text:
    CHARLES KILPATRICK v. STATE.
    No. A-10048.
    July 22, 1942.
    (128 P. 2d 246.)
    J. W. Burrow, of Gage, and C. B. Leedy, o-f Arnett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Charles Kilpatrick, was charged in the district court of Woodward county with the crime of rape in the first degree, committed hy force upon one Sylvia Webber; was tried, convicted, and sentenced to serve 15 years in .the State Penitentiary, and has appealed.

The offense is alleged to have occurred on the night of March 13, 1939, while the defendant and his brother, Earl Kilpatrick, were out riding with Sylvia Webber, Glenna Endsley, and others.

Charles Kilpatrick was first charged and convicted of the crime of rape committed on Glenna Endsley, and Earl Kilpatrick was convicted of forcibly raping Sylvia Webber. The convictions in those two cases were appealed to this court; the appeal of Earl Kilpatrick was dismissed. Earl Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514. The conviction of Charles Kilpatrick was reversed and remanded for a new trial. Charles Kilpatrick v. State, 71 Okla. Cr. 129, 109 P. 2d 516.

After the Charles Kilpatrick case was remanded to the district court a new information charging rape of Sylvia Webber was filed and the defendant was tried upon that information instead of the charge involving the alleged rape of Glenna Endsley.

The chief contention presented on behalf of the defendant is that the evidence is insufficient to support a conviction for rape or any other offense.

The proof of the state was substantially as follows :

Earl Kilpatrick, age 22, and the defendant,. Charles Kilpatrick, age 20, lived at Woodward. Sylvia Webber, age 19, Glenna Endsley, age 19, Jean Matthews, age 15, Irene Wyckoff, age 15, and Robert Smith, age 16, lived at Mooreland. The two Kilpatrick brothers were acquainted with Robert Smith. On the evening of March 13, 1939, Charles and Earl Kilpatrick drove to the town of Mooreland in a coupe automobile. When they arrived there they saw Robert Smith', Jean Matthews, and Irene Wyckoff on the street. They talked to Smith and he and Jean and Irene got in the rumble seat of the automobile and they drove to the home of Sylvia Webber and Glenna Endsley to see whether Irene could get a date for the Kilpatrick brothers.

The testimony of Sylvia Webber and Glenna Endsley is substantially the same. They testified that they had creamed their faces and prepared for bed when Irene Wyckoff came to their room and asked them to go for a ride with two* boys whom she called Tex and Curley. The girls first said no, but after Irene insisted that they go they agreed to go to the car and see who the boys were and ride up town for a coke. Each of the girls testified that they had on only a house dress, a pair of panties and shoes. When they arrived at the car one of the girls asked that the light be turned on so that they could see the boys. Some conversation followed and the girls testified that they finally agreed to go up town with the defendant and his brother to get a coke, with the understanding that they would be returned home soon. That they then got into* the automobile. Charles Kilpatrick was driving, Glenna Endsley sat in the middle and Sylvia Webber sat on the lap of Earl Kilpatrick. There was no formal introduction, but Glenna Endsley told the two boys her name and that of ¡Sylvia Webber. The boys drove through the town of Mooreland and turned out on a country road. After driving two' or three miles the automobile was stopped. The Kilpatrick boys and Sylvia and Glenna got out of the car to take a walk. They were near the Eiler home. Sylvia Webber testified that as she was walking down the road with Earl Kilpatrick she stooped over to pick up a straw and Earl Kilpatrick grabbed her and forcibly and against her will had sexual intercourse with her at that place. Glenna Endsley stated that the defendant, Charles Kilpatrick, forcibly and against her Avill had sexual intercourse with her, also*, close to the place Avhere Earl Kilpatrick attacked Sylvia Webber. The girls screamed and a light Avas turned on in the Eiler home which scared them and they all ran back to the automobile and drove on toward the river. Jean Matthews, Irene Wyckoff, and Robert Smith remained in the rumble seat of the coupe, but the Kilpatrick boys and Sylvia and Glenna got out of the automobile again after it had stopped near the river. Sylvia Webber and Glenna Endsley each testified to two other acts' of sexual intercourse committed on them by Earl and Charles Kilpatrick at that place; Earl allegedly committed the acts on Sylvia Webber and the defendant committed the acts on Glenna Endsley. Each of the girls testified that they used their utmost resistance but were slapped, scratched, choked, and threatened to where their resistance A\ras overcome. After returning to the automobile Sylvia Webber testified that Charles Kilpatrick grabbed her and dragged her several yards and stood her up against a tree and forcibly had sexual intercourse with her while they were standing against the tree. Glenna Endsley testified that Earl Kilpatrick had sexual intercourse with her on the fender of the automobile, which made four acts of sexual intercourse allegedly committed by each of the two brothers on these two' gilds in the course of about three and one-half hours.

It was this alleged act of sexual intercourse committed by the defendant on Sylvia Webber, and not the acts allegedly committed on Glenna Endsley, with which he noAV stands convicted in the case herein.

After these final acts of intercourse were committed the girls were taken to their home at Mooreland. They went into the Webber home and notified the brother of Sylvia Webber as to what had occurred and he in turn notified the officers, who arrested the defendant and his brother at their home in Woodward the next day.

