text:
    JOHN EPPERSON v. STATE.
    No. A-10734.
    May 28, 1947.
    (181 P. 2d 292.)

      J. H. Hill, of Newkirk, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and C. Wayne Stevens, Co. Atty., of Ponca City, for defendant in error.
   BAREFOOT, P. J.

Defendant, John Epperson, was charged in the district court of Kay county, Qkla., with the crime of burglariously attempting to break and enter a certain two-story brick building, after having been convicted of the crime of grand larceny and serving a term of one year in the State Penitentiary at McAlester. He was tried, convicted and sentenced to serve a term of ten years in the State Penitentiary, and has appealed.

This case was set for oral argument, and submitted on the record January 30, 1947. The time for filing brief had long prior thereto expired. No appearance was made on behalf of the defendant. At the time of submission, an order was entered giving defendant an additional 20; days in which to file brief. No brief has been filed.

It is provided by Rule 9 of this court:

“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 this rule we have carefully examined the record. It reveals that the defendant was charged in the body of the information with the crime of attempted burglary, after former conviction of a felony.

The punishment to be inflicted where one is charged after a prior conviction, and is convicted, is set out in 21 O. S. 1941 § 51, as follows:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term of not less than ten years.
“2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.
“3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if 'committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.”

Instruction No. 7 given by the court in this case is as follows:

“You are instructed that under the laws of this state a person who, having been convicted of an offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“If the offense for which said person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.
“Excepted to by Deft. Exception allowed.”

And instruction No. 8 is as follows:

“You are further instructed that under the laws of this state, a crime of attempted burglary, as hereinafter defined, to you in these instructions, is an offense such that upon a first offense an offender would he punishable by imprisonment in the penitentiary for a term of not exceeding ten years.
“Excepted to by Deft. Exception allowed.”

It will thus be noted that the court instructed the jury under subdivision 1 of the statute above quoted, , which provides for a minimum punishment of ten years in the penitentiary. The court should have submitted this case under subdivision 3, which provides for punishment not to exceed five years. Subsection 3 provides:

“If such subsequent conviction is for petit larceny, or for any attempt to commit an offense * *.”

The charge against this defendant was for an attempt to commit the crime of burglary and the court so instructed the jury in Instruction No. 6, where it is stated:

“You are instructed that in this case the defendant is not charged with stealing property, hut is charged with attempted burglary, after a prior conviction in this court of grand larceny; * *

It will thus be seen that subsection 3 was the applicable statute in this case, and it provides a punishment of not to exceed five years in thé penitentiary. The court instructed the jury, in instruction No. 7, that the minimum punishment to be" assessed was ten years in the penitentiary, and this was the punishment given by the jury.

. We have considered the question of a modification of this judgment to five years in the penitentiary, but when we examine the statute above quoted, we note that it was within the power of the jury to assess any punishment “not to exceed five years in the penitentiary.” Under these circumstances, we do not consider it would be fair to the defendant to modify the judgment to five years in the penitentiary, which is the maximum punishment under the statute. We have come to the conclusion that justice demands a reversal of this case, and that a jury he permitted to assess the punishment in the event of a conviction of the defendant.

As stated by this court in the case of Pritchett v. State, 79 Okla. Cr. 401, 155 P. 2d 551, 557:

“We do not feel justified in modifying the judgment and sentence. The punishment for manslaughter in the second degree runs from a fine and jail sentence to a maximum of four years in the penitentiary. If the defendant is retried on that charge and should be found guilty, we think it best that a jury should decide the punishment to be given after hearing all the evidence presented. Of course if the defendant is found not guilty, there will be no punishment.”

For the reasons above stated, the judgment of the district court of Kay county is reversed, and the case remanded.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    PAUL SCHRACK v. STATE.
    No. A-10850.
    May 28, 1947.
    (181 P. 2d 270.)

      Judd L. Black and Sid White, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an appeal by the defendant, Paul Schrack, from a sentence of seven years’ imprisonment in the State Penitentiary, imposed by the district court of Oklahoma county, pursuant to the verdict of a jury finding defendant guilty of the crime of burglary in the second degree.

The sole question presented for determination in this appeal is whether the trial court erred in admitting evidence of a purported confession given by the defendant while he was in the custody of police officers of Oklahoma City, subsequent to his arrest upon a warrant issued in connection with the filing of a criminal complaint against the defendant charging him with the crime concerning which this confession was obtained.

This prosecution was commenced on January 14,1946, by the filing of a criminal complaint charging the defendant and one Frank Thomas with the unlawful entry into a building belonging to O. F. Bryan & Son on September 15, 1945. The defendant was later arrested at Chickasha, and from Chickasha he was moved to the county jail at Lawton. On September 24, 1946, a deputy sheriff of Oklahoma county, pursuant to the warrant of arrest, issued by an Oklahoma county magistrate for the crime of burglary, hereinabove alleged, went to Lawton and returned the defendant to the Oklahoma county jail. On September 25, 1946, two detectives from the police bureau in Oklahoma City took the defendant, by permisson of the sheriff, from the county jail of Oklahoma county to police headquarters where defendant was questioned concerning a series of burglaries that had been committed in Oklahoma City. At the time of the questioning of the defendant, the detectives had in their possession a confession made by Frank Thomas, in which he stated that he and the defendant, 'Paul Schrack, had committed a series of burglaries, including the one herein involved.

In the trial of the case, in detailing the circumstances surrounding the giving of the purported confession by defendant, Officer Ryan testified:

“A. We talked to him, had a conversation with him and he told us he understood we had a statement from Thomas relative to some burglaries and safe jobs, he didn’t know how many jobs Thomas had put him in, but he made the statement he was just on four jobs. Now, this is a verbal statement I am referring to at this time. We talked to him further, and asked him if he wanted to give us a written statement, and he said he did not, until he consulted an attorney, and some question came up relative to the attorney, he mentioned the attorney’s name, Layn-nie, but didn’t know his last name, and Officer Harbolt took him to the chief detective’s office where there is a straight line phone and he called Laynnie Herrod. Q. In response to that did he talk with an attorney? A. Laynnie Herrod came over and talked to us and got permission to go to the jail and talk to him. Q. Did he talk to any other attorney that you know about, Mr. Ryan, at that time, or near that time? A. Yes; theré was an attorney down there from Lawton that came up there with his wife. They got permisssion to go up and see him. Q. You say they talked with the defendant? A. They got permission to go up to the jail and talk to him. They never did talk to him in my presence. Q. At that time or later, was anything he told you reduced to writing? A. It was. Q. When was that? A. After he talked to Laynnie Herrod we brought him back. Now, that might have been the next day, I believe we took the written statement. Q. Where were you when the statement was reduced to writing, please, sir? A. We brought him down to the second floor where the Detective Bureau is located, took him in a consultation room at the north end of the building. I asked him again if Laynnie Herrod represented him, and he said he did. I asked him if he wanted to give us a written statement and he stated that he did. Q. Now, was what he told you then reduced to writing? Was it reduced to writing? A. It was. Q. Who was present when you reduced it to writing? A. Myself, Officer Harbolt, and a stenographer. Q. Frances Wessinger? A. I believe her name was Wessinger. Q. Did you question him a long time? A. No; I wouldn’t say we questioned him very long. I would say the whole procedure of taking the statement, that is, when we came to the taking of it and writing, I would say the whole procedure did not take any more than an hour, if it took that long, I don’t remember exactly. Q. Did you use any force or harsh treatment towards the defendant? A. None whatever. Cross-examination: A.' We told him (Laynnie Herrod) that we would recommend seven years on the condition that he plead guilty and clean up all the other jobs he was implicated in. Q. Schrack had not made any statements to. you until after you had talked to Laynnie Herrod? A.' That’s right. Q. And you told Herrod that you gentlemen would recommend seven years for this defendant on all of the charges if he would plead guilty? A. Yes, sir. Q. (By Mr. White) Then Herrod went back and talked to him? A. He went back to the jail, I supposed he talked to him but I don’t know that part of it. Ql Then you brought the defendant down and he did sign the statement? A. He did. Yes; but not on the same day, however. I don’t believe that was all on the same day.”

