author: HORTON, Special J.

text:
    ROBERT R. FITZGERALD v. STATE.
    No. A-10561.
    Dec. 22, 1947.
    (188 P. 2d 396.)

      Clayton Carder, of Hobart, and J. B. Dudley, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   HORTON, Special J.

The defendant Robert R. Fitzgerald, together with Leon C. Phillips, was charged in the district court of Oklahoma county, Okla., August 10, 1943, by information filed on said date charging them in the first count thereof with the crime of conspiracy to receive bribes in connection with the issuance of executive clemency to one J. W. Eisiminger, a prisoner serving a life sentence upon the charge of murder in the Oklahoma State Penitentiary at McAlester, Okla., and the second count charging them with the crime of bribery in connection with the same transaction. Both the defendant Robert R. Fitzgerald and the said Leon C. Phillips entered pleas of not guilty. A severance was granted, following which the state elected to proceed to trial, first against the defendant Robert R. Fitzgerald; thereafter the state dismissed the second count of the information without prejudice to further prosecution and proceeded to trial against the defendant Robert R. Fitzgerald upon the first count of the information charging the crime of conspiracy. Thereafter the defendant was tried, convicted and sentenced to pay a fine of $500 and costs. He has perfected an appeal to this court.

In substance the first count in said information charges that on February 9, 1942, and for a long time prior thereto, Leon C. Phillips and defendant conspired and agreed with each other and with one Fred D. Lowe and one William H. Strong, and with divers other persons to the informant unknown, to procure a bribe for the issuance of clemency to J. W. Eisiminger, detailing that on February 1, 1941, defendant Phillips did cause Lowe, theretofore his personal investigator, to be appointed tag agent for Oklahoma county, Okla., and on or about August 1, 1941, cause defendant Fitzgerald, theretofore his personal investigator, to be appointed to the office of Pardon and Parole officer in the office of the Chief Executive of the State of Oklahoma. Continuing it charges seven separate overt acts in connection with the issuance of two paroles to Eisiminger.

It appears from the recoi’d that in June, 1941, Dr. J. W. Eisiminger, an osteopath, was serving a life sentence in the State Penitentiary at McAlester, Okla., for a conviction entered in the distinct court of Oklahoma county on a plea of guilty to the crime of murder, the charge being based upon the death of a young woman who died as the result of an illegal abortion charged as performed by Eisiminger. At such time Eisiminger was also under a sentence of 15 years as the result of a conviction on a plea of guilty entered to a charge of perjury and conspiracy in the United States District Court at Houston, Texas, the conviction providing the sentence should run concurrently with the life sentence for murder assessed in the Oklahoma case and further providing that should Eisiminger be released from • the Oklahoma State Penitentiary prior to the expiration of 15 years, he was to be delivered to the United States Penitentiary at Leavenworth, Nans., to complete the 15 year sentence imposed by the Federal Court.

In June, 1941, Marie Eisiminger, Ms wife, met 0. D. McNally, and discussed with Mm the matter of obtaining clemency in regard to tbe federal conviction. Shortly thereafter the two interviewed Eisiminger at the State Penitentiary, following which McNally made a trip to Washington, D. C., taMng .an application for federal clemency for Eisiminger. While there he was advised the application was premature until such time as Eisiminger was pardoned in connection with the Oklahoma offense and released from the State Penitentiary.

About three months following McNally’s return to Oklahoma and in November of 1941, he suggested to Mrs. Eisiminger that they appeal to William A. Strong for assistance, stating that Strong had a friend, Fred D. Lowe, who could be of assistance in procuring executive clemency. Mrs. Eisiminger interviewed Strong in December of 1941 and was advised by him it would take $10,000 to procure the pardon — $5,000 for the Governor, the balance to be divided between Strong and LoAve. Mrs. Eisiminger offered to pay $1,000 for a pardon and after negotiation the amount to be paid was by agreement fixed at $8,-000 and on January 9, 1942, Strong and Mrs. Eisiminger entered into a written escrow agreement conditioned that if Strong procured the pardon he was to be paid that amount, the money and contract being placed with an Oklahoma City bank as escrow agent. During the times mentioned defendant was serving as chief investigator out of the office of the Governor but his principal duties appeared to be in connection with the administration of the Pardon and Parole Office, there being no Pardon and Parole Attorney at such time. In January 9, 1942, the date of the escrow agreement, the defendant gave the petition for federal clemency to Mrs. Ruth Page, clerk of the Pardon and Parole Office, asked her opinion of its contents, and then suggested sbe write Mr. Lewis Morris, the county attorney who handled the state prosecution of Eisiminger, for an opinion in the matter which was done. Later defendant and Lowe inquired of Mrs. Page whether an answer had been received in response to this letter, and on January 15, 1942, jointly suggested to her that she write a second letter. Pursuant to this letter, a reply was received from Mr. Morris in which he reviewed the history of the case but made no recommendation with reference to clemency, stating that as far as his office was concerned it was a closed matter. Defendant then directed Mrs. Page to prepare a file of the case for the Governor. She thereupon prepared a digest of the Eisiminger file and delivered it to defendant.

Later the Governor called her and stated the file wasn’t complete, suggesting its completion with recommendation by defendant and herself, Avhich was done, and thereafter, and on February 5, 1942, a parole for Eisiminger was issued and delivered to the Pardon and Parole Office, Mrs. Page delivering it to defendant who in turn delivered it to Lowe, who was in his office at the time. Lowe delivered' the parole to Strong the same day, who then met with Mrs. Eisiminger, who strongly objected to the fact that a pardon had not been issued, and refused to accept the parole. .Two days later Lowe and Strong persuaded Mrs. Eisiminger to accept the parole, the parties then going to the bank where the $8,000 was paid to Strong who then paid McNally $1,250, Lowe $1,500 and kept the balance. The next morning Mrs. Eisiminger visited her husband in the penitentiary and showed him the parole, which he refused to accept. She returned to Oklahoma City with the parole and employed an attorney, Jean P. Day, to sue Lowe and Strong for the return of the money. On February 27, 1942, a second parole was issued, the defendant and Mrs. Eisiminger’s attorney taking the parole to McAlester where, after some hesitation, it was accepted by Eisiminger. There was no material dispute as to any of the aboye facts.

In addition, Fred Lowe testified that when Strong solicited his assistance the latter stated he would give $1,000 if he could obtain a pardon for Eisiminger; Strong gave him the petition for federal clemency, which he took to the Governor, discussed the case with him and stated $1,000 had been offered for clemency. He testified it was decided the money should be used to employ Senator Robert Burns to present the case to the Governor. Upon Burns’ refusal to present the case, he saw the Governor again and asked what could be done and was ádvised to see the defendant Fitzgerald, the Governor stating that “he was giving him some loose rope.” He then saw defendant, told him $1,000 had been offered and defendant stated he had talked to Eisiminger and would do whatever he could and later suggested he obtain a letter of recommendation from Mr. Morris. Lowe testified that no actual agreement was reached with the Governor that he would accept any part of the money, and that only a “tacit” understanding existed between defendant and him. On February 27, 1942, Strong delivered $1,500 to him and the following week he delivered $500 of the money to the Governor and $500 to the defendant. After the first parole had been issued, but before the second, and in response to a ’phone call from the Governor, he went to the mansion early one morning where the Governor advised him the case was getting hot and if something couldn’t be done he would have to revoke the parole. The witness then advised the Governor he didn’t know what he conld do, but would see, and further stated that if the Governor revoked the parole without giving Eisiminger a chance to accept or reject it, the situation created would embarass the Governor. He inquired of the Governor if he could issue a second parole and send it down to Eisiminger for acceptance or rejection,.to which the Governor replied in the affirmative.

Jean P. Day testified that when he was employed by Mrs. Eisiminger she stated she was primarily interested in procuring a pardon for her husband but if one could not be obtained, she wanted to recover her money. He subsequently talked to Lowe ivho later phoned him and advised him the Governor had issued a second parole which was to be taken to Eisiminger for acceptance or rejection and that if he desired, he could go down to the penitentiary with the person who was to deliver the parole. Desiring to ascertain the wishes of Eisiminger in the matter, he, as directed by Lowe, appeared the nest morning at the office of the Pardon and Parole Attorney where defendant advised him, “I believe you are going to McAlester with me.” En route to McAlester defendant stated the thing for Eisiminger to do was to accept the parole and if it proved necessary, a pardon be issued as a condition for federal clemency, he felt sure one would be granted prior to the expiration of the Governor’s term. During the interview with Eisiminger the latter expressed doubt he could obtain federal clemency while under parole and defendant stated to Eisiminger he felt it would make no difference but if it did, he was certain the Governor would grant a pardon prior to the expiration of the Governor’s term.