Two medical doctors made a physical examination of the prosecutrix on March 14, 1939. They testified that their examination showed that she had “scratches all over the body, legs, thighs and arms; occasional scratches on the back. The hymen was ruptured, bleeding, some, very tender, no membrane, spermatozoa negative. On the 15th day they brought her back again for additional examination and the right eye was black, with bruises, externally to the right eye and some scratches had shown up on the right of the neck.” The examination showed that the rupture of the hymen was recent.

Jean Matthews and Robert .'Smith testified as to* the trip being taken by all of them and that they remained in the rumble seat of the car while the four parties got out for a walk. They testified that at the first stop they heard a girl scream and shortly thereafter all four of them came running back to the car. That the Kilpatrick brothers scolded the girls for making so much noise and attracting attention.

Jean Matthews testified that after the Kilpatrick brothers and the two girls had returned to the automobile, after being gone an hour or so at the river, Sylvia Webber was standing at the front of the car near a headlight where she was grabbed by Charles Kilpatrick. That the defendant pulled her away from the automobile while Sylvia was struggling to prevent it and that he dragged her away in the darkness. Neither she nor Robert Smith saw any of the alleged acts; of sexual intercourse committed.

The officers testified that they made an investigation the next day and found where persons had lain in the sand and indications of a struggle. However, this was found at the places where the intercourse was admitted and not where the alleged crime herein was committed.

Charles Kilpatrick testified in his own defense. He admitted all of the occurrences substantially as related by the girls up to the time the automobile was first stopped. He testified that one of the girls in the front seat was quarreling with one of the younger girls in the ramble seat and that they finally stopped the car. That while the car was stopped either Syliva or Glenna suggested that they get out and take a walk, which was done. That after they had walked from the car he “propositioned” Glenna and she agreed, but before anything could be done the light was switched on at the Eiler home and. they were afraid of being discovered so they returned to the automobile. That later, while they were down near the river, he did have sexual intercourse with Glenna Endsley but that it was not forcibly and against her will, but with her consent, and that she acceded readily and stated: “Wait ’till I take off my pants, so we can do it right.” He specifically denied having any sexual intercourse with Sylvia Webber.

The testimony of the prosecutrix concerning the acts of sexual intercourse allegedly committed by Earl Kilpatrick goes into great detail in which she relates how she was struck, choked, scratched, and bruised by Earl Kilpatrick seeking, to overcome her resistance in order to commit these acts. The fact that the doctor, upon his examination the following day, found bruises and scratches is not necessarily corroboration of the testimony of the prosecutrix that the defendant, Charles Kilpatrick, had sexual intercourse with her, as the condition which the doctor found, under the testimony of the prosecutrix, could have been wholly caused by Earl Kilpatrick. Earl Kilpatrick is now serving a 15-year term in the State Penitentiary because of these alleged acts.

The testimony of the prosecutrix concerning the alleged act of intercourse committed by this defendant with her is not very conclusive. She testified that the act was committed while they were standing by a tree and that.she remembered very little of what occurred.

The prosecutrix weighed 126 pounds and was of the same approximate age as defendant. While there is corroboration of her story concerning the manner in which the defendant grabbed her while she was standing in front of the automobile and dragged her away in the darkness, the facts which she related with reference to the actual commission of the act of sexual intercourse are highly improbable and practically impossible considering the size and strength of the two- parties. The prosecutrix’ testimony concerning the actual commission of the act of sexual intercourse with defendant is as follows:

“Q. He thro wed you down, or did you lay down? A. He didn’t throw me down. Q. Then you laid down? A. No sir, I didn’t. Q. How did you get down? You didn’t have it standing up did you? A. Yes, he pinned me against a tree and said he was going to take his belt off and tie me. Q. Did he do that? A. No, but he pinned by arms back and held me. Q. Which arm? A. I don’t know. Q. That is all he did, was it? A. What do you mean? Q. I am asking you what took place, I want to knoAV what was done? That is all you remember that took place is it? A, No, that is not all I remember. Q. What do you remember, then? A. (No answer) Q. During that act of intercourse — ’that- act of intercourse — your panties were not taken off were they? A. No, sir, but they were all torn and bloody and all my underclothing were tora. Q. Now Earl Kilpatrick did that in his three acts of intercourse with you, didn’t he? A. I imagine Charlie did a little of it too>. Q. Some part of them were not torn yet when Earl Kilpatrick got through you mean? A. All I know is they were torn and bloody.”

It is well-settled that where the testimony of the prosecutrix is inherently improbable and almost incredible there must be corroboration by other evidence as to the principal facts to sustain a conviction. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Allen v. State, 10 Okla. Cr. 55, 134 P. 91.

The trial court correctly included in his charge to the jury an instruction on the included offense of assault with intent to commit rape and also assault and battery. We doubt the sufficiency of the evidence to' sustain a conviction for rape forcibly committed on the person of Sylvia Webber, but the evidence is sufficient to sustain a conviction for assault with intent to- commit rape.

Jean Matthews testified that she saw defendant struggling with prosecutrix and jerking her away from her hold to the headlight of the automobile and pulling her away in the darkness. With this testimony and the other circumstances in evidence we feel that the jury would have been justified in returning a verdict of guilty of the included offense of assault with intent to commit rape.