Wayne Harbolt, police detective, testified to the confession of the burglary made by the defendant. He corroborated Officer Ryan by testifying that no threats or coercion were used in securing the statement and that no promises were made to the defendant.

On cross-examination, the witness testified:

“Q. (By'Mr. White) Mr. Harbolt, you did make a promise to Mr. Herrod? A. We told Mr. Herrod we would recommend seven years. That was during our conversation with him as his attorney. Q. And that you would recommend seven years in completion of all the charges? A. He asked if he went ahead at that time and entered a plea of guilty— Q. And signed this statement? A. No; I don’t believe the statement was mentioned to Laynnie Herrod. I don’t think there was ever any statement mentioned to Laynnie Herrod, that is, a written statement. Q. Well, you did ask him to clear up all of these other matters? A. Yes, sir.”

The defendant did not testify in the trial of the case before the jury. However, in the absence of the jury, the defendant did testify when the questions of law arose as to the admissibility of the alleged confession. He testified as follows:

“A. Well, they took me out of the county jail to the city jail. Q. Do you mean by that Lieutenant Harbolt and Ryan ? A. That is right, and kept me in the third degree room over there for about an hour and a half, and told me they had three or four charges they could pin against me, and if I didn’t clarify them they were going to see I got ten to life on each and every one of them. I told them I never heard anything about the charges; I could not clarify nothing. Officer Harbolt went outside and came back with a whole handful of confessions, and he said, ‘Maybe this will help to clarify it.’ I said, ‘I don’t even know them guys.’ He said, ‘Oh, yes, you do.’ So, he said, ‘If you will clear these cases up for us and everything like that, so these Oklahoma City business men will get off my throat, we will let you plead guilty and clear them all up.’ I said, ‘I haven’t done anything like that, Mr. Harbolt. I don’t want to clear nothing.’ He said, ‘You will before this is over with’; and Mickey Ryan, then, he asked me did I have an attorney, and I told him yes I did have one. He said, ‘What is his name?’ I told him it was Louis Eskie from Lawton. He said, ‘Well, a Lawton attorney is not going to do you no good. You want an Oklahoma City lawyer, somebody that can do you some good up here.’ More questioning, more threatening with fingers in my face, and all they were going to do and one thing and another. I sent him to call Laynnie Herrod. Immediately after that they took me back upstairs and put me in the investigation cell. Well, I would say 20 or 30 minutes later Laynnie Herrod came up and wanted to know how much money I had, and I said, ‘Why do I have to have money?’ He said, ‘You have to have money.’ Q. Did Mr. Herrod at that time bring you a message from the policemen, about the length of time they would make you pay? A. No; not at that time. Q. Did he later, then? A. Yes. Q. Tell the judge what that was. A. He said that I had better co-operate with the police, and that they would recommend me seven years if I would clear it all up. I said, “I don’t know nothing to clear up, but I do know they can frame me, I know that.’ The next time he came up, that is when he told me about the seven years. They finally got their heads all together and got me down and agreed on the third day I would sign it. Q. With the understanding you would have seven years? A. Seven years and everything was washed up.”

On cross-examination the defendant testified:

“Q. Have you been convicted under the laws of the State of Oklahoma? A. Yes, sir. * * * Q. (By Mr. Moun-ger) Now, before you signed this instrument here, Exhibit 3, Louis Eskie of Lawton represented you, didn’t he? A. Louis Eskie represented me at Lawton. Q. He was up here too, wasn’t he? A. He came up here after I was in a few days, in the city jail. Q. And he talked with you before you signed this statement? A. He talked with me the day before, yes, sir. Q. And Laynnie Herrod talked with you, didn’t he? A. Yes, sir. Q. Before you signed the statement? A. Yes, sir. Q. And also you talked with Opal Hunt, didn’t you? A. Yes, sir.”

Later, the defendant refused to plead guilty, repudiated his confession, employed present counsel to defend him and went to trial on the burglary charge in the instant case. It is agreed that the failure to enter a plea of guilty was not because of the refusal of the officers to recommend a term of imprisonment of seven years in the penitentiary, but that the officers were ready and willing to make such recommendation if the defendant would enter his plea of guilty.

The evidence at the trial was not lengthy. The owner of the building which was burglarized testified to facts establishing that a burglary was committed in which approximately $900 was taken from a wall safe. Frank Thomas, an accomplice of defendant, testified against defendant and the confession made by the defendant to the policemen was admitted in evidence. It is conceded that if the confession was not admissible as evidence against the defendant that there was not sufficient corroboration of the testimony of the accomplice to sustain the conviction.

It is contended by counsel for defendant that the confession of defendant was procured by a promise of benefit to the defendant made to his counsel who in turn conveyed the promise to defendant, and that this promise was the moving cause and sole inducement for the making of the alleged confession, and because of such inducement the confession is involuntary and inadmissible as evidence against the defendant.

Counsel cite the general rule of law as follows:

“It is a well established general rule, sometimes affirmed by statute, that a confession of guilt by accused is admissible against him when, and only when, it was freely and voluntarily made without having been induced by the expectation of any promised benefit, or by the fear of any threatened. injury, or by the exertion of any improper influence.” 22 C. J. S. § 817.

Several cases were also cited in support of this general rule in which the courts of last resort of several states, including this court, had held inadmissible confessions which were obtained from accused persons in custody either upon the grounds that the confessions were obtained by coercion, threats, or by such promises of benefit as induced the accused to make the admissions which were sought to be used as evidence against him. We have examined each of the cases cited in the brief of counsel for defendant. In every case cited, where the confession was held involuntarily made and inadmissible in evidence, the statement involved was given to officers at times when the accused had not had the benefit of counsel and without the aid and advice of counsel.

There are two important facts which distinguish this case from those cited by counsel for defendant. In the first place, the defendant had the benefit of the counsel of not only one attorney but of two different attorneys who advised with him before he made any statement at all to the officers. In the second place, the officers did not make any promise to the defendant at any time and the promise which they made to his counsel was not a promise to secure the making of a confession, but was a promise that they as officers would recommend a sentence of seven years if the defendant would plead guilty. Such an agreement of the officers would only be subordinate to a plea of guilty. If such an agreement was made, it could not be executed by the officers because defendant refused to enter a plea of guilty.

In Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, certain rules of law were established which have been consistently adhered to by this court as follows:

“A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it.
“Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions, in order to be admissible, must be entirely free and voluntary.”
“Confessions induced by a promise of benefit or threat of harm, made to the defendant by a prosecuting attorney, or an officer having him in custody, or by any one having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence.”
“Where the competency of a confession is challenged on the ground, that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and the proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”
“The fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which would otherwise be competent.”

In the body of the opinion it is stated:

“The object with which the law admits a confession in evidence is to obtain truth. The only ground on which a confession is rejected is that the circumstances under which it is obtained have a tendency to falsehood; and therefore the object with which it is admitted, instead of being secured, is likely to be frustrated. Bishop says:
“ ‘The doctrine, in its essence and divested of its technicalities, is that a defendant’s confession is admissible in evidence against him if made freely and without the hope of benefit to his cause; otherwise it is rejected, since its purpose may have been to secure such benefit rather than to disclose the truth.’ ” Bish. New Cr. Proc. par. 1217.

