text:
    MARK C. COMBS v. STATE.
    No. A-10863.
    Sept. 8, 1948.
    (197 P. 2d 524.)

      George H. Jennings, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Defendant Mack C. Combs was charged in the district court of Tulsa county, Okla., with the murder of Thomas Major, tried and convicted of manslaughter in the first degree. The jury left the punishment up to the court and defendant was sentenced to fifteen years in the State Penitentiary. The killing occurred on August 10, 1946, as the outgrowth of a dispute over the payment of some delayed house rent due the defendant from Major.

The record discloses that the deceased and his wife had been drinking beer and enjoying the pleasure of taxicab accommodations during the day, and that the defendant reasoned that if they could afford such luxury they should pay him the house rent which was past due in the approximate sum of $27. When the defendant saw the deceased Major and his wife arrive by taxicab, he sent his wife, Mary Combs, over to the rental property occupied by Major to get the rent. Major was drinking a bottle of beer which, upon his arrival, he had gone to the nearby store and purchased. Mrs. Combs said she said nothing to him relative to the rent. As she turned to go back to her home, the deceased Major said “tell Mack I will see him.” The record further shows that Major said to his wife, Lucille, “be careful, Lucille, I am afraid we are going to have trouble * * *.” And then he left to go to the defendant’s place to talk about the rent. The deceased’s wife, Lucille Major, followed him with her baby, taking with her the 20-gauge shotgun they had borrowed a short time before from the defendant, Mack Combs. Beforé going to Mack Comb's home the deceased took his 20=gauge shotgun outside and fired it in a field, so his wife said, to see if it would work, and in anticipation of going hunting the next day. It appears to us this was an idle gesture, and that the real objective may have been to remind Mack Combs that they had his shotgun and shells, before talking to him about the rent. The deceased then went to Comb’s home, and found the defendant seated on a bed. Mrs. Major waited outside with the 20-gauge shotgun. There is considerable conflict in the evidence as to what transpired between Combs and Major. Mrs. Major, in substance, said she could not hear distinctly what was said between the two men as there was a partition between them and her and the window through which she was listening. Then, too, she said the baby was crying. In substance, she said she heard her husband say he could not pay the rent, and the defendant said he would “or else I will burn you out.” Her husband is supposed to have replied “not with all of those children down there.” (He had four little girls and another child was on the way.) The latter point defendant assigns as the basis for error in the introduction of evidence. Then she said the defendant said “I will shoot you out.” That is all she said she heard. The defendant’s and his wife’s version is quite different. The defendant said Major was pretty well liquored up when he came to see him. The defendant and his wife both testified, in substance, that the question of the rent came up, and the deceased said he had not been on his new job long enough to get paid and, therefore, could not pay the rent. The defendant said he told the Majors “You had a good time riding in the taxi and drinking beer,” and that he thought he was stalling. Then the defendant said the deceased got wild, started waving his arms, said he wasn’t going to pay, and Combs could not make him pay. Defendant said he told the deceased “let’s don’t argue,” and in substance, but that he would have to move and that he would help him by using his own truck without charge. The deceased said he would not move. Defendant told Major he didn’t want any trouble, apparently having heard the deceased fire the 20-gauge shotgun and being reminded of the fact he told the deceased that he had his 20-gauge shotgun. He said he wanted it back, but he would not go get it himself, that he would send his wife, May, back with him to get it. That Major said “I’ll give it to you, all right, I’ll give it to you.” Defendant says he walked to the door with the deceased and told him “You give May the gun, you’ll feel better tomorrow and we will talk this over.” Major and Mrs. Combs left. Defendant says he then sat down on the bed. The record shows defendant needed the rent to keep up his loan payments on his property. The record further discloses that the deceased and Mrs. Combs hardly had time enough to walk around the house when the defendant heard Mrs. Combs say “My God, Lucille, what are you doing with that gun?” The defendant says he then grabbed up his 410-gauge gun, and went out after them. When he got outside Major had the 20-gauge shotgun up to his shoulder and said he was going to shoot Combs. The defendant, Combs, said he tried to talk him out of it. Combs said up to this point he believed that Major was bluffing, and then he threw up his 410-gauge shotgun and fired at Major at about 15 feet from him, killing him. Both the defendant and his wife said it was still light outside, in fact, so light you could recognize acquaintances a block away. Mrs. Major said her husband came out the front door, walking quite fast, and Mrs. Combs was following him. That when her husband reached the ashpile he exclaimed “he has a bead on me, Lucille, do something.” Mrs. Major said she didn’t tell her husband she was bringing the 20-gauge shotgun, and he didn’t know she had it. She also said she didn’t know the defendant had a gun. She said it was so dark she didn’t see "the defendant when he shot her husband, that all she could see was the fire from his gun. In fact, she said it was so dark her husband could not see she had a gun and notwithstanding she said her husband reached and got the gun from her. Mrs. Major said she didn’t know whether her husband had the gun raised in a firing position when her husband was killed or not. It is apparent that Mrs. Major’s testimony, if believed, would lead to the belief that Combs was chasing the defendant from his home with the gun when he said “he has got a bead on me, Lucille, do something.” The record further discloses that when Major was killed he had possession of the 20-gauge shotgun, and had it pointed in the direction of the defendant. This is conclusively shown by the fact that the deceased was shot over the chest, heart and lungs, the left forearm, back of the left hand and the left side of the chin. Moreover, the record discloses the 20-gauge shotgun held by Major had been hit by shot fired from the gun held by the defendant, two shot struck the stock of the gun, two had struck the grip, two hit the end of the gun barrel, and the shell in the chamber of the gun had been perforated by shot indicating that some of the charge fired at Major had gone down the inside of the gun barrel. This analysis discloses a strong conflict in the evidence. Upon this record the defendant questions the sufficiency of the evidence upon which to base a conviction. We must observe, while it may be conceded there is strong evidence to show the killing was in self-defense, there is also sufficient competent evidence, which if believed, would establish the killing was unlawful. Under these conditions this court has repeatedly held in substance, that the Criminal Court of Appeals will not weigh conflicting and contradictory evidence which has been passed on by a jury and when such evidence is substantial, such a case will not be reversed on the grounds of insufficiency of the evidence. Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638. Moreover, this court has repeatedly held that, before we will interfere with the jury’s verdict on the ground of insufficiency of the evidence, there must be no competent evidence upon which a verdict could be based. Rule v. State, 84 Okla. Cr. 347, 182 P. 2d 525; Sheehan v. State, 83 Okla. Cr. 41, 172 P. 2d 809, 810; and other cases too numerous to cite. Therefore, we are not confronted with a situation relative to insufficiency of the evidence herein, entitling the defendant to relief on that ground, and this contention of the defendant is without merit.