At the time of the former appeal of this defendant, Kilpatrick v. State, supra, the writer of this opinion was not very favorably impressed with the story related by the two young ladies who were allegedly attacked. The fact that they left their home dressed as they were, with their hair in curlers and faces creamed for bed, to go riding with two strangers whom they had never met, and the other attendant circumstances, including the fact that the Kilpatrick hoys and these two< gilds were of the same approximate age, and the large number of times it is alleged the acts of sexual intercourse were forcibly committed, seemed highly improbable, and this court reversed the conviction in the former case for a new trial. But ,a different jury in the home county of these parties has again heard the evidence and assessed a verdict of guilty for rape in the first degree. This jury had the advantage of seeing the parties on the witness stand and of observing their demeanor. For that reason, in a case which is wholly a question of fact, we hestitate to reverse the same where there is a dispute in the testimony.

This court has the power, when it considers it necessary in the furtherance of justice, to modify the sentence which has been imposed. Section 3204, O. S. 1931, 22 O. S. 1941 § 1066. Under this statute the Criminal Court of Appeals has the power to reduce the judgment for first degree rape to an included offense and fix appropriate punishment. Cunningham v. State, 55 Okla. Cr. 67, 24 P. 2d 1013; Lebo v. State, 40 Okla. Cr. 116, 267 P. 288; Plaster v. State, 45 Okla. Cr. 452, 283 P. 805.

It is therefore ordered that the conviction of the defendant of the crime of rape in the first degree be modified to that of the included offense of assault with intent to commit rape, and that the punishment assessed the defendant be reduced from 15 years in the State Penitentiary to a term of two years in the State Penitentiary, and the judgment and sentence of the district court of Woodward county as thus modified is affirmed.

It is so1 ordered.

BAREFOOT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    EDNA HARMON v. STATE.
    No. A-10011.
    July 29, 1942.
    (128 P. 2d 237.)
    D. D. Archer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co-. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Mrs. Edna Harmon, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: “Four pints of non tax paid corn whisky”, was tried, convicted and sentenced to pay a fine of |100 and serve 90 days in the county jail, and has appealed.

This court, for the purpose of permitting the filing of appeals by defendants with as little cost as possible, has adhered to the rule of permitting to be filed in each case typewritten briefs instead of printed briefs, if desired. But we do- have the right to expect that when typewritten briefs are filed, they be so written and typed that they may be easily read, and that the eyes of the members of the court may be protected in reading them. The briefs filed in the instant case are so dim that they can hardly be read. It causes a great strain upon the eyesight in attempt to read them. We shall therefore ask that in the future the members of the bar do not attempt to make so many copies of their briefs at one time that they become so dim the reading of them by the court is a constant strain upon the eye. It is much better that fewer copies be made, and we trust that attorneys who have cases before the court will be appreciative of our action in permitting the filing of typewritten briefs, but at the same time they will protect the court as above outlined. Rose v. State, 8 Okla. Cr. 294, 127 P. 873; Cline v. State, 9 Okla. Cr. 40, 130 P. 510, 45 L.R.A., N.S., 108.

The only contention for a reversal of this case is that the court erred in permitting the state to introduce incompetent, irrelevant, immaterial, and prejudicial evidence, and in failing to sustain defendant’s motion for a directed verdict. These questions may be considered together.

The facts, are, briefly, that the defendant, Mrs. Edna Harmon, and her hnsband, Hoyle Harmon, resided at 407 North Laird in Oklahoma City. This was an apartment building with two apartments above and two below. Defendant lived in one of the lower apartments. There is no question in this case concerning the legality of the search of the premises of defendant on the 12th day of December, 1939, by police officers M. B. Cooper and Jack Caldwell. These officers, on that date, searched the premises and found the defendant at home and her husband was. not present. Sitting just outside the back door, Officer Caldwell found a half gallon fruit jar of corn whisky. Officer Cooper was standing just inside the door and saw the whisky found. They continued their search and defendant left the premises and was not arrested until later. They found about a half dozen fruit jars which smelled strongly of com whisky. Each of the officers testified that defendant’s residence was a place where the public continually gathered for the purpose of drinking intoxicating liquors, and that the reputation of the premises for that purpose was bad. That they had often searched the premises prior to the 12th day of December, 1939, and that on one occasion intoxicating liquor had been found there. Defendant did not take the witness stand and offered no evidence.

It is contended that the evidence of Officer Cooper was incompetent because he was on the inside of the house at the time the liquor was found. His evidence was that he saw the liquor found, through the door which was open. Certainly this was competent testimony.

It is- also contended that it was error in permitting the officers to testify as to the reputation of the premises. The proper predicate and foundation was laid by first asking the officers if these premises were a place where the public continually frequented for the purpose of buying and drinking intoxicating liquors. The officers testified that they had frequently seen the public going to and from the premises and that the premises had often been searched. They then testified that the premises had a bad reputation. This was in conformity with the rule often announced by this court. Brown v. State, 72 Okla. Cr. 333, 116 P. 2d 216, and cases cited therein.

It is also contended that the court erred in permitting the introduction in evidence of the whisky found upon the premises. We have examined the record and find that it was properly identified and was admissible.

We have carefully examined the record in this case. No exceptions were taken to1 the instructions of the court. It is doubtful if one of tbe instructions to tbe jury correctly stated the law. There is nothing in the record to show why the husband of this defendant was not charged with this crime. It is true that he was not present at the time of the search. The evidence is circumstantial, but it stands unanswered. We are of the opinion that justice would be subserved in this case by modifying the judgment and sentence from a fine of $100 and 90 days in jail to a fine of $100 and 30 days in jail, and as so modified, the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    NELLIE ROBERTS v. STATE.
    No. A-10110.
    July 29, 1942.
    (128 P. 2d 240.)
    Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Cen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, P. J.