As Mr. Wharton has well said:

“The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from the fear of the threat, or hope of profit from the promise.” Wharton, Cr. Ev. § 658.
“Looking at the general principles of admissibility and the comparative rarity of untrustworthy confessions, as well as the contingent nature of the dangers supposed to flow from improper inducements, the more practical rule would be to receive confessions without question, unless they are shown to have been improperly induced, especially since a contrary rule may involve the difficulty of proving a negative.” Wigmore on Ev. par. 860.

In the case of State v. Moran, 15 Or. 262, 14 P. 419, 420, it is held:

“On trial for murder the confessions of the defendant, made by him, as an admitted accomplice, when another person was on trial for the same crime, are admissible in evidence, when they have been made under an agreement with the district attorney that, if he would testify fully all he knew concerning the murder, he should not be prosecuted for any complicity therein, and subsequently he escaped from custody, and failed to perform his part of said agreement.”

In the body of the opinion the Supreme Court of Oregon stated:

“Assuming now that all of the matters objected to are confessions, or in the nature of confessions, it is believed that they fall within what might be regarded as an exception to that rule, or, if not an exception, a modification thereof in its application to the particular facts disclosed by this record. In order that there may be no misunderstanding as to the precise facts in this case so far as they are disclosed by the record, a brief reference to the testimony is proper. Pending the decision of the court below as to the admissibility of the evidence, the district attorney was sworn, and testified in substance: Tt is not true, as testified to by the defendant, Moran, that I at any time, either directly or indirectly, agreed to give him anything for testifying in the case against James Kelley. There never was at any time, in my presence, any offer made to the defendant, Dan Moran, but this one: That, if he should become a witness in the case against James Kelley, he should not be prosecuted for any connection he had with that crime.’ ”
“In Commonwealth v. Knapp, 10 Pick [Mass], 477, [20 Am. Dec. 534], the attorney general wrote the prisoner a letter promising the protection of the government on condition of his making a full disclosure, and testifying in the case fully and truly. ‘The benefit was offered upon the sole condition that he should make an explicit, exact, and full disclosure of every circumstance connected with the event referred to; and he was informed that in case of refusal to answer touching any topic known to him, or of any evasion, equivocation, or designed contradiction or withholding of testimony, he was not to receive the benefit. To that he assented.’ A full confession was made by the prisoner under this arrangement with the attorney general; but, upon' being called to testify against his accomplices, he refused to do so. The prisoner was then placed on trial charged with the same crime, and his confessions previously made under the agreement with the attorney general were offered in evidence against him. In disposing of his objection made to the admission of this evidence, the court said: ‘The confessions which are now offered in evidence were made deliberately, in part execution of the prisoner’s agreement; but, upon being called to testify upon the trial of John Francis Knapp, he refused to do so. By his refusal to testify it is admitted that he has forfeited all claims to the extraordinary favor of the government. But in what did that favor consist? It was in not using that confession against himself if he would conduct himself faithfully as a state’s witness. By his refusal the government is absolved, and it is now contended that the prisoner is absolved also, and that his confession cannot be used against him notwithstanding his refusal. Persons who are properly admitted here as state’s witnesses are substantially in the same situation as persons in England who are properly admitted to become witnesses for the crown against their accomplices. * * * In England, as well as in Massachusetts, those who are admitted as witnesses for the government may rest assured of their lives if they perform their engagements, so that it becomes a material inquiry how those persons in England who have been admitted as witnesses for the crown are dealt with if they fail to redeem the pledge which they made to the govérnment upon receiving the benefit of becoming king’s witnesses. And we believe the law to be clearly settled there that if they refuse to testify, or testify falsely, they are to be tried themselves, and may be convicted on their own confession which was made after they were permitted to become witnesses for the crown.’ ”
“It is the policy of the law that for every violation of its mandates proper punishment shall be inflicted. But this is not always practicable. Many crimes are committed in secrecy; and those concerned in their commission find their best security in silence; but even this is not always safe, because circumstances frequently point out the guilty, and the means used in the perpetration of the crime, with unerring certainty. In other cases some one of the parties concerned in the commission of the crime, prompted, it may be, by a sense of guilt, or the fear of discovery and punishment, makes known to the officers of the law his willingness to make a full and. complete disclosure of all he knoAVS on the subject, and to testify to the same upon the trial of his accomplices,, upon the sole condition that he shall not be prosecuted.. This is called a confession. It is an admission of guilt, and the argument that would exclude this species of evidence because it may be false would exclude all evidence.. Its falsity is possible, and so may be any evidence offered in a court of justice; but it is not rejected for that ' reason. It is received, and tested and weighed by the rules of law, and then the case is determined according to the effect it has produced on the minds of the jury. It must therefore be assumed that, Avhen a party makes a confession, it is an acknowledgment of some degree of guilt on his part in connection with the particular crime. If such confession is made under the sanction of the court or the district attorney, and with the understanding that the party shall make a full and complete disclosure, and testify to the same upon the trial of his accomplices, is the state not equitably bound by the terms of such an agreement? And the public faith being thus plighted, could its violation be tolerated for an instant? People v. Whipple, 9 Cow., [N. Y.], 707. And is it not equally true that, if the state is bound, the party making the confession is also bound by the like good faith on his part? He cannot be permitted to refuse to testify against his accomplice, and then claim the full benefit of his agreement with the state when his confessions are offered in evidence against him. Having willfully refused to testify against his accomplice, has he not forfeited the immunity which the state offered him upon that sole condition? His only complaint is that the state used his confession against him upon the trial; but this ho could have avoided by going on the witness stand, and narrating what he knew of the commisson of the crime. Having failed to do this, he has no cause of complaint, and especially so where the truth of his confession was not denied by him, but, on the contrary, was corroborated by all the attendant circumstances.”

The Court of Criminal Appeals of Texas, in the case of Bradford v. State, 125 Tex. Cr. R. 41, 66 S. W. 2d 320, upheld the admissibility in evidence of a confession made by an accused under an agreement to turn states evidence where the agreement is violated by the refusal of the accused to testify.

Counsel for the defendant have cited no case where any court has ruled inadmissible a confession made by a defendant where he'had the benefit of the advice of counsel of his own choosing at the time the confession was made on the ground that the confession he made was involuntary. We have made an extensive search and have found none. All of the cases cited by counsel which held inadmissible confessions as involuntarily made were in instances where the accused had made the statement without the benefit of the advice of counsel.

. One of the cases closest in point to the facts herein involved is a case from our own court, Smallwood v. State, 14 Okla. Cr. 125, 167 P. 1154. The defendant, Smallwood, in that case was charged jointly with three other persons with the crime of robbery. Smallwood had employed counsel to represent him. Before the trial and during the time Smallwood was in jail, he had a conversation with the county attorney in which the county attorney agreed that if the defendant, Smallwood, would return the property which had been taken in the robbery to Stewart, the complaining witness, and that if Stewart failed to return to testify in the examining trial which had been set for a future date, the case would be dismissed. Following this agreement, Stewart made a confession and told the officers where they could locate the property which had been taken in the robbery. The property was found in places where Smallwood in his confession had told the officers it was located. When the examining trial was had Stewart appeared and testified. At the time of the trial in district court, counsel for Smallwood objected to the admission of the evidence of the confession on the ground that at the time it was made Smallwood was in custody and was induced to make the same by a promise of benefit to him. In ruling that the confession was admissible as evidence this court stated:

“The only immunity discussed or inducement offered by the county attorney to the accused, through their attorney, was to dismiss the case if the injured party failed to return and testify at the examining trial.”
“As we view the record, the county attorney lived up to his agreement with the accused and they are entitled to no just complaint against him or the other officers of the court on account of the declarations, admissions, and confessions admitted, nor is [defendant] entitled to complain on account of the proof of his actions in going with the officers to recover the property taken in the robbery and surrendering it to Stewart. Under the circumstances disclosed all the proof of these facts was properly admitted in evidence.”

