connect the defendant therewith. While we think the statement made by the defendant is clearly voluntary and admissible in evidence under the law, vet we again call the attention of county officers to the fact that it is not always necessary that a confession be had to the end that persons may be successfully prosecuted, and they should be doubly careful that defendants who are in their custody are not mistreated and that by reason of such mistreatment statements or confessions are taken from them which are wholly involuntary and under the law cannot be introduced in evidence. By this statement we are not assuming that this defendant was in any way mistreated. The deputy sheriff whom the defendant testified struck him with his gun was present in the court room at the time of the trial. Defendant had subpoenaed him as a witness, but did not place him on the stand.”

From what has been noted in the McNabb case, it is readily seen that the federal courts, and especially the Supreme Court of the United States, have condemned these practices as they apply to federal cases, and have not hesitated to apply them to state statutes where the 14th Amendment to the Constitution of the United States has been violated. Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461, 80 L. Ed. 682; Chambers v. Florida, 399 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716; Canty v. Alabama, 309 U. S. 629, 60 S. Ct. 612, 84 L. Ed. 988; Vernon v. Alabama, 313 U. S. 540, 61 S. Ct. 833, 85 L. Ed. 1509; White v. Texas, 310 U. S. 530, 60 S. Ct. 1032, 84 L. Ed. 1342.

In the case of Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809, we announced the rule that has been followed in this state with reference to the admission of voluntary and involuntary statements. It is there stated:

“Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

Applying the law to the facts in the instant case, we find that defendant, both at the preliminary and at the final trial, was represented by able counsel. After the written statement made by defendant had been introduced in evidence, defendant took the witness stand in his own behalf, and related to the jury his testimony as to the circumstances under which the statement was made. After testifying to his arrest on Thursday, July 31, 1941, and being brought to the Bryan county jail about 1:30 p. m., he was taken to the office of the county attorney, where he was confronted by the persons above stated, that he was questioned until about 6 p. m., and was then taken to the city jail in Durant, and held for a period of several hours, and then returned to the' county jail. That he was again questioned in the jury room of the courthouse until 9:30 or 10 p. m. That on the morning of the following day, Friday, August 1,194.1, he was again questioned by various officers above named. He claimed that he was told by the sheriff of Bryan county that if he would tell them he killed Ms wife, that would settle the matter up and he would take him home to see the children, and that this was the inducement which caused him to sign the statement. He also testified to numerous statements made by Bill Barker, the deputy United States Marshal, and officer C. .13. Bobinett of Sherman, Tex., whom the sheriff of Bryan county had sent for.

It will be noted that the written statement made by defendant, while contradictory to the statements previously made by him to the officers and others with reference to his hitting his wife with a hoe, also attempted to justify his action, and also attempted to show that her injury was caused by the fall, and possibly by the wagon passing over her head or body. Of course, the defendant received the benefit of this part of the statement. He also testified that he was never asked if he wanted an attorney to represent him.

Tn rebuttal the state offered the testimony of all the witnesses above named, and they each denied the statements made by defendant with reference to what they said, the sheriff specifically denying that he promised to take the defendant home if he would make the statement, and Mr. Barker that he advised him to plead guilty.

Alan McPheron, assistant county attorney, denied that any promise or inducement of any kind was made the defendant, or that any force or unusual treatment was accorded him. We also have in evidence the preliminary part of the statement, as follows:

“Mr. Fry, do you want to make a statement to us concerning your actions on the 28th day of July, 1941, the day that Maggie Lena May Fry met her death, with the understanding that the statement is to be voluntary on your part, and that you do not have to make the statement unless you want to, and that it is your constitutional right to refuse to make the statement, and that you may have counsel to advise you and that we are offering you no reward or immunity from prosecution in order to get you to make a statement?”

The defendant denied that this was attached to the statement when he signed it, but of this there can be little doubt. The assistant county attorney testified that the statement was read to him and he voluntarily signed it. The court, after hearing this evidence out of the hearing of the jury, decided the statement was voluntarily made and admitted it in evidence. Under the former decisions of this court, we cannot say that it was error to admit the statement in evidence. As above indicated, ive again caution officers of this state to give to every person whom they arrest the rights which the laws of this state and the Constitution give them. By this we do not mean to say that this defendant was denied those rights at the time he made the statement in this case.

It is revealed by the record that the deceased was left at the scene for a number of hours before the ambulance arrived. Defendant testified that he immediately left the scene and went to his home and informed his sons of the occurrence; that he then went to the home of Mr. Mason, a neighbor, and Mr. Mason’s son went to Bennington, a distance of three and a half miles to get a doctor. He returned without a doctor, and defendant and his brother then went back to Bennington, and when they could not get a doctor, telephoned to Durant for an ambulance. The ambulance went from Durant to Bennington, and then to the scene, and took deceased to Durant. In all probability, had the deceased had prompt medical attention, she would not have died from the injuries inflicted. Taking this fact, the age of defendant, his education and the facts hereinbefore set forth into consideration, we have decided that justice demands that the judgment and sentence of 25 years in the penitentiary assessed in this case should be modified to 15 years in the penitentiary.

As so modified, the judgment and sentence of the district court of Bryan county'is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    J. T. McKENDREE v. STATE.
    No. A-10270.
    April 12, 1944.
    (148 P. 2d 210.)

      Hughes & Hughes and Zink & Cunningham, all of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, J. T. McKendree, was charged in the district court of Washita county with the crime of grand larceny, was tried, convicted and sentenced to serve one year in the State Penitentiary, and has appealed.

The evidence of the state disclosed that one Ernest Skelly, a farmer living near the town of Rocky, had left a tractor at another farm about 11 miles from the place where he resided. That on or about May 15, 1940, Shelly went to the farm where the tractor had been left and there discovered that the wheels, including the tires, inner tubes and weights appurtenant, had been removed from the tractor. The officers were notified and several days later the stolen property was located by the officers on a tractor owned and operated by one Don Milligan in adjoining Kiowa county. The proof showed that the articles which were stolen from Shelly had a fair market value in excess of |150.