Defendant, Nellie Roberts, was charged jointly with Mrs. M. R. Glenn Pritchard in the court of common pleas of Tulsa county, with the crime of unlawful possession of intoxicating liquor, to wit, 22 pints and one quart of whisky, was tried, convicted and sentenced to pay a fine of $50, and serve 30 days in the county jail, and has appealed.

This case was tried before a jury. The codefendant, Mrs. M. R. Glenn Pritchard, who was the mother of the defendant, was acquitted. Defendant, Nellie Roberts, was convicted.

For reversal of this case it is contended that the court erroneously instructed the jury to the prejudice of the defendant, Nellie Roberts, and that an exception was taken to the instruction. A part of instruction No. 6 is the one complained of and is as follows:

“In this connection, you are instructed that the defendant, Nellie Roberts, has admitted ownership of the whisky in question, and the court instructs you that this testimony on her part is equivalent to a plea of guilty, and the only question left for you to determine from the evidence beyond a reasonable doubt is whether Mrs. M. R. Glenn Pritchard was acting together and in concert with the defendant, Nellie Roberts, as before instructed, and if you so find beyond a reasonable doubt, then you are instructed that both defendants are guilty.”

We are of the opinion that the contention is well founded. The defendant had entered a plea of not guilty and was being tried with her codefendant. The fact that she had testified that the whisky in question belonged to her did not justify the trial court in instructing the jury “that this testimony on her part is equivalent to a plea of guilty.” This was a charge upon the weight of the evidence, as has often been decided by this court. Nichols v. State, 39 Okla. Cr. 32, 262 P. 1076; Whittenburg v. State, 46 Okla. Cr. 380, 287 P. 1049; Kent v. State, 53 Okla. Cr. 276, 10 P. 2d 733; Wilson v. State, 55 Okla. Cr. 22, 24 P. 2d 296; Freeman v. State, 65 Okla. Cr. 40, 82 P. 2d 1072; Westfall v. State, 80 Okla. Cr. 115, 235 P. 270; Nichols v. State, 10 Okla. Cr. 247, 135 P. 1071.

The county attorney’s office of Tulsa county was represented at the time oral argument was had in this case and confessed error.

For the reason above stated, the judgment and sentence of the court of common pleas of Tulsa county is reversed and remanded.

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    F. M. BENNETT et al. v. STATE.
    No. A-10010.
    July 29, 1942.
    (128 P. 2d 253.)

      Wallace Wilkinson and Robert J. Bell, both of Mc-Alester, for plaintiff in error F. M. Bennett.
    W. A. Lackey, of McAlester, for plaintiff in error I. H. Blumenthal.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   JONES, J.

The defendants, F. M. Bennett and I. H. Blumenthal, were jointly charged with the crime of embezzlement by information filed in the district court of Pittsburg county on September 20,1940. At their arraignment the defendants entered a plea of guilty. Various postponements of the pronouncing of sentence were had, and on January 3, 1941, each of the defendants filed his separate application for permission to withdraw his plea of guilty and enter a plea of not guilty. Hearing was had on said applications on January 9, 1941, and the trial court, after a consideration of the evidence introduced by the defendants and by the county attorney, denied each of the applications to withdraw the pleas of guilty and sentenced each of said defendants to serve a term of two years in the State Penitentiary, and an appeal has been taken to this court.

Separate briefs have been filed for the defendants. The facts and circumstances surrounding the pleas of guilty which were entered by the defendants are not the same and the case of each individual will be discussed separately insofar as these facts are different.

The agreed facts are as follows:

In the year 1939 defendant Blumenthal was president and owner of the Midwest Supply & Equipment Company. This company had a contract with the State Board of Public Affairs to use prison labor and machinery in the manufacture of pants, shirts, and other work clothing, for clothing firms in various parts of the country. Under this contract the clothing companies would furnish the defendant with the material and he would use the prison labor and machinery to manufacture the finished article, which he, in turn, sold to the distributor. The State of Oklahoma was to be paid a certain percentage for the use of its equipment and prison labor. A surety bond in the sum of $10,000 was executed by this defendant to guarantee the performance of his part of the agreement. On June 21, 1940, Blumenthal, being in financial difficulties, closed his business. An audit of his books was made which disclosed that he was in debt to the State of Oklahoma in the sum of several thousand dollars under this contract.

Negotiations were had which resulted in a settlement of this shortage by the payment of the surety company of the sum of $7,000.

At the same time the defendant Blumenthal was manufacturing work clothing at the penitentiary, the State of Oklahoma was manufacturing prison goods of their own.

The defendant Bennett was the warehouse foreman who had charge of keeping records of the clothing materials which went into the manufacture of the prison-made goods owned by the state.

.Shortly after the settlement had been made by the surety company for the shortage on account of the failure of the defendant Blumenthal to pay the state the money which was due to- them for the use of its machinery and' prison labor1, it was discovered that several bales of chambray belonging to- the state had been used by the defendant Blumenthal in the manufacture of clothing which he had sold to clothing firms. An investigation wás made which resulted in the filing of charges against these defendants in the justice of the peace court at McAlester on September 18, 1940. They were specifically charged in the information with the embezzlement of four bales of sanforized chambray clothing material of the value of $819.51. With the facts up to this point there is no-dispute on the part of any of the parties hereto-.