An analysis of the evidence concerning the confession of the defendant, Schrack, reveals the following:

(1) Before any alleged inducement was made to defendant’s counsel, Schrack told the officers that he did not know how many jobs Thomas had pnt him in but he had only done four jobs.

(2) He refused to make a written statement concerning the four jobs until he consulted with his attorney.

(3) The defendant called Laynnie Herrod over the telephone and asked him to come to the city jail.

(4) Defendant consulted with Herrod and also with another attorney, Louis Eskie, several times during a two-day period before he told officers he was ready to make a written statement.

(5) The officers told counsel for defendant that if he pleaded guilty and cleared up all the burglaries he had committed, they would recommend seven years on his plea of guilty. (This was the maximum sentence upon conviction for burglary in the second degree.)

(6) The defendant was kept in the city jail at his own request so that he could visit his wife daily. Under the rules of the county jail, visitors were only allowed on Tuesday. He was not being detained at the city jail against his will for the purpose of procuring a confession from him; but he asked to be kept there where he could see visitors each day.

. (7) At the time the confession was made, the defendant did not mention that his counsel had told him the officers would recommend seven years, if he would plead guilty and nothing was said in the conversation concerning his plea of guilty.

(8) The officers were ready and willing to recommend seven years if Schrack pleaded guilty but after Schrack employed other counsel he refused to enter a plea of guilty and upon the trial was given the same sentence by the jury which the officers agreed to recommend.

In Oklahoma it is well established that:

“Prima facie any confession is admissible in evidence; and where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.” Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A., N. S., 849; Guthery v. State, 24 Okla. Cr. 183, 216 P. 948; Thornton v. State, 49 Okla. Cr. 380, 293 P. 583.

In the case of Tarkington v. State, 41 Okla. Cr. 423, 273 P. 1015, this court said:

“The admissibility of a confession, where it is challenged, is a question solely for the court, after hearing in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made; and the court is vested with a large discretion in determining the matter.” See, also, Dold v. State, 51 Okla. Cr. 426, 2 P. 2d 97.

In the instant ease, the trial court, in a hearing in the absence of a jury, determined as a matter of law that the confession was voluntary and that evidence of it should be submitted to the jury. The court then proceeded to allow the defendant to show the manner in which the confession was obtained and the court correctly submitted the issue to the jury as to whether the statement made to the officers was voluntary and advised them in his instructions that if they should find that the statement was given by reason of any inducements or threats or violence offered to defendant to secure such a statement, that the confession should be disregarded. The defendant, however, did not testify before tbe jury and no evidence was offered in Ms behalf.

The writer does not look with favor upon any criminal case resting for a conviction upon a confession of the accused, and where a serious doubt arises as to the voluntary nature of the confession, the doubt should be resolved in favor of the accused.

We have given the question here presented careful consideration. The contention of counsel for defendant was a novel one and probably the lack of precedent on the point that was raised is because it was never thought that a confession could be considered involuntary where made after free and deliberate consultation by accused with counsel of his own choosing. Counsel representing the accused in criminal cases often approach the county attorney or arresting officers to see what recommendations might be obtained if the accused would plead guilty. Frequently the county attorney states to counsel for the accused just what punishment he thinks should be meted out to the accused and what would be his recommendation if a plea of guilty was entered. We do not believe that the statement by a county attorney to the attorney for the accused in a criminal case, that he would recommend a certain punishment to the trial court if one accused of crime entered a plea of guilty, would make a subsequent confession by the accused inadmissible against him if he did not enter a plea of guilty, and certainly if a statement by the county attorney to counsel for accused as to what he would recommend provided a plea of guilty was entered would not make a subsequent confession inadmissible than an agreement by arresting officers to such effect would likewise not render the confession involuntary and inadmissible as evidence.

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

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


author: BAREFOOT, P. J.

text:
    JIM HOWE v. STATE.
    No. A-10720.
    June 4, 1947.
    (181 P. 2d 571.)
    W. C. Henneberry, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., Dixie Gilmer, County Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, jim Howe, was charged in the court of common pleas of Tulsa county with the unlawful possession of intoxicating liquor, to lyit: 16 pints of assorted whisky; was tried, convicted' and sentenced to pay a fine of $50, and to serve a term of 30 days in the county jail, and has appealed.

The evidence in this case reveals that Deputy Sheriff Roy Raines observed the defendant driving on the streets of Tulsa on October 30, 1945. He saw him park his Plymouth car, tag No. 2-38328 and go into a frame apartment building on Second and Cheyenne streets. Mr. Raines immediately secured a search warrant giving him the authority to search the above-described automobile. He returned within 30 minutes, accompanied by deputies Dug-gins and Gibson. The defendant had not returned to the car. They searched the automobile and found 16 pints of tax-paid whisky in the compartment of the car behind the seat. The defendant was not present at the time of the search. Deputy Sheriff Gibson corroborated the evidence of Officer Raines. Defendant did not take the witness stand, and offered no evidence.

In his brief defendant cites and quotes Tit. 37 O. S. 1941 § 84, which provides for the issuance of a search warrant when affidavit has been filed showing probable cause. It is his contention that the provision of said statute which states: “commanding him to search the premises described and designated in such complaint and warrant” does not give the right to search an automobile, and that the word “premises” means real property, and not personal' property.

This is the first time any such contention has been presented to this court, and we have often held that the search of an automobile was proper under the terms of this statute, when a proper affidavit was presented. Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Lee v. State, 78 Okla. Cr. 441, 150 P. 2d 766. The State of Kansas also follows this rule: Kansas City Breweries Co. v. Kansas City, 96 Kan. 731, 153 P. 523; State v. Rogl, 100 Kan. 590, 164 P. 1165.

It may be noted that the Oklahoma statute (Tit. 37 O. S. 1941 § 1) not only provides that it is unlawful “to manufacture, sell, barter, give away or otherwise furnish any liquors,” etc., but it also provides that it shall be unlawful “to ship, or in any way convey, such liquor from one place within this state to another place therein.” Title 37, section 84, provides the procedure for the issuance of a search warrant by “any judge of any court of record or any justice of the peace” where he ascertains that there is probable cause to believe that intoxicating liquor is being “manufactured, sold, bartered, given away, or otherwise furnished, or is being kept” for such purposes “in violation of this act,” directed to a proper officer to search “the premises described.”

We are of the opinion that it was not, the intention of the Legislature, by the use of the word “premises”, to limit the authority of officers to search for intoxicating liquor to real property, but that it was the intention of the Legislature to authorize a search of any property where the affidavit to procure the search warrant was in proper form, and with proper description of the property to be searched, whether such property is a building, an automobile, or other personal property.

In the instant case, the search warrant, following the description in the affidavit, described the property to be searched as follows: “A black Plymouth coupe automobile, bearing 1945 Oklahoma license 2-38328, which said automobile is used in storing, secreting and transporting intoxicating liquor.” This was a sufficient description of the property to be searched. It required no outside information for the officers to properly identify the property. We are of the opinion that the Legislature, under the terms of the statute above mentioned, did not intend by the use of the term “premises,” as above mentioned, to prevent the search of an automobile.

In the case of Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162, 167, this court said:

“While we have - strictly construed the terms of the statute as applied to search warrants, we are of the opinion that there should not be a technical construction of the statute which would defeat the ends of justice and permit the guilty to escape through technicalities.”