Defendant further complains that the trial court erred in permitting the admission of highly incompetent evidence. This contention is based upon the following evidence, to wit:

“Q. How many children do you have? A. Four. Q. Are you expecting another child? Mr. Jennings: To which we object as incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Jennings: Exception. A. Yes, I am.”

On its face the foregoing would seem inconsequential, but when considered in light of the fact that at the time of this tragedy, as well as at the time of trial of the case, there was an acute housing shortage, it is most material. The question of the number of children the deceased had, and the pregnancy of the deceased’s wife, was in no way an issue in the case. In considering the vicious effect of this evidence we must take judicial knowledge of the fact that following World War 2 there was and still is a great housing shortage. This fact, at the time of the trial of this case, was common knowledge. It therefore appears to us that the asking of these questions could have but one objective, that was to make it appear the defendant was ejecting an expectant mother and their four children from their home, in the face of the likelihood of not being able to find another home. It was an attempt to appeal to the prejudice then existing against proceedings in ejectment and against landlords in general. In the face of the competent factual record it may have been the one thing decisive of the issues herein. It certainly contributed to the verdict of guilty, depriving the defendant of a fair trial, and in our opinion is ground for reversal. In Fisk v. State, 56 Okla. Cr. 373, 40 P. 2d 684, 685, this couft said:

“Where incompetent evidence has been received which in the light of the entire record probably contributed to the verdict of guilty, the admission of such evidence is ground for reversal.”

See Hull v. State, 61 Okla. Cr. 12, 65 P. 2d 423; Alberty v. State, 68 Okla. Cr. 246, 97 P. 2d 904.

Next the defendant complains of the misconduct of the assistant county attorney in asking question relative to incompetent and prejudicial matter which prevented the defendant from having a fair trial. This contention is predicated upon the following questions, answers, and objections, propounded and brought out on cross-examination:

“Q. (By Mr. Simms) You never moved the gun down to the new house, did you? A. No, sir. Q. Why did you leave it up at the old house? A. I didn’t have any use of it down at the new house. Q. Didn’t have any use of it at the old house? A. No, sir. Q. You shot it about a month before this, didn’t you? A. Possibly I did. Q. Well, you did, didn’t you? A. I guess so. Mr. Jennings: We object to that as improper cross-examination. Mr. Simms: It certainly is. The Court: Well, he has answered. Q. (By Mr. Simms) you knew how to shoot that gun, didn’t you? A. Yes, sir, I shot a chicken with it every once in a while. Q. About a month before that you didn’t shoot a chicken, did you? Mr. Jennings: Just a minute, if the court please. The Court: I will sustain the objection. Mr. Jennings: I ask that the jury be admonished not to consider it. The Court: Yes, gentleman of the jury, that question, you will not pay any attention to that.”