J. W. Eisiminger testified be was a federal prisoner at Leavenworth, Kan. That be first talked to McNally about clemency and later talked to defendant on an occasion when defendant was at McAlester and requested professional treatment from him. He refused the first parole because bis wife advised him she bad been promised a pardon and was going back and make the parties make good on their promise. Defendant and Mr. Day brought the second parole down and Avhen he questioned the advantage of having a parole in connection with federal clemency, defendant advised him that if the parole interfered with federal clemency, he would see that the Governor issued a pardon and was advised that if he would help them, they would help him. He then inquired, “Mr. Fitzgerald, will it help you if I accept this parole?” and defendant answered “Yes, we could get things straightened out.” He then further inquired what assurance he had that he would receive a pardon and defendant stated, “Noav I’m the Governor’s agent. Any agreement I make with you the Governor is duty-bound to carry out.” That he signed and accepted the parole and was subsequently delivered to the federal penitentiary at Leavenworth.

S. H. Singleton testified he was chairman of the Highway Commission during the Phillips administration. Some time betAveen February 5, and February 27, 1942, Bill Sigley and some other men brought a photostat copy of the |8,000 check and the escroAV agreement to his office. He took them to the Governor who phoned Mrs. Eisiminger, advising her he understood some crooks had obtained some money from her on the parole he issued her husband and Avas Avilling to assist her in any way he could to recover the money. The Governor made an appointment with her for 10 the next morning. He asked him for his opinion as to whether he should revoke the first parole or issue a new one and he advised the Governor, “If it were me and having acted in good faith the first time on the record, I wouldn’t deprive the prisoner of the parole because somebody had got to his wife for some money.” The Governor requested him to return the next morning for the conference with Mrs. Eisiminger, which he did, but Mrs. Eisiminger didn’t come.

Leon C. Phillips testified in substance that during the period involving the Eisiminger transaction defendant held the position of chief investigator out of the office of Governor, to which he as Governor had appointed him. After Judge Minton resigned as Pardon and Parole Attorney, the defendant, as a part of his duties, worked out of the office of the Pardon and Parole Attorney, using both an office adjacent to the Governor’s and the office of the Pardon and Parole Attorney. The first he knew of any pay-off in connection with the Eisiminger parole was subsequent to the issuance of the first parole when Mc-Nally came to his office and accused him of getting $5,000 of the money. Later in the day Sandy Singleton showed him a carbon copy of the escrow agreement, after which he called Mrs. Eisiminger, requesting her to come to his office, and the parties made an appointment for 10 the next day, but that Mrs. Eisiminger didn’t ever come to his office. The witness denied he had any conversations with Fred Lowe concerning the Eisiminger matter in any of its stages, stated he received no money for issuing the paroles and knew nothing of any agreement concerning the pay-off until after the issuance of the first parole. 1-Iis reason for issuing the second parole was because he felt Eisiminger was entitled to it; also that he would be transferred to the federal penitentiary and should be given an opportunity to accept the parole if he were not involved in the deal. His information was that Eisiminger had not been given an opportunity to accept the first parole. That he gave instructions that defendant and Mrs. Eisiminger’s attorney should take the second parole to Eisiminger and give him the opportunity of accepting or rejecting it.

Robert R. Fitzgerald, the defendant, testified that about three months before the first parole was issued, he had occasion to be at the State, Penitentiary and, suffering pain in his back and shoulders, at some one’s suggestion had Eisiminger give him a treatment. Two days later he had a second treatment and during this Eisiminger told him he Avas innocent of the crime of murder and had an affidavit from the girl’s mother to that effect. He advised Eisiminger to send it to him and he Avould take the matter up with the Governor. Later he found the petition for federal clemency, with the affidavits attached, in his receiving basket in the office of the Pardon and Parole Attorney. Pie gave it to Mrs. Page to read, asked her opinion and was advised by her that there Avas some merit in the case. He had no knowledge that Lowe was interested in the case until he inquired whether Mr. Morris had Avritten a letter in regard to it. He delivered the first parole to Lowe because Mrs. Eisiminger had called him, requesting that he do so. His recommendation that the parole be issued Avas on the basis of the affidavit of the girl’s mother. Defendant denied any conversation with Mr. Day to the effect that the Governor would grant a pardon prior to the expiration of his term, or that he so adAdsed Eisiminger. Defendant further denied having accepted any money in connection Avith the Eisiminger transaction or in connection with any other clemency matter.

Lewis Morris testified that while county attorney he liad a conversation with the Governor concerning the Eisiminger transaction. The Governor advised him a bunch of crooks had taken some money off of Mrs. Eisiminger and asked him to investigate it.

During the course of the trial the court admitted testimony and evidence relating to other acts of bribery and solicitations of bribes on the part of defendant not included in the information, a great part of the record of approximately two thousand pages being devoted to the testimony of state witnesses offered to establish such other offenses and the testimony of witnesses for defendant denying the same.

These may be summarized as follows:

Carl Pruitt, serving a sentence for larceny of livestock, testified to a series of payments he made to defendant to procure executive clemency. This witness testified that in the spring of 1939, while at the Granite Penitentiary, he paid defendant $75. In September, 1939, he paid the defendant $150 at Woodward, Oklahoma, but Governor Phillips snatched it from defendant’s hand. In July, 1940, he paid $550 to defendant at a farmhouse near the Granite Penitentiary and in the fall of 1941 he paid Fitzgerald $140 at Ardmore, Oklahoma.

Bess P. Vernon testified that on September 12, 1942, she gave the defendant a check for $250, redeemed by cash September 26, 1942, for procuring a leave of absence and a subsequent parole for Archie Horn, under sentence in the State Penitentiary for robbery with firearms.

Phil Kennamer testified that in the early spring of 1942, while he was serving a term of 25 years for murder in the State Penitentiary at McAlester, defendant suggested that he raise five or ten thousand to secure his release.

Jim Wilkerson testified that in 1942, in a phone conversation with defendant, he inquired what it would take in order to procure clemency for his brother, then serving' a life sentence for murder in the State Penitentiary at McAlester, and was advised by him it would take six or eight thousand dollars. The defendant advised him there would be some one out to see him and a day or two later an individual, whose identity he did not know, called at his home to discuss the matter.

The defendant objected to the admission of the above-mentioned transactions, with the exception of the one at Woodward, Okla., involving the witness Pruitt, which was elicited from Pruitt by defendant on cross-examination, and urges that the admission of such other offenses in evidence constitutes reversible error.

(1) The general rule as to admissibility of other offenses against one charged with crime is stated in the case of State v. Rule, 11 Okla. Cr. 237, 144 P. 807, as follows:

“As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented on the record in this case are as follows:
“(a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
“(b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.
“(c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestae.
“(d) Evidence of other offenses is competent to prove the specific offense charged when it-tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.”

The difficulty concerning this type of evidence does not lie in the understanding of the rule, but in the application thereof. Concerning the rule it has been said “* * * the courts are not divided on the abstract rules, but are in hopeless confusion in their application to particular facts.” 22 C. J. S., Criminal Law, § 682. It further appears that in the application of the exceptions to the rule greater latitude is allowed in the admissibility of this class' of evidence in some types of crimes which by their x>eculiar nature involve the question of intent, guilty knowledge and scheme and plan such as embezzlement, Sawyer v. State, 73 Okla. Cr. 186, 195, 119 P. 2d 256; false pretenses, State v. Rule, supra; abortion, Thacker v. State, 55 Okla. Cr. 161, 26 P. 2d 770; and bribery, Bond v. State, 9 Okla. Cr. 696, 129 P. 666; Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289, and more restricted in such crimes as murder, Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591; robbery, Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; arson, Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; however, as to all classes of crimes, the relevancy of the other offense to the one charged and the nearness or remoteness in time, are matters for consideration.

While there is authority to the effect that in a charge of bribery or conspiracy to bribe, evidence of other acts of bribery other than the one charged is inadmissible, People v. Glass, 158 Cal. 650, 112 P. 281; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; People v. Harvey, 235 N. Y. 282, 139 N. E. 268, 269; People v. Washburn, 104 Cal. App. 662, 286 P. 711, the greater weight of authority is to the effect that such evidence is admissible, Bond v. State, supra; Spivey v. State, supra; Taylor v. State, 174 Ga. 52, 162 S. E. 504; State v. Emory, 55 Idaho, 649, 46 P. 2d 67; State v. Schnettler, 181 Mo. 173, 79 S. W. 1123; Scott v. State, 107 Ohio St. 475, 141 N. E. 19; State v. Sweeney, 180 Minn. 450, 231 N. W. 225, 73 A. L. R. 380; Curtis v. State, 113 Ohio St. 187, 148 N. E. 834; Koenigstein v. State, 101 Neb. 229, 162 N. W. 879.