Defendant further contends that the provision of the statute (Tit. 37 O. S. 1941 § 84) wherein it is stated: “a copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found,” very conclusively shows that the provision was intended to permit the search only of a building or room in a building on certain specified premises. We cannot sustain this contention. The reasoning above outlined applies to the construction of this section. The return of the officer revealed that a copy of the search warrant was left in the automobile at the time the search warrant was executed. This, in our opinion, was a sufficient compliance with reference to the service of the warrant as provided by the statute. O’Neal v. State, 65 Okla. Cr. 390, 87 P. 2d 1108.

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

JONES and BRETT, JJ., concur.


text:
    CLAUDE B. HOLT v. STATE.
    No. A-10646.
    June 4, 1947.
    (181 P. 2d 573.)

      Champion, Champion & Wallace, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Rutherford H. Brett, Co. Atty., and Gerald S. Tebbe, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, Claude B. Holt, was charged by information filed in the district court of Carter county with the crime of murder, was tried, convicted of manslaughter in the first degree and sentenced to serve a term of six years in the State Penitentiary, and has appealed.

The defendant called John McClure Winston from his trailer home in Ardmore about 10 p.m. on Sunday, July 2, 1944, fired two shots into his body which caused his death a few hours later. The deceased belonged to the religious sect known as Jehovah’s Witnesses. He was a graduate of Rice Institute with a degree in Electrical Engineering and had been an engineer in the Texas Highway Department until he started religious work as one of Jehovah’s Witnesses. He and his wife and two daughters moved to Ardmore in June of 1943. The wife of the defendant and several of his children were Jehovah’s Witnesses. The defendant himself had attended several of their meetings and had helped make the benches in the building where they met for worship.

. Mrs. Winston, the wife of the deceased, testified that the defendant came to their home about 10 p.m. just after she and her husband had returned from worship. The deceased was sitting at a table eating a bowl of cereal when defendant knocked at the door saying “This is Claude, John”. John said “What can I do for you, Claude? Won’t you come in?” That defendant in a pitiful distressed voice said “No, John, I need your help, boy”. The deceased arose from the table, opened the door and the fatal shots were immediately fired by defendant who shouted “I am going to run every one of you Jehovah’s Witnesses out of this town, and if this doesn’t take effect, you can be sure there will be another time and if I don’t get you I will get you later”.

On behalf of defendant, it was sought to show that the deceased had been the cause of the wife of defendant and their children joining the Jehovah’s Witnesses and that when defendant refused to join in their work, his wife refused to live with him as man and wife and had driven him out of their home. That such treatment caused defendant to brood constantly over his troubles. That on the night of the killing, the defendant went to his home to try effect a reconciliation with his wife, but that she ordered him from the home. That the defendant was not conscious of what he was doing and while in such condition went to. the trailer home of the deceased and fired the fatal shots.

In rebuttal, the state sought to show that defendant’s difficulties with his family arose because of defendant’s heavy drinking. That the defendant became intoxicated frequently and that this was the cause of the separation from his wife and not because of religious difficulties. That defendant’s wife and children had become Witnesses for Jehovah and were baptized when they went to visit the eldest daughter of defendant in Eldorado, Kansas, in 1942, more than a year prior to the coming of the Winstons to Ardmore.

The first question presented in the brief of defendant is that defendant was never arraigned on the charge filed against him, was never served with a copy of the information, and was not served with a list of the witnesses with their post office addresses at least two days before trial.

The record discloses, that defendant was given a preliminary examination on July 8, 1944, and was by the committing magistrate bound over to the district court for trial without bond. An information was immediately, thereafter filed in the district court as case No. 4638, criminal. In that case an application for bail was filed on July 8, 1944, evidence was taken, and an order was entered by the court admitting the defendant to bail in the sum of $15,000. In the order allowing bail there appears the following “the court further finds that the evidence offered in support of said application to fix and allow bail that said defendant, C. B. Holt, had entered his plea of not guilty to said charge of murder * *

When the case was called for trial, the record recites:

“On this the 8th day of December, 1944, came on to be heard for trial the above entitled, numbered and styled cause, the State of Oklahoma, appearing by Rutherford Brett, County Attorney and Gerald S. Tebbe, Assistant County Attorney, and the defendant, Claude B. Holt, appearing in person and by Ms attorneys, J. B. Champion and Wilson Wallace, of the firm of Champion, Champion & Wallace, and both plaintiff and defendant announced ready for trial, etc.”

The jury was impaneled and sworn; the county attorney made his opening statement to the jury, following which counsel for defendant moved the court to dismiss the case for the reason the defendant had never been arraigned and had never had the information read to him and had never had a copy of the information served on him. At the hearing on this motion, the court clerk testified that her appearance docket in case No. 4638, State v. Claude B. Holt, did not show that any arraignment of the defendant had ever been had. The defendant then testified that he had never been served with a list of witnesses with the post office addresses of said witnesses which the state intended to use in the trial against him.

The state introduced the evidence of John Smithers, a deputy sheriff, who testified that on July 8, 1944, just before the hearing in the district court on the defendant’s application for bail, he served a certified copy of the information on the defendant in person in the district court room. A certified copy of the information duly certified by the court clerk on July 8, 1944, showing service on the said defendant of a certified copy of said information by the said Smithers on July 8, 1944, was introduced in evidence. Endorsed on the information were the names of all the witnesses for the state with post office addresses typed opposite their names.

In Manwaurin v. State, 35 Okla. Cr. 220, 249 P. 966, this court held:

“In a capital case, at least two days before tbe case is called for trial, tbe accused shall be furnished with a list of tbe witnesses that will be called in chief, to prove the allegations of the information, together with their post office addresses. Const. Art. 2, § 20. A delivery to the accused in open court, after arraignment, and more than two days before the trial, of a copy of the information with the names and post office addresses of the witnesses for the state indorsed thereon, constitutes a substantial compliance with this provision of the Constitution.”

To the same effect also are the cases of Manning v. State, 7 Okla. Cr. 367, 123 P. 1029, and Rich v. State, 51 Okla. Cr. 418, 1 P. 2d 805. In Manning v. State, supra, it was said:

“The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.” ,

Furthermore, when the defendant, through his counsel, announced ready for trial, proceeded to impanel the jury and no mention is made of the failure to serve a list of witnesses, such constitutional right of defendant is deemed to have been waived. Jenkins v. State, 80 Okla. Cr. 328, 161 P. 2d 90; State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Pollock v. State, 26 Okla. Cr. 196, 223 P. 210; Conley v. State, 34 Okla. Cr. 48, 244 P. 595; Van Brunt v State, 62 Okla. Cr. 188, 70 P. 2d 1103.

It is not necessary for us to determine whether there had been an actual arraignment of the accused prior to his trial as contender by the state. Counsel for defendant as heretofore noted announced ready for trial, proceeded with the impaneling of the jury; the county attorney in bis opening statement advised tbe jury after reading tbe information to them that tbe defendant bad entered bis plea of not guilty to tbe information to which statement of county attorney no objection was voiced by defendant’s counsel. Tbe trial proceeded in all respects as if a formal plea of not guilty had been entered and we fail to see wherein tbe defendant has been prejudiced in any way by reason of tbe failure to formally arraign him on said charge if in fact there had never been a formal arraignment.

Our conclusion is sustained by tbe following Oklahoma authorities: Ray v. State, 40 Okla. Cr. 413, 269 P. 509; Wood v. State, 4 Okla. Cr. 436, 112 P. 11, 45 L. R. A., N. S., 673; Thomas v. State, 17 Okla. Cr. 550, 190 P. 711; Huffman v. State, 46 Okla. Cr. 377, 287 P. 1090.

In Huffman v. State, supra, tbe rule is announced as follows:

“Where a defendant in a criminal case announces ready for trial, be thereby waives arraignment and plea or any irregularity therein.”