It is apparent the sole purpose of this examination was to leave the impression with the jury that the defendant had shot at some other person, a month or so before the killing herein involved. When Mr. Jennings objected to evidence relative to the defendant shooting the gun a month before this tragedy, on the ground it was improper examination, the county attorney clearly indicated that his conduct was deliberate when he said “it certainly is.” His persistence is further indicated by the following portion of the record as follows, to wit:

“Q. (By Mr. Simms) That made you pretty mad when he came home in a taxi, didn’t it? A. No, I didn’t get mad about it. Q. You get mad pretty easy, don’t you? A. No, I don’t. Q. You don’t? A. No, sir. Q. Were you drinking that day? A. No, sir. Q. Is that one of the days you didn’t drink? Mr. Jennings: Now, if the court please, we object. The Court: Sustained. Mr. Jennings: We now ask, if the court please, that a mistrial be granted in this case. The Court: No. Gentlemen of the Jury, you will not pay any attention to that question. That is not cross-examination, Mr. County Attorney. * * * Mr. Jennings: I except to the court’s failure to pass on my motion. * * * Q. Now, I believe you testified on direct examination that Major was pretty well liquored up? A. Yes, sir. Q.- How do you know? A. Well, I have seen a few drunks in my time. Q. You have been drunk a few times also, haven’t you? A. I have. Mr. Jennings: If your Honor please, I object to that, and ask that the jury be admonished. The Court: That statement of the county attorney will be stricken, gentlemen of the jury.”

The purpose of this questioning was to degrade the defendant to the level of a common drunkard. The defendant’s drinking habits were not in issue in the charge herein involved. The evidence does not indicate in the slightest that the defendant on this occasion was drinking, much less that he was drunk. Such questions and conduct by the assistant county attorney were highly improper. The attitude of the assistant county attorney partakes of police court methods, which this court vigorously condemned in Hager v. State, 10 Okla. Cr. 9, 133 P. 263, wherein this court said:

“1. Police court methods in the examination of witnesses in courts of record in Oklahoma will not be tolerated.
“2. Great latitude should be allowed in the cross-examination of witnesses, and they may be interrogated in a proper manner with reference to any matter which may tend to affect their credibility, but they should not be asked questions which are full of insulting insinuations and intimations that they are guilty of some other crimes than that for which they are upon trial.
“3. Where the record shows that counsel for the state in a prosecution of a person charged with crime has been guilty of conduct calculated to arouse prejudice or passion against the defendant and to prevent the accused from having a fair and impartial trial, a conviction had will be set aside, nad a new trial granted.”

In Bean v. State, 77 Okla. Cr. 73, 138 P. 2d 563, 564, this court said:

“The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.
“3. In jury trials, incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to the harmful matter they are supposed to contain.”

See, also, Watson v. State, 7 Okla. Cr. 590, 124 P. 1101.

In view of the fact that this case was close from a factual standpoint, and might have exonerated the defendant on the ground of self-defense, we are inclined to believe that the incompetent evidence and insinuations which the jury was permitted to hear was most persuasive on them, and that even the court’s admonition not to consider the same did not cure the evil effects. Counsel for the state should refrain from asking known incompetent questions, and thus require the defense counsel to give emphasis to and manifest fear of such harmful matter thus brought out in a trial. Such conduct on the part of counsel for the state may in a close case unlawfully tip the scales of justice; and we believe that was true in the case at bar.

Counsel raises objections to the court’s instructions. We have carefully examined them, and find these objections to be without merit. For all of the foregoing reasons, this case is reversed and remanded for new trial consistent with the principles herein announced.

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


source: Caselaw Access Project

author: BAREFOOT P. J.

license: Public Domain

text:
    Ex parte W. E. BAZZELL.
    No. A-11122.
    Sept. 8, 1948.
    (197 P. 2d 530.)
    O. A. Brewer, of Hugo, for petitioner.
    Ralph K. Jenner, Co. Atty., of Hugo, for respondent.
   BAREFOOT P. J.

