text:
    FRED BADGETT v. STATE.
    No. A-10967.
    June 1, 1949.
    (207 P. 2d 359.)

      W. C. Henneberry, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Elmer Adams, Co. Atty., Tulsa County, of Tulsa, for defendant in error.
   BAREFOOT, J.

Fred Badgett was charged in the court of common pleas of Tulsa county with the unlawful possession of intoxicating liquor; was tried, convicted and sentenced to serve three months in the county jail and to pay a fine of $250, and has appealed.

Counsel for defendant in his brief sets out seven assignments of error, but confines his argument to two propositions, the seventh and fifth assignments.

The first proposition is:

“The punishment is excessive and said 'verdict was rendered as a result of passion and prejudice.”

The record discloses that two deputies from the office of the county sheriff of Tulsa county, armed with a search warrant for defendant’s automobile, found him on the streets of Tulsa, served the warrant, searched his car and found therein aproximately 13 cases of tax-paid whisky and gin.

Counsel cites several cases in which this court has modified the judgment and sentence where the evidence did not show the defendant to be an old offender, and where the records of this court did not disclose, any prior liquor violations by the defendant.

There is no question but that this court has the authority to modify a judgment and sentence. This authority is granted by the statutes, 22 O.S. 1941 § 1066. However, a judgment and sentence will not be modified unless it is clearly apparent from the record that the same is manifestly excessive, or that the punishment assessed was in part the result of passion and prejudice, and justice requires a modification of such sentence. Taking into consideration the amount of liquor found in the possession of this defendant, we are of the opinion that there is no merit in this contention.

The second proposition presents a more serious error. It is: “The court erred in instructing the jury.”

The instruction complained of is as follows:

“You are instructed that the possession of more than one quart of whisky is prima facie evidence of the intent to sell, but that such prima facie evidence may be rebutted by proof on the part of the defendant that there was no intent on his part to sell or dispose of the same.”

The defendant excepted to this instruction.

Counsel cites and relies upon the cases of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, and Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476. In the Hughes case, that part of the instruction complained of is as follows [184 P. 2d 628] :

“But while this is prima facie evidence of an intent on the part of the defendant to barter, sell or otherwise dispose of tbe same contrary to law, it is a rebuttable presumption and can be removed by proof to tbe contrary.”

In tbe Savalier case, supra, tbe objectionable part of tbe instruction was [185 P. 2d 478]:

“But while this is prima facie evidence of an intent on tbe part of tbe defendant on trial to convey, barter, sell or otherwise dispose of tbe same contrary to law, it is a presumption which can be rebutted and removed by proof to tbe contrary.”

Both of these cases were reversed on tbe grounds that tbe instructions as above set forth were erroneous. In tbe Hughes case, tbe insufficiency of an instruction such as was given in tbe instant case is discussed at length, and a number of cases cited. In tbe Savalier case, this court said:

“We suggest that in the future after the trial court has given an instruction based on tbe statute relative to tbe prima facie evidence of defendant’s guilt by reason of tbe possession in excess of one quart of intoxicating liquor (Tit. 37 O.S. 1941 § 82) he should give a further instruction defining tbe term prima facie evidence and we suggest that tbe instruction be given in substantially tbe following language: ‘The term “prima facie evidence” as that term is used in the statute above mentioned is that degree of proof which unexplained or uncontradicted is sufficient, if it be credited by- the jury, to establish tbe unlawful intent, yet it does not make it obligatory upon the jury to convict after the' presentation of such proof; whether or not such evidence is sufficient to overcome tbe presumption of innocence of defendant and to establish bis guilt beyond a reasonable doubt, when all the evidence is considered, is for tbe determination of the jury, and tbe term prima facie evidence as applied to the evidence does not shift the burden of proof from the state to the defendant.’ ”

For the reason above stated, the judgment of the court of common pleas of Tulsa county is reversed, and the case remanded, with directions to again try this defendant on this charge.

JONES, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    THOMAS NEILL v. STATE.
    No. A-10980.
    June 1, 1949.
    (207 P. 2d 344.)

      Jerome Sullivan, of Duncan, and C. S. McCuistion, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen.,.for defendant.in error.
   JONES, P. J.

The defendant, Thomas Neill, was charged by information filed in the district court of Comanche county with the crime of murder, was tried, convicted of manslaughter in the first degree, and pursuant to the verdict of the jury was sentenced to serve ten years’ imprisonment in the State Penitentiary, and has appealed.

Three propositions are presented by the appeal: First, the verdict and the judgment are not sustained by the evidence and are contrary to the law; second, the defendant was prevented from having a fair trial for the reason that the special prosecutor conducted the prosecution almost in its entirety; third, the court erred in giving instruction No. 11 to the jury.

The first proposition requires a summation of the evidence. The defendant, Thomas Neill, and the deceased, John Slimp, were each livestock traders. Slimp lived in Lawton while the defendant resided with his son on a farm about one and one-half miles from Walters, Okla., in Cotton county. On February 18, 1947, both the deceased and the defendant had gone to the sale barn at Lawton to attend the weekly livestock sale. Shortly after 11 o’clock a. m., an individual by the name of Dill brought a load of hogs to the sale barn. The deceased was not present when the hogs arrived but the defendant, Neill, and one McKeever, who was buying livestock in partners with Neill on that particular day, approached the owner of the hogs and asked him the price he had placed on the hogs. There is some variance between the testimony of witnesses for the state and defendant as to what then transpired. However, the witnesses generally agreed that McKeever made an agreement with the owners of the hogs for the purchase of the hogs for $90, and McKeever was to pay a commission to the parties who operated the sale barn over and above the price of the hogs.

Witnesses for the state testified that about, this time the deceased arrived and stated “I will pay $91.00”; that the defendant became enraged because of what he considered an interference on the part of the deceased in a sale which defendant thought had already been consummated, and struck at the deceased with a stick which defendant carried in his hands and which, in the parlance of the livestock traders, was known as a “bull stick”; that the son of defendant grabbed defendant, pushed him back and made him desist; that a constable who was standing near by also came-up to where the fracas was occurring and ordered the parties to desist and stated that if they did not he intended to carry them to jail. After this occurred the defendant and his son went off toward their car and the deceased walked off toward the loading chute. The actual auction sale had not yet started, but it was the custom of traders to purchase livestock before the sale commenced if they could make an agreement with the owners of the livestock with the understanding that a commission on the sale would be paid to the operators of the sale barn.

The homicide occurred^ about 30 minutes after the difficulty which arose over the hogs. There were a large number of cars and trucks gathered around the sale barn but a driveway leading to the loading chute was kept open so as to enable trucks to back up to the loading chutes for the purpose of removing animals which had been purchased at the sale.

Mrs. Frank Johnson, a witness for the state, testified that she was sitting in a pick-up truck crocheting with the window glass up; that about noon she saw two men whom she later learned were Neill and Slimp; that she heard loud profane language but did not know whether it came from either or both of the men; that both men were walking north with the defendant about 12 or 15 feet in front of deceased; that defendant took out a gun and shot the deceased; that after the first shot, deceased made a turn to the southeast and defendant fired a second shot and deceased fell to the ground; that she did not see any knife or weapon of any kind in the hands of deceased; that immediately after the shooting the son of defendant appeared and said “let’s get out of here”, and immediately the father and son left, walking rather fast.

The witness, Albert McCracken, testified concerning the fracas over the hogs at the loading pen and that when the fuss had ended, the deceased stated “just forget it, it is all in history”; that he was to meet Slimp at noon; that 15 or 20 minutes later, while Slimp was on his way up the driveway to meet him, he saw defendant pull a gun; that he yelled to the deceased “that fellow is pulling a son-of-a-bitch of a gun”, and deceased turned his head and started to turn to the right; that defendant fired two shots and deceased fell; that he never heard deceased or the defendant say anything; that deceased did not have any gun, knife, or other weapon; that the witness ran immediately to the deceased and then to the coffee shop to call an ambulance; that he then returned and remained with the deceased until he was removed in an ambulance; that he saw a small knife picked up from under the body of deceased which was not opened.

There were other witnesses who testified for the state who purported to have seen the shooting; their testimony varied from the testimony given by Mrs. Johnson and that of the witness McCracken, but in the main support-, ed the testimony of both of these witnesses.

The testimony of the undertaker and doctor who examined the deceased was that he had been killed by a bullet which struck him behind the left ear.