Don Milligan testified that he was a farmer living near Hobart. That he cut the defendant’s wheat sometime in June, 1940, and defendant wanted to give Mm the tractor tires as his pay. That the tractor wheels and tires were in defendant’s garage about two miles east of Hobart. The wheels would not fit Milligan’s tractor, but he made a deal with defendant to give him $60 for the wheels, tires and tubes with the understanding that the wheels would be cut down to fit his tractor and welded on his machine. He agreed to give the defendant $60 for the property and pay for them out of his wheat cuttings.

Ernest Tabor testified that he was present at the public place operated by the defendant, known as the Lime-house, on the highway about two miles east of Hobart, during harvest time in 1940. That he was well acquainted with the defendant That while he was there he overheard a conversation between the defendant and one Bill Mitchell wherein McKendree told Mitchell about selling some tires to Milligan that he had got up by Rocky. The witness further testified: “They were talking about some tires they got up by Rocky and sold them to Milligan.”

The officers testified concerning their investigation of the theft and the location of the property at Milligan’s farm.

For the defense Bill Mitchell testified that he did not have the conversation with defendant which was related by Ernest Tabor.

A farmer who lived near the Skelly farm testified that sometime in May, 1940, he saw a car with a trailer come by his farm with some casings sticking up above the trailer. That he did not think much about it until he later learned about Mr. Skelly losing his tires. That there were two men in the car and in his opinion neither of them was the defendant McKendree.

George Ferguson, a filling station operator north of Rocky, testified that he had seen two fellows driving by his filling station with some tractor tires. He did not pay much attention to them and could not remember whether it was a pickup built upon the back of a ear, or whether the tires were being hauled in a trailer attached to a coupe. He described the appearances of the two men who were in the car very minutely. He stated that McKendree was one of his customers at his service station and that Mc-Kendree was not one of the parties in the automobile.

The wife of the defendant testified that she and defendant operated a filling station and restaurant on the highway about two miles east of Hobart. That she remembered the occasion of her husband selling the tractor wheels and tires to Don Milligan. That a short time before that, a little after dark, a man drove up to their station whom she had never seen before. That he. had the two tractor wheels with him and sold them to her husband for $25. The witness stated on cross-examination that she had been convicted of a felony. She further stated that she did not hear the conversation had between her husband and the stranger and did not know what her husband paid for the tires except what he had told her.

The defendant did not testify.

It is first contended that the court erred in overruling the motion for continuance filed by defendant. The written motion was based solely upon the alleged illness of the defendant. At the beginning of the trial counsel for defendant dictated an additional ground for a continuance on account of the absence of one Ferguson who was a material witness for the defendant. That the witness Ferguson would testify, if present, that he was in the town of Rocky on Saturday evening, May 18, 1940, and saw a pickup answering the description of the one allegedly transporting the stolen tractor wheels drive in from the east into the town of Rocky and turn north.

A hearing was had upon the motion for continuance and medical testimony presented by the state to refute the certificate of the doctor attached to the defendant’s motion concerning the physical condition of the defendant. The certificate of defendant’s doctor stated that defendant had had a relapse of influenza and should be kept in bed for a few days. The certificate was dated two days before the trial. The physician who testified for the state had examined defendant the morning of the trial and stated that his temperature was normal and that in his opinion he was able to attend trial. That his pulse was up some and that possibly he could have been suffering from influenza. That he did not think that he was suffering from any illness sufficient to interfere with his trial.

As to the witness Ferguson, the county attorney admitted that if the witness were present he would testify to the state of facts as related by counsel for defendant in his motion for continuance.

After the trial had commenced and the state had rested its case counsel for defendant asked the court to adjourn until morning so as to give him an opportunity to talk with the father of the witness Ferguson who was named in the motion for continuance. The recess was taken and on the following day the father of the witness Ferguson was produced as a witness on behalf of the defendant. A short resume of his testimony has been hereinabove related. The father testified that he and his two boys were at the service station when the car with the tractor tires passed. At the time the motion for continuance was presented, counsel for defendant did not know that the elder Ferguson could be procured as a witness.

In the case of Jackson v. State, 72 Okla. Cr. 226, 114 P. 2d 953, this court held that where the evidence of the absent witness is cumulative, it was not error to overrule the motion for continuance.

The question of the physical condition of the defendant presented a question of fact for the determination of the trial court. The defendant was present all during the trial proceedings. There was nothing about his alleged illness that interfered with the trial, and, so far as the record discloses, the alleged illness of defendant did not in any way prevent a fair presentation of defendant’s case. Tt is true that defendant did not testify, but this omission was apparently not on account of the illness of defendant. It appeared from statements made by counsel for defendant out of the presence of the jury that defendant had been in other trouble and had just recently been convicted in Caddo county of a robbery charge.

This court has uniformly held that an application for continuance is addressed to the sound discretion of the trial court, and unless there is an abuse of such discretion the judgment will not be reversed on appeal. Dutton v. State, 75 Okla. Cr. 375, 131 P. 2d 777; Gorum v. State, 67 Okla. Cr. 75, 92 P. 2d 1086; Lane v. State, 65 Okla. Cr. 192, 84 P. 2d 807. After a consideration of the record as a whole in connection with this motion, there does not appear to be. an abuse of discretion.

Lastly, it is contended that the conviction is contrary to the law and evidence. It is undisputed that the wheels and tires which were found on Milligan’s tractor were the ones which were stolen from the prosecuting witness. Milligan’s testimony that he bought them from the defendant is also undisputed. The possession of the stolen property in this manner was traced to the defendant. The testimony of the witness Ernest Tabor connects the defendant with the theft. Although this testimony does not make a strong case against the defendant, the weight of the evidence and the credibility to be given the witnesses was a question for the determination of the jury. The explanation by the wife of the defendant that a stranger came by the filling station in the nighttime and sold the wheels and tires to her husband was evidently not believed by the jury.