In the case of Bond v. State, supra, which involved a bribery charge, in the opinion it is said by this court [9 Okla. Cr. 696, 129 P. 667] :

* * Upon the trial of this cause the court admitted a great deal of testimony with reference to a number of different transactions upon the ground that they tended to show a conspiracy or general plan, of which the offense charged constituted a part and with which the defendant was connected, the purpose of which conspiracy being to corrupt officers, and secure immunity from prosecution for violations of the prohibitory and gambling laws of the state.
-í:- * Tpe g^g ig necessarily confronted with great difficulty in establishing prosecutions of this kind, because conspiracies are always secret and are discovered with great difficulty. Therefore any evidence which tends to establish a conspiracy should be submitted to the jury. Conspiracies of this kind are necessarily proven largely by circumstantial evidence, and any circumstance should be admitted in evidence which in the slightest degree tends to prove such conspiracy. In State v. Dulaney, 87 Ark. 17, 112 S. W. 158, 15 Ann. Case 192, the defendant was indicted for bribery. The state offered evidence of other similar offenses, but the court refused to admit the testimony, and the defendant was acquitted. The state appealed. In discussing this question the Supreme Court of Arkansas said : ‘The principle of evidence that offenses or acts similar to the one charged may be competent for the purpose of showing knowledge, intent, or design is, as thoroughly established as the general proposition that other crimes or offenses cannot be shown in evidence against a defendant charged with a particular crime. While the principle is usually spoken of as being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent, or design, although they may be crimes, which is admitted.
“ ‘® * Mr. Wigmore, in speaking of the admissibility of such evidence in charges of bribery, says: “On a charge of bribery, any of the three general principles — knowledge, intent, and design — may come into play. To show knowledge of the nature of the transaction, a former transaction of the court may serve, as indicating an understanding of the particular transaction. To show intent, another transaction of the sort may serve to negative good faith. To show a general design a former attempt towards the same general end may be significant.” 1 Wigmore on Evidence, § 343. In the notes to this section may be found a review of the authorities; and it is found that they are not uniform in sustaining the principles announced by Mr. Wigmore, and he indulges in some caustic criticism of the courts that take views opposite to his statement of the correct principle. The best thought on the subject seems to be with Mr. Wigmore, and is found applied in the following bribery cases: Guthrie v. State, 16 Neb. 667, 21 N. W. 455; Higgins v. State, 157 Ind. 57, 60 N. E. 685; State v. Schnettler, 181 Mo. 173, 79 S. W. 1123.

In the case of State v. Emory, supra, the defendant, a police officer, was indicted for receiving a bribe from one Rose Sage for protecting her in the illegal operation of her hotel. At his trial evidence of other acts of accepting bribes from other persons was received and in affirming the case the Supreme Court of the State of Idaho said [55 Idaho, 649, 46 P. 2d 69] :

“* * * Evidence of other offenses is admissible when such evidence tends directly to establish the particular crime; likewise, evidence of other like crimes is usually competent to prove the specific crime when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan of embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others. * * * Any pertinent fact which throws light upon the subject under judicial consideration, the accused’s guilt or innocence of the crime for which he is charged and on trial, is admissible; nor is such probative fact to be excluded merely because it may also prove or tend to prove that the accused has committed another crime. State v. Montgomery, supra [48 Idaho 760, 285 P. 467]. It was clearly established that appellant had asked for and received other bribes at times and from persons other than those charged in the indictment, under the same and like circumstances, and upon the same understanding or agreement as that had with Eose Sage.

The evidence of other offenses in this case was admitted by the trial court upon the theory the same tended to prove intent on the part of the defendant and to establish a common scheme or plan and by instructions to the jury limited the evidence to that purpose. Evidence of other offenses offered under this theory are inadmissible if distinct and unrelated or remote as to time. Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A. L. R. 1149; Iierren v. State, 75 Okla. Cr. 251, 130 P. 2d 325; Byer v. State, 78 Okla. Cr. 267, 147 P. 2d 185. Defendant, in Ms brief, strenuously urge that tlie other offenses admitted in evidence in this case are too remote as to time specifically that involving the Carl Pruitt transactions. We are convinced that as a general matter of law evidence of bribes other than that with which a defendant is charged is admissible; however, the degree of remoteness of the other offenses involved in this case poses a more serious question. The evidence of the state indicates that defendant’s participation in the conspiracy alleged started in December, 1941, and terminated on February 27, 1942, with the issuance of the last parole. The Vernon transaction was approximately seven months, and the Wilkerson transaction ten months, subsequent to the termination of the conspiracy. The Kennamer transaction, occurring in the spring of 1942, was close to the existence of the conspiracy. The Pruitt transaction, involving a series of payments, the first in the spring of 1939, almost three years prior, and the last in the fall of 1941, a few months prior, to the inception of the conspiracy.

In most of the cases involving bribery cited above, the time element does not appear; however, in the case of State v. Sweeney, supra, defendant, a Minneapolis aider-man, was charged with having accepted a bribe in March of 1927. Evidence was admitted showing that on seven different occasions, ranging from December, 1925, to August, 1928, defendant accepted bribes from that many different sources. The Supreme Court of Minnesota affirmed the case, holding the evidence admissible as showing a common scheme or plan and stating [180 Minn. 450, 231 N. W. 228] :

“* * * All these transactions were corrupt and were for the purpose of corruptly obtaining money through the abuse of a public trust. This was the common aim. Evidence of such other crimes is admissible, not to establish the other crimes, but as confirmation of the evidence tending to convict defendant of the crime for which he is on trial. * * *”

In the case of Taylor v. State, supra, the defendant, a clerk of council of the city of Atlanta, was charged with having accepted a bribe on October 13, 1925, to influence him in his official behavior. The trial court admitted evidence of other bribes accepted from other parties in the years 1923, 1924 and 1929. The Supreme Court of Georgia in affirming the conviction states [174 Ga. 52, 162 S. E. 511]:

“* * * Besides the objection above stated, this testimony was objected to upon the ground that it related to ■ other transactions of which the defendant had been acquitted; that the same showed distinct and different alleged offenses; that the law, on the trial of one charged with a crime, did not allow evidence of alleged distinct and independent crimes to be admitted against him; and that there was such a difference between the transactions testified to by the witnesses and the case on trial, both as to time and nature, that there could be no connection between them. The court did not err in admitting this evidence. While it related to other offenses than that for which the defendant was on trial, it was relevant as tending to show intent, and system and to illustrate the methods and conduct of the defendant in reference to the particular acts of bribery for which he was on trial.
“* * * In State v. Davis, 90 Ohio St. 100 (2), 106 N. E. 770, cited by Corpus Juris in a note to the foregoing, it is said: ‘in proving such corrupt intent, other similar offenses, tending to show the corrupt course of dealing of a public official may be shown as tending to prove the specific corrupt intent charged in the indictment.’ * * *”

In the case of Spivey v. State, supra, defendant, a member of the Board of Education' of Oklahoma City, was charged with having accepted a bribe September 17, 1936, for voting to accept a certain bid for oil and gas royalty owned by the school district. The trial court admitted in evidence two agreements to accept bribes in April, 1937, which were not consummated, and the acceptance of a bribe November 15, 1937, from other parties for his influence in the purchase by the school district of certain land. This court, in an opinion by Judge Doyle, affirmed the conviction, the twelfth syllabus of the court reading as follows [69 Okla. Cr. 397, 104 P. 2d 264]:

“In prosecution of a public officer for receiving a bribe, evidence of receipt of bribes on occasions, other than that charged, is admissible as a part of a general scheme to obtain money corruptly through the abuse of a public trust.”

Underhill states the rule as follows:

“To this general rule there are several distinct exceptions which have been permitted from absolute necessity to aid in the detection and punishment of crime. These exceptions ought to be carefully limited and guarded by the courts and their number should not be increased, but it must be admitted that the modern tendency on the part of the courts is to be liberal in the admission of evidence of collateral crimes.” Uriderhill’s Criminal Evidence, 4th Ed. Sec. 181, p. 318.
“Another exception to the general rule is that evidence of other crimes of the same general character when it tends to prove plan, system, habit or scheme of related offenses, or a design to commit a series of like crimes. This exception has been applied to many and varied cases of offenses such as * * * embezzlement, bribery and conspiracy. Unrelated crimes which were barred by the Statute of Limitations may be introduced to show general plan, and prior crimes committed three years before are not too remote. (Citing Lemday v. State, 50 Okla. Cr. 431, 298 P. 1054, an embezzlement case) Similar offenses subsequent to the crime charged are admissible to show system, as well as prior dimes.” Underhill’s Criminal Evidence, 4th Ed., Sec., 187, p. 344.

