Reed v. State , 14 Okla. Crim. 651 ( 1918 )

The plaintiff in error, Laney Reed, was convicted of murder and his punishment assessed at imprisonment for life at hard labor. The appeal is from the judgment rendered in pursuance of the verdict.

The first alleged error is the decision of the court overruling the defendant's application for a continuance. It appears from the record that the homicide was committed on the 24th day of November, 1914; that the defendant had a preliminary hearing December 7th, and on December 21st the information was filed in the district court. On February 6, 1915, the defendant was arraigned and entered a plea of not guilty, and the case was set and assigned for trial March 2, 1915. Attorney Thomas W. Mayfield, of Norman, represented the defendant at the preliminary examination and continued to represent him up to the date of the trial. On February 22d Mr. Mayfield, as attorney for the defendant, caused subpoenas to issue for 22 witnesses to appear March 2, 1915. On the Saturday preceding Tuesday, the 2d day of March, Mr. Mayfield left Norman. On March 1st the court received a message from Dr. Mills that Mr. Mayfield was ill at Sasakwa, Seminole county. Judge Swank immediately directed Dr. Mills to notify Mr. Mayfield that the defendant's case would be called for trial March 2d as assigned, and appointed J.B. Dudley, of the Cleveland county bar, to represent the defendant. When the case was called for trial Mr. Dudley filed an application for continuance on the ground that he, as defendant's attorney, had not had sufficient time to prepare the case for trial, which application was supported by the affidavits of the defendant and his counsel. The application was resisted by counsel for the state.

We deem it unnecessary to quote the affidavits, except that of J.B. Grigsby, county attorney, which sets forth that all of the witnesses for the state and the defense are now in attendance at court; that Thomas W. Mayfield, attorney for the defendant, left the city of Norman "on last Saturday," saying that he was going to the city of Edmond; that Dr. Mills, referred to in the defendant's application for continuance, formerly lived at or near Henderson, Cleveland county, and is a warm personal friend of the defendant and his brother, Dr. C.C. Reed, who has been at all times personally assisting in the defense and preparation of the case for trial; that upon the preliminary examination the testimony of all witnesses was taken by a competent stenographer, and a true and correct transcript of the testimony has been accessible to the defendant and his counsel for more than 60 days last past, and the state now tenders a copy of the same to counsel appointed by the court to defend him; that more than 30 days prior to this date the defendant, his relatives, and friends consulted with the said J.B. Dudley relative to employing him as counsel in his case; that the said J.B. Dudley has had a fair opportunity ever since his appointment to consult with the defendant and his witnesses. Traversing the state's objection, J.B. Dudley filed his affidavit, in effect, that he had never talked with the defendant, or any of the defendant's family, about the facts in the case; that he never knew, nor had any knowledge, as to the defense, or the facts relied upon as a defense, in this case until 5 o'clock "yesterday" afternoon, when he had a brief conference with Dr. Reed, the brother of the defendant. Thereupon the court announced that he would postpone the case until the next day, "provided that the defendant does not ask for a further continuance at that time." To this offer the defendant refused to accede.

No ruling is more firmly established in this state than that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. A careful examination of the record fails to disclose any abuse of discretion on the part