The defendant interposed a plea of self-defensé and testified in his own behalf that he was 59 years of age; crippled, and smaller than the deceased; that he had known the deceased for about 25 years, but had never had any trouble with him prior to the day of the shooting; that at the time of the first difficulty over the hogs, Slimp cursed him because he was from another county and that he lived there in Lawton and would buy the stock; that Slimp reached for a hammer on the top of a sales ticket box on the fence and, when he did so, the defendant hit at Slimp with a willow stick about three feet in length which he held in his hand; that defendant’s son and a constable stopped the fracas and the constable told, the deceased that- if he did not shut up he intended to lock him up; that he and Slimp then agreed to forget the difficulty; that he then walked towards the caretaker’s house and sat down on the running board of a car; that he was sick at his stomach and vomited; that a few minutes later, Slimp came from the livestock pens and said “By God I thought I told you to leave”; that he then got up from the car and walked away from Slimp and went farther west and sat down on the bumper of another car while Slimp went south to the pens; that shortly thereafter-Slimp came out of the pens and started walking toward him; that when he arrived •within about 40 feet of him he started cursing; that Slimp said he intended to cut the heart out of defendant and pulled a knife from his pocket; that defendant then commenced walking north and Slimp kept coming toward him; that he told Slimp to stop two or three times but Slimp did not do so; that he fired the first shot intending to fire over Slimp’s head and scare him; that Slimp then attempted to open his knife; that he was trying to get away from Slimp and was afraid Slimp would kill him if he got hold of him ; that he then fired the second shot; that he had a gun with him because he had been attending livestock sales and when he returned home on the bus it was generally at 2 or 3 o’clock in the morning, and that he was afraid of being robbed and generally had $200 or $300 in his pockets.

The son of defendant and other witnesses testified to facts tending to corroborate defendant’s version of the homicide.

By statute it is provided :

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” 22 O.S. 1941 § 745.

In construing this statute it has been held in Jones v. State, 20 Okla. Cr. 233, 202 P. 187, that:

“Even though the evidence on the part of the state indicative of the guilt of the defendant may not be convincing, if there is any substantial evidence tending to prove the guilt of the accused, that question is properly for the jury, and a demurrer to the evidence, under such circumstances, is properly overruled.”

Under some of the evidence of the state, the deceased was not walking after the defendant at the time the shots were fired but was on his way to eat lunch with the witness McCracken. However, from all of the evidence, we are convinced that the deceased was advancing towards the defendant. As to whether the facts surrounding the homicide were sufficient to justify the defendant in taking the life of the deceased was an issue for the determination of the jury.

Under the second proposition it is shown that the attorney, Lawton Burton, was employed by the widow of deceased to assist in the prosecution of the case. He made the opening statement to the jury, and conducted the examination on the part of the state of all of the witnesses except one. The county attorney examined this one and made the opening argument to the jury. The special prosecutor then made the closing argument for the state.

It is the contention of counsel for defendant that a special prosecutor may be employed to assist a county attorney in the prosecution of a criminal case, but that he should not be permitted to supersede the county attorney and allowed to conduct the prosecution in its entirety.

In the recent case of Perry v. State, 84 Okla. Cr. 211, 181 P. 2d 280, 285, this court quoted from McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260, as to the power and 'duties of a county attorney as follows:

“ ‘We know of no rule of law whereby a public officer may delegate power or authority involving official discretion or responsibility, except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized intermeddling. The county attorney is a very responsible officer, selected by the people and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.
“ ‘It is therefore of the highest importance to the public that this power should be carefully exercised, and that the responsibility should rest upon the officer to whom it is confided. * # *
“ ‘The public have a right to insist upon the performance of public duties that are strictly official in the prosecution of crime by county attorneys and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to pubic policy to allow or permit any general delegation of the county attorney’s power or responsibility in this respect.’ ”

In Cole v. State, 83 Okla. Cr. 254, 175 P. 2d 376, 380, this Court stated:

“It often occurs, as we have noticed it, in criminal cases that special prosecutors, who have been employed by private citizens, in their zeal to convict and in their determination to earn their money, make improper arguments in their appeal to the jury. This is unfortunately true not only in this case but in nearly every other case where the county attorney permits the special prosecutor to take the lead in the case. Often times the person selected as special prosecutor is -a skilled lawyer who has devoted most of his time to the trial of civil cases, and who overlooks the fact that a prosecuting attorney represents the public. The county attorney serves no private interest. His duty is to present the facts in a fair manner, and it is just as important that he shield the innocent as to punish the guilty. He may strike hard blows, but they must be fair ones. . Too many special prosecutors seem to feel it their duty to secure a conviction whether the means used are fair or foul.”

This court has never yet adopted a rule specifically limiting the acts of a special prosecutor in the trial of a criminal case. Special prosecutors are permissible if agreeable to the county attorney and their acts and conduct of the trial are under the supervision and control of the county attorney. When a special prosecutor is employed, because he is serving a private interest, the trial judge and the county attorney should keep a close check upon his activities and not allow him to inject into the trial prejudicial matters which affect the substantial rights of the accused. In the instant case, the special prosecutor, in so far as the conduct of-the trial was concerned, took the leading role. However, the county attorney was present at all times and the trial of the case was under the control and supervision of the county attorney. Counsel for the defendant have not pointed out any place in the record where the special prosecutor made improper or unfair statements either in the introduction of evidence or in his closing argument to the jury.

We know of no decision that would justify us in reversing this case because a special prosecutor took the lead in the prosecution where there is an absence of any improper or prejudicial acts or statements on the part of the special prosecutor.

Instruction No. 11 to which complaint is made provides :

“The defendant in this case has interposed the plea of self-defense; and in this connection you are instructed that under the law of this State, every person is given the right to act in his own necessary self-defense to protect himself from an attack, or threatened attack, of his adversary, and where a person is in a place where he has a right to be, as was the defendant in this case, and is not the aggressor in bringing on the difficulty, and is attacked, or threatened to be attacked by another person in such a way as to place him in danger of death or of receiving great bodily harm at the hands of his adversary, then such person so attacked, or threatened to be attacked, is not bound to retreat, but has the right to stand his ground and to repel the danger, or threatened danger, in which he is placed at the time, and with such force as is reasonably necessary to repel such attack, or threatened attack, to protect himself from death or of serious bodily injury at the hands of his adversary. But, under the law, when the necessity for the use of force ceased, the right to use force ceased.”

Counsel for defendant state that the instruction with the exception of the last sentence was requested by the defendant, but that when the last sentence was inserted by the trial judge, it destroyed the effect of the instruction and that said instruction with the last sentence added was misleading, ambiguous, and contradictory to tbe other instructions which were given.

The vice of the instruction as pointed out by counsel for the defendant is that it leaves for the determination of the jury the question as to the appearances of danger which would justify the taking of human life and did not require them to view it from defendant’s standpoint.

In Burroughs v. State, 80 Okla. Cr. 271, 158 P. 2d 723, the law applicable to the construction of instructions given in the trial of a homicide case is stated as follows:

“Instructions must be considered as a whole, and when considered altogether, if they fairly and correctly state the law applicable to the case, they will be sufficient.
“That an instruction is poorly worded is not ground for reversal if the same does not mislead the jury and the instructions considered as a whole aré free from prejudicial error.”

In addition to the instruction complained of, the trial court gave several other instructions on the law of self-defense. Among these instructions appeared the following :

“You are further instructed that if a person is attacked, or threatened to be attacked by another person, in a way as to induce in his mind a reasonable belief that he is in danger of losing his life or of suffering great bodily injury at the hands of his adversary, he is .justified in defending himself, although the danger is not real but only apparent. In such a case a person will not be held criminally responsible if he acts in his necessary self-defense, from real and honest convictions as to the character of the danger induced by reasonable appearances, although he may be mistaken as to the extent of the actual danger. A person need not be in actual, imminent danger of his life or of receiving great bodily injury at the bands of bis adversary before he acts in bis necessary self defense. It is sufficient if, in good faith, at the time be has reasons to believe and does believe at the time, from all the surrounding facts and circumstances, as they appeared to him at the time, viewed from bis standpoint, that be is in imminent danger of losing bis life or of receiving great bodily injury at the bands of bis adversary.
“In determining whether or not the defendant, at the time of the shooting in question, was in danger, or apparent danger, of receiving death or great bodily injury at the hands of the said John Slimp, you are instructed that you must view the circumstances from the standpoint of the defendant, as they reasonably appeared to him at the time. That is, that the surrounding circumstances under which he fired the fatal shot, as they reasonably appeared to him at the time, were sufficient to excite the fear of a reasonable person that his life was in danger, or that he was in danger of receiving great bodily injury, or death, at the hands of his adversary, and that he really acted under the influence of such fear and belief at the time he fired the shots.
“When a person reasonably and in good faith acts only in his necessary self-defense, then it makes no difference whether the feared danger is actually real or only apparent, if the person acting in his necessary self-defense actually and honestly believes at the time that he is in danger of receiving death, or serious bodily injury at the hands of his adversary; and in determining these questions, the law requires you to view the circumstances from the defendant’s standpoint as they reasonably appeared to him at the time.
“You are further instructed that if you find and believe from the evidence in this case, or entertain a reasonable doubt thereof, that the deceased, John Slimp, wrongfully provoked and brought on the difficulty in which he lost his life, and that he made, or threatened to make, an unlawful attack upon the defendant, and that it reasonably and in good faith appeared to the defendant at the time that he was in danger of receiving death, or great bodily injury at the hands of the said John Slimp, and that the defendant, acting in his necessary self-defense at the time, used only such force or means as reasonably appeared to him to be necessary to repel the attack, or threatened attack, to protect himself from death, or serious bodily injury, at the hands of the said John Slimp, then and in that event , you should return your verdict acquitting the defendant.”

After considering all of these instructions, we believe that taken as a whole, they fairly and correctly stated the law applicable to the issue of self-defense and were not misleading.

The court repeatedly admonished the jury in these instructions to view the circumstances at the time of the homicide from the standpoint of the defendant, and we do not believe that the addition of the last sentence to instruction No. 11, to which complaint is made by defendant’s counsel, confused the jury or caused them to fail to give effect to the other instructions.

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

BAREFOOT and BRETT, JJ., concur.


author: BRETT, J.

text:
    EARNEST GATHER WALKER v. STATE.
    No. A-10997.
    June 1, 1949.
    (207 P. 2d 341.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal by Earnest Gather Walker, defendant below, from a judgment and sentence by the county.court of Kiowa county, Okla., wherein he was charged, tried and convicted by a jury of the crime of driving an automobile while under the influence of intoxicating liquor. On the verdict the court imposed judgment and sentence of a fine of $100.

The defendant contends the evidence is. wholly insufficient to sustain the conviction, judgment and sentence. The state’s case shows by -the testimony of Highway Patrolmen C. O. Dawson and Fred Henry that the defendant drove his car while intoxicated; that at the time of his arrest the defendant was thick of speech, stag-gery and had a strong whisky smell on his breath. It further shows, when he was approached by the officers he said “Hello, sweetheart,” and tried to pat them; that he was happy drunk. Officer Henry said that he had known him for about a year, that he had talked to him before on quite a few occasions, that he was a pretty good boy, but on this occasion every time he said anything to the officers he would preface it with the remark “sweetheart.” The evidence further shows that there was a lady passenger in the car who was drunk, that she pleaded guilty to being drunk. Moreover, it was to the effect that there was a strong odor of whisky in the car and that there was a pint bottle of Old Fitzgerald about three-fourths full on the seat between the defendant and the drunken woman with him. They saw the defendant back out in a reckless manner and almost hit vehicles parked on the south side of the street before he got his car straightened up. This attracted their attention and they followed him. He was driving at 25 or 30 miles an hour; that when he came to the stop-sign at Main and Third streets he hit his brakes and kept going on across. They continued to follow him to a point south of the courthouse where he stopped his automobile. There they observed him in the hereinbefore mentioned condition and put him under arrest. The only weakness of the state’s case was the testimony of Tom Hood, jailor and deputy sheriff, who booked and jailed Walker. Hood testified he walked straight enough, that he could smell whisky but said he didn’t smell it on the defendant Walker’s breath. He said he would not say he was staggery drunk. Tliis evidence was good as against a demurrer, and was sufficient to go to the jury.

The evidence of the defendant, Walker, was a flat denial of his intoxication, coupled with the admission that he had had one drink of whisky out of a bottle while attending the Elks dance; that he was perfectly sober when he left the dance hall. He said the dance was being conducted for the Woodward cyclone victims. He said he had sold some tickets and that he had some money which he had collected; that he waited until after the dance to turn in the money. This he did he said because he was interested in knowing how much money was taken in for this relief project. He admitted the lady passenger was drunk but contended that a man by the name of Bob Glasscock and the woman and some others were in the car while he was upstairs in the dance hall checking in his money. He contended he did not know they were in the automobile until he came downstairs and found them there. He testified he did not want to put the lady out in the street drunk and he drove down to Glasscock’s car south across from the courthouse. Here he was arrested. He disclaimed ownership of the whisky and said he did not know how it got there.

Several people, friends of the defendant who attended the dance, testified in behalf of the defendant. Bob Glasscock testified he did not know how the whisky got in the car. He said it was apparently left by some of those in the car who were drinking there before Walker came down from the dance. He said the girl was too drunk to go down the street. He denied he was under the influence of liquor. In any event the officers did not arrest or book him for being drunk. Glasscock testified that Walker was not drunk and he corroborated Walker’s statement to the effect that he drove the drunken girl down to Glasscock’s car. In addition thereto, Glass-cock testified he was going to take her to her home in Mountain Park. He said they slowed down for the stop sign at Main and Third. He said he did not notice anything unusual about Walker’s driving; that Walker drove about 15 miles an hour. He said he did not remember hearing any of the conversation that took place out there between Walker and the officers when Walker was ar'rested, that Walker did not put up any argument. He didn’t remember him slapping the officers on the back and calling them “sweetheart,” he would not say that didn’t happen, he just said he did not hear it but that it could have happened and he would not have heard it. Witnesses A. C. Pillow, Jim Eberhart, Pay Watkins and his wife, and Doyle Baumberger all testified they attended the dance and that defendant, Walker, was sober. Mrs. John Fox, Jr., said she danced with Walker, that his actions would not indicate that he was intoxicated, that she remember they checked up on the receipts and Walker was there and he was perfectly sober.

Roy McGehee, deputy sheriff of Kiowa county, testified he was just leaving the jail when they came up with Walker, Glasscock and the drunken woman. They were being brought in just as he was going out of the jail and he knew Earnest Walker and saw him and from what he saw he could not detect whether he was drunk or sober, that he saw nothing which would indicate that he was under the influence of intoxicating liquor. As a matter of fact, he did not pay any attention at all as to whether Walker was drunk or sober and for that reason he would not say whether he was drunk or sober.

From the foregoing digest of the testimony it is apparent there is a sharp conflict in the testimony of the officers who made the arrest, and the defendant and his friends. The evidence both for the state and the defendant is substantial. This court has repeatedly held before it will interfere with the jury’s verdict on the ground that the evidence was insufficient to sustain the conviction, there must be no competent evidence in the record on which the verdict could be based. Rogers v. State, 85 Okla. Cr. 116, 185 P. 2d 927; Rule v. State, 84 Okla. Cr. 347, 182 P. 2d 525; Ritter v. State, 84 Okla. Cr. 418, 183 P. 2d 257, and in Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638, 639, wherein it was said:

“Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jnry to weigh the same and determine the facts.”

To the same effect see Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401. And Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111, 112, wherein we said:

“The function of this court is limited to ascertaining whether there is a basis in the evidence on which the jnry can reasonably conclude that accused is guilty as charged.”

In the case at bar the evidence was substantial though conflicting, and it was the jury’s province to .weigh the same. Where such is the situation we have no authority to interfere with the jury’s verdict and the judgment and sentence. For the foregoing reasons the judgment and sentence .herein imposed is accordingly affirmed.

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


text:
    Ex parte THOMAS C. WORKMAN.
    No. A-11172.
    June 8, 1949.
    (207 P. 2d 361.)

      Thomas C. Workman, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original petition for a writ of habeas corpus wherein the petitioner Thomas C. Workman alleges that he is being unlawfully restrained of his liberty by C. P. Burford, warden of the State Penitentiary at McAlester, Okla., and that the cause of said restraint is by virtue of the judgment, sentence and commitment made and entered on or about October 17, 1941, to life imprisonment on the charge of murdering his wife, by shooting her three times with a .38 caliber revolver. The petitioner was delivered to the penitentiary on October 20, 1941. This petition was filed herein on November 18, 1948.

In the petition defendant alleges that the petitioner did not have proper representation by counsel in that counsel refused to appeal his case stating that the petitioner had no funds. In this regard the petitioner alleges that he had no knowledge of law, did not know that he was entitled to an appeal unless the attorney made application, that he believed his attorney was advising him correctly and that he was compelled to abide by his advice. He admits he asked the court clerk of Tulsa county what it would cost to have a transcript of both the “main and preliminary trials” made and was advised that it would be approximately $350. He further alleges that it was only recently that he learned that he was entitled to perfect an appeal forma pauperis. He alleges further that he did not have a fair trial according to law.

Moreover he alleges he was not guilty by reason of temporary insanity, which issue it appears was determined by the jury. He further raises questions relative to the evidence in both the preliminary and on the trial of the case on its merits. In addition thereto he complains relative to the selection of- the jury at the trial on the merits and’ otherwise questioned the procedure therein.

He alleges that in mid-July, 1942, he made application to the Honorable E. W. Higgins, district judge of Pittsburg county, Oklahoma, for a writ of habeas corpus which was heard in September of 1942. Therein he alleged his complaints relative to his trial and the proceedings had in Tulsa county, and the writ was denied. He alleges that at said time Judge Higgins suggested that he take the matter before the Criminal Court of Appeals which he did not do until this present proceeding.

The Criminal Court of Appeals looks with liberality on petitions for habeas corpus filed by inmates of state institutions without the advice and help of an attorney. Ex parte Allen, 86 Okla. Cr. 48, 192 P. 2d 289. But it is apparent that the foregoing matters and things alleged in the petition are not such as can be reached on habeas corpus. This court has repeatedly held that it will only grant relief by habeas corpus when the judgment is void, or the court did not have jurisdiction to render the judgment and sentence. Ex parte Scott, 85 Okla. Cr. 103, 185 P. 2d 482; Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Noble, 89 Okla. Cr. 231, 206 P. 2d 226; In Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613, we held that in habeas corpus proceedings we will not look beyond the judgment and sentence of a court of competent jurisdiction for mere irregularities of procedure or, errors of law on questions over which the court had jurisdiction. Here the trial court clearly had jurisdiction to render the judgment and sentence complained of. It had jurisdiction of the subject matter, jurisdiction of the person of the defendant and jurisdiction to pronounce the judgment and sentence rendered. Under these conditions the judgment is not void and the Criminal Court of Appeals, has repeatedly held that the writ cannot issue to correct irregularities in such proceeding. Ex parte Barber, 87 Okla. Cr. 201, 196 P. 2d 695. Here there is nothing in the record to indicate that the trial court in which the petitioner was convicted was without authority to render the judgment complained of, and under, such conditions the writ must be denied. Ex parte Peaker, 87 Okla. Cr. 139, 194 P. 2d 893. Moreover the writ of habeas corpus may not be used as a substitute for appeal. Ex parte Motley, supra. It is apparent that the matters and things alleged by the petitioner herein, even if established, would not warrant his discharge on habeas corpus, and therefore would not warrant us in granting the writ. Ex parte Linam, 71 Okla. Cr. 155, 109 P. 2d 838; Ex parte Noble, supra; Ex parte Whitson, 70 Okla. Cr. 79, 104 P. 2d 980. Moreover, approximately eight years have elapsed since the petitioner committed the crime and was convicted thereof, and for the first time he presents an application for a writ of habeas corpus in this court. This court has repeatedly held that the right to relief by habeas corpus may be lost by laches, when the petition for habeas corpus is delayed for a period of time so long that the minds' of the trial judge and court attendants become clouded by time and uncertain as to what happened, or due to dislocation of witnesses, the grim hand of death and the loss of records, the' rights sought to be asserted have become mere matters of speculation, based upon faulty recollection, or figments of imagination, if not outright falsifications. Ex parte Matthews, supra. The wisdom of the last quoted rule is made apparent by the petitioner’s reference to lost records used by him in the proceeding before Judge Higgins in Pittsburg county and the death of Honorable G-leason McDonald, assistant county attorney of Tulsa county, to whom reference is made in the petition.

It clearly appears herein that the court had jurisdiction to pronounce the judgment and sentence herein complained of and the same was not void, and for this reason and the other reasons hereinbefore set forth, the writ must be and the same is hereby denied. -

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


author: BABEFOOT, J.

text:
    BOOTS LADD v. STATE.
    No. A-10969.
    June 8, 1949.
    (207 P. 2d 350.)

      George L. Hill and Kirksey M. Nix, both of McAles-ter, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Fred W. Whetsel, Co. Atty., Pitts-burg County, of McAlester, for defendant in error.
   BABEFOOT, J.

Defendant, Boots Ladd, was charged in the district court of Pittsburg county with murder; was tried, convicted of the crime of manslaughter in the first degree and his punishment assessed by the court at 15 years in the State Penitentiary, and he has appealed.

For reversal of this ease the following errors are presented:

(1) Failure of the court to call the jury into the presence of the defendant to give additional instructions requested by the jury.

(2) Refusal of the court to grant the request of the defendant that the jury be instructed that they should assess the punishment in the event they found the defendant guilty.

(3) Error in the closing argument of the county attorney.

A consideration of the above errors necessitates a brief statement of facts as revealed by the record.

Defendant in his original brief states the facts in a fair, concise way. We quote:

“After the jury had retired to consider their verdict, and after considerable deliberation by them, they knocked on the juryroom door for the bailiff, at the time they so rapped on the door the judge was sitting in his chambers. The bailiff answered the knock, and after some conversation with one or more members of the jury, reported to the court that the jury wanted to be instructed as to whether or not the court could fix the punishment in the event the defendant was found guilty by them, and the court thereupon told the bailiff to advise the jury to read the instructions of the court. The defendant was not in the presence of the court at the time of such proceedings, but one of his attorneys immediately after such proceedings were had, moved the court to instruct the jury that the defendant requested that in the event he was found guilty, that the jury assess the punishment, which motion of the defendant’s attorney was overruled, and the defendant then and there excepted to the court’s ruling. At no time during these last mentioned procedures was the jury brought into the court room from the jury room, nor were they brought in the presence of defendant during such proceedings, but all of said proceedings were had by word of mouth from the jury to the bailiff to the judge and from the judge to the bailiff back to the jury, and we feel that this constituted reversible error.”

We shall first consider error No. 2.

This question requires a consideration and construction of two sections of the Oklahoma Statutes, 22 O.S. 1941 §§ 926 and 927. They are as follows:

“§ 926. In all cases of a verdict of conviction for any offense against any of the laws of the State of Okla: homa, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.
“§ 927. Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the- punishment and render the judgment accordingly.”

The Attorney General in his brief says:

“While the present appeal may be decided Upon the failure of counsel for the defendant to make his request until after the jury had deliberated for some time, we feel it highly important that the court should fully settle this question of procedure, and wé further feel that these sections should be construed together and the jury fully instructed in advance of their deliberation.”

The reason for this request is understood after an examination of the cases decided over a long period of time by this court. There is direct conflict in a number of these opinions, and it is necessary that they now be construed and a uniform construction of the above sections of the Statutes he made so that the bar of the state and the courts may know what procedure to follow when this question arises.

In a number of the earlier decisions of this court it was held that under the above statutes it was the duty of the court to instruct the jury to assess the punishment when so requested by the defendant, and the failure of the court to so instruct the jury was reversible error. Craig v. State, 31 Okla. Cr. 19, 236 P. 909; Dew v. State, 8 Okla. Cr. 55, 126 P. 592; McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72; Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140. See, also, Wakefield v. State, 65 Okla. Cr. 321, 89 P. 2d 330.

In other cases, it has been held that when requested by the defendant, it is the duty of the court to instruct the jury to assess' the punishment, but further instruct them that in case of their failure to assess the punishment, to return their verdict into court accordingly and the court, will fix the punishment. Crouch v. State, 23 Okla. Cr. 325, 214 P. 747; Dunn v. State, 60 Okla. Cr. 201, 63 P. 2d 772; Snider v. State, 71 Okla. Cr. 98, 108 P. 2d 552.

It has been held that it was necessary for the jury to, state in their verdict that they were unable to agree upon the punishment, and then the court is permitted to fix the same under the statute. Oelke v. State, supra.

A number of cases have held that it was not necessary to give an instruction directing the jury to assess the punishment unless requested so to do by defendant. Tudor v. State, 14 Okla. Cr. 67, 167 P. 341; Landrum v. State, 60 Okla. Cr. 259, 63 P. 2d 994.

Other cases have held that where requested instruction to assess the punishment was refused, the court could modify the judgment and sentence, and this would be a compliance with the statute. Downs v. State, 23 Okla. Cr. 404, 215 P. 217; Simpson v. State, 51 Okla. Cr. 362, 1 P. 2d 823.

In other cases the court has held that when the jury returns a verdict of guilty, but fails to assess the punishment to be inflicted, it is the duty of the court to assess and decree the punishment. Bland v. State, 18 Okla. Cr. 514, 196 P. 732; Blair v. State, 4 Okla. Cr. 359, 111 P. 1003; Fain v. State, 14 Okla. Cr. 556, 174 P. 296; Newton v. State, 14 Okla. Cr. 226, 170 P. 270.

We have carefully read and examined all of the above ¡cases. As will be noted from the statements above made, there are some conflicting decisions upon the construction to be placed upon the above sections of the statute. It would unduly lengthen this opinion to attempt to refer to each individual opinion. We deem it best, as suggested in the brief of the Attorney General, to come to a conclusion as to the proper interpretation to be placed upon the statutes so that the courts of the state may here-after follow the procedure here announced.

After a review of all of the above decisions, it is our opinion that the rule announced in the case of Dunn v. State, supra, and Snider v. State, supra, is the proper and best interpretation and construction to be placed upon the statutes hereinbefore quoted. In the Snider case the facts were that the jury had been deliberating, for a number of hours. They were brought into open court and informed the court that they had reached a verdict, but were unable to agree on the punishment and asked the court if they could return a verdict and leave the punishment to be fixed by the court: “To which the defendant objected and demanded that the punishment in the case be left to the jury * * * which was by the court refused, and to which the defendant excepted.” [71 Okla. Cr. 98, 108 P. 2d 558.] The court then gave to the jury instruction No. 6%, which is as follows:

“The Court: I will give you this further instruction, Gentlemen: ‘If you find the defendant guilty of forgery in the second degree, beyond a reasonable doubt, as herein charged, and are unable to agree on the punishment therefor, then simply say by your verdict that you find the defendant guilty of forgery in the second degree, if such be the case, and that you leave the punishment to be fixed by the court.’
“The Court: I will also give you a form of verdict to meet that instruction.
“Thereupon, the jury retired to further consider its verdict.”

Judge Jones, who wrote the opinion, after quoting the applicable statute, 22 O.S. 1941 §§ 926, 927, said:

“Instruction No. 5 instructed the jury that it was their duty to assess the punishment of the defendant, if they found him guilty, within the limits as set out in instruction No. 2. This instruction sufficiently complies with Section 3107 O.S. 1931, 22 Okla. St. Ann. § 926. When the jury asked for an additional instruction upon the matter, the court correctly gave them instruction No. 6y2, supra.
“In the case of Dunn v. State, 60 Okla. Cr. 201, 63 P. 2d 772, this court upheld the sufficiency of an instruction, in substance, very similar to the one in the case at bar.”

It will thus be noted that when requested to do so, the court should instruct the jury it was their duty to determine the punishment in case of a verdict of guilty. This should be followed by an instruction that if they are unable to agree on the punishment to be inflicted they should so state in their verdict and then leave the punishment to the court. Upon the return of the verdict the court should fix the punishment within the terms prescribed by the statute. We believe that this is a fair and just interpretation of the statutes, and in accord with the great majority of the opinions of this court in the consideration of the above statutes. We believe it was not the intention of the Legislature that a defendant should have the absolute right to require the jury to fix the punishment, but rather that they should have the opportunity to do so, and in the event of their failure or inability so to do, after using their very best efforts, the court should have the responsibility and duty of fixing the punishment. But it should be stated in the verdict that they are unable to agree on the punishment.

We now come to a consideration of the first and third assignments of error, which may be considered together.

The record discloses that after the jury had retired and were deliberating upon their verdict, there was a knock at the door which was answered by the bailiff. After a conversation with the bailiff, he informed the court, who was sitting in his chambers, that the jury wanted to be instructed as to whether or not the court could fix the punishment in the event the defendant was found guilty by them, and the court informed the bailiff to advise the jury to read the instructions of the court, and the bailiff delivered this message.

It may be noted that the court did not have the jury return to the courtroom to instruct them, as was done in the case of Snider v. State, supra, nor was counsel for defendant, who was sitting in the courtroom at the time, or the defendant, notified as to the conversation that was being had between the jury, the bailiff and the court.

This constitutes a question for the serious consideration of this court, as to how far a court may be permitted to converse or instruct a jury after they have retired to deliberate upon their verdict without bringing them into open court, where the defendant and his counsel may have an opportunity to be present, and know what is being done, and given an opportunity to object and save an exception. In the instant case, as above stated, counsel was not present, and he desired to ask that the jury be instructed that it was their duty under the statute to assess the punishment in the event they returned a verdict of guilty. Under a number of decisions of this court, as above pointed out, he clearly had a right to do this. Yet he did not have this opportunity until he later learned what had transpired. It is insisted by the Attorney General that his request came too late. This may be true, but, on the other hand, the question arises as to whether the remarks of the court to the jury as delivered by the bailiff were such as to prejudice the rights of the defendant. They were only told to “read the instructions,” so far as the record reveals. It is doubtful, if this was all that was said, that it would prejudice the defendant. The court had instructed the jury as to the punishment they could give in the event of a conviction for murder or manslaughter, and in instruction No. 18 had instructed the jury “if you should find him guilty but fail to agree upon the punishment to be assessed because of your inability to agree upon such punishment, after using all possible efforts to so agree,return your verdict into court accordingly.” The jury returned a verdict finding defendant guilty of first degree manslaughter but stated: “fail to agree upon his punishment therefor, after using all possible efforts to so agree.”

Under this verdict the court sentenced defendant to serve a term of 15 years in the State Penitentiary.

It is provided by 22 O.S. 1941 § 894, as follows:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”

Many eases have been decided by this court construing and interpreting this statute: Ridley v. State, 5 Okla. Cr. 522, 115 P. 628; Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222; Bennett v. State, 42 Okla. Cr. 264, 275 P. 390; Whitfield v. State, 37 Okla. Cr. 37, 256 P. 68; Raab v. State, 62 Okla. Cr. 361, 71 P. 2d 773; Graham v. State, 73 Okla. Cr. 337, 121 P. 2d 308; Lewis v. State, 73 Okla. Cr. 172, 119 P. 2d 91; Green v. State, 65 Okla. Cr. 463, 88 P. 2d 907; Lowrey v. State, 87 Okla. Cr. 313, 197 P. 2d 637.

It would unduly lengthen this opinion to discuss all of the above cases. The opinions in all are practically to the same effect. These and other early cases have been cited in the five late cases, in which the opinions were written by the present members of this court. Raab v. State; Lewis v. State; Graham v. State; Green v. State, and Lowrey v. State, supra. Each of these opinions contains an elaborate discussion of the authorities. We shall be content to here make short reference to the five cases, which clearly express our views with reference to the interpretation that has been and shall be placed upon the statutes here under consideration.

In the Raab case, the trial had been completed in Johnston county. The trial judge had left the county and gone to his home in Love county, while the jury was deliberating on its verdict. A telephone conversation occurred between the foreman of the jury and the trial judge while he was in Love county. The question of the jury being unable to agree was discussed, and the court told the foreman to “go back to your juryroom and labor some more. I will be over there some time this afternoon. That is a question you must settle among yourselves.” [62 Okla. Cr. 361, 71 P. 2d 774.]

After reviewing many authorities from this and other jurisdictions, the Raab case was reversed by reason of the trial judge leaving the county while the jury was deliberating and by reason of the conversation over the telephone between the court and the foreman of the jury. In the body of the opinion it is said:

“Not only do the Oklahoma cases uphold this doctrine, but the generally accepted view is that it is reversible error for the tidal judge in a criminal case to communicate with the jury or any member thereof, except in open court and in the presence of the defendant and his counsel; the basis of such ruling being that the accused shall have the right of a public trial and the right to be present during all stages thereof. There are some decisions which hold that it is necessary to show prejudicial error, but many of these cases are civil cases, and many of them are based upon peculiar statutes different from what we have in Oklahoma.”

And in the body of the opinion, the court said:

“The record does not probably disclose all of the conversation between the parties. Jurors are very eager to know what the judge’s opinion of the case is and a very little move or indication from him is of tremendous influence. This is the very reason for the rule that any communication by Mm with the jury while deliberating should be m open court where the defendant and his counsel may be present to protect their rights. ' The verdict of the jury should not only be decided by the strictest observance of all the well-ordered rules of procedure, but it should be above and beyond suspicion. Of all things most sacred in judicial proceedings,, the sancity of the verdict should be inviolate. This high test is demanded by the statutes of this state above quoted.”

In the Lewis case, the jury had been deliberating for some time and at the noon hour the trial judge advanced to the door of the juryroom and knocked on the door and one of the jurors came to the door which was opened by the bailiff, and the court inquired if they had reached a verdict, and was informed that they had not.

The trial court, in passing upon defendant’s motion for new trial said [73 Okla. Cr. 172, 119 P. 2d 94] :

“I told them that the hour of noon had arrived but I would retire to my chambers and leave the matter with them a few minutes and if they could not agree then I suggested they should come down and report to the Court and we would recess for the noon hour. About the hour of twelve-ten or-fifteen the jury did report to the Courtroom and made their report and they were recessed until the hour of one p. m. The motion of counsel for the defendant is heard and denied.”

Judge Jones, who wrote the opinion of the court, in the body of the opinion said:

‘“As to assignment No. 10, the Attorney General confesses in his brief that the court erred in going to the jury room, in the absence of the defendant and his counsel, and discussing the case with the jury, and further erred in refusing to allow defendant’s counsel to question the jurors as to what the judge said to them when he came to the jury room; but it is contended that such action, when considered together with the record in this case, shows that the defendant was not prejudiced by reason of anything that was said or done, and that said error, accordingly, is harmless.”

The court then reviewed and cited many cases from this court and other states, among them Sargent v. Roberts, 1 Pick 337, 18 Mass. 337, 11 Am. Dec. 185, from which it is unnecessary to here quote; and the case of State v. Wroth, 15 Wash. 621, 47 P. 106, 107, where it is said:

“It is contended by the appellant’s counsel that this constituted such misconduct on the part of the trial judge as requires a reversal, and we think the contention must be sustained. In the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter. The appellant was not obliged to follow the judge to the jury room in order to protect his legal rights, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what occurred between the judge and the jury at a place where the judge had no right to be, and in regard to which no official record could be made. ■
“But learned counsel for the state insist that the judge said nothing to the jury, and hence his conduct could not have been prejudicial to the defendant. But the law does not subject parties litigant to the disadvantage of being required to accept the statement of even the judge as to what occurs between himself and the jury at a place where the judge has no right to be, and where litigants cannot be required to attend. It is the lawful right of a party to have his' cause tried in open court, with opportunity to be present and heard in respect to everything transacted. It is his right to be present and attended by counsel whenever it is found necessary or desirable for the court to communicate with the jury, and he is not required to depend upon the memory or sense of fairness of the judge as to what occurs between the judge and jury at any time or place when he has no lawful right to be present. His right in this respect goes to the very substance of trial by jury. Aside from the rights of the parties, public policy will not sanction any departure from the rule which requires that all such communications shall be public, and in the presence of the parties or their counsel.”

In the Lewis case, this court said: “We cannot agree that this error is harmless error”; and the case was reversed with instructions to grant the defendant a new trial.

The same conclusion was reached in the Green and Graham eases, under facts very similar.

In the Lowrey case, supra, the facts were that the sheriff, at the suggestion of the bailiff, entered the jury-room for the purpose of recovering certain exhibits. There was no direct evidence of any conversation between the sheriff and the jury with reference to the case, but the sheriff had been one of the material witnesses for the state in the trial of the case. Judge Brett, who delivered the opinion of the court after reviewing many of the cases from this court, including the Raab, Lewis, Green and Graham cases, and cases from other jurisdictions, reversed the case and in the body of the opinion said [197 P. 2d 656]:

“Moreover, we feel constrained to say that the bailiff of the court must at all times protect the jury not only from his own intrusion but also from that of outsiders. It is not necessary at any time that the bailiff pass beyond his post outside the jury room door. All papers and exhibits should be handed therefrom to him. He is at no time justified in communicating with the jury in any manner about the case except to act as a messenger between them and the court, and to inquire of them from outside the jury room, if they have arrived at a verdict. He should never permit an outsider to invade the jury room, even though he be the sheriff- — and not even the court except by permission and consent of the defendant, and his counsel and in their presence. The sheriff has no business in the jury room at . any time with or without directions from anyone. In no other way may the purity of the system be preserved. Under the conditions herein involved we do not believe the state met the burden necessary to overcome the presumption of prejudice, and its failure so to do constitutes reversible error.”

It may be noted from the above decisions that.the court was right when we stated in the Lewis case, supra:

“Oklahoma is not as strict as many states in regard to this matter; but we are committed to the doctrine that when the trial judge communicates with the jury, outside of the court room, in the absence of the defendant or his counsel, such conduct is presumed to be prejudicial to the defendant, and the burden is upon the state to show that the defendant was not prejudiced by reason of such misconduct.”

In the brief of defendant, reference is made to two other errors — “prejudicial and improper” closing argument of the county attorney, and that the judgment and sentence is excessive.

In this connection we desire to call attention to the following facts: Both the defendant and deceased were inmates of the -State Penitentiary at McAlester. The crime was committed behind the prison walls, and all of the witnesses were guards at the penitentiary, or inmates thereof.

It was the testimony of all the witnesses, both for the state and the defendant, that the deceased was what was termed a “bully,” and that the inmates were all afraid of him. He was an ex-boxer or prizefighter, and was continually in, fights with other prisoners.

The homicide occurred on Monday, April 8, 1946. On Saturday morning just prior thereto, the defendant and one Joe (Blaekie) Driver had a fight, and the deceased had intervened, and knocked some of defendant’s teeth loose. On Monday the deceased and Blaekie Driver were working in the “pit” and one of the guards, a witness for the state, testified that he heard them say that they intended to kill the defendant.

The defendant testified that he was working in the brickyard, and his group ate lunch at 11 o’clock, and the men in the “pit” ate at 11:30. That when he, defendant, came out of the mess hall, a guard told him he had better “watch his step” because the deceased and Blaekie Driver were talking about him that morning, and the guard had. separated them, having one of them work on one side of the pit, and the other on the opposite side. Defendant went over and sat down on a brick car. He did not want to have any trouble, because his time in the penitentiary was very short, and he did not want to do anything to prolong his prison sentence. He testified that the deceased walked up to him, reached under his jumper and said, “We are going to finish you.” Defendant picked up an iron bar and struck deceased. He was taken to the hospital, where he died in a short time. Defendant admitted that he had- been a drug addict, and had served several prison sentences, all of them in connection with narcotics. The testimony of the guards was that defendant was a “model prisoner,” and had not caused any trouble while in the penitentiary.

Blaekie Driver, the prisoner with whom defendant had the trouble on Saturday prior to the homicide on Monday, and a witness for the state, testified on cross-examination :

“Q. Now Blackie, you and Tony [deceased] were good friends? A. Yes, sir. Q. Kinda buddied around together? A. Yes, sir. Q. When you had a fight Tony took up for you — what do you call that, ‘cutting it on it’ is that it? A. Yes, sir. Q. As a matter of fact he hit Boots in the mouth and knocked him down? A. Yes, sir. Q. You say that was on Saturday? A. Yes, sir. Q. Did he knock all of his teeth loose? A. Well, I don’t know that he knocked them all loose or not, I never did examine him. Q. Tony was a prize fighter? A. He was good with his fists. Q. He had lots of fights? A. Yes, sir. * * * Q. The boys were all afraid of him, weren’t they? A. Yes, they was afraid of him. Q. When you say you had this fight on Saturday, Tony Monzell cut in and knocked Boots down? What did they do with them? A. They separated them and sent Tony immediately in the pits, and put him on the hill. * '* * Q. When is the next time you saw Tony Monzell? A. Going to dinner. Q. On Saturday? A. You are talking about Monday now, aren’t you? Q. Was that the last time you talked with him? A. No, I talked to him several times before that. Q. Did you talk about Boots Ladd? A. Yes, sir. Q. What did he say? (Objection is overruled). A. He wanted me to help him kill Boots. Q. What did he say about it? A. He just said he had all he wanted of him — he had a little trouble with him before — two or three times. Q. Did you tell him you would help him? A. No, sir. Q. What did you tell him? A. I told him it wasn’t nothin’ but a fist fight to start with and didn’t lead up to no killing. Q. Did he tell you how he was going to kill him? A. No, he didn’t. Q. Did you see him on Monday, the day this happened? A. At noon. Q. Where was that, Blackie? A. The first time I had a chance to talk to him was going to dinner. Q. Did you have a conversation about Boots Ladd at that time? A. Yes, sir. Q. What did he tell you? A. The same thing — he wanted me to help him kill Boots. Q. What did you say? A. I told him no, I didn’t want no part of it — it didn’t amount to nothin’ to start with. Q. When is the next time you saw him — did you go to dinner together? A. Yes, sir. Q. Did you come out together? A. Yes, sir. Q. Did you separate when you got out on the yard? A. We separated. Q. Which way did you go? A. To my right, and he went to his left. Q. Did you ever at any time on Monday see Tony Monzell with a weapon of any kind? A. Just at noon there aft-ed the meals. He come over there where I was shooting dice saying he had a knife and stooped down and put his hand down here and asked me were you going to help me or what was I going to do about it, and I said, ‘No, forget it’ — I wasn’t going to have nothin’ to do with it. Q. That was during the noon hour? A. Yes, sir. Q. And he told you he had a knife and wanted you to help him kill Boots Ladd? A. Yes, sir. We separated, you see when we came out from eating dinner — we come out of the mess hall, those games are laid back a little northwest from where we had to come out. We separated back where you go out in front of the office. He went around behind the office after this knife, and I went on down where they were. Q. Where was the knife, Black-ie? A. I don’t know where it was. Q. Do you know whose knife it was? A. I know it was his. H always kept one. Q. Where did he keep it? A. Hid around there. Q. He went around' where he had the knife hid? A. Yes, sir. Q. Went around there and came back to the poker table and asked you— A. Where I was shooting dice. Q. You told him ‘no’? A. Yes.”

As to the closing argument of the county attorney, the record discloses the following:

“Mr. Hill: The defendant objects to the statement made by the county attorney to the jury in his argument of this case that he had an offer he would make to them, and that the offer was that if they turned Boots Ladd loose that he wanted them to come back to his office in 30 days and' see where he was, and move the court to admonish the jury to consider that argument as being entirely out of the record of this case. The Court: Now, gentlemen, you heard the testimony of this case, and know what the evidence is. Counsel has the right to draw all reasonable conclusions that may be drawn by reasonable men from the evidence. Disregard any argument or reference to anything outside of the record, and don’t consider it in any way whatsoever. You may proceed.” •

This argument was improper and the court should have sustained an objection to same, and instructed the jury not to consider it. However, this error would not alone be sufficient to require a reversal of the case.

Because of the action of the trial court in communicating with the jury in the absence of counsel for defendant and the defendant, the judgment and sentence of the district court of Pittsburg county is reversed, and the case remanded.

JONES, P. J., and BRETT, J., concur.


text:
    Ex parte ODIS PRUITT.
    No. A-11209.
    June 8, 1949.
    (207 P. 2d 337.)

      David W. Taylor, of Norman, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, P. J.

The petitioner, Odis Pruitt, an inmate of the Oklahoma State Penitentiary, alleges in his verified petition for habeas corpus that his commitment to the penitentiary is void for the reason that the judgment and sentence under which he is now serving recites that he was convicted of burglary in the second degree and sentenced to serve 10 years’ imprisonment in the penitentiary on account of such conviction; that the maximum period of imprisonment that may be assessed upon conviction of the crime of burglary in the second degree is a term of seven years’ imprisonment in the penitentiary, and therefore the judgment and sentence is void.

At the hearing before this court, the following facts were established: Petitioner was charged by preliminary complaint filed before a justice of the peace of Oklahoma county, on October 25, 1945, with the crime of burglary in the second degree; his preliminary examination was set for November 6, 1945. On that date the preliminary complaint was amended to charge the petitioner with the crime of burglary in the second degree after a former conviction of a felony. Ón November 6, 1945, the cause was continued to a further hearing on. November 10, 1945, at which time the magistrate entered an order holding the defendant for trial in the district court.

Thereafter an information was filed in the district court charging the petitioner with burglary in the second degree after former conviction of a felony. Upon a trial to a jury, a verdict was returned finding the defendant “guilty of the crime of burglary in the second degree after former conviction of a felony” and his punishment w;as fixed at imprisonment in the penitentiary for a period of 10 years. Thereafter, on December 27, 1945, the judgment and sentence was pronounced by the district court in conformity to the jury’s verdict, but the court clerk in preparing the formal journal entry of the judgment and sentence inadvertently omitted the phrase “after former conviction of a felony”.

Approximately three years later, on December 22, 1948, after the county attorney had been informed of this omission in the judgment and sentence which was signed by the court, he filed his written application for an order nunc pro tunc in which he prayed the district court to direct the court clerk to amend the original judgment and sentence by incorporating therein “after former conviction of a felony”. Pursuant to such application, the district court of Oklahoma county, on December 22, 1948, entered the following order:

“It is, therefore, ordered adjudged and decreed by the court that the Court Clerk amend and correct the original judgment and sentence in this case by adding after the phrase ‘Burglary in the Second Degree’ the following phrase: ‘after former conviction of a felony’, so that the judgment and sentence will speak the truth and correct the error, negligence and mistake of the Court Clerk heretofore made on December 27, 1945.”

Three propositions are presented in the brief of petitioner :

(1) The district court of Oklahoma county did not have jurisdiction of the person of petitioner at the time of the purported trial on December 18, 1945, or jurisdiction to render the particular judgment.

(2) The judgment and sentence was void on its face.

(3) The granting of an order nunc pro tunc by the district court of Oklahoma county was invalid for lack of notice to petitioner.

The first proposition is based upon the fact that the transcript of the justice of the peace ordering the defendant held to await trial in the district court does not show for what particular crime the defendant was held to await trial, and therefore there was no foundation for the filing of an information against the accused in the district court charging him with the crime of burglary in the second degree after former conviction of a felony.

In Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868, this court held that a convicted person who entered a plea to the information in the district court on arraignment upon an information charging a felony could not by habeas corpus question the fact that no preliminary hearing had been accorded him.

The syllabus of that case reads:

“The Constitutional provision (Art. 2, § 17, Okla. Const.) that no person shall be prosecuted for a felony by information without having had a preliminary examination is in the nature of a personal privilege for the benefit of the accused which may be waived by him. * * *
“The manner of challenging jurisdiction because, no preliminary examination was had is by motion to quash or set aside the information before entering a plea on the merits.”

See, also, Ex parte Miller, 82 Okla. Cr. 315, 169 P. 2d 574, 575; Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781.

Under the authority of Ex parte Maynard, 81 Okla. Cr. 165, 161 P. 2d 864, and Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759, it is apparent that the judgment and sentence as executed by the court on December 27, 1945, was void on its face for the reason that it attempts to assess a punishment that is excessive and unauthorized by statute for the crime named in the judgment.

This brings us to the third proposition which is the essential question for determination of this case and that is whether the court could correct the judgment by the entry of an order nunc pro time at a date approximately three years after judgment was pronounced.

In the early case, of Howland v. State, 3 Okla. Cr. 142, 104 P. 927, Ann. Cas. 1912A, 840, it is held:

“Where a defendant is tried, convicted, and sentenced to imprisonment, bnt by error of the clerk the judgment is not entered on the records of the court, the error may be corrected at any time by an order nunc pro tunc.
“A criminal case is ‘pending’ in the sense that a court may correct its records, until the judgment is fully satisfied.”

In the body of the opinion, it is stated:

“Counsel for relator, in the brief filed in this case and in the oral argument, insist that the court was without authority to enter the order nunc pro tunc; that such an order could not be entered, for the reason that it would be ‘an ex post facto judgment, and affect the right of this petitioner.’ The power of making an entry nunc pro tunc seems to have been possessed and exercised by the courts of law and in equity from the earliest’ times. The period through which this right could be successfully invoked has never been limited. The power has been confined to those cases in which some hardship would be visited upon one of the parties without any fault of his, unless the judgment was entered. The-power to enter judgments and orders nunc pro tunc is inherent in the courts, both at law and in equity, and is not dependent for its exercise' upon any statute. It is a power which courts have and liberally exercise to make their records speak the truth; and,, if a clerk has omitted to make an entry, whether before or after final judgment, the court may require him to supply this omission-nunc pro tunc. When the entry is amended, it is nothing more than perfected evidence of what, in contemplation of law, existed from the time the judgment was rendered, and this amended judgment should be given effect as if no error had occurred in the original entry.
“The court having found that it was a mere error of the clerk, and it being clearly within the province of the court to correct such error, and the correction having been made, the order stands as originally made and intended, and must be given effect accordingly.”

In Dunn v. State, 18 Okla. Cr. 193, 196 P. 739, this court held:

“As between the parties, the validity of the judgment cannot be avoided because the clerk.failed to perform his ministerial duties in making up the record; and where, through the negligence or omission of the clerk, the judgment record is defective or incomplete, the court may at any time, upon a proper showing, require the clerk to make the record conform to the facts nunc pro tunc.”

It is contended that under the authority of Ex parte Wray, 61 Okla. Cr. 162, 66 P. 2d 965, the attempted correction of the judgment by an order nunc pro tunc is void for the reason that the petitioner was not present at the time the order was entered and was not properly notified of said application for said order. In the Wray case, the convicted person was charged by information with being an “habitual criminal” and the judgment and sentence recited that the accused had entered his plea of guilty to the crime of “habitual criminal”. After the pronouncement of the judgment sentencing Wray to three years in the penitentiary and subsequent to the filing of the petition for habeas corpus, an order nunc pro tunc was entered amending the information to charge the petitioner with having committed the crime of “petit larceny” as a second offense and further correcting the judgment to show that the petitioner entered a plea of guilty to the crime of “petit larceny” as a second offense. In disposing of that case, this court held that there was no such crime known to our penal code as that of “habitual criminal” and that habitual criminality is a state and not a crime; that the mine pro tunc order entered by the court was without authority or jurisdiction for the reason that the pleadings were changed and the judgment was changed without notice to the accused or without the accused or counsel being present at the time the order was entered. The correctness of that decision cannot be questioned.

However, here the situation is entirely different. The information filed against the accused charged him with the crime of burglary in the second degree after former conviction of a felony. The proof supported such information and the verdict of the jury found him guilty of such crime and fixed his punishment at imprisonment for 10 years in the penitentiary. The judgment and sentence pronounced upon the accused by the court at the time he was personally present in open court was for 10 years upon conviction for burglary in the second degree after former conviction of a felony. It is only necessary that the petitioner be present when sentence is pronounced and it is not necessary that he be present when the clerk makes an entry on his records of the proceedings had against the accused or presents to the court the formal journal entry of the judgment and sentence for the signature of the court.

It is apparent that the error here complained of was caused by mere inadvertence on the part of the court clerk which error was not called to the attention of the court until nearly three years subsequent to the pronouncement of the judgment and sentence. The order nunc pro tunc vitally affected the accused but it did not change the sentence which had actually been pronounced, but before the same was entered notice of the application should have been served on the accused and an opportunity given to him to protest or appear and contest the court’s action in this regard. However, counsel for the accused now concede that the information correctly charged the accused with burglary in the second degree after former conviction of a felony; that the verdict of the jury found him guilty of such offense and that the punishment imposed by the court was within the limitations set forth in the statute; that sentence was pronounced by the court in conformity to the jury’s verdict and that the order nunc pro tunc did nothing more than to correct the formal journal entry of judgment by inserting the phrase “after former conviction of a felony” so as to make the records in the office of the clerk of the court speak the truth. Under such circumstances we hold that the failure to give notice on the hearing of the application for an order nunc pro tunc to the accused so as to afford him an opportunity to be present or represented by counsel at the hearing on the application was not fatal to such order. However, this does not mean that applying this principle to the instant case places our stamp of approval on such action in all cases. It is much better that a trial court before making an order nunc pro tunc should require that notice of the filing of such application for correction of an order of the court be given to all interested parties, and that an opportunity to be heard be given before the order nunc pro tunc is issued.

The writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


text:
    GRACE SPEARS v. STATE.
    No A-10992.
    June 15, 1949.
    (207 P. 2d 363.)
    E. Moore, Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

Tbe defendant, Grace Spears, was charged by information filed in tbe district court of Coal county with the crime of larceny of a calf, was tried, convicted and sentenced to serve three years in the State Penitentiary, and has appealed.

The stolen calf belonged to Will Cummings. The evidence is undisputed that three boys, Royal Vaughn Dority, E. D. Dority, and John King, Jr., on August 24, 1946, killed, and dressed a calf belonging to Cummings which was running on the range near the home of defendant. These three boys admitted their guilt and testified in the case.

The first assignment of error is that the court committed reversible error in admitting hearsay evidence over the objection of counsel for defendant.

The sheriff of Atoka county, L. O. McBride, and John Calvert, a policeman of Coalgate, each testified concerning an investigation they made of the larceny of the calf, and that they arrested Royal Vaughn Dority, E. D. Dority, and John King, Jr. Over the objection of the counsel for defendant, these officers were allowed to detail statements made to them by these three boys in the absence of the defendant concerning their activities the night of August 23rd, when the boys said they stayed at the home of Grace Spears and were further allowed to detail statements made to them by Grace Spears and relate how they stole the calf, killed, dressed it, and took the defendant a part of the meat.

The testimony concerning what the three boys told them in confessing the crime was lengthy and could not be termed harmless error.

In the case of Robbins v. State, 39 Okla. Cr. 289, 264 P. 841, this court held:

“Where hearsay evidence has been received which probably contributed to a verdict of guilty, the admitting of such evidence over the objection of defendant is ground for reversal.”

In the body of the opinion it is stated:

“The court apparently admitted this on the theory that Johnson and Miller were coconspirators and a statement made by one was therefore admissible as to all. The court entirely overlooked the law that in such case, to be admissible, the statement must be made prior to the completion of the conspiracy. The evidence of these two witnesses was purely hearsay. As the case was sharply contested and the evidence conflicting, this testimony may have influenced the verdict of the jury, and its admission requires a reversal of the case. Tucker v. State, 6 Okla. Cr. 714, 119 P. 1134; Spear v. State, 7 Okla. Cr. [379], 383, 123 P. 852; Payne v. State, 10 Okla. Cr. 314, 136 P. 201.”

This was a closely contested case with very little corroboration of the testimony of the confessed accomplices. Will Cummings, .the owner of the calf, stated that the person who notified him that the calf had been killed was the defendant who told him about it the next day, and he bluntly stated that he did not believe she was guilty of assisting in the larceny and he refused to file a complaint against her. He further stated that if it had not been for the defendant’s and her husband’s action in calling the loss of the calf to his attention, he would not have known about it for probably several days.

The admission of this hearsay evidence of the officers as to the statements made by the three boys to them concerning the defendant’s connection with the crime is too glaring a violation of the rules of evidence to be termed harmless.

It is contended that there was no corroboration of the testimony of the accomplices. The corroboration was slight and consisted wholly of the testimony of L. O. McBride, sheriff of Atoka county, that as best he could remember the defendant had told him that she furnished the axe, bucket, and sack used by the boys in killing and dressing the calf.

We are committed to the rule that where there is any substantial evidence tending to connect defendant with the commission of a crime in corroboration of an accomplice, the sufficiency of such corroborating evidence is a question for the jury. Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825.

There is one other error in the proceedings which we feel should be called to the attention of the tidal court if this case should be retried. In instruction number 12 the court stated:

“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 shows the commission of the offense or the circumstances thereof.”

This instruction in so far as it goes is a correct abstract statement of the law. However, there is no other instruction pertaining to the testimony of accomplices, nor is the jury advised as to who are accomplices. The court should have given an instruction defining accomplices, should have told the jury as a matter of law that the witnesses, Royal Vaughn Dority, E. D. Dority, and John King, Jr., were accomplices of defendant, and that the defendant could not be convicted upon the testimony of those witnesses unless their testimony be corroborated by such other evidence as tends to connect the defendant with the commission of the crime; and that the corroboration would not be sufficient if it merely showed the commission of the crime or the circumstances thereof. The court should have further instructed the jury that in law one accomplice cannot corroborate another accomplice. Comba v. State, 68 Okla. Cr. 373, 99 P. 2d 170.

For the above reasons the judgment of the district court of Coal county is reversed and remanded for a new trial.

BAREFOOT and BRETT, JJ., concur.