Petitioner, W. E. Bazzell, has filed petition for writ of habeas corpus in this court, alleging that he is unlawfully restrained of his liberty by Bird Collins, sheriff of Choctaw county, Oklahoma.

'Petitioner states that the cause of • his restraint is by reason of the fact that he was charged in the justice of the peace court of V. F. Bennett in Choctaw county with the crime of obtaining money and property by false pretenses by means of a bogus check, and was bound over to the district court in the sum of $25,000; that application was made to the judge of the district court of Choctaw county and bail was reduced to the sum of $22,500; that said sum is excessive; that petitioner is 68 years of age and owns only an interest in a small home in Okmulgee, Okmulgee county, Oklahoma; that he is unable to make the $22,500 bond which was set by the district court, and prays that the same be reduced.

Upon reading the petition, rule to show cause was entered and was set for hearing September 1, 1948. At that time no appearance was made in person or by the attorneys representing petitioner or the sheriff of Choctaw county. Over the telephone all parties agreed that the petition be considered and that the court take such action as thought proper.

The response to the rule to show cause has attached thereto as an exhibit a copy of the information filed against defendant. This reveals that the alleged bogus check was for $11,733.26, and was given for the purchase price of 93 cattle and 38 hogs. We presume the amount of the check was a determining factor with the district judge in fixing the bond of the defendant at $22,500. The record before us does not disclose whether the property has been recovered.

In the petition it is alleged that “maximum bail should not exceed the sum of $7,000.”

Under normal circumstances, in a case of this kind where the maximum punishment is a term of seven years in the penitentiary, and a fine of $500, we should think this amount of bond would be sufficient.

We have come to the conclusion that under the circumstances, as above stated, the bond in the case should be reduced to the sum of $10,000.

Upon the giving of a bond in this amount, and the same being approved by the court clerk of Choctaw county, it is ordered that defendant be discharged from custody pending his appearance before the district court of Choctaw county, as provided by the terms of such bond, and in the manner provided by law.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    CHARLES RAYMOND McDOWELL v. STATE.
    No. A-10889.
    Sept. 8, 1948.
    (197 P. 2d 531.)

      J. Woody Dixon, of Marietta, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Charlie Raymond McDowell, was charged in the district court of Love county with the crime of murder, was tried, convicted of manslaughter in the first degree and sentenced to serve seven years in the State Penitentiary at McAlester and has appealed.

No brief has been filed on behalf of defendant and no appearance was made in his behalf at the time the case was assigned for oral argument.

We.have carefully examined the record. The information properly charges the crime of murder alleged to have been committed on September 17, 1946, by discharging a pistol into the body of one Leland L. Mc-Corkle.

The evidence showed that the killing occurred at a beer tavern near the Texas border known as Frank’s Night Spot. The deceased and one Ware were sitting in a booth in the tavern when the defendant approached the booth and fired the shot which killed McCorkle.

The defendant admitted the shooting but contended that he fired the shot in self-defense. The evidence on behalf of defendant showed that the deceased together with Ware had been at a room occupied by the defendant shortly before the shooting occurred and had engaged the defendant in a dice game. The deceased was a professional gambler and bootlegger. Many witnesses testified to the bad reputation of the deceased and to the good reputation of the defendant, and this evidence probably accounts for the fact that the defendant received the small term of seven years imprisonment in the penitentiary instead of a more severe sentence, as the physical facts at the time of the actual killing show very little, if any, justification for the defendant’s acts.

The evidence is sufficient to sustain the conviction and the instructions appear to be fair and to fully state the law applicable to the case. The defendant’s theory of self-defense was fully presented in the court’s instructions and the issue raised was determined adversely to the defendant by the jury.

As hereinabove noted, there has been no brief filed specifically calling our attention to any assignment of error, and in our examination of the record we have found no error which deprived the defendant of a fair and impartial trial.

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

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


text:
    OPINION OF THE JUDGES. In re BEN GOULD.
    No. A-11104.
    Sept. 15, 1948.
    (197 P. 2d 629.)
   Honorable Boy J. Turner

Governor of the State of Oklahoma

Sir:

The Judges of the Criminal Court of Appeals, in response to your official communication of recent date addressed to this Court requesting an opinion as provided by Tit. 22 O. S. 1941 § 1003, which presents for the consideration of the Judges of the Court an authenticated copy of the record of the conviction of Ben Gould, for the crime of murder, and who was on the 15th day of March, 1948, by the judgment of the District Court of Atoka County, Honorable Sam Sullivan, Judge, sentenced to suffer death by electrocution on May 28, 1948, within the walls of the State Penitentiary at McAlester, as by law provided, which execution has been stayed by you until September 27, 1948, in order to grant to the defendant time in which to perfect an appeal to this Court if he so desires, we hereby respectfully submit the following opinion of the Judges:

JONES, J.