The charge upon which defendant was convicted was conspiracy, rather than that of bribery. It appears that the charge of conspiracy is singular in the latitude allowed in the admission in evidence of offenses other than the one charged. Corpus Juris Secundum states the rule as follows:

“In prosecutions for conspiracy, while the general rule excluding evidence of other offenses is applied, wide latitude is allowed, provided the other offenses are logically connected with that charged; and evidence of like acts or collateral facts which are otherwise admissible in evidence as tending to prove the conspiracy charged, or an element thereof, is not to be excluded because it tends to show another offense.” 22 C. J. S., Criminal Law, § 691.

Under the above section the following is cited from the case of Nelson v. State, 51 Ga. App. 207, 180 S. E. 16:

“Conspiracy * * affords a signal illustration of the exception to the fundamental rule as to evidence of collateral offenses.”

While this court has many times considered the question of other offenses in connection with various types of crimes where the evidence tended to establish a conspiracy, we have not found, nor have we been cited in the briefs, a case from this court wherein the question of admissibility of other offenses than that charged has been considered in connection with the charge of conspiracy; however, cases from other jurisdictions are Webster v. State, 206 Ind. 431, 190 N. E. 52; State v. Horton, 47 R. I. 341, 133 A. 236; People v. Shearer, 83 Cal. App. 321, 256 P. 611, which sustain the general rule as set forth in Corpus Juris Secundum, supra.

From the above authorities, and particularly the case of Spivey v. State, supra, we are of the opinion that the evidence of other offenses under consideration was admissible. The only one which could be questioned is that involving the witness Carl Pruitt. Had his testimony been confined to the two transactions occurring in 1939, there would be serious doubt as to the admissibility of his testimony; however, according to the testimony of this witness he made a series of payments, those being, in addition to the one in the spring of 1939, one in September, 1939, another in July, 1940, and a fourth in the fall of 1941, which was a short time before the inception of the present alleged conspiracy. Each of these purportedly were for a single purpose— to obtain clemency for a particular crime, were therefore related, continuous in nature and while originating in the spring of 1939, extended to a short time prior to the inception of the conspiracy.

(2) Defendant argues, as proposition two, that Mc-Nally, Strong, Lowe and Marie Eisiminger were accomplices and defendant cannot be convicted upon their uncorroborated testimony. This assignment presents a question of mixed fact and law. Title 22 O. S. A. § 742 provides as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This law has been applied by this court in countless decisions. It has also held that corroboration testimony may be circumstantial, rather than direct, Robinson v. State, 67 Okla. Cr. 8, 92 P. 2d 1082.

The only direct evidence in the record that defendant actually received a part of the money paid by Mrs. Eisiminger is the testimony of Lowe, an admitted accomplice, but there are circumstances which the state contends are corroborative of Lowe’s testimony. These are as follows: On the same date the escrow agreement was entered into, defendant suggested to Mrs. Page that she write Lewis Morris, the county attorney who handled the state prosecution against Eisiminger, for his opinion in the matter. That Lowe was at the office of the Pardon and Parole Attorney several times in connection with the question of clemency for Eisiminger. The second letter to Morris was at the joint request of Lowe and defendant. Defendant recommended the parole. A parole was actually issued to Eisiminger. The first parole was delivered to Lowe, rather than being sent to the warden of the penitentiary. The second parole was taken directly to Eisiminger.

Circumstances sufficient to furnish corroboration for the testimony of an accomplice must be inconsistent with defendant’s innocence, Jolliffee v. State, 21 Okla. Cr. 278, 298, 207 P. 454. The evidence indicated that it was customary when an application for clemency was made for the office of the Pardon and Parole Attorney to write the county attorney who prosecuted the applicant for his opinion in the case. It also appeared from the evidence that while it was the custom upon the issuance of a parole for it to be sent to the warden of the penitentiary, in a number of other instances the parole had been delivered to other parties for transmittal to the applicant. According to defendant the reason a second parole was taken to Eisiminger for acceptance was due to the Governor’s request and their understanding that Eisiminger had not been given an opportunity to accept the first parole. The most significant of these circumstances is that the first letter was not written to Morris until the day the escrow agreement was executed, although it appears that several days before that time defendant had given Mrs. Page the application for federal clemency, requesting she examine it and advise defendant of her opinion. Mrs. Page also joined in the recommendation, according to her testimony, at the suggestion of the Governor when he found the application incomplete and no witness in the case sought to impugn the integrity of Mrs. Page. Most of the circumstances above detailed are consistent with the defendant's innocence, and others, standing alone, may be sufficient to arouse a suspicion, but suspicion alone is insufficient, Jolliffee v. State, supra. They must be sufficient to tend to connect the defendant with the commission of the offense, McKinney v. State, 20 Okla. Cr. 134, 201 P. 673.

In our opinion the record discloses corroborative evidence other than the circumstances above mentioned. Dr. J. W. Eisiminger testified the defendant, when he brought the second parole to him, insisted that he accept the parole, promising him if he would that if it interfered with federal clemency, he would see that the Governor issued a pardon, defendant stating, “Now I am the Governor’s agent. Any agreement I make with you the Governor is duty bound to carry out,” and that the attorney who accompanied defendant stated: “Doc, you help us and we will help you. We have friends in Washington.” Eisiminger then inquired: “Mr. Fitzgerald, will it help you if I accept this parole?” and defendant replied, “Yes, we could get things straightened out.” Eisiminger then stated: “It is understood that if I accept this parole and it interferes with me getting a parole in Leavenworth, I am to have a pardon before the Governor leaves office?” to which defendant replied, “That is right. You ought to be home in about four months.”

The question of the truth or falsity of this testimony was for the jury, rather than for this court. If true, no other reasonable inference can be drawn but that the defendant was culpably implicated in the transaction. In the case of Edson v. State, 77 Okla. Cr. 100, 139 P. 2d 198, 201, this court said:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

Considering the circumstances above related in connection with the testimony of Eisiminger, and in view of the rule stated in Edson v. State, supra, this court is of the opinion that the testimony of the admitted accomplices in the case was sufficiently corroborated to tend to connect the defendant with the commission of the offense charged.

(3) The defendant next urges the trial court committed fundamental and prejudicial error in refusing to give defendant’s requested instruction No. 3 defining the term “accomplice” to the jury, contending that while the court advised the jury that Mrs. Eisiminger, Lowe, Mc-Nally and Strong were accomplices as a matter of law, the evidence concerning other state’s witnesses, including Dr. J. W. Eisiminger, was such that the jury could have likewise found them to be accomplices whose testimony would have to be corroborated. Defendant further insists that the failure of the court to define the term, so that the jury could have considered the definition in connection with these other witnesses, left the jury without any standard whereby it might properly evaluate the testimony of these witnesses.

The record discloses that by instruction No. 27 the trial court properly instructed the jury that the witnesses Marie Eisiminger, Strong, Lowe and McNally were accomplices as a matter of law whose testimony required corroboration. In instruction No. 29 the court advised the jury in connection with other offenses that the witnesses Carl Pruitt and Bess Vernon were accomplices as a matter of law in regard to the alleged other offenses in which they participated, and submitted to the jury the question of whether or not Leonard Woodruff and Archie Horn a?ere accomplices in connection with those offenses in which they were alleged to have participated, and defined the term “accomplice” in connection with those Avitnesses. This instruction reads as folloAVS:

“In regard to the testimony concerning other offenses, which according to other instructions given you herein, have been admitted only for the limited purposes set forth in the said other instructions, you are instructed that before the said evidence of other offenses can be given any credence, for the limited purposes as otherwise mentioned in these instructions, you must find that as to the accomplices in the said other offenses that their testimony has been corroborated as required in the instruction just given you, and in this connection you are instructed that the witnesses Carl Pruitt, and Mrs. Bess Vernon, are what is termed in law accomplices to the said other offenses as to which said Avitnesses testified. The witnesses, Leonard Woodruff and Archie Horn, may or may not have been accomplices to such other offenses, and whether or not they are accomplices is a matter for you to determine. In making such determination you may consider that an accomplice is one who with criminal intent is concerned with others in the commission of a crime, either by being present and participating in it, or not being present by aiding and abetting it or by having advised and encouraged its commission, though not present when it is committed.”