It is next contended that incompetent evidence was admitted by tbe court over tbe objection of tbe defendant and prevented him from having'a fair trial. Tbe county attorney upon rebuttal read the testimony of tbe witness, Mrs. W. M. Cross, which was taken at tbe preliminary examination. Counsel contended that such rebuttal evidence was improperly admitted over their objection for reason that no showing was made that the witness was not able to be present at the trial.

The record discloses that after the defendant’s counsel made their announcement of rest, the county attorney stated:

“By Mr. Brett, County Attorney: Now if tbe Court please, on rebuttal we want to read the testimony of a witness who was unable to be present, Mrs. W. M. Cross, and we would like to offer her testimony given in the preliminary. By Mr. Champion, of counsel for defendant: We object, your Honor. By the Court: Anything which is testimony in chief can be admitted. By Mr. Brett, county attorney: Just because testimony is competent in chief doesn’t make it any less competent in rebuttal. By the Court: Yes, sir, I think I have it in mind and most of it can be offered anyway. By Mr. Brett, County Attorney: I have another copy of this record. By Mr. Wilson Wallace, of counsel for defendant: The whole thing should be put in then, it has no place in there and it is not in the form of a deposition. By Mr. Brett, County Attorney: No, it is rebuttal testimony practically complete. By the Court: We will have to hear part of it before we can determine. By Mr. Wilson Wallace, of counsel for defendant: Does the court overrule our objection? By the Court: I will overrule your general objection. By Mr. Wilson Wallace, of counsel for defendant: Exception, give us a copy.”

The general rule as to the admissibility of evidence taken at a preliminary hearing is set forth in the case of Armstrong v. State, 68 Okla. Cr. 105, 95 P. 2d 919, as follows:

“The constitutional guaranty accorded a defendant to be confronted by the witnesses against him, is fully complied with where he was present and had opportunity to cross-examine the witnesses at his preliminary examination before the committing magistrate. When this has been done, and upon a subsequent trial involving the same issue, it is satisfactorily proven that such witness has died, become insane, left the state, or is sick and unable to testify, or with due diligence cannot be found, his testimony given at the preliminary or the former trial, may be proven at the subsequent trial by a transcript of the testimony so taken, or by oral proof.”

The witness whose testimony was in question herein was the daughter of defendant. She testified in the preliminary examination as shown by the transcript of the record filed in the office of the court clerk that she resided at 228 North Alleghaney, Eldorado, Kansas. The defendant in his testimony in chief testified that she was in Eldorado, Kansas. On cross-examination, he again repeated that his daughter, Mrs. Cross, was in Eldorado, Kansas.

In Tobin v. State, 49 Okla. Cr. 265, 293 P. 575, this court stated:

“The constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is fully complied with when the defendant has had an opportunity to cross-examine said witnesses in a preliminary trial before a justice of the peace. When this has been done and upon a subsequent trial of said cause, if it is satisfactorily proven that such witnesses have left the state, the testimony of such witnesses upon the former trial may be proven upon the subsequent trial.”

In the body of the opinion it is stated:

“The fifth proposition presented by the defendant is directed at the action of the court in permitting the transcript of the testimony of C. F. Dowell, given at the preliminary hearing before examining magistrate, O. W. Long, for the reason as contended by the defendant that proper diligence to obtain the presence of the witness was not shown. The record tends to show that the county attorney had a subpoena issued for C. P. Dowell, which had been sent by registered letter to Enid, Garfield county, Okla., the home of the subpoenaed witness, and forwarded to the address of the state witness in Missouri; that a letter was received from the witness, mailed at Curryville, Mo., showing that he was not within the state. We think the showing made by the state was sufficient, and tbe court did not err in admitting tbe testimony of tbe witness.”

Under tbe authority of the Tobin case, tbe state bad only tbe burden of showing that tbe witness, Mrs. W. M. Cross, was outside tbe state at tbe time of trial in order to lay tbe predicate for tbe admission of tbe testimony given at tbe preliminary bearing. This proof by tbe state could come in any form. Tbe defendant’s own testimony furnished that proof. Tbe objection interposed by counsel for defendant was not to tbe proposition that no predicate had been laid for tbe admission of such evidence, but was a general objection to tbe competency of such proof. Tbe court overruled tbe general objection, but allowed specific objections to be entered to particular portions of tbe transcript of tbe evidence before they were read by tbe county attorney, some of which objections were sustained. Counsel for defendant were present at tbe time of tbe preliminary bearing and cross-examined tbe witness, Mrs. W. ,M. Cross, at length. This was a substantial compliance with tbe constitutional provision which guarantees to a defendant tbe right to be confronted by the witness. The testimony of Mrs. Cross was clearly in rebuttal to tbe contentions of defendant that bis wife had become affiliated with J ebovah’s Witnesses after tbe deceased came to Ardmore, as she testified that her mother was forced to leave tbe defendant and come to live with her in Kansas in 1941, at which time she was immersed and became one of Jehovah’s Witnesses. She further testified that her mother became interested in tbe religious activities of Jehovah’s Witnesses in 1938 and bad attended their convention in that year. She further testified that her mother (tbe wife of defendant) bad borne eleven children and lost four since her marriage to defendant and had been in ill health because of female trouble for about twelve years. She testified that her father and mother started living together again in 1942, but that shortly after the reconciliation, he started drinking and abusing her mother and the children again which forced another separation.

The further contention is made that it was error to admit in evidence as rebuttal on the part of the state the testimony of the defendant which he gave at the hearing on the application for bail.

The record discloses that during the cross-examination of the defendant, specific questions were asked concerning the former testimony of the defendant given in his application for bail. He denied making some of the statements, but in response to most of the questions by the county attorney, he stated, “I don’t remember what I said, I was still so tore up at the time of that hearing”. The testimony given on the application for bail differed in some particulars from the defendant’s testimony at the trial and it was competent for the county attorney to show such variance in the defendant’s testimony which was a matter for the jury to consider in determining what weight should be given to the testimony of the defendant.

The admission of evidence in rebuttal is largely a matter addressed to the sound discretion of the trial court and its ruling thereon will not be reversed in the absence of a showing that the court’s action was a manifest abuse of discretion. Hampton v. State, 7 Okla. Cr. 291, 123 P. 571, 40 L. R. A., N. S., 43; Seigler v. State, 11 Okla. Cr. 131, 145 P. 308, 309; Johnson v. State, 21 Okla. Cr. 17, 204 P. 311.

In Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426, rebuttal evidence is defined as that evidence which is given by the state to explain, repel, counteract, contradict, or disprove evidence introduced by or on behalf of the defendant.

The transcript of the testimony of the defendant on the application for bail became admissible as rebuttal evidence for tbe state to show a conflict in the testimony of the defendant at the time of the hearing on the application for bail and that given at the trial. The foundation for impeaching the defendant was laid by directing his attention to the testimony which he gave at the former hearing.

The fifth proposition of law presented by defendant is that the court erred in refusing to permit Dr. Walter Hardy to testify as to the mental condition of defendant.

The record discloses that Dr. Hardy appeared twice as a witness. The first time he appeared, he testified as to the good reputation of the defendant. Later he was called as a witness on behalf of the defendant to testify as an expert witness on the question of defendant’s insanity at the time of the alleged commission of the crime.