It appears from the record submitted that on the 6th day of February, 1948, a preliminary information was filed in the county court of Atoka county, charging Ben Gould with the murder of one Mary Lynn in said county on the 5th day of February, 1948, which said information alleged in substance that the murder was accomplished by making an assault upon the said Mary Lynn with a certain metal ice pick, which was used to stab the said Mary Lynn, and that said defendant did also choke, strangle and beat said Mary Lynn with his hands and fists, thereby inflicting mortal wounds, of which mortal wounds so inflicted the said Mary Lynn did on the 5th day of February, 1948, die as was intended by the said Ben Gould she should do.

It also appears from the record that a preliminary examination was held before the county court of Atoka county on February 16, 1948, at which hearing the defendant appeared in person and by his attorney, Joe Ralls. The testimony of many witnesses was taken at the preliminary examination, a transcript of which evidence is included in the record furnished to us in this proceeding. At the conclusion of the state’s evidence, the defendant through his attorney announced he had no testimony to offer. The county court thereupon entered an order holding the defendant for trial in the district court of Atoka county and remanding him to the custody of the sheriff of Atoka county, to be held without bond until disposition of the case by the district court.

On February 19, 1948, an information in substantially the same language as that set forth in the preliminary information was filed in the district court of Ato-ka county, charging the said Ben Gould with murder as aforesaid. On the 9th day of March, 1948, pursuant to an order of the district court, the defendant was arraigned before the district court of Atoka county; at his arraignment, the defendant was present in person and by his attorney, Joe Ralls, who had been duly appointed to represent the defendant, by the district court of Atoka county. The information was read at length to the defendant by the county attorney. Immediately after the information was read to the defendant he was fully advised by the district court of his constitutional and statutory rights, after which the court inquired as to whether the defendant was ready at that time to enter his plea to the information, to which defendant’s counsel responded:

“Mr. Joe Ralls: At this time I want to make a statement. I have seen the defendant on several different occasions and advised the defendant of his constitutional rights. And he has at all times said he wanted to plead guilty.
“At this time he doesn’t have to say, but it remains with himself finally as to his own interest here, which he enters. And he had done this of his own free will. And he wanted me to advise him, and I refused to advise him, but informed him that he would be the one, and the only one to enter a plea of guilty.
“The Court: The court will take judicial notice of the fact that he is the only one that can enter a plea of guilty.
“The Court: At this time you have been advised of your constitutional rights, and you know and understand you have the right to have a trial by a jury of twelve men.
“The Defendant (Ben Gould) : I am guilty.
“The Court: Let the record show that the defendant was arraigned in open court, and after being advised of his constitutional rights, and after his counsel advised him of his constitutional rights, and that he was also advised in open court; and that thereupon he entered his plea of guilty to the murder of Mary Lynn on February 5th, 1948.”

The court thereupon entered an order setting March 15, 1948, at 10:00 a. m., as the time for pronouncing sentence upon the plea of guilty entered by the defendant.

The record discloses that on March 15, 1948, at 10:00 a. na., the defendant being again present and with his counsel, the court proceeded to hear the testimony of witnesses introduced by the county attorney to show the circumstances surrounding the commission of the alleged crime by the defendant. These witnesses were all examined in open court by the county attorney, and some of them were cross-examined by counsel for the defendant. The privilege of cross-examination of the other witnesses was waived by the attorney for the defendant.

This evidence disclosed that Miss Mary Lynn, who was about 57 years of age, was employed as a clerk at a feed store on the outskirts of the city of Atoka on February 5, 1948. This lady lived with her married sister and her family in the east part of the city of Atoka. It was the habit of the deceased to close the feed store and return to her home in a taxicab about 6:00 p. m. each day. She did not return home by 8:00 p. m. and her sister with whom she lived became alarmed because she was unable to reach her by telephone, and she started an investigation to learn her whereabouts. Mr. Pitts, owner of the store, unlocked the store building and the body of deceased was discovered lying in the rear of the store. As to her appearance at that time, the Doctor, who was immediately called, testified:

“A. She was lying in the north west corner of the building; the head to the north, feet to the west, both limbs were outstretched. The lower part of the body was bare from the waist down. She had a mark of choking on the throat. Two upper teeth were broken loose; four lower teeth were broken loose. She had a fractured lower jaw. Her upper lip was cut for about three-quarters of an inch on the left side. On her right chest she had been stabbed 45 times with a pointed instrument. The stabs were all in an area of approximately eight inches across. Two of these piercing wounds could have caused death. Two could have cut the ascending large blood vessel, — carotid, aorta, — that is just above the clavicle where it joins the sternum, called the suprasternum.
“Q. Was there anything to show her sexual organs had been violated? A. Yes, sir.”