It should be observed that by instructions 27 and 29 the court in effect informed the jury that only the witnesses named therein could have been accomplices whose testimony was required to be corroborated. In no other instruction was the jury authorized to consider the accomplicity of any other of the state’s witnesses. The Attorney General, in his brief, argues that the last paragraph of instruction 29, set out above, correctly defines an accomplice witness, and it was therefore not error for the trial court to refuse to give defendant’s requested instruction re-stating the same rule. This argument is untenable because, while the court did make a correct statement of law defining an accomplice, the investigation of the jury on this question was expressly limited to a consideration of the possible accomplicity of the witnesses Woodruff and Horn. If there are other witnesses who, under the record, are possible accomplices, the vice of this charge is apparent. If the testimony of any witnesses for the state, other than those named by the court, was tainted with accomplicity, then under the court’s instructions the jury was at liberty to consider such witness’ testimony as corroboration of those designated by the court as accomplices or possible accomplices which would result in one accomplice corroborating another accomplice which is contrary to law, Capps v. State, 60 Okla. Cr. 337, 44 P. 2d 151.

In cases involving the question of testimony of accomplices there is often involved two types of witnesses. First, those whose acts and conduct are admitted, or undisputed, and who are considered as accomplices as a matter of law. Second, those concerning Avhom the evidence is conflicting as to their participation, or is susceptible of either interpretation, McKinney v. State, 20 Okla. Cr. 134, 201 P. 673; Hewett v. State, 38 Okla. Cr. 105, 259 P. 144. Concerning the first, it is the duty of the court to instruct the jury that the witness is in fact an accomplice and that it is necessary for the testimony of such a witness to be corroborated. In regard to the latter, the question is one of fact for the jury to be submitted under proper instructions, Hewett v. State, supra. It is with the last-mentioned class that this assignment of error is concerned.

The term “accomplice” has been defined by this court as one who could be indicted or informed against for the offense for which the accused is being tried, Jefferson v. State, 34 Okla. Cr. 56, 244 P. 460. While this is a true statement of law, this court has not confined the definition of an accomplice to this particular language. It has further defined the term accomplice as “all who participate,” Spivey v. State supra [69 Okla. Cr. 397, 104 P. 2d 264]; “one who knowingly and voluntarily co-operates, or aids or assists” Comba v. State, 68 Okla. Cr. 373, 99 P. 2d 170, 172, or whose “participation * * * was criminally corrupt.” Finley v. State, 84 Okla. Cr. 309, 181 P. 2d 849, 858. In the case of Yeargain v. State, 57 Okla. Cr. 136, 45 P. 2d 1113, 1118, Judge Doyle quotes with approval from the case of People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A., N. S., 704 as follows:

“Mr. Justice Henshaw, considering what acts or facts fix this relationship or characteristic upon a witness, uses the following language:
“ ‘One is an accomplice in a crime because, of the part that he has taken in it, not because he may be indicted as a principal. The latter is a mere accidental circumstance, depending upon the language of the statute, and in no way affecting the true touchstone, namely, the part which the accomplice has taken in the offense, The judicial declaration that, under a statute such as our section 31 of the Penal Code, all accomplices may be indicted as principals, is perfectly sound. But the attempted reasoning from this that if a person cannot be indicted as a principal, he is, therefore, not an accomplice, is absolutely fallacious. * * *
“ ‘At common law the accomplice could not be indicted for the same crime, yet he was none the less an accomplice. The declaration that one is an accomplice if he can be indicted for the same crime charged against the defendant on trial is perfectly sound; but the converse of the declaration, namely, that, if he cannot be indicted for the same crime, he is not an accomplice, is the merest sophistry, which, ignoring the time test and meaning of the word, seeks to turn shadow into substance. That test and meaning, as we have said, are expressed in section 31 of the Penal Code. If a man has committed a crime, if he has aided and abetted in its commission, if he has advised or encouraged its commission, he is an accomplice with all other participes, criminis.’ ”

In the recent case of Finley v. State, supra, in an opinion by Judge Brett, it is stated:

“The true test of whether Ruth Fugatt was an accomplice is whether she could be charged and punished for the crime with which the defendant is charged, or whether her participation in the offense was criminally corrupt. 16 C. J., 671, note 71 and 72, 22 C. J. S., Criminal Law, § 786; Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049; People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A., N. S., 704.”

One of the witnesses for the state whom defendant contends is either an accomplice or a possible accomplice, according to the evidence in the case, is J. W. Eisiminger, whose participation must be examined in the light of the above pronounced principles. There is no proof that Eisiminger was an original conspirator but that is immaterial if he subsequently concurred in the plans and aided in the execution. The general rule appears at 12 C. J., Sec. 88, page 579 as follows:

“While to authorize a conviction of several persons charged in one indictment with conspiracy each must be proved to have come into the conspiracy prior to the consummation of the act to be done in pursuance thereof, it is not essential to a conviction of a person or persons charged with a conspiracy, that he or they should have originated the conspiracy. All who accede to a conspiracy after its formation and while it is in execution, and all who with a knowledge of the facts concur in the plans originally formed and aid in executing them are fellow conspirators. They commit an offense when they become parties to the transaction or further the original plan. A person coming into a conspiracy after its formation is deemed in law a party to all acts done by any of the other parties, either before or after, in furtherance of the common design.” 15 C. J. S., Conspiracy, § 75.

As far as the record shows the first information Eisiminger had concerning proposed state clemency was when his wife brought him the first parole for acceptance. According to Eisiminger’s testimony relative to this meeting he read the parole, was advised by his wife she had been promised a pardon and was going back and make these parties that promised her a pardon make good on their agreement. Following this he discussed with an attorney employed by Strong, and sent to the penitentiary to interview him, the difference between a pardon and a parole as affecting his chances for federal clemency. Thereafter, and when the second parole was submitted to him, he engaged in a conversation with defendant and the attorney employed by his wife. Again he Avas hesitant to accept a parole and insisted on calling his wife. According to his testimony, it was only when he was advised that his acceptance of the parole would help the defendant and Avas in consideration of his acceptance, assured he Avould receive a pardon prior to the termination of the Governor’s term in office, did he sign and accept the parole. His attitude was one that he knew a large sum of money had been paid by his wife in his behalf for a pardon and was not to be easily persuaded to take less than that for which she had bargained. The jury would have been justified in concluding from this testimony that Eisiminger had been fully informed that a pay off to Strong had been made. Otherwise why would Eisiminger refuse a parole and permit his wife to demand a pardon? According to the testimony of one prison official he had never heard of but one instance of a prisoner refusing a parole. The obvious inference of this testimony is that Eisiminger had been advised by his wife of the true facts in the matter when she brought the first parole to him. These facts and circumstances could have well indicated to the jury that Eisiminger knew of the tainted source of the paroles, for according to his own testimony he was willing to, and did, assist defendant by accepting the parole in consideration of the promise of a pardon to be granted him at a later date. A reasonable inference would be that Eisiminger was culpably implicated in the transaction prior to the termination of the conspiracy and knowingly aided and abetted in the furtherance of its object. Conversely, the jury might have concluded that Eisiminger had no way of restraining his wife from her announced purpose of making those parties that promised her a pardon make good on their agreement, and did not encourage her in this effort, nor believe the defendant or the Governor criminally involved with the pay off.

In regard to a situation thus presented, this court stated in the case of Hewett v. State, supra [38 Okla. Cr. 105, 259 P. 146] the following rule:

“Where the facts are undisputed or admitted, the question whether or not the witness is an accomplice is generally one of law for the court, but where the evidence is conflicting as to whether or not the witness participated in the commission of the offense, whether or not the witness is an accomplice is a question of fact to be submitted to the jury under proper instructions. * * *
“In the record before us the defendant was entitled to have submitted to the jury by proper instruction the question whether or not Forster was an accomplice, and the further instruction that if found to be an accomplice a conviction could not be had on his testimony unless corroborated.”

In the case of Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, 501, L. R. A. 1916F, 1251, the rule is stated as follows :

“When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.” See also, McKinney v. State, supra; Logan v. State, 23 Okla. Cr. 316, 214 P. 944; Wiley v. State, 17 Okla. Cr. 643, 191 P. 1057.