Dr. Hardy testified that he had been practicing medicine in Ardmore for a half century, that he had served on the sanity board of Carter county, that he was the owner of the Hardy Sanitarium and had been operating it continuously for over twenty-five years. The record discloses the following then occurred:

“By Mr. Champion, of counsel for defendant: I want to put a hypothetical question to him. By Mr. Brett, County Attorney: And we ask permission to cross examine him on his qualifications. By the Court: All right. By Mr. Brett, County Attorney: Q. All right Doctor, have you ever studied mental diseases as a specialty? A. No. Q. You would not, in your hospital, whenever there was a mental ailment, you always referred it to another physician? A. Yes, sir. Q. You would not claim that based on mere hypothesis of facts that have been introduced in evidence in this case you would be able to say whether a person was insane or not, that he could not distinguish right from wrong? A. Under certain circumstances I might not, of course. Q. No, but I asked you whether you could from a hypothetical question answer as an expert? A. No. Q. You do not claim that ability? A. No. By Mr. Champion, of counsel for defendant: He answered that under certain circumstances he might not be mentally responsible and I am not drawing from anything except the evidence. By Mr. Brett, County Attorney: We renew our objection. By the Court: I rather imagine it is sustainable. If they gave you a certain statement of facts, would you be able to give an expert opinion yourself as to his mental condition at a certain time so that this jury would be able to rely upon your opinion? A. I am not right sure that it would, I have a lot of times under certain circumstances I have. The excitement I think had a lot to do with it, as for competency I don’t see that my evidence would be taken as an expert, but I have given opinions about certain things.”

The general rule is that the question of competency of a witness to testify as an expert is largely a matter of discretion for the trial court and it requires clear proof of error to warrant a reversal by the appellate court on such matters. 54 A. L. R. 863.

It is well to point out that the witness Hardy might have been competent to testify as to his opinion on insanity based solely upon his acquaintance with and observation of the defendant, but he was not being called upon to testify to an opinion based upon his personal observation of defendant. Rather, counsel for defendant sought to qualify him as an expert witness on the question of insanity for the purpose of asking him a hypothetical question.

The asking of hypothetical questions upon a presumed state of facts, for the purpose of eliciting the opinion of a witness, can be justified only upon the theory that the witness is so familiar with the general characteristics of the subject under discussion as to be able to form opinions worthy of consideration, even though wholly ignorant of the particular transactions in controversy. Inasmuch as there are some facts and principles which may be raised as indisputable in all subjects, the law permits persons who are experts in their several callings to express their opinions upon subjects with which their studies and occupations have made them familiar, even though they have no acquaintance with the particular occurrence under inquiry.

The courts of last resort of a majority of the states follow the rule that physicians or surgeons engaged in a general practice are experts and that their opinions are admissible in evidence upon questions that are strictly and legitimately embraced in their profession and practice, and it is not necessary that the physician or surgeon should have made the diseases of the mind or insanity a specialty to make his testimony admissible as an expert. 54 A. L. R. 863; 20 Am. Jur. 713.

Oklahoma is committed to this view. Baldridge v. Zigler, 103 Okla. 219, 229 P. 831.

In the case of Miller v. State, 9 Okla. Cr. 255, 131 P. 717, 720, L. R. A. 1915A, 1088, it is stated in the body of the opinion:

“It would be difficult, if not impossible, to lay down a general rule which is applicable to all cases as to what is, and what is not, expert evidence. Experts are persons who are professionally acquainted with some science, or are skilled in some art or trade, or who have experience and knowledge in relation to matters which are not generally known to the people. Every business or employment which requires peculiar knowledge or experience, and which has a class of persons devoted to its pursuit, is included in the terms art or trade, and any person who, by study or experience, has acquired this particular knowledge or practical skill may be allowed to give in evidence his opinion upon matters of technical knowledge and skill.”

In Oklahoma a nonexpert witness may give his opinion as to whether or not a man is insane where it is shown that a witness has had sufficient opportunity for observation of the accused. Hile v. State, 54 Okla. Cr. 137, 15 P. 2d 1049; McNeill v. State, 18 Okla. Cr. 1, 192 P. 256; Davis v. Dixon, 149 Okla. 274, 300 P. 378.

It is our opinion that any physician or surgeon doing a general practice, who has studied the subject of diseases of the mind with other forms of diseases, may testify on a hypothetical case, on the ground that, if insanity is a disease, one who is skilled in detecting diseases is competent to give an opinion, the extent of his learning and experience going only to his credibility as a witness. It is not necessary that the witness should claim to be an expert or specialist in the treatment of diseases of the mind, but some showing should be made to qualify the witness that he has made a study of diseases of the mind even though the study which the witness might have made was in connection with his general practice as a physician.

In the case at bar, the witness Dr. Hardy upon inquiry by the court disclaimed that he was an expert. However, his testimony concerning his many years of general practice during which he had owned and operated a sanitarium in which thousands of patients had been brought for treatment included a. large number who were suffering from mental ailments. The Doctor testified, however, that they did not treat patients at his sanitarium for diseases of the mind hut when they found patients suffering from such ailments, they referred them to other places for proper care and treatment.

After objections were made by the state that the witness was not shown to have been qualified to answer a hypothetical question concerning the defendant’s sanity, counsel for defendant should have qualified him further by showing what studies he had made of diseases of the mind, even though such study had been made as a part of a general course in medicine or during his general practice as a physician and surgeon.

However, assuming for the purpose of disposing of this proposition of law that the court erred in refusing to permit the Doctor to testify concerning the defendant’s sanity, such action of the court would not constitute, reversible error for the reason there are no facts in the record which would support a claim of insanity. The evidence of defendant was not that defendant was a lunatic or a person of unsound mind, or a person temporarily deprived of reason and there was no proof that at the time of committing the act charged he was incapable of knowing its wrongfulness by reason of any unsoundness of mind. The theory of the defendant as shown by testimony of defendant himself was that he was unconscious at the time of the commission of the act.

21 O. S. 1941 § 152 provides:

“All persons are capable of committing crimes, except those belonging to the following classes:
“1. Children under the age of seven years.
“2. Children over the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.
“3. Idiots.
“4. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.
“5. Persons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the •law does not excuse from punishment for its violation.
“6. Persons who committed the act charged without being conscious thereof.
“7. Persons who committed the act, or make the omission charged, while under involuntary subjection to 'the power of superiors.”

The defendant bases his contention that he was incapable of committing the alleged crime because he was not conscious thereof under the provision of subdivision 6 of the above statute, and did not attempt to bring himself under provisions of subdivision 4, which applies to cases of insanity or temporary insanity at the time of the commission of the act.

The trial court did not give an instruction on insanity and none was requested by counsel for defendant. Instead, the trial court gave instructions No. 11 as follows:

“ (11) You are further instructed that a person who commits the act charged without being conscious thereof is not capable of committing a crime and in this connection you are instructed that conscious means possessed of mind or mentally awake and that unconscious means one not possessed of mind nor mentally awake and that both refer to the present state of mind at the time of the commission of tbe act charged and not to tbe mere loss of memory of a past act.
“And in this connection you are instructed that tbe defendant Claude B. Holt claims that immediately prior to the time of tbe act charged (if be did commit tbe act which be denies) be has no recollection of tbe occurrences thereafter occurring until tbe next day. And in this connection you are instructed that if at the time of tbe act charged you find and believe beyond a reasonable doubt that said Claude B. Holt was conscious of tbe act performed, as herein defined, and you further find beyond a reasonable doubt that tbe acts charged constituted murder or manslaughter then you may find him guilty of either as more specifically instructed in other instructions. On ';the other hand you are instructed that if you believe from the evidence or have a reasonable doubt thereof that said Claude B. Holt was not conscious of the act charged as herein defined, even though you believe from the evidence otherwise beyond a reasonable doubt that he would be guilty of murder or manslaughter yet you must acquit him.”

■ Counsel for defendant were satisfied with the statement of law contained in this instruction as they did not save an exception to the giving of such instruction.-

For a good statement with reference to the law in connection with the alleged commission of crime by a person with sound mind on the ground that he was rendered incapable of committing a crime because he was not conscious thereof at the time of the act complained of, see the case of People v. Methever, 132 Cal. 326, 64 P. 481. Also 22 C. J. S., Criminal Law, § 56, p. 119.