In the case of Rowe v. State, 47 Okla. Cr. 260, 288 P. 502, it is stated:

“While the possession of recently stolen property creates no presumption of law that the possessor is the thief, an inference of fact arises by reason of such possession which with other incriminating circumstances may be sufficient to convict.”

In the case of Allen et al. v. State, 74 Okla. Cr. 203, 124 P. 2d 737, 738, it is held:

“In prosecution for larceny, possession of property recently stolen is evidence against defendant and when the fact of a theft has been shown and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing is a circumstance to be submitted to the jury for their consideration.
“The presumption arising from possession of recently stolen property is one of fact, not of law. It is a circumstance for the jury to consider and weigh along with all other evidence in the case. If possession is unexplained, or if it is unsatisfactorily explained, or the explanation, even though plausible, is not believed, jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with other facts and circumstances in evidence, when given due weight, satisfy jury beyond a reasonable doubt of defendant’s guilt, it is sufficient to sustain verdict.”

There are many other decisions of this court consistent with the above holdings.

The judgment and sentence of the district court of Washita county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: BAREFOOT, J.

text:
    ARTHUR H. MAXWELL v. STATE.
    No. A-10273.
    April 12, 1944.
    (148 P. 2d 214.)

      Mauntel & Spellman, of Alva, Loofbourrow & Dale, of Beaver, and Hale Loofbourrow, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lonnie B. Ison, Co. Atty., of Buffalo, for defendant in error.
   BAREFOOT, J.

Defendant, Arthur H. Maxwell, was charged in the district court of Harper county with the crime of rape in the first degree, was tried, convicted and sentenced to serve a term of 20 years in the State Reformatory at Granite, and has appealed.

It is first contended that the evidence is insufficient to support the judgment and sentence, for the reason that the testimony of the prosecutrix was not corroborated; and, second, that the court erred in refusing to give certain requested instructions, and in giving certain other instructions.

It ivas charged in the information that defendant had committed intercourse with his ten-year-old daughter, Norma Lee Maxwell, on the 23rd day of January, 1942, and she testified to other acts prior to this time and continuing for a period of more than two years. The specific act relied upon by the state was committed on the morning of January 23, 1942, when the defendant went into the bedroom of the prosecutrix. Her mother was cooking breakfast in an adjoining room. A door between the rooms was closed, but not locked. She testified that the relation between her and her father had started while they lived in Darrozutte, Tex., and had continued since they came to Harper county, two years prior to the date alleged in the information. That during all this time she had not told her mother for the reason she was afraid her father would kill them, as he had threatened to do. The first time she told her mother was on the 24th day of January, 1942, after the last act as alleged in the information on January 23, 1942. The reason for telling her then was that her mother heard a conversation between her and her father, and came into the room and asked them about it. She then told her mother.

The evidence further revealed that while defendant was the father of Norma Lee, he had not married her mother until Norma Lee was five years of age. He had a wife from whom he secured a divorce, and she had a husband who died.

The evidence of the prosecutrix was clear and convincing. She did not contradict herself in any way. That part of her evidence which might be considered as against her was that her mother failed to observe or know anything was wrong over the period of more than two years that this had been going on, and the fact that she failed to tell her mother, or anyone else during that time.

A short time after she told her mother, the mother took her to a doctor for an examination, and the day defendant was arrested and the warrant of arrest was served on him, he was also served with a summons in a divorce action filed by his wife. His bank account was tied up, and later was delivered to his wife.

The testimony of the prosecutrix and two doctors, Dr. Joe Duer and Dr. M. H. Newman, constituted the evidence in chief of the state. Certain rebuttal evidence was offered by the state, to which reference will be made after reviewing the evidence of the defendant.

Dr. Joe Duer for the state testified that in the first part of February, 1942, the county attorney and her mother brought the prosecutrix to his office in Woodward for an examination. He testified, in part:

“A. On further examination, from my external examination, I found that the hymen was ruptured, and only fragments of it left; however, there were no recent lacerations of any tvpe, and the vaginal canal was diptheric and enlarged until I could have easily made insertion of two fingers on examination. Q. Did you make an insertion of the finger? A. Yes, sir. Q. Now Doctor, from that insertion that you made, what would you say with reference to the possibility of the insertion of a normal man’s organ? A. It would be very possible. Q. From that examination, external and internal, would you tell this jury that she had been entered with some instrument, or something to cause that hymen to be ruptured and torn away, and the other conditions that you found there? A. Yes, sir, it would have had to be absolutely necessary. Q. Could you tell, Doctor, from that examination, and your experience, about how long it had been since the hymen had been ruptured? A. No, the only thing I could say would be from the fact that there were no recent lacerations or anything of that type, and it had been and would necessarily have to be sometime past. Q. As I understand you, then, it had not healed? A. It had healed; judging on the matter of time, however, there would be no point that would help in the matter of time. I don’t think that she would have had that much dilatation unless it had been some matter of dilatation over several dimes past. One time wouldn’t have done that. Q. Then, as I understand you, from your experience you tell the court and jury that the condition you found her in, this dilatation, or stretching of the private organ, had been going on over some period of time? A. It would have had to be, yes, sir. Q. Now did you take any slides or smears, from examination from the vaginal tract? A. Yes, sir. Q. What did that disclose? A. The mother was particularly interested in whether there might be a probability of vaginal discharge or venereal disease. I found none other than finding that there Avas such a discharge in the vaginal tract such as would be normally found in an adult woman, and not what you would ordinarily find in a child of that age. Q. Noav, Doctor, from your experience and profession, Avhat is the condition of the normal youngster, ten years old, who has lived normally and not been entered or had her privates penetrated? A. Normally, a ten-year-old girl Avould have had a small labia, and there would be no inflammation or redness there, and the hymen should have been intact; there should be no more opening in the hymen than would have admitted a common lead pencil. If the hymen had been ruptured recently you would find the vaginal canal would have a soreness, or infected sort of condition, if the rupture was recent.”