In view of these authorities it must be admitted that defendant was entitled to an instruction which would submit to the jury the question of Eisiminger’s accomplicity. Instruction No. 3 requested by defendant properly defines the term accomplice, Yeargain v. State, supra. Had this instruction been given by the court, the jury, with other instructions given, could have applied this test to Eisiminger, as well as to certain other witnesses. The instructions as given by the court had the effect of precluding the jury’s consideration of the accomplicity of any of the state’s witnesses other than those named by the court. As hereinbefore noted, should Eisiminger’s testimony be excluded, there is serious doubt that the record furnishes sufficient evidence to corroborate the testimony of accomplices so as to sustain the conviction. Should the jury have determined Eisiminger to be an accomplice, his testimony could not have been considered for the purpose of corroboration, for, as previously stated, one accomplice cannot corroborate another.

It cannot be contended that the court’s refusal to submit defendant’s requested instruction No. 3 is harmless error, Logan v. State, supra. The only witness who testified defendant accepted money in connection with the Eisiminger transaction was the witness Lowe who was at the time he testified under charge for his participation in the Eisiminger pay off. The only satisfactory corroboration of Lowe which tended to connect defendant with the crime charged was Eisiminger, a self-confessed perjurer and under conviction for perjury, conspiracy and murder. Where, as in this case, the corroboration of the testimony of the admitted accomplices is the pivotal issue of fact, and, as heretofore pointed out, the only satisfactory testimony tending to connect the defendant with the commission of the offense, is that of a witness of questionable credibility, whose testimony is of doubtful probative value, and is a possible accomplice, we think, even though the defendant had failed to request it, the court should have, on its own motion, instructed on that issue, Lockhart v. State, 29 Okla. Cr. 154, 232 P. 857. The hazard to defendant’s rights by failing to submit this issue was greatly increased when, by the instructions given, the jury was in effect advised that J. W. Eisiminger was not an accomplice and that his testimony could be considered for the purpose of corroboration.

The evidence is too conflicting and the state’s case based too largely upon an unreliable type of witness for this court to conclude defendant’s guilt so apparent as to render the error harmless. The witness Carl Pruitt had twice been convicted of felonies. The witness Kennamer had been convicted of manslaughter. The witness Bess Vernon was an accomplice to an alleged other offense and subject to prosecution as such. Archie Horn had been convicted of a felony. The witness Leonard Woodruff was a possible accomplice to one of the alleged other offenses. This type of testimony must be received with caution. The purpose of the statute providing that no person shall be convicted of a crime on the testimony of an accomplice, without corroboration, is to prevent one guilty of a crime from implicating another falsely, for hope of clemency, motives for revenge or for any other reason, Comba v. State, 68 Okla. Cr. 373, 99 P. 2d 170. The verdict of the jury appears to reflect uncertainty. The punishment imposed was a fine of $500, the exact amount defendant allegedly received from Lowe. If defendant is guilty as charged, it represents a reprehensible breach of a public trust for which the maximum punishment of two years in the penitentiary and a fine of $10,000 would be fully deserved but, guilty or innocent, under the law of this state a defendant is entitled to a fair trial, Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325. We must conclude the trial court erred in refusing to submit to the jury instruction No. 3 requested by the defendant, for, as stated by this court in the case of Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211:

“The policy of the law is that all persons shall have a fair and impartial trial, and it cannot be said that a ‘fair and impartial trial’ has been had unless the jury has been properly instructed as to the law of the case, and hence judgment of conviction must be set aside if the instructions did not fully present to the jury all the material issues involved.”

For the reasons given the case is reversed and remanded with instructions to grant defendant a new trial.

McLAURY and JONES, Special JJ., concur.

BERT B. BAREFOOT, P. J., of the Southern District, Judge DICK JONES of the eastern District, and judge JOHN A. BRETT of the Northern District, having each certified his disqualification in the above case, the Honorable FINLEY McLAURY of Snyder, a member of the Kiowa County Bar; the Honorable LAWRENCE JONES of Bristow, a member of the Creek County Bar; and Honorable GUY L. HORTON Stillwater, of the Payne County Bar, were appointed by the Governor as special judges in their respective districts in the above-entitled case.


source: Caselaw Access Project

author: FINLEY McLAURY, Special P. J.

license: Public Domain

text:
    ROBERT R. FITZGERALD v. STATE.
    No. A-10593.
    Dec. 22, 1947.
    (188 P. 2d 412.)

      J. B. Dudley, of Oklahoma City, Clayton Carder, of Hobart, and Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   FINLEY McLAURY, Special P. J.

Robert R. Fitzgerald was convicted in the district court of Carter county, Okla., of the crime of bribery, sentenced to pay a fine of $500 with costs, and to serve 30 days in the county jail. Said defendant then perfected an appeal to this court. And he now shows by motion that during the pendency of this appeal his motion for a new trial on the grounds of newly discovered evidence has been granted by the district court of Carter county, Okla., and asks that this appeal be dismissed and the lower court directed to proceed with the case.

The state asserts that although defendant’s said motion for a new trial was filed in due time under 22 O. S. 1941 §§ 952, 953, following his appeal to this court: (a) that the trial court was without jurisdiction to hear such motion because permission therefor was not secured from this court; and (b) that the lower court’s ruling was erroneous on the merits.

(1) The state relies chiefly upon the case of State v. Hawkins, 121 S. C. 290, 114 S. E. 538, 27 A. L. R. 1083. However, the pertinent South Carolina statute placed no limitation as to the time in which the motion could be made, and it Avas evidently this fact which induced the South Carolina court to overrule its prior decisions to the contrary. On the other hand, no such evil exists in our statute, 22 O. S. 1941, § 953, which proAddes that the motion must be filed not later than the next term of court folloAving the trial of the case.

It is true that there is difference in the Oklahoma civil and criminal appellate procedure, but it is a difference of form- rather than of substance, the purpose of each being the same — to provide for an appeal from a judgment. The decisions of our Supreme Court on a similar question and statute should therefore at least be persuasive, if not controlling, here. And in the case of Pleasant v. Allen Bros., 180 Okla. 518, 71 P. 2d 114, 116, it is said:

“It is true that the trial court loses jurisdiction over all matters determined or affected by the judgment and original motion for a new trial, from which the appeal is taken, and can take no action which would affect the rights of the parties thereby determined. Such is the general rule and is obviously correct. The trial court may not act adversely to the appellate court, but a petition for a neAV trial upon the grounds of newly discovered evidence is in the nature of a new and separate proceeding. It injects into the ease new matter and presents new conditions and new questions of law and facts. The issues there presented may generally be inquired into by the trial court Avithout in any manner affecting the questions presented upon the pending appeal. We have.no doubt that the defendant here might have properly filed his petition in the trial court, and the same might have been properly acted upon by the trial court, while the issues presented by the appeal were receiving consideration by this court, without any conflict of jurisdiction, because the issues were different and because the right to new trial in such cases is given by statute.”

The Kansas- Supreme Court, in passing on a similar jurisdictional question in the criminal case of State v. Langmade, 101 Kan. 814, 168 P. 847, said:

“During the term at which judgment has been rendered, the district court has power to set aside an order denying a motion for a new trial, to set aside the judgment, and to grant a new trial, although an appeal lias been taken to the Supreme Court.”

This holding was followed in the 1941 case of State v. Bowser, 154 Kan. 427, 118 P. 2d 1055.

This court, in the case of Lemmons v. State, 46 Okla. Cr. 331, 288 P. 351, said:

“The appeal was lodged in this court on July 2, 1928. Subsequent to the filing of the appeal in this court, and within the time provided by the seventh subdivision of section 2754, and by section 2755, Comp. Stat. 1921 [22 O. S. 1941 §§ 952, subd. 7, 953], the defendant filed his application for a new trial in the distinct court, which application was granted, and said case is now pending in that court. The appeal in this case has become moot, and is dismissed.”

In a recent Oklahoma Supreme Court case of Price v. Shell Oil Co., 199 Okla. 193, 185 P. 2d 211, 212, it is stated:

“The general rule of statutory construction is that the legislative will is the important and controlling fact- or. 50 Am. Jur., Statutes, section 223. Russett School Dist. No. C-8 v. Askew, 193 Okla. 102, 141 P. 2d 575, 577. A further general rule is that a statute is open to construction only where the language used is ambiguous and thus requires interpretation. 50 Am. Jur., Statutes, section 225. In the Russett School District case, supra, we said:
“ * * That intention is to be first sought in the language of the statute itself, and if it is there plainly expressed it must be followed without further inquiry. Martin v. Carman, 183 Okla. 177, 80 P. 2d 561; 59 C. J. 953; Lewis’ Sutherland Statutory Construction, pp. 698-706, §§ 366, 367. * * *’ ”

22 O. S. 1941 §§ 952, 953 provides:

“Grounds for new trial — Affidavits and testimony.— A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only:
“* * * Seventh. When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial, or when it can be shown that the grand jury was not drawn summoned or impaneled as provided by law, and that the facts in relation thereto were unknown to the defendant or his attorney until after the trial jury in the case was sworn and were not of record. When a motion for a new trial is made on the ground of newly discovered evidence, the defendant must produce at the hearing in support thereof affidavits of witnesses, or he may take testimony in support thereof as provided in Section 5781, and if time is required by the defendant to procure such affidavits or testimony, the court may postpone the hearing of the motion for such length of time as under all the circumstances of' the case may seem reasonable. The application for a new trial on the ground that the grand jury was not drawn summoned or impaneled as provided by law may be shown in like manner. R. L. 1910, § 5937.
“§ 953. Time for filing motion. — * * * A motion for a new trial on the ground of newly discovered evidence may be made after judgment at the term at which the case was tried, or in vacation, before the judge or at the next term of court, and if on the ground that the grand jury was not properly drawn or impaneled then the motion must be made not later than the next term after trial. R. L. 1910, § 5938.”