It should also be noted that the objection to the excluding of the evidence of Dr. Hardy was not properly preserved for presentation to this court. Counsel merely saved an exception to the action of the court in sustaining the objection of the state to the competency of the witness to testify as an expert. They made no offer of proof.

In the case of Stanley v. State, 50 Okla. Cr. 169, 296 P. 504, it is held:

“In order to preserve an available objection on the exclusion of evidence, an offer must be made at the time showing what evidence would be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.”

The rule was again set forth in the case of Adams v. State, 55 Okla. Cr. 257, 28 P. 2d 1113, in which it is held:

“When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced for the determination of this court, the record must contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine as to whether the accused has been injured by the ruling of the trial court.”

In the body of the opinion it is stated:

“When the objection was interposed to the question propounded to the witness as to whether or not he was acquainted with the general reputation in the community in which the deceased lived, as being a quarrelsome, violent, racketing sort of a felloAV, the court sustained the objection on the ground that the defendant had not laid the proper foundation. If the defendant desired to preserve the question as to the competency of the testimony sought to be introduced for the determination of this court, the record should contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine whether or not the accused had been injured by tbe ruling of the trial court. Stouse et al. v. State, 6 Okla. Cr. 415, 119 P. 271.”

In Francis v. State, 22 Okla. Cr. 287, 211 P. 433, in the third paragraph of the syllabus, this court said:

“The trial court committed no error in the exclusion of evidence, as recited in the opinion, where no sufficient showing was made as to what the defendant expected to prove by the testimony of the witness.”

We have carefully reviewed this record and each of the assignments of error presented in the excellent brief filed on the behalf of defendant. As we view the record, there was absolutely no justification for the crime which was committed by the defendant.

The defendant himself testified that the deceased had always treated him kindly. The fact that the deceased was killed during the stress of the recent war enabled defendant to poison the minds of the jury against the deceased because he was one of the Witnesses of Jehovah who as claimed by defendant “was teaching his people not to go to war and to not salute the flag”. The reaction of the jury to this testimony of defendant was favorable to defendant because it was only by reason of this prejudice in defendant’s favor that the small sentence may be explained. This court has had many cases that arose in the last five years where some phase of the religious activities of Jehovah’s Witnesses was involved. These people devoutly believe they are following the teachings of Jesus Christ and have been practicing their religion for a great many years. They are entitled to just as full and complete protection of our laws as any member of the other hundreds of religious denominations that now are found throughout our country. All 'evidence showed that the deceased was an educated and kindly man who had become convinced that he should engage in the religious work which he was doing in accordance with his view of the scriptures.

Able counsel who represented the defendant fought hard in his behalf and it is a compliment to their efforts that the defendant received only a punishment of six years imprisonment in the State Penitentiary, when under the facts a jury would have been perfectly justified in rendering a verdict of guilty of murder. The judgment and sentence of the district court of Carter county is affirmed.

BAREFOOT, P. J., concurs. BRETT, J., not participating.


text:
    RODNEY HELFER v. STATE.
    No. A-10729.
    June 11, 1947.
    (181 P. 2d 862.)

      Roy White, of Eufaula, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Haskell A. Hollo-man, Asst. Atty. Gen., and Hazen Green, Co. Atty. of McIntosh County, of Eufaula, for defendant in error.
   BAREFOOT, P. J.

Defendant, Rodney Heifer, was charged in the county court of McIntosh county with the offense of unlawful possession of intoxicating liquor, to-wit: 10 pints of whisky. He was tried, convicted, and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

The only errors presented which are necessary to consider in deciding this case are: First, that the court erred in refusing to sustain the motion to suppress the evidence presented in this case, for the reason that the same was obtained without the aid of a legal search warrant; and, second, that the court erred in refusing to sustain a demurrer to the evidence at the conclusion of .the trial. Both of these errors mhy be considered together.

The record reveals that on the night of January 18, 1946, the defendant, who was a resident of Eufaula, in McIntosh county, was seen by a constable and nightwatchman, driving a car upon the streets of Eufaula. Accompanying him was another party by the name of Dunn. The fact that the car had an out-of-the-county tag number caused the officers to follow it. The driver of the car turned several streets, and finally parked the car in close proximity to the residence of defendant. Defendant and the party with him left the car, and carried a suitcase in which the officers testified they could hear “bottles rattling around.” They went into the residence of the defendant. The officers, who had parked their own car and were watching, defendant and his companion, went to the parked car and found it locked. They testified that by the aid of a flashlight they looked through the window and saw a bottle partly filled with what they thought was whisky on the seat of the car. They did not search the automobile, but proceeded to the back of the residence of defendant, and, looking through the window, Saw defendant and his companion taking a drink from a bottle, which the defendant placed in a cabinet. They then proceeded to the front door of defendant’s residence and knocked. The defendant appeared and recognized them as officers of the law. They asked defendant if he had any liquor, and he answered “No.” The officers then said, “Would you mind if we look around?” and the defendant replied: “No, help yourself.” The defendant had not been arrested, but the officers proceeded to search the premises of defendant without having secured a search warrant, and as a result thereof, found the bottle partly filled with liquor which they had seen defendant place in the cabinet while looking through the window; and also ten pints of tax-paid whisky, taken from a suitcase under the bed. The defendant was arrested after the finding of this liquor, and it was with the unlawful possession of the ten pints of whisky that defendant was charged in this case.

The two officers were the only witnesses presented by the state. The defendant did not take the witness stand, and offered no testimony.

It is contended by defendant that under the pbove statement the search of his premises without first securing a search warrant was unlawful and in violation of his constitutional and statutory rights.

It is contended by the state, first, that a misdemeanor had been committed in the presence of the officers; and, second, that the defendant by his answer to the officers’ question: “Would you mind if we look around?” “No, help yourself,” waived any right he may have had to require the officers to obtain a search warrant, and thereby gave permission to have his premises searched.

Both the state and the defendant in their briefs have cited cases from this court which they claim sustain their respective contentions. It is unnecessary to here review these cases. As heretofore stated, each case to a great extent depends upon the facts of that particular case, subject to well-defined rules of law which this court will follow.

We are of the opinion that the contention of defendant should be sustained. The officers, in this instance, should have procured a search warrant before searching defendant’s premises. They had ample opportunity to do so. We do not find that any of the cases cited by the state have held that a man commits a crime in the presence of officers where the officers look through a window of his home and see him take a drink from a bottle. The defendant was not arrested for any act committed by him while in the automobile, or for the possession of liquor in the automobile. The charge in this ease was for possession of 10 pints of liquor found in his home.

37 O. S. 1941 § 88 provides:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

There was no evidence in this case that the home of defendant was being used as “a store, shop, hotel, boarding house, or place for storage,” or that the same was “a place of public resort.”

We have often held that the permitting of a search of one’s premises by an officer who was present and indicating that he intended to search the premises, is not an invitation or waiver of the right to have the officers secure a search warrant before making a search. Expressions such as were made by the defendant in this case have been construed as not constituting a waiver. Smith v. State, 34 Okla. Cr. 434, 246 P. 1109; Hancock v. State, 35 Okla. Cr. 96, 248 P. 1115; Shockley v. State, 35 Okla. Cr. 437, 251 P. 514; Seick v. State, 57 Okla. Cr. 364, 48 P. 2d 355; Pritchett v. State, 78 Okla. Cr. 67, 143 P. 2d 622 and cases cited; Dawson v. State, 83 Okla. Cr. 263, 175 P. 2d 368.

We are, therefore, of the opinion that the court erred in refusing to sustain the motion to suppress the evidence presented in this case, and in refusing to sustain the demurrer to the evidence.

For the reasons above stated, the judgment and sentence of the county court of McIntosh county is reversed.

JONES and BRETT, JJ., concur.