An investigation by the officers was immediately commenced and it was learned that the defendant had been seen in the vicinity of the store between 5 and 6 o’clock p. m. He had talked to a boy who testified that the defendant had inquired of him as to who was now running the old feed store.

After a preliminary investigation lasting about an hour, the sheriff, accompanied by other officers, went to the home of the defendant. The defendant after first surrendering to the officers, attempted to flee and was only stopped after two shots were fired. After the defendant had been removed to the county jail, he confessed to having committed the crime and accompanied the sheriff and other officers to the west side of his house where he raised a big rock under the edge of the house and showed them a billfold and a key to a Yale lock which he had taken from the deceased. The billfold contained |119.90 in money. The key was to the padlock on the door of the feed store. After hearing the confession of the defendant, the sheriff wrote out the statements made by the defendant and the statement which was signed by the defendant reads as follows:

“(State’s Exhibit ‘A’)
“F. B. Wheeler Walter Kyle J. O. Stewart
“Undersheriff Field Deputy Jailer
“L. O. McBride, Sheriff of Atoka County, Atoka, Oklahoma “St Ex ‘A’
“February 5 — 1948
“Statement of Ben Gould
“My name is Ben Gould I am 40 Years Old I Live Here In Atoka Oklahoma. I am Making This Statement to Sheriff McBride Freely and Voluntarily Without Threat or Fear And After Being Warned By L. O. McBride Sheriff of Atoka Co Oklahoma That Any Statement I May Make May Be Used Against Me and Not For Me In Court. In The Murder of Miss Mary Lynn Who was Murdered Feb-5. 1948 About Six O’clock P. M. Same Date.
“I Ben Gould Went To The Store Where Miss Mary Lynn Was working Around Six-P.M. February 1948 Same Date As Above I ask For a Package of Camels She got Me the Cigarettes I Payed Her 21 Cts For Them And Then Said Give Me That Money You Got. She Then Went To Running Back To The Stove I run Back Where She Was About the Center Of the Building Where There Was A Stove And Caught Her And I Hit Her With My Right Fist and Knocked Her Over Into Some Shelves On The South Side Of The Building She Then Got Up and Run To the Back Of The Store And I Then Ran Back There And Caught Her Again. — And Knocked Her Down Again.
“I Ben Gould Then Got Down On My Knees Beside Miss Mary Lynn And Stabbed Her Several Times With An Ice Pick Which I had Picked Up There In the Store Which Was Lying On The Desk Up At the Front Of The Store I Stabbed Her in The Breast.
“I then Pulled Her Just A Little South By The Feet And Then Covered Her Body Up With Some Feed Sacks I had Torn Her Dress and Her Panties Off and Burned Them In The Stove and I Also Looked Through Her Purse.
“I Then Taken The Purse And Put It In The Stove And Burned It The Sheriff Of Atoka Co Oklahoma Has Some Bobby Pins and A Small Mirror And a Pair of Tweezers Which Was Taken Out of The Stove By Dr. P. G. Howes. Which Was In the Purse When I Put Them In the Stove and Burned Them.
“I then Went Out The Front Door Of The Store and Locked The Doors Behind Me and Threw The Ice Pick Over In The Weeds I Then Went On Home And Went Around On The West Side of My House And Put The Purse And The Money And The Key To the Lock That Opened The Lock On the Front Door Which I Had just Locked When I Left.
“I Went On Home And Went To Bed After I had Hidden The Billfold With The Money And The Front Door Key That Had Taken From The Cash Drawer Where Miss Mary Lynn Was Working Out On Highway 69 In The South Part Of Atoka Co Okla. In The Old Maxey Store Bldg — I had Been In Bed About Thirty Minutes When The Officers Came To My House Mr. Walter Kyle and Harvey Hawkins Was The Officers Who Came. To My House.
“Mr. Kyle Was In The House Talking to My Wife and Mr. Harvey Hawkins and Myself Ben Gould Walked Out Side And I Attempted to Bun And Mr. Hawkins Shot At Me Twice And I Then Stopped And Come Back.
“The Officers Brought Me Ón To Jail And After Talking To The Sheriff And the Other Officers I Then Went Back To My House With Sheriff McBride Dr. P. G. Howes W. H. Baley and Hallie Stanfill and Taken Them To the Billfold And The Money Which I had Hidden Under My House Behind A Large Bock. On The West Side. Of House.
“I Pulled The Bock Back And Picked Up The Billfold And the Money And Gave It To Sheriff McBride.
“Dr. P. G. Howes and Mr. Baley and Hallie Stan-fill And Myself Was Present At The Time I pulled the Money From Under the House.
“I have Made This Statement With My Own Free Will And Accord And Every Word Is True and Correct.
“Signed Ben Gould
“Witnesses
“T. A. Curtis
“Claud Collier
“F. Jacobus
“J. F. Henson
“Hallie Stanfill”