Dr. M. H. Newman of Shattuck had examined the prosecutrix on March 19, 1942. He testified:

“Q. What condition did you find there? A. I found the labia to be slightly enlarged, the labia was somewhat larger than normally found in a child of her age. There were no pubic hairs, and T found a slight irritation of the labia minora. Q. Is that a normal condition usually found in a child of ten years, Doctor? A. Well, her genitals appeared to be a little larger than the average girl of that age. Q. Did you make an examination of the internal parts of the private organs, Doctor? A. Yes, sir. Q. What were the conditions there that you found? A. I made a bimanual examination, by that I mean a two-finger examination. Q. Did you insert two fingers? A. Yes, sir. Q. Just hold the tiro fingers up to the jury you inserted. (Doctor holds up forefinger and middle finger of right hand.) Q. Those are the two fingers you inserted? A. Yes, sir. Q. Was there any reaction on the part of the child, or any particular pain that you noticed? A. Not much. Q. What would you say would be the normal size opening in a ten-year-old child, one of her age and size, if there hadn’t been any abnormal development? A. State that question again, please, sir. Q. I say, what would you say would be the normal sized opening in a ten-year-old child, one of her age and size, if there had not been an abnormal development of the private parts? A. My experience is that you can rarely insert more than the tip of the finger, if that. Q. Would that be the equivalent to a lead pencil? A. Practically so, yes, sir. Q. Did you notice that this child was developed other than the pubic hairs — were the breasts overdeveloped for a child of her age and size? A. The breasts were somewhat enlarged. Q. Would that development of the private organs, such as hers, ordinarily cause enlargement of the breasts? A. They are associated. Q. Did you make a slide, or smear, of the vaginal tract? A. There was no vaginal discharge and I didn’t make one. Q. Did that indicate to you that there was nothing wrong? A. That was not necessary. I examined her with a speculum, that is an instrument we examine the vaginal tract with, and there was no discharge on that.”

The defendant testified, and denied ever having had sexual relations with the prosecutrix at any time. He testified that his brother, Fred Maxwell, was present at his home, on the night of January 23, 1942, and had been staying there for some time assisting him in his work as a pipe line walker for the Phillips Petroleum Company, a job he had held for 11 years. That his brother slept in the same bed with prosecutrix, Norma Lee, on that night, and that he was not in her room. His brother, Fred Maxwell, corroborated this evidence, testifying that it was a cold night and they did not have enough cover, and that he slept with Norma Lee at the suggestion of her mother. It was the contention of defendant that his wife had become estranged and that she was in love with another person. Evidence was introduced to show this, and of her conduct toward this party. It is unnecessary to relate this testimony. Defendant offered a number of character witnesses. The state in rebuttal offered a number of witnesses who contradicted the witnesses of defendant on a number of minor issues. Also witnesses who testified to statements made by Fred Maxwell at the time of the arrest of defendant, contrary to the evidence given by him at the trial. Four letters written by defendant to his wife while he was in jail were introduced. In none of these letters did he admit his guilt of the crime charged, but they contained statements from which the jury could have drawn an inference of his guilt.

With the issues as above presented, the jury returned a verdict of guilty, leaving the punishment to be assessed by the court, which was 20 years in the State Reformatory at Granite.

The main question here involved has been considered by this court in many cases. In the late case of Weston v. State, 77 Okla. Cr. 51, 138 P. 2d 553, many of the more important cases have been cited and reviewed, including the early case of Sowers v. Territory, 6 Okla. 436, 50 P. 257, from the Territorial court. We shall not again review these cases, but shall only state some of the rules adhered to, and make application of them to the facts in the case at bar.

From an early date this court has adopted the rule that one may be convicted upon the uncorroborated testimony of the prosecutrix. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Day v. State, 29 Okla. Cr. 49, 232 P. 122.

But we have limited this rule with an exception which is as well established as the rule itself. It is that the testimony of the prosecutrix in a rape case must be clear and convincing, and where it bears upon its face inherent evidence of improbability, is contradictory, inconsistent or unreasonable, it will be held as insufficient, and under these circumstances must be corroborated to the extent of making it sufficient. Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d 838: Williams v. State, 61 Okla. Cr. 296, 68 P. 2d 530; Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246; Gordon v. State, 75 Okla. Cr. 356, 131 P. 2d 503; Weeden v. State, 73 Okla. Cr. 258, 120 P. 2d 379; Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580.

This rule has more often been applied in cases where the prosecutrix is a child of tender years and more susceptible of coming under the influence of others, or through fear, threats, coercion or duress. Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083; Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211.

In the Weston Case, supra, reference is made to the Sowers Case, supra, which is based upon the reasoning of Sir Matthew Hale, one of the greatest judges of criminal law of all times. The general rule, and the one recognized and followed by this court, is that where there is any evidence to support the verdict, or where the evidence is conflicting, the appellate court will not examine the record for the purpose of ascertaining or determining the weight of such evidence and the verdict approved by the trial judge will be permitted to stand. But in cases of this character, an exception is recognized to the general rule above stated, and that exception is that in rape cases the appellate court will make a careful examination of the whole record to the end that it may justify the sentence imposed. This exception is based upon the firm foundation announced by Sir Matthew ITale when he said:

“It. is true that rape is a most detestable crime, and therefore severely to be punished, with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

In the Weston Case, the judgment and sentence was reversed. We there said:

“This is what we mean when we say that cases of this character should not be decided upon technicalities, based upon a fixed policy that the verdict of the jury is final and absolutely correct on every proposition of fact. The doctrine that one may be convicted on the uncorroborated testimony of the prosecutrix has an exception to the rule that is as well founded as the rule itself, and that is that where her testimony is contradictory, uncertain, improbable or she has been impeached, her testimony should then be corroborated. And this corroboration should be of such dignity as to give it 'weight with the jury upon the question that the actual crime has been committed. It should not be such slight circumstances as to leave the court and jury to guess or speculate that the crime has been committed and that the defendant is guilty. Many cases of this nature that come before this court for review are of such character that there can not but be a doubt as to the guilt of the defendant, and the least action upon the part of the court or the slightest incompetent evidence causes the jury to return a verdict of guilty.
“The conviction for first degree rape carries with it a minimum punishment of fifteen years in the penitentiary, and a maximum punishment of death or life imprisonment. Certainly there is reason for the rule that has been so long adhered to by this court that close scrutiny will be given to the evidence before a conviction will be permitted to stand.
“In the past few years numerous rape cases have been affirmed by this court: Roberts v. State, 31 Okla. Cr. 103, 237 P. 148; Lane v. State, 48 Okla. Cr. 84, 289 P. 357; Lynch v. State, 42 Okla. Cr. 415, 276 P. 501; Fowler v. State, 42 Okla. Cr. 300, 275 P. 655; Malone v. State, 40 Okla. Cr. 102, 267 P. 486; Allen v. State, 35 Okla. Cr. 64, 248 P. 655; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615. Others have been reversed: Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Davidson v. State, 57 Okla. Cr. 188, 46 P. 2d 572; Johnson v. State, 52 Okla. Cr. 397, 5 P. 2d 772; Dawes v. State, 34 Okla. Cr. 225, 246 P. 482; Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211; Miller v. State, 65 Okla. Cr. 26, 82 P. 2d 317; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Kilpatrick v. State [75 Okla. Cr. 28] 128 P. 2d 246; Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 797.
“We realize the disadvantage the trial courts are put to in the trial of this class of cases. There is generally strong feelings in the community by reason of the nature of the crime, and often of the persons involved. These charges are often the outgrowth of alleged attacks upon children of tender age. The facts are often given wide publicity in the local communities. If a verdict of guilty is rendered by the jury, the only relief that can be given by the trial court is the granting of a new trial at a great expense to the county. In the appellate court we have an opportunity to survey the whole record, after it has been reviewed and briefed by attorneys for both the State and the defendant. It is no pleasant task to reverse a rape case, and it is no pleasant memory to send a man to the penitentiary even for a minimum of fifteen years when there is grave doubt of his guilt, and by evidence of one whom the laws require to be corroborated, and the corroboration is not sufficient. But our sworn duty demands that the laws be followed, and that justice shall prevail.”

With the sound principles of law as above stated, and as followed by this court since its existence with few exceptions, where the general rule of sustaining the verdict and judgment, when there was any evidence to support it, has been applied to cases of this character, we now consider its application to the facts as they exist in the instant ease.

Here the prosecutrix was ten years of age, and her testimony ivas that her father began being intimate with her when she was eight years of age, and while they lived at Barrozutte, Tex., and prior to the time the family moved to Oklahoma. That this continued after they came to Oklahoma, and that the last time was on January 23, 1942, which was the date alleged in the information, and upon which the state relied for a conviction of the defendant. We have carefully read and reread her testimony. It shows unusual keenness for a child of her age. Under a long and careful cross-examination, there is no contradiction, no inconsistency, and no unreasonableness, and it does not bear upon its face any inherent evidence of improbability. She at no time ever made any statement contrary to the evidence given upon the witness stand. She at no time ever claimed that anyone else had been intimate with her. There was no attempt to impeach her in any way. She related as consistent a statement as appears in any case we have examined in connection with this case. The only weakness in her testimony that might be considered is the fact that she did not relate what had happened to her mother, or anyone else through the years that she said it had been going on, and that her mother did not know of it; and the further fact that her mother had during this time not observed anything about her clothing or person to detect this crime. These inferences, together with the evidence of the defendant denying any illicit relationship with the prosecutrix, and the testimony of his brother, Fred Maxwell, as above related, would require that this court, in justice to the defendant, apply the exception to the general rule of law as above announced, that there should be evidence of corroboration of the prosecutrix in this case. Under this statement, was she corroborated? We think so. The evidence of Doctor Dner and Doctor Newman lias been quoted. It is unnecessary to requote it. Taking into consideration her evidence as above stated, the testimony of the two doctors strongly corroborates her testimony. If their testimony is true, there can be no question that some person had been intimate with the prosecutrix, and there was not the slightest proof it was other than the defendant. The four letters written by the defendant to his wife, while he was confined in jail, while not admitting guilt outright, would be considered as strongly corroborating the evidence of the prosecutrix. It is unnecessary to quote from them. The attempt of defendant to establish disloyalty on the part of his wife, or a desire on her part to have him sent to the penitentiary, or the making of false charges against him, ivas almost entirely disproved, and the letters written by him so indicate.

Defendant offered tAVO requested instructions. The court gave one and refused the other. For this reason it is contended the case should be reversed. The requested instruction refused was as follows:

“You are further instructed that in this case the prosecution relies for a conviction upon the testimony of Norma Lee Maxwell, the prosecuting witness, of about ten (30) years of age, and no other witness was called by the prosecution to testify directly to the time and place or circumstances of the alleged crime, and you are instructed in cases Avhere the state relies on the uncorroborated testimony of the prosecutrix, unsupported by other evidence, and Avhere the prosecutrix is of the tender age of ten (10) years and Avhere no outcry has ever been made by the prosecutrix until some time after the occurrences of numerous acts of sexual intercourse, that in such cases you should view such testimony with great caution, since the evidence discloses that the prosecutrix for the entire period within which said acts of alleged intercourse took place, said child was under the care and in the home of the mother and father.”

In the first place this requested instruction assumes that there was no evidence which corroborates the testimony of the prosecutrix, which, by the statement heretofore made, is not a fact. The other portion of the requested instruction has to do with the duty of the court to instruct the jury that the testimony of the prosecutrix should be viewed with great caution. There is somewhat of a conflict in the authorities upon this proposition, but the weight of authority and the best-reasoned cases sustain the proposition that it is not necessary to give an instruction of this character when the general instructions inform the jury that the defendant is presumed to be innocent and that he may not be found guilty unless the jury is convinced of his guilt beyond a reasonable doubt; and the general charge as to the credibility of the witness and the right to disregard the testimony of any witness who may have sworn falsely to any material fact.

In addition to these general instructions, the court submitted a requested instruction of defendant with reference to the action of the wife of defendant in desiring to secure a divorce, and inducing the prosecutrix to testify against the defendant, that she might secure a divorce and possession of the two children. The court instructed the jury that this evidence should be considered and given such iveight and credit as to them seemed justified.

In 130 A. L. R. p. 1489 et seq. an annotation is given citing and quoting from the cases involving the question of the duty of the court to give a cautionary instruction in cases of this character. See, also, 60 A. L. R. p. 1134 et seq.

A careful examination of the cases generally reveals that where there is sufficient evidence to corroborate the defendant, even where corroboration is held to be necessary, it is not error to refuse an instruction of this character. It has even been held that the giving or refusal of cautionary instructions lies within the discretion of the trial court, in view of the character of the evidence. State v. Trusty, 122 Iowa, 82, 97 N. W. 989; State v. Brooks, 181 Iowa, 874, 165 N. W. 194; State v. Loomer, 105 Kan. 410, 184 P. 723.

One of the best reasoned cases we have examined is the case of Doyle v. State, from the Supreme Court of Florida. In discussing this case, 130 A. L. R. 1492, it is said:

“Thus, in Doyle v. State (1897), 39 Fla. 155, 22 So. 272, 63 Am. St. Rep. 159, (a jurisdiction permitting conviction of rape upon the uncorroborated testimony of the prosecutrix) it ivas held that the trial court properly refused, in a prosecution for rape in which the only evidence was the uncorroborated testimony of the prosecutrix, an instruction that ‘this is an accusation easy to make, and hard to be defended by the accused, though he be never so innocent, and hence the law is that you should receive with more than ordinary doubt and suspicion the evidence of the prosecutrix,’ upon the ground that it announced matters of argument merely and not principles of law, the court stating that ‘it is not a rule of law . . . that the attention of the jury be specially directed to the difficulty growing out of the usual circumstances of the crime, in defending against rape; nor is it a rule of law that rape is accusation easy to make, and hard to be defended by an accused, though he be never so innocent,’ in accordance with the view that ‘instructions of this nature are merely statements of the conclusions of the judicial mind from experience in the trial of this class of offenses rather than enunciations of principles of law,’ and that ‘the oft repeated observation of Lord Hale, included in the [questioned] instruction was entirely proper by way of argument to the jury, but not as an independent instruction of law from the court.’ And the instruction was held properly refused because, in addition, it in effect told the jury that as a matter of law the defendant could not be convicted upon the uncorroborated testimony of the prosecutrix, the reason assigned being that the applicable rule of law was that there existed in the jurisdiction ‘no law limiting the. powers of thp jury to convict on the uncorroborated testimony of the prosecutrix,’ the court observing: ‘As without the testimony of the prosecutrix no conviction could have been had in this case, and the court charged the jury that they must give defendant the benefit of all reasonable doubts, it is apparent that had the court given this instruction, the whole controversy would have been resolved into this proposition; the defendant is entitled to the benefit of all reasonable doubts; his guilt is proven only by the prosecutrix: her testimony must be received with extraordinary doubt and suspicion, therefore defendant is entitled to a verdict. If in any case it is proper for the court to instruct the jury that they should scrutinize the testimony of the prosecutrix with caution, no authority can be found to sustain the proposition that such testimony must, as a matter of law, be received with more than ordinary doubt and suspicion.’ ”

In the case of People v. Garrett, 27 Cal. App. 2d 249, 81 P. 2d 241, 243, one of the leading cases cited as supporting the rule that it is the duty of the court to give cautionary instructions, it is said:

“A careful reading of the cases which we have just mentioned leads to the conclusion that where there is corroborative evidence, it is not prejudicial error for the court to refuse to give a cautionary instruction.”

Prom our statement of the rules that have been announced by this court in cases of this character, and the facts as they exist here, we are of the opinion that the court did not err in refusing to give the requested instruction as above set forth. People v. Vaughan, 131 Cal. App. 265, 21 P. 2d 438; People v. Harrison, 14 Cal. App. 545, 112 P. 733; State v. Lightheart, 153 Minn. 40, 139 N. W. 408; State v. Patchen, 37 Wash. 24, 79 P. 479; Richardson v. State, 99 Tex. Cr. R. 514, 270 S. W. 854.

Finding no error in the record, we are of the opinion that the judgment of the district court of Harper county should be affirmed. It is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    NETTIE L. SMITH v. STATE.
    No. A-10195.
    April 19, 1944.
    (148 P. 2d 206.)

      Bruce & Rowan, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Nettie L. Smith, was charged in the district court of Oklahoma county Avith the crime of embezzlement; was tried, convicted and sentenced to serve a term of three years in the State Penitentiary, and has appealed.

It is contended by defendant that the judgment and sentence in this case is contrary to law, and that the evidence is insufficient to support the same.

The facts as revealed by the record are that the defendant, Nettie L. Smith, lived in Oklahoma City Avith her husband, Alex Smith. Rhiner Ivey lived about 15 miles northeast of Oklahoma City. Nettie L. Smith and Rhiner Ivey first became acquainted in 1919, when Rhiner Ivey went to the defendant for some treatments for rheumatism. All of the parties are Negroes. Rhiner Ivey had at one time owned SO acres of land in Oklahoma county, and was still the owner of 43 acres in the early part of 1940, when she decided to borrow some money on the land, for the purpose of making improvements thereon. She went to the defendant, tailing the deed she had received to the 80 acres of land, and talked with defendant about a loan. She wanted to borrow $1,500. Defendant agreed to assist her in securing a loan on her property. In order to carry out this agreement, Rhiner Ivey executed a deed, conveying the entire 80 acres to the defendant (copying the description from the original deed to Rhiner Ivey). According to the testimony of Rhiner Ivey, defendant was to secure the loan in 10 or 15 days, and then deed the property back to her, giving her the $1,500. Defendant claimed that the agreement was that she was to have $500 and Rhiner Ivey $1,000. After some negotiations, the defendant was unable to secure a loan of $1,500 on the property, but found a party who agreed to lend her $1,000. Defendant and her husband executed a mortgage on the property to secure the $1,000 note. The party from whom she was borrowing the money ordered an abstract, and when he found that she only had title to 43 acres, refused to let her have $.1,000. He paid out a total of $139.65 for the abstract, taxes due, attorney fees, etc., and gave the defendant two checks, at different dates, aggregating $505.35, and credited the $1,000 note with $355.

The evidence revealed that all of the money received by defendant was appropriated to her own use and private benefit, and none of the proceeds were ever delivered by her to Rhiner Ivey, the owner of the land. It was also revealed that the defendant attempted to secure another loan on the land, with the intention of paying off the first loan, and securing additional funds. This deal was never consummated. Defendant later filed a petition in bankruptcy, and during these proceedings she executed a deed reconveying the land to the prosecuting witness, Rhiner Ivey; but no part of the $505.35 was at any time paid by defendant to the prosecuting witness.

Under these facts, it is the contention of defendant that by reason of a deed having been executed by Rhiner Ivey to defendant, it was necessary to prove that an express trust existed, and that under the law this could not be proven by parol testimony. Authorities are cited to sustain this proposition. A great part of the brief of defendant is devoted to a discussion of the law as it relates to express trusts, and resulting trusts, with reference to the conveyance of real estate. We do not see that any such issue is material to the issues here involved. Under the evidence the defendant was the agent of Rhiner Ivey for the purpose of securing a loan upon her property, and according to her testimony to deliver to her the proceeds of the loan when the deal was consummated. The prosecuting witness, with complete confidence in defendant, deeded her the property for this purpose. Defendant by her own testimony admits that she received the sum of $505.35 and appropriated the same to her own use. Her testimony was that she was to have the privilege of using $500 of the money. The court in a clear-cut instruction submitted this issue to the jury, instructing them that if they found that Rhiner Ivey had agreed with defendant that she could use approximately $500 of the money, or if Rhiner Ivey knew she had received the $505.35 and gave defendant permission to keep the same, or if she agreed that defendant could repay the same when due according to the terms of the note and mortgage, that it would not constitute embezzlement, and that they should return a verdict of not guilty. This instruction clearly presented the defense of the defendant, and the jury in returning a verdict of guilty clearly found against the contention of defendant.

Tit. 21 O. S. A. 1941 § 1451 defines embezzlement:

■ “Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”

The statute under which defendant was charged is Tit. 21, O. S. A. 1941 § 1454, which is as follows:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or .having in his control property for the use of any other person, or for any public or benevolent purpose; fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust,- or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

In construing the above statutes, it is said, in the case of State v. Duerksen, 8 Okla. Cr. 601, 129 P. 881, 882, 52 L. R. A., N. S., 1013:

“When one converts the money of another to his own use, without permission from the lawful owner thereof, the law infers a fraudulent intent, and punishes the act of embezzlement. The fact that a person never concealed the taking or converting of the money received, as the money in this case was, and promises to return it, does not make the act lawful or any the less embezzlement under the statute.”

See, also, Abernathy v. State, 69 Okla. Cr. 142, 101 P. 2d 634.

In Brill’s Cyclopedia Criminal Law, Vol. 1, pg. 876, section 523, it is said:

“If money or property is delivered by a third person to an agent or servant for or on account of his principal or master, the agent or servant has the possession, and is in the position of a mere bailee, until he has delivered the money or property to the principal or master, or put it, intending to do so for the principal or master, where it is his duty to put it, and if he fraudulently converts it before this, his offense is embezzlement.”

And on page 881, section 526:

“An agent is one to whom is delegated authority to act for and in the name of his employer, and who is not under his employer’s immediate direction and control. The relation may exist without any formal appointment. And a person may be an agent, and within the statute, though he may be paid by commissions out of the moneys received by him for his employer; though he may receive no compensation at all; and though he may be employed, not for any particular length of time, but for a particular occasion only.” People v. Pyle, 44 Cal. App. 130, 185 P. 1019; Hall v. State, 21 Ariz. 261, 187 P. 577; State v. Phillips, 105 Minn. 375, 117 N. W. 508; Goldsberry v. State, 92 Neb. 211, 137 N. W. 1116; People v. Treadwell, 69 Cal. 226, 10 P. 502.

The case of State v. McWilliams, 267 Mo. 437, 184 S. W. 96, 99, is one where the facts are very similar to those here presented. One Charles E. Greger owned a farm on which there were two deeds of trust. He negotiated with one McWilliams to secure a loan thereon for the purpose of paying off the two deeds of trust. McWilliams secured a loan for $3,400 and received the proceeds, less certain expenses amounting to $102. He did not pay off the two deeds of trust nor in any way account to Greger for the proceeds. He deposited the check to his own account, and appropriated the proceeds to his own use and benefit. The Supreme Court of Missouri there said:

“Embezzlement is the fraudulent conversion of another’s property by one to whom it has been intrusted or into whose hands it has lawfully come; and when it has been embezzled or converted, within the meaning of the statute, it is not an improper inference, that the act was intended by the perpetrator of the same. While it is true that no one can be convicted of a felony in the absence of a criminal intent, such an intent in a case of embezzlement may be inferred from a felonious or fraudulent conversion, and need not be alleged in the information or indictment. * * *
“The uncontroverted facts show that appellant was the agent of the borrower (Greger) in securing this loan. * * *
“Upon the transmittal, therefore, of the check to appellant by the company it parted with the title to same, and the nominal ownership therein passed to the appellant, who became burdened, upon the receipt of same, with the obligation to either indorse it to Greger, convert it into cash, and pay the proceeds to him, or apply it to the discharge of the prior lien on Greger’s land. He did neither, but indorsed same to a bank, and had the amount called for therein placed to his credit. This created a technical appropriation, as the money realized from the check belonged to Greger, but until appellant indicated a purpose •to do with this money as the thief does with the property of another in a case of larceny such a felonious conversion did not occur as to create the crime of embezzlement. But when it did occur the crime was complete. Nor is it material as to the manner in which the money was drawn out if converted to appellant’s own use. State v. Woodward, 171 Mo. 593, 71 S. W. 1015; State v. Moyer, 58 W. Va. 146, 52 S. E. 30, 6 Ann. Cas. 344.
“Appellant’s felonious intent is to be measured by his act. According to the testimony, to which the jury gave credence, the sufficiency of which is ample to sustain the verdict, it is shown that appellant, when the loan had been secured, evaded Greger. He concealed the fact from Mm that the loan had been consummated and that he had received the check. He placed the same to Ms own credit in a bank, and admits that he drew thé money ont for his own use and has not accounted for same. These facts sufficiently show a felonious intent on the part of the appellant, and, his relation to Greger as an agent having been established, his act is clearly within the purview of that general rule that, if one who has the possession of the property of another, instead of delivering it to the owner as his duty requires, neglects or refuses to account for it or otherwise diverts it so as to exercise dominion over it to the exclusion of the owner and to make it his own, he is guilty of embezzlement. State v. Lentz, 184 Mo. [223] loc. cit. 239, 83 S. W. 970.
“Appellant complains because the trial court permitted the state to show by the witness Peterson that the appellant had neither used the money received from Bartlett Bros, in paying off the prior liens nor had he returned the money to the loan company. The question at issue was whether or not the money so received by him had been applied as directed by Greger, and it ivas therefore pertinent for the state to show that the appellant had violated his directions as to the manner in which the loan should be applied.
“Further objection is made that the court erred in permitting the state to show that the check received by appellant from the loan company had been indorsed and deposited to his credit in a bank, and had later been checked out by him. The check was made payable to appellant, and necessarily under the authority given him by Greger he could not commit the crime of embezzlement until after it had been indorsed and converted into money. If in the latter form he used it a's directed, he was guiltless; on the other hand, if he used the money for purposes other than to pay it to Greger or to discharge the prior liens, he was gui]ty as charged. It is manifest, therefore, that the court’s ruling in this respect was not erroneous. Moreover, appellant admitted on the witness stand that the check had been received and deposited and the money drawn out of the bank by himself or others authorized to do so, and that he had used the same for personal purposes. Therefore, whether the action of the trial court in permitting a witness to state the condition of the bank was erroneous is immaterial, as the evidence given by such witness was in accord with that given by the appellant himself. Harmless error will not work a reversal. * * *
“The instructions given by the court advised the jury as to the elements constituting the offense charged and the punishment prescribed therefor; that the charge is sustained if it was shown that the money was embezzled in one sum or in less amounts at different times; that want of assent to the appropriation of the money by the appellant may be shown either by direct and positive evidence or from all the facts and circumstances in the case; what facts must appear from the evidence to constitute the appellant the agent of the prosecuting witness; that the crime may be established either by direct or circumstantial evidence; that the criminal intent to deprive the owner of his property may be inferred when conversion is established. Other formal instructions were given as follows : As to the presumption of innocence and reasonable doubt; the weight to be attached to appellant’s testimony; that the jury is the judge of the credibility of witnesses; that, if the prosecuting witness gave his consent for appellant to make personal use of the money in question, a verdict of acquittal must be returned; that, if it appears from the evidence that the appellant ivas the agent of the loan company and received the money conditionally, he must be acquitted; and that the mere failure to pay over the money to his principal does not constitute the crime charged. These instructions fully advised the jury as to all the principles of laAV arising under the evidence in this case, and are in substantial compliance with similar ones which haVe heretofore met with the approval of this court.”

See Hanna v. Minnesota Mut. Life Ins. Co., 241 Mo. 383, 145 S. W. 412.

The motion for new trial in the case at bar was overruled on June 16, 1941, and judgment and sentence was entered on the same date . On August 22, 1941, a motion for. new trial upon the grounds of newly discovered evidence was filed. Attached to this motion was an affidavit of the defendant as to what her husband, Alex Smith, would testify. A hearing was had on this motion on September 26, 1941, and Alex Smith, the husband of defendant, testified to a conversation had with the prosecuting witness, Rhiner Ivey, prior to the securing of the loan, and also after the trial of this case.

Rhiner Ivey was also placed upon the stand at this hearing, and she testified that someone had attempted to get her to change her testimony after the trial. She had made some written statement to someone who went to her home to see her, and she had consulted with the trial court with reference to the statement, telling him to pay no attention to the written statement.

The court heard this evidence, and in his discretion overruled the motion. 'We do not think there was any error therein. There is nothing to show that the defendant used any diligence to secure this evidence. It was with reference to the main issue involved in this case, and if her husband knew anything to the contrary, she should certainly have known it prior to the time of the trial of the case. There is nothing in this evidence which would have likely changed the verdict of the jury theretofore rendered.

Finding no error in this record, we are of the opinion that the judgment and sentence of the district court of Oklahoma county should be affirmed. It is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.