The language and meaning of the statute are plain, giving the defendant a clear right to file the motion within a fixed time, with power vested in the trial court to grant the same. Should any addition to the statutes be deemed necessary, it is a matter for legislative and not judicial action. And the defendant should not be deprived of his vested statutory rights by this court.

Assuming that in the case of Reed v. State, 10 Okla. Cr. 444, 137 P. 369, the defendant’s motion was filed within the time provided by 22 O. S. 1941 § 953, such decision is hereby overruled in so far as the same conflicts with the holding herein.

(2) Having determined that the trial court had jurisdiction to hear defendant’s motion for a new trial on the ground of newly discovered evidence while the appeal was pending herein, the state’s further contention that the action of the trial court in granting a new trial thereon was erroneous because the motion therefor and the evidence produced in support thereof were insufficient cannot be considered here as error would not affect the lower court’s jurisdiction. The order granting the new trial was final since the state had no right of appeal therefrom, 22 O. S. 1941 § 1053. State v. Weathers, 13 Okla. Cr. 92, 162 P. 239; and such order, having been made within the trial court’s jurisdiction, cannot be attacked collaterally. Fowler et al. v. Marguret Pillsbury General Hospital et al., 102 Okla. 203, 229 P. 442; Ward v. Coleman, 170 Okla. 201, 39 P. 2d 113. And the general rule in criminal cases is likewise stated in 49 C. J. S., Judgments, § 405.

(3) Pursuant to the granting of such new trial, this case is now again properly pending in the lower court. The appeal herein has become moot and is hereby dismissed. Lemmons v. State, Supra.

LAWRENCE JONES and GUY L. HORTON, Special JJ., concur.

Presiding Judge BERT B. BAREFOOT, of the Southern District, Judge DICK JONES of the Eastern District, and Judge JOHN A. BRETT of the Northern District, having each certified Ms disqualification in the above case, the Hon. FINLEY McLAURY, of Snyder, a member of the Kiowa County bar; the Hon. LAWRENCE JONES of Bristow, a member of the Creek County Bar; and Hon. GUY L. HORTON, Stillwater, of the Payne County bar, were appointed by the Governor as Special Judges in their respective districts in the above-entitled cases.


author: JONES, J.

text:
    LEVERETT BURCHFIELD v. STATE.
    No. A-10756.
    Dec. 31, 1947.
    (188 P. 2d 392.)

      Long & Sutherland, of Seminole, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., Haskell A. Holloman, Asst. Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Leverett Burchfield, was convicted in the superior court of Seminole county, on a charge of burglary in the second degree, and was sentenced to serve a term of three years’ imprisonment in the State Penitentiary.

It is alleged in the information that on July 17, 1944, the defendant, along with his brother, Everett, and Willie Minor Jones, did break into a certain store building in Seminole county, Okla., and steal certain described personal property valued at $400.

The principal contention of defendant is that the trial court erred in refusing to sustain defendant’s motion to dismiss the information on the ground that no proper transcript had been filed by the justice of the peace, showing that the defendant had had a preliminary examination and bound over for trial to the superior court of Seminole county.

The record shows that after the jury had been duly impaneled, questioned on their voir dire and sworn to try the case, and after the county attorney had made his opening statement to the jury, counsel for the defendant dictated into the record the following motion:

“By Mr. Sutherland: Comes now the defendant and before entering a plea in this case, moves this court to dismiss the information filed herein for the reason that there is no proper transcript filed in this cause binding the defendant over to this court for trial and before no endorsement on the back of the complaint is made as by law required giving this court any jurisdiction. By the Court: Overruled. By Mr. Sutherland: Exceptions. By the Court: Do either of you gentlemen want the rule? By Mr. Sutherland: Yes, if the Court please, I believe so. By the Court: The rule has been asked for and all witnesses except the defendant and the peace officers will have to remain outside the court room until you are called. By Mr. Sutherland: Comes now the defendant and objects to the taking of any testimony for the reason that no proper transcript is filed in this cause binding this defendant over for trial in this court. By the Court: Overruled. By Mr. Sutherland: Exceptions.”

There is no copy of the preliminary proceedings shown in the record. The trial commenced on November 21, 1945. The minutes of the court clerk shows that on November 9, 1945, which was the time set for the arraignment of the accused the following occurred:

“Attorneys for defendant announced in open court that the defendant was previously arraigned and entered a plea of not guilty.”

There is included in the record an appearance bond filed and approved in the justice of peace court on December 19, 1944, conditioned that defendant appear for trial in the superior court at Seminole county at its next regular term.

In the case of Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, 259, the following rules of law were promulgated as shown by the syllabus:

“In the absence of any record as to the facts introduced on a motion to quash the information filed by defendant upon his arraignment in district court, the presumption follows that there were facts introduced which sustained the findings of the court. * * *
“The entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.
“After a plea of not guilty is entered upon arraignment in district court without filing a motion to quash the information, the question as to the failure to have a preliminary examination is waived and may not be raised by an objection to the introduction of evidence at the beginning of the trial.”

In the case of Ex parte Robinson, 56 Okla. Cr. 404, 41 P. 2d 127, this court said:

“(a) The constitutional provision, article 2, § 17, that ‘no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such examination/ is for the benefit of an accused and which, by express terms of the Constitution, he may waive.
“(b) The fact that accused has had a preliminary examination need not be alleged in the information or shown affirmatively by the state, the law presumes that accused has had a preliminary examination or has waived it, and when accused relies upon the want of a preliminary examination, the proper practice is to raise the question by motion to quash or set aside, before pleading to the merits.
“(c) Objections to an information, based on the absence of any essential preliminary proceeding, should be made by proper motion or plea, before pleading to the merits.
“(d) A preliminary examination may be waived before the committing magistrate or the entire preliminary proceedings may be waived in the trial court and is waived by failure to file a motion to quash or set aside in apt time.”

In the absence of a contrary showing in the record, there is a presumption as to the regularity of the proceedings in courts of record. Nash v. State, 47 Okla. Cr. 172, 286 P. 910; Sweet v. State, 70 Okla. Cr. 443, 107 P. 2d 817.

The motion of the defendant to dismiss the information should have been filed before pleading to the merits and before the jury was impaneled and sworn. If it was the contention of the defendant that he had not been arraigned and had not entered his plea, and had not had a preliminary examination, the burden was upon him to introduce facts to sustain his motion. Herren v. State, supra.

The proof of the defendant’s guilt is overwhelming. One of his codefendants testified against him. Two girls, who saw the defendant and his codefendants with a quantity of clothing the night of the burglary, testified that defendant told them that he had obtained them by entering the cleaning shop which was burglarized. At the time of the arrest of the accused, he told Jake Sims, Chief of Police of Seminole, that he wanted to enter a plea of guilty and made a full confession at that time detailing the circumstances surrounding the commission of the burglary. In his defense, the defendant testified that he was in the automobile with his brother and his other codefendant, Willie Jones, the night of the burglary; but that he had drunk so much whisky that he did not know anything that occurred. They started in their automobile from Oklahoma City to Seminole with two girls to bring another girl back to her job in Oklahoma City. The defendant said that he passed out because of drinking so much intoxicating liquor, and when he awakened he was back in Oklahoma City. That he saw the clothing in the car and helped move it to one Gardner’s room in a hotel in Oklahoma City, but that he did not know anything at all about the burglary having been committed and did not participate in the commission of the burglary.

Counsel stated in his brief that there is no corroboration of the testimony of the accomplice and further stated that the confession was obtained by threats and duress. Other than this bare assertion in counsel’s brief, there is no statement referring to any part of the record which Avould sustain these allegations, and there is no citation of authorities to sustain these two contentions.