It is the contention of the defendant Blumenthal that after he had made his- settlement with the Board of Affairs in the summer of 1940, he went to New York. That he received a letter from the warden of the State Penitentiary while in New York in August, 1940, asking him to return to Oklahoma in connection with an investigation, which was being made. That Blumenthal employed W. A. Lackey, attorney at McAlester, to- talk to the warden and find ont just what the investigation concerned and to advise him as to whether it was necssary for him to- return t0! the State of Oklahoma.

That on September 17, 1940, he was arrested by two plain-clothes men in Oklahoma City, taken to the police station where he was fingerprinted and photographed, and then was transported by a deputy sheriff of Pittsburg county and the county attorney of Pittsburg county to ■McAlester. That before leaving Oklahoma City he demanded to consult a lawyer but was refused this right. That when they arrived at McAlester the officers first took him to see Jess Dunn, warden of the penitentiary. That the warden told him he was guilty of embezzlement and the best thing he could do was to' enter a plea of guilty. That his attorney, W. A. Lackey, came to the penitentiary while he was there talking to the warden and county attorney, and that he consulted with Lackey at the penitentiary. That the warden told him there that if he would plead guilty he would recommend a suspended sentence. That the next day he and his attorney went before the justice of the peace and waived a preliminary hearing and was bound over to the district court. That on September 20th he and his lawyer went before the district court, where he was arraigned on the charge of embezzlement, and entered his plea of guilty and asked that the pronouncement of sentence be postponed until November 1st. That he entered his plea of guilty thinking that he would receive a suspended sentence. That various postponements of sentence were had until January 9, 1941. This defendant further alleges that he has a valid defense to said charge in that he had an agreement with the Board of Affairs that when either party ran short of clothing material, they could borrow from the other and replace the borrowed material later.

The county attorney swore, in response to the defendant’s application, substantially as follows:

That he made an investigation of certain transactions which occurred at the State Penitentiary, and as a result of this investigation filed charges against the two defendants. That after Blumenthal was arrested by police officers of Oklahoma City, he and a deputy sheriff transported Blumenthal from Oklahoma City to McAlester. That Blumenthal made the request before reaching Mc-Alester that he be allowed to go by the penitentiary and talk to the warden. That at this special request of defendant, Blumenthal was taken to the penitentiary, and there, in a conversation with the warden and in the presence of the county attorney, he freely and voluntarily admitted all of the acts charged against him in the information.

That his attorney, W. A. Lackey, came to the penitentiary shortly after Blumenthal and the county attorney had stopped there and they were allowed to talk together privately. That thereafter both Blumenthal and his attorney expressed their intention and desire that Blumenthal plead guilty and requested the warden to send this defendant to the subprison at Stringtown.

That on September 20, 1940, the defendant, in the presence and by the advice of his counsel, pleaded guilty in open court to said charge, and requested the court to defer sentence until November 1, 1940, in order to give the defendant time to arrange his business affairs before entering the penitentiary. That on November 1, 1940, at the request of the defendant, sentence was postponed until November 15, 1940. On November 15, 1940, because of illness of one of the defendants, sentence of defendant was postponed to December 14, 1940. That on December 14, 1940, defendants requested that the court postpone sentence until after Christmas, and, accordingly, sentence was further deferred until January 4, 1941, at which time each of said defendants made application to withdraw their pleas of guilty.

That defendant Blumenthal is a man of mature years, has a good education, and had a full understanding of the consequences of his action, and throughout all of the proceedings had the advice of able counsel.

Warden Jess Dunn swore that he talked to Blumenthal, but did not make him any promises, did not advise him not to employ an attorney, and did not tell the defendant that he would recommend a suspended sentence if he pleaded guilty. That defendant said he was guilty and intended to» plead guilty, and after advising with his lawyer made the request of the warden that he be allowed to» go to» the subprison at Stringtown.

It was agreed that the members of the State Board of Public Affairs would testify that there was no agreement between the state and Blumenthal whereby clothing, material would be exchanged if either of the parties ran short in the manufacture of work clothing.

The hearing on the applications of the defendants to» withdraw their respective pleas of guilty was rather informal. Counsel for defendant and the county attorney each made a statement of their case and of the nature of the proof which they sought to introduce, and the court agreed to accept their statements as the evidence which would be offered for and against the application to withdraw the plea of guilty.

It is well settled that a plea of guilty should be entirely voluntary by one competent to know the consequences and should not be induced by fear, persuasion, promise, or igno»rance.

Section 2961, O. S. 1981, 22 O. S. 1941 § 517, provides :

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.”

Under this statute it has been the uniform holding of this court that an application to withdraw a plea of guilty is addressed to the sound judicial discretion of the trial court.

After a consideration of the record with reference to the defendant Blumenthal, it is our conclusion that the defendant entered his plea of guilty after advising with able counsel; that he is guilty of the crime as charged in the information; that no inducements or persuasions! were held out to him to induce him to plead guilty, and that the court did not abuse its discretion in refusing to allow him to withdraw his plea of guilty.

A different state of facts confronts us in connection with the application of the defendant Bennett. The proof on behalf of the defendant Bennett in connection with his application to withdraw his plea of guilty and to grant him a severance for trial is substantially as follows:

That on September 16, 1940, Jess Dunn, warden at the State Penitentiary, called defendant to his office. That the county attorney was there. That he was questioned concerning the disappearance of certain goods from the penitentiary which belonged to the state. That the warden there in the presence of the county attorney advised defendant that it would be the best thing for him to plead guilty and not to see a lawyer about the case. That if he would plead guilty, he would see to it personally that defendant would not have to serve a day in prison, but would get a suspended sentence. That those statements were made in the presence of the county attorney.

That the warden talked to defendant’s wife and his father and told them that it would he best for defendant not to hire a lawyer, but for him to go into court and plead guilty and that he (the warden) would see to it that defendant never served a day for the commission of this alleged offense, but that he would get a suspended sentence. That after the warden had talked to defendant’s wife and father they talked to defendant and advised him that since he would not have to go to prison, they thought it best for him to' enter his plea of guilty.

That on the day said case was set for preliminary hearing, the warden told defendant to waive preliminary hearing and enter a plea of guilty, and he, the warden, would see that defendant got a suspended sentence.

That defendant went to' the courthouse without a lawyer; that W. A. Lackey was there representing defendant Blumenthal and the warden requested Lackey, as a favor to him, to appear for him (defendant Bennett) at the preliminary hearing. That defendant entered his plea of guilty to said charge solely because of the inducement and promise by the warden in the presence of the county attorney that he would be given a suspended sentence. That he did not have a lawyer at any time until he employed counsel to appear for him and present his application to withdraw his plea of guilty when it became apparent that the warden was refusing to recommend a suspended sentence.

That he has a good defense to said cause by reason of an agreement between the Board of Affairs and Blumenthal to exchange goods, and that the charge against him is no more than a technical charge arising out of the fact that there was a shortage in clothing material, but that under the agreement such shortages might occur and either party be given an opportunity later to replace the material which had been taken, or pay its value. Defendant further stated that before they left the warden’s office at the time of their conversation the county attorney told defendant that if he would plead guilty he would recommend a suspended sentence.

F. E. Bennett, father of defendant, testified that he was called over the telephone by the warden and asked to come to McAlester. That he came to Warden Dunn’s office on the afternoon of September 19, 1940, and that the warden there said: “I’ll tell you as I told Mack if he would plead guilty I will see to it that he will never serve a day in the penitentiary.”

The wife of defendant Bennett testified that she talked to the warden of the penitentiary early in the morning of September 19th, and that the warden told her that he would see that defendant never served a day in the penitentiary, but would receive a suspended sentence if he would plead guilty. That later on, Halloween night, she talked to the warden again, at which time the warden told her that he was doing his best to have the charges against defendant Bennett dismissed, but that if he could not get the charges dismissed, he would see that he would get a suspended sentence. That she talked to her husband after her first conversation with the warden and asked him to enter his plea of guilty so that he could get a suspended sentence and get the case over.

It was further admitted that Mr. Lackey Avas asked by the warden to appear for the defendant Bennett, and that there was never any formal employment of him a si attorney for Bennett.

The proof on the part of the state Avas a statement by the county attorney as to the facts relied upon by the state to refute the contentious of the defendant, but which statement of the county attorney was admitted as evidence the same as if witnesses were present and sworn to testify to such statements, which treatment was likewise given to statements made by attorney for defendant.

The county attorney stated that he was called to the penitentiary on September 18, 1940, at which place he met the chairman of the Board of Affairs and the warden of the penitentiary and discussed the question of embezzlement of state property with defendant Bennett at that place. That Bennett admitted furnishing Blumenthal with state property under an agreement with Blumenthal that Blumenthal would pay him the sum of $100 per week. That Bennett was the only employee who1 had a key to1 the warehouse in which the goods in question were stored, and over a period of several weeks he furnished such material to Blumenthal and received as his pay the approximate sum of $500. The county attorney introduced the minutes of the court’s proceedings in connection with the pleas of guilty which were entered, which recite that the defendants appeared in person and. by their attorney, W. A. Lackey, waive reading of the information, waive arraignment and enter their pleas of guilty to the charge of embezzlement.

The county attorney specifically denied that he overheard the warden make a statement to1 defendant Bennett that “he would never serve a day in the penitentiary.” That the warden did say that he would help defendant Bennett in any way that he could, but that said cause would depend entirely upon the district judge of Pitts-burg county. That the county attorney never, at any time, stated that he would recommend a suspended sentence for defendant.

The affidavit of the warden was introduced and treated as his testimony. In this affidavit the warden admitted talking to defendant, his wife, and his father. The warden states that he did not tell these parties that he would see that defendant would never serve a day in prison, but that he did tell each of them that he would help defendant Bennett all that he could.

■Mr. Lackey testified:

“Mr. Bennett has never paid me a dime and the only reason I appeared for him' was at the request of the warden. When I walked up to Mr. Blumenthal, the warden said to' me, Will you also appear for Mr. Bennett,’ and I scarcely knew him at that time, and I said, ‘Is that your wish?’ and I say that now in justice to Mr. Bennett; that is the only reason I did so. I had never talked the facts over with him in the case.”

In the case of Harjo v. State, 70 Okla. Cr. 369, 106 P. 2d 527, 528, it is stated:

“The general rule of law as stated by numerous decisions of this and other courts is that an application to withdraw a plea of guilty is addressed to the sound discretion of the trial court; that the law favors the trial of criminal cases on the merits and where it reasonably appears a plea of guilty was influenced by persons in authority or apparent authority which has led a defendant to believe that by entering a plea of guilty his punishment will be thereby mitigated, he should be permitted to withdraw the plea of guilty and to enter a plea of not guilty and the refusal to' permit him to do so is an abuse of discretion.”

In Fromcke v. State, 37 Okla. Cr. 421, 258 P. 927, it is held:

“A defendant in a criminal action should be permitted to withdraw his plea of guilty, given unadvisedly, either before or after judgment, where any reasonable ground is offered for going to the jury.”

The defendant Bennett’s case is one of those borderline cases where there is ample argument to sustain either view this court might take of the court’s action in refusing to allow the defendant to withdraw his plea of guilty. However, since the law favors the trial of criminal cases on the merits, we have resolved this close question involved in Bennett’s case in favor of the defendant.

Here1, although the county attorney introduced the minutes of the court’s proceedings to show that defendant had the benefit of counsel to advise with him, the explanation by defendant as to. the reason that Mr. Lackey appeared is undisputed. Every step taken by this defendant was done at the instance and request of the warden of the State Penitentiary, who was the prosecuting witness in this cause and the employer of defendant. Part of the statements of the warden were made in the presence of the county attorney with his silent acquiescence. Certainly it must be said that under those circumstances the representations made to. this defendant were from a person of apparent authority. The warden was the prosecuting witness. It was through his request that the county attorney entered the case and filed the charges. The warden states, in his own affidavit, that he told defendant Bennett that “he would do all in his power to help him.”

The trial court in his statement in the record, before pronouncing sentence upon the defendants, indicated that if the warden had appeared in open court and recommended a suspended sentence, he would have followed the recommendation. The reasons why the warden did not do. so. are not in the record. No explanation was given in the warden’s affidavit nor in the county attorney’s statement to- the court. The inference is left from certain statements by counsel that the warden did not appear and recommend a suspended sentence because of orders received by him from the Board of Affairs. It is evident, however, that the warden held out certain inducements to Bennett in the presence of the county attorney which were not made to defendant Blumenthal, which inducements were the primary cause of defendant Bennett entering, a plea of guilty without consulting a lawyer.

It is our conclusion, after reviewing all of the facts and circumstances surrounding the case of the defendant Bennett, that under the record the court abused his discretion in not allowing the defendant to withdraw his plea of guilty. We arrive at this conclusion notwithstanding the fact that the judgment imposed against this defendant was not excessive; that in the trial of the case he possibly will secure a more severe punishment, as jurors in this state have generally been very positive and certain in the punishment which they mete out to individuals who have been stealing from the state.

It is therefore ordered that the judgment of the district court of Pittsburg county, as to the defendant I. H. Blumenthal, be and the same is hereby affirmed.

It is further ordered that the judgment of the district court of Pittsburg county, as to the defendant F. M. Bennett, be and the same is hereby reversed and remanded to the district court of Pittsburg county, with instructions to allow this defendant to withdraw his plea of guilty and enter a plea of not guilty.

BAREFOOT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    GRADY SMITH v. STATE.
    No. A-10058.
    July 29, 1942.
    (128 P. 2d 250.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of conviction, entered upon the verdict of a jury, in the county court of Carter' county, finding “the defendant, Grady Smith, guilty in the manner and form as charged in the information,” and leaving the punishment to be fixed by the court. His motion for new trial was overruled on January 21,1941; thereupon the court pronounced judgment and sentenced “the said Grady Smith to pay a fine of fifty dollars and to be confined in the county jail at Ardmore, for the term of 30 days, for said crime by him committed.”

To reverse the judgment an appeal was filed in this court on April 3, 1941.

The errors assigned are based on exceptions taken to the court’s overruling defendant’s motion to suppress the evidence; the admission of evidence obtained.by an unlawful search and seizure, and the overruling of defendant’s motion to strike such evidence.

The conviction rests upon the testimony of two witnesses, Roy Mogridge and Barney Ross, and upon the evidence obtained by a search and seizure in executing a search warrant, which described the place to be searched as follows:

“Proof by affidavit having been this day made before me, by Roy Mogridge stating that J! B. Ponder and John Doe, in Carter County, Oklahoma, in a certain building, at a one story frame building formerly used as a dwelling and now partly or wholly used as a business house, located on Highway No1. 70, between the intersection of North Washing Street and U. S. Highway No. 70 and the intersection of the Refinery Road with U. .S. Highway No. 70 on the North side of said Highway, the second door east of Mrs. Lewis’ blacksmith shop.”

The record shows that when the case came on for trial, counsel for defendant filed a motion to suppress the evidence for the reason that the same was secured through and by virtue of an unlawful search and seizure of the property of this defendant, without a proper search warrant, and stated: “I want to1 offer in evidence the search warrant for the purpose of showing its invalidity, and for this hearing only.”

In support of the motion to suppress, the defendant testified that between highway intersection of North Washington Street and the intersection of Refinery Road with IT. S. Highway No. 70, about three blocks east of North Washington Street, and on the north side of the road, there are four different houses, and the liquor in question was found in the third house east of Mrs. Lewis’ blacksmith shop. Thereupon the defendant rested.

By the Court: “Let the motion be overruled at this time.” Exceptions reserved.

Thereupon both sides announced ready for trial. The jury was duly impaneled to try the case.

Roy Mogridge testified:

“I live at Oklahoma City, I am an investigator for the Department of Public Safety, and have been such officer since July 14th, 1939, I go over the various counties of the state where my superior officer directs me to go; on July 17, 1940, I had occasion to go to Ardmore, and I made affidavit for the search warrant before I went down to this place; I know the defendant, Grady Smith, saw him that day; Barney Ross, deputy sheriff of Carter county was with me.”

Handed an instrument said: “This is the affidavit I made.”

Over defendant’s objection affidavit was admitted in evidence as Exhibit “1”.

Thereupon the state introduced the search warrant as Exhibit “2”, which was admitted over the defendant’s objection.

The record shows:

“The defendant objects to introduction of the affidavit for search warrant for the reason it does not describe the premises searched, and does not state any facts which would authorize the issuance of a search warrant, for the reason that it is not issued to any officer authorized by law to serve á search warrant, and does not name this defendant, and that it does not authorize this officer, Eoy Mogridge, to search this defendant’s premises or any part of it.”

By the Court: Overruled. Exceptions allowed.

He further testified that he found 25 pints of mixed brands of tax-paid whisky and five pints of gin, and the defendant said it was his whisky. Thereupon he was placed under arrest, brought to the county jail, and this case was filed against Mm.

The affidavit ivas in the usual form and concludes with the following recitals:

“That the aforesaid premises: bears the reputation of being a place where intoxicating liquors may be purchased in violation of the statutes of Oklahoma;

“That the aforesaid defendant bears the reputation of being a person from whom intoxicating liquors may be purchased in violation of the statutes of Oklahoma;

“That lawful search has heretofore been made of the premises under the control of said defendant and intoxicating liquor found, possession of same being in violation of the statutes of Oklahoma;

“That the aforesaid premises is a place used for the storage of intoxicating liquors in violation of the statutes of Oklahoma.

“That said premises have heretofore been searched and liquor found stored therein.

“Wherefore, affiant asks and prays that a search warrant be issued according- to law.

“Roy B. Mogridge

“Subscribed and sworn to before me this 17th day of July, 1940.

“TJlis Barnett

“Justice of the Peace.”

The testimony of Barney Ross, deputy sheriff, was that he accompanied the Avitness Mogridge and assisted in executing the search warrant, and Avas substantially the same as that given by the first witness.

When the state rested, the defendant again moved to exclude all the evidence, including the affidavit and search warrant, on the ground that it shows- that the search warrant under which the search was made was incompetent, in that it did not describe premises occupied by defendant. Which motion was overruled. Exceptions! allowed.

This court has repeatedly held that it is error for the state to introduce the affidavit for the search warrant as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 P. 895; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Ford v. State, 45 Okla. Cr. 161, 282 P. 370; Barnes v. State, 56 Okla. Cr. 402, 41 P. 2d 126.

In Williams v. State, supra [34 Okla. Cr. 359, 246 P. 896], it is said:

“In our opinion the court erred in admitting in evidence the affidavit and search warrant issued thereon, ¡and the motion to have them stricken out should have been sustained. The allegations of the affidavit tended to establish facts very material as against defendant, and attacked his character.”

■ It will be observed that the affidavit avers:

“That the aforesaid defendant bears the reputation' of being a person from whom intoxicating liquors may be purchased in violation of the Statutes of Oklahoma;

“That lawful search has heretofore been made of the premises under the control of said defendant and intoxicating liquor found, possession of same being in violation of the Statutes of Oklahoma.”

It has been repeatedly held by this court that the character and reputation of the accused cannot he put in issue by offering testimony as to his had character, unless the defendant first offers evidence as to his good character, then the prosecution may rebut it by evidence of bad character.

In Kirk v. State, 11 Okla. Cr. 203, 145 P. 307, it is said:

“It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.”

And see Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Harris v. State, 39 Okla. Cr. 4, 262 P. 700; Bruner v. State, 44 Okla. Cr. 425, 281 P. 319; Johnson v. State, 52 Okla. Cr. 76, 2 P. 2d 972; Giles v. State, 55 Okla. Cr. 145, 28 P. 2d 600.

In Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131, it is said:

“The state offered in evidence a search warrant reciting that ‘intoxicating liquors are being kept for the purpose of selling and otherwise furnishing said liquor in violation of law by the defendant.’ Held, that as the recitals of the search warrant were with reference to the essence of the offense charged, the admission of the warrant as independent evidence was prejudicial.”

It also appears from the evidence that the affidavit and the search warrant described a house different from the one which the officers searched.

Section 2635, :Sts. 1931, 37 O. S. 1941 § 84, provides that the warrant shall command a search of the “premises described and designated in such complaint and warrant.”

The description of the premises in the instant case is insufficient and not in compliance with the requirement of the Bill of Rights (sec. 30, art. 2, of the State Constitution). Thomas v. State, 38 Okla. Cr. 284, 260 P. 515; Thomas v. State, 54 Okla. Cr. 36, 14 P. 2d 430.

In Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145, 146, it is said:

“In cases of this kind the name of the owner or occupant is employed to designate or describe the place, it particularizes the place, for a person may own many places, but as a usual thing occupies only one.”

Upon the undisputed facts and the state’s testimony, it appears that the search and seizure in this case was an unauthorized trespass, and that the state’s evidence was improperly admitted over the defendant’s objections and in violation of his constitutional and statutory rights.

For the reasons stated, the judgment of the lower court is reversed and cause remanded with direction to dismiss.

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