After the defendant had related in his confession that he had burned a part of the clothes of the deceased in the stove at the store, the stove was searched by the sheriff and the doctor, and a lady’s compact, a mirror, lipstick, nail file, small pincers, and bobby pins were all removed from the stove. The defendant at the time of his arrest had some blood on his clothes and the knuckles on his hands were skinned. The evidence disclosed that the woman was attacked at the front of the store and that she had fought the defendant for several minutes before being overcome. In addition to killing the deceased, the defendant was guilty of ravishing her.

At the conclusion of the hearing, the trial court before sentence was pronounced, twice inquired of the defendant as to whether he wished to allow his plea of guilty to stand, to which inquiry the defendant each time said, Yes sir, and reiterated that he was guilty of the murder of Mary Lynn. The court thereupon pronounced the sentence of death by electrocution in accordance with the laws of Oklahoma.

Our Code of Criminal Procedure provides:

“The judge of a court at which a conviction requiring a judgment of death is had, must, immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.” 22 O. S. 1941 § 1002.
“The governor may thereupon require the opinion of the judges of the criminal court of appeals, or any of them, upon the statement so furnished.” 22 O. S. 1941 § 1003.

This court has held that the statutes above quoted contemplate that an advisory opinion of the Judges of the Criminal Court of Appeals may be given to the Governor when an appeal has not been taken in a capital case from a judgment and sentence of death. The sole proposition then presented would be: Has there been an observance of all the formalities of law essential to the taking of human life, and has the trial, conviction and sentence of death been in accordance with the law of the land? Opinion of the Judges, 3 Okla. Cr. 315, 105 P. 684; Opinion of the Judges, 18 Okla. Cr. 20, 192 P. 597; Opinion of the Judges, 70 Okla. Cr. 83, 104 P. 2d 726.

The Penal Code of Oklahoma provides:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the State Penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.” 21 O. S. 1941 § 707.

The first question presented for our- consideration is whether, according to a proper judicial construction, the concluding clause of the above section authorizes the district court to pronounce and enter a judgment of death upon a defendant’s plea of guilty, or whether, on the contrary, it is necessary under the statute to submit the question whether he shall be punished by death or imprisonment for life at hard labor to the discretion of a jury.

There is no reason why this provision of the Penal Code is not constitutional and valid. A conviction of crime may be had in three ways: Either by the verdict of a jury, or by findings of fact, by the judge where a jury is waived, sec. 20, art. VII, Const., or by a plea of guilty. Where a defendant who is indicted or informed against for a capital crime in a court of competent jurisdiction pleads guilty, the court is authorized to pronounce judgment and sentence against such defendant according to law. The authority thus granted is not in any degree affected or controlled by the previous provisions contained in said § 707, supra, that:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the State Penitentiary for life, at the discretion of the jury.”

And that:

“Upon trial of an indictment for murder the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith.”

The foregoing provisions apply only to cases where there is a trial upon an indictment or information for murder on a general plea of not guilty.

It is evident that the foregoing provisions of our Penal Code were not designed to abrogate the well-established rule of the common law, by which a party indicted for an offense, however grave in nature, may enter a plea of guilty thereto, if he sees fit so to do. In such cases there is no issue to be submitted to a jury on which a verdict can be founded. All that the court is required to do is to render judgment and sentence imposing punishment as prescribed by law for the crime committed. Opinion of the Judges, 6 Okla. Cr. 18, 115 P. 1028; Opinion of the Judges, 18 Okla. Cr. 20, 192 P. 597.

The Bill of Rights provides that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed : * * * He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.” Okla. St. Ann. Const, art. 2, § 20.

The record affirmatively shows that the defendant has been afforded all of the rights guaranteed to him by the statutes and Constitution of Oklahoma, and that he voluntarily entered a plea of guilty to the charge of murder as set forth in the information. No motion for a new trial or an arrest of judgment was interposed on behalf of defendant and the time within which an appeal could be filed in this court has expired and no appeal has been taken.

Where it appears from the record, as in this case, that a defendant has been fully advised as to his constitutional and statutory rights, and as to the consequences of his plea, and that with such knowledge and after the appointment of counsel who advised with defendant, he deliberately enters a plea of guilty, the trial court is justified in accepting it, even in a capital case.

From a careful examination and consideration of the record transmitted by you, our advisory opinion is that the necessary legal steps and proceedings were taken in this case essential to the taking of human life under a charge of murder; that the defendant was accorded the benefit of all constitutional and statutory rights not specifically waived by him; and that his conviction and sentence of death has been in accordance with the law of the land.

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


author: BAREFOOT, P. J.

text:
    SANDY KEITH v. STATE.
    No. A-10894.
    Sept. 15, 1948.
    (197 P. 2d 635.)
    Kirksey Nix and Tom G. Haile, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred W. Whet-sel, County Atty., Pittsburg County, of McAlester, for defendant in error.
   BAREFOOT, P. J.

Defendant, Sandy Keith, was charged in the county court of Pittsburg county with the offense of driving an automobile while under the influ-enee of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $50, and has appealed.

At the time this case was assigned for oral argument and submission in this court, no appearance was made by the defendant, and no brief has been filed, either by the defendant or the state.

Rule 9 of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence and if no prejudicial error appears will affirm the judgment.”

In compliance with the above rule, we have examined the record in this case.

In the petition in error, defendant contends that the court erred in overruling his motion for continuance “based upon the testimony of absent witnesses, * * * and also based upon the absence of co-counsel.”

This contention cannot be sustained, for the reason that this was a matter for the sound discretion of the trial court, and the action of the court will not be set aside unless there was an abuse of discretion. From the facts revealed by the record, there was no abuse of discretion in overruling this motion. The motion was not filed until the case was called for trial, and there was no showing of diligence, as required by statute. The refusal to sustain the motion by reason of the absence of one of defendant’s counsel was not an abuse of discretion, under the facts here presented.

As to the sufficiency of the evidence to sustain the judgment and sentence, the question of whether or not the defendant was under the influence of intoxicating liquor at the time of arrest was a disputed one.

Two members of the State Highway Patrol testified that they saw a car, driven by defendant, leaving a “beer joint” near Alderson, and start toward McAlester at a rapid rate of speed. They were unable to overtake the car until they reached McAlester, and defendant stopped. They both testified that defendant was drunk at the time he was taken from the car, that he staggered, and that his speech was such as to definitely show that he was under the influence of intoxicating liquor. He was arrested between midnight and 1 o’clock in the morning. There was another man in the automobile with defendant.

Defendant testified that he was not intoxicated, and had drunk only one bottle of beer, about 6 o’clock in the afternoon, and long prior to the time of his arrest. Defendant produced a number of witnesses who testified to the good character of defendant as an honest, law-abiding citizen; and a number who had seen defendant prior to his arrest and testified that in their opinion he was not drunk or under the influence of intoxicating liquor. The man who was riding in the car with him testified that he was not drunk. The evidence revealed that defendant had visited other beer taverns in and near McAlester earlier in the evening.

It will thus be noted that there was a direct conflict in the evidence of the state and the defendant. This, of course, was a question of fact for the jury to decide, and they found the defendant guilty. A verdict of the jury will not be set aside where the evidence of the state is sufficient to sustain the judgment and sentence.

47 O. S. 1941 § 92, under which defendant was charged, provides that the first offense of driving a motor vehicle while under the influence of intoxicating liquor shall be a misdemeanor punishable by imprisonment in the county jail for a period of not to exceed one year, or by a fine of not more than $500, or by both such fine and imprisonment. The second offense is made a felony under the statute. This defendant was charged as a first offender, and tried for the commission of a misdemeanor. In assessing his punishment at only a fine of $50, the jury no doubt took into consideration the fact that defendant had offered evidence of good character.

We have examined the information and the instructions of the court. They presented in a fair manner all of the issues in the case. We find that the defendant had a fair and impartial trial.

For the reasons above stated, the judgment of the county court of Pittsburg county is affirmed.

JONES and BRETT, JJ., concur.