An examination of the record discloses that these two assignments are wholly without merit. The judgment and sentence of the superior court of Seminole county is accordingly affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    COY LEE ROW v. STATE.
    No. A-10816.
    Dec. 31, 1947.
    (188 P. 2d 395.)
    W. O. Moffett, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Coy Lee Row was charged in the court of common pleas, Tulsa county, with the offense of possession of intoxicating liquor with intent to sell; waived a jury and was tried to the court, found guilty and his punishment fixed at a fine of f 100 and 60 days in the county jail and he has appealed.

Defendant was charged with having possession of four one-fifths gallons of gin, and one one-fifth gallon of whisky. Two deputies from the office of the sheriff were the only witnesses. They testified to finding the liquor in the apartment of the defendant.

When the case came on for trial the defendant was permitted to withdraw his plea of not guilty, previously made, whereupon he filed a motion to suppress the evidence. Testimony of one of the deputies making the search was offered. The motion was overruled and defendant again entered his plea of guilty, and the case was tried to the court, with the result above indicated.

For a reversal of this case, defendant contends that the affidavit upon which the search warrant issued was wholly insufficient; that it was on a printed form, and did not set forth any facts upon which search warrant should issue for a private residence.

The affidavit was introduced at the hearing on the motion to suppress. The mere fact that the affidavit was on a printed form does not render it insufficient, where, as in this instance, it is stated in clear and positive terms that intoxicating liquor is being sold, bartered, given away and otherwise furnished in violation of the prohibitory laws of the State of Ok ¡ahorna, at “a certain apartment numbered 3 of a two-story frame building dwelling located at 1319 south Denver Street, in the city of Tulsa, county of Tulsa, Oklahoma,” etc. The affidavit was properly sworn to by one of the officers making the search. We are of the opinion that the affidavit was sufficient to warrant the issuance of the search warrant. Smith v. State, 30 Okla. Cr. 144, 235 P. 273; Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 186, 187; Hudgens v. State, 74 Okla. Cr. 56, 122 P. 2d 815.

Defendant further contends that the description of the premises to be searched was insufficient, and in support of this proposition quotes the testimony of one of the officers.

The officer testified that at the time he procured the search warrant he did not know who lived in the apartment described. When asked if he had any trouble in locating the apartment, Number 3, at the address shown in the search warrant, the officer testified that he did not; then admitted that he asked a woman on the first floor of the apartment house where Number 3 was located. He further testified that there were three apartments in the building, two on the lower floor, and one, Number 3, upstairs. This does not, in our opinion, indicate that the officer could not have located the apartment upon the information set out in the search warrant, and we think the description was sufficient. Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260; Hughes v. State, 83 Okla. Cr. 16, 172 P. 2d 435.

Finding no error, the judgment of the court of common pleas of Tulsa county is affirmed.

JONES and BRETT, JJ., concur.


text:
    SAM KUTZ v. STATE.
    No. A-10830.
    Jan. 7, 1948.
    (188 P. 2d 703.)

      Robert O. Swimmer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Warren H. Edwards, County Atty., Oklahoma County, Oklahoma, of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Sam Kutz, was charged in the court of common pleas of Oklahoma county with the offense of selling intoxicating liquor; was tried, convicted and his punishment fixed at a fine of |50 and imprisonment in the county jail for a period of 30 days. From this judgment and sentence he has appealed.

For reversal of this case, defendant sets out three assignments of error, as follows:

“Instigation of the alleged illegal sale- by officer of the law was an illegal and unlawful attempt to circumvent Article II, sec. 30 of Oklahoma State Constitution, prohibiting illegal search and seizure.
“Error of the trial court in refusing to allow defendant to develop Ms theory of defense of entrapment.
“Error of trial court in failing to submit defense theory of entrapment to jury for consideration; failing to give its own instruction concerning the theory of defense and refusing to submit instructions prepared and offered by defense counsel.”

The information in this case charges:

“* * * on the 20th day of August, A. D. 1946, in Oklahoma County, State of Oklahoma, Sam Kutz * * * did then and there wilfully, unlawfully and wrongfully commit the crime of Selling Intoxicating Liquor, in the manner and form as follows, to-wit: That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, wrongfully and unlawfully sell, transfer and deliver to A. J. Beddo, one pint of whisky for $6.00, * *

The evidence reveals that on the date named in the information, A. J. Beddo, a member of the Oklahoma State Highway Patrol, dressed in civilian clothes and accompanied by a young lady, Aline Purdy, went to the home of the defendant, drove in the driveway and sounded the horn of Ms automobile. The defendant responded, and Mr. Beddo asked if he had any whisky. Defendant replied that he had some Hill and Hill, at $6 a pint, and he thought he had some Philadelphia at $5.50 a pint. Bed-do purchased one pint of Hill and Hill, gave the defendant $6, and left. Within an hour he returned with officers from the sheriff’s force, armed with a search warrant, and defendant’s home was searched. They found no liquor. Aline Purdy corroborated the testimony of the witness A. J. Beddo, and stated she went with him as a witness. L. H. Kolb of the sheriff’s force identified the pint of whisky which was introduced in evidence.

This was all the testimony of the state, and the defendant offered no testimony whatever.

Defendant filed a motion to suppress the evidence in which he attacks the validity of the search warrant, and the affidavit upon which it was predicated. Neither of these instruments is shown in the case-made. A hearing was had upon the motion and the testimony of the defendant A. J. Beddo offered. The court overruled the motion, and the case was tried upon the merits.

The validity of the search warrant was in no way involved in this case. The charge was for unlawfully selling intoxicating liquor to A. J. Beddo. The court did not err in overruling the motion to suppress the evidence.

We have examined the cases of Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, and State v. Coburn, 68 Okla. Cr. 67, 95 P. 2d 670, cited by defendant. The facts in these cases have no application to the facts here involved.

Applying the law to the facts here presented, there was no question of entrapment in this case. This question has been often decided by this court. Medlock v. State, 66 Okla. Cr. 27, 89 P. 2d 377; Hiatt v. State, 67 Okla. Cr. 372, 94 P. 2d 262; Hardy v. State, 72 Okla. Cr. 303, 115 P. 2d 767; Tipton v. State, 80 Okla. Cr. 49, 156 P. 2d 825; Stevens v. State, 51 Okla. Cr. 451, 2 P. 2d 282.

Under the facts here presented and the law as announced in the decisions above cited, it was not error for the court to refuse to instruct the jury as requested, upon the question of entrapment. The cases of Bradley v. State, 63 Okla. Cr. 203, 74 P. 2d 126, and Huff v. Territory, 15 Okla. 376, 85 P. 241, have no application to the facts here presented.

Finding no error in the record, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte SILAS LOUIS.
    No. A-11002.
    Jan. 7, 1948.
    (188 P. 2d 710.)
    Tom Finney and I. C. Sprague, Jr., both of Idabel, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Ed Shipp, Co. Atty., of Idabel, for respondent.
   BRETT, J.

Silas Louis, petitioner, filed in this court a petition for writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty in the county jail of McCurtain county at Idabel, Okla., by C. H. Roan, sheriff of said county.

Petitioner further alleges that he was committed to the county jail and sheriff Roan pursuant to an order of C. E. Sweet, justice of the peace, of Idabel justice district, McCurtain county, Oklahoma, sitting as an examining magistrate. A preliminary examination was held on the 17th day of October, 1947, upon a complaint charging the petitioner with first degree rape of one Cleta Webb, in McCurtain county, on or about the 12th day of June, 1947. Petitioner further alleges that he Avas held to answer to the district court, of said county, Avithout bail, upon a charge of rape in the first degree. The record shows that petitioner heretofore made application to the judge of the district court of McCurtain county, Okla., for a writ of habeas corpus to be admitted to bail, and on the 12th day of December, 1947, a hearing Avas had thereon and bail was denied.

It has been repeatedly held by this court that the right to bail in a capital case is absolute, unless the proof is evident or the presumption great that defendant is guilty as charged and that in case of conviction he will probably receive a life sentence or death.

After examining the evidence taken at the preliminary examination, the hearing on application for bail in the district court, and the evidence of the petitioner before this court, Ave are of the opinion that the petitioner is entitled to bail in a reasonable sum.

It is ordered that the petitioner be released from the county jail of McCurtain county, at Idabel, Okla., upon giving bail in the sum of $7,500 to be approved by the court clerk of said county.

In keeping Avith this order, the Avrit is hereby granted, in compliance with the order as above stated.

BAREFOOT, P. J., and JONES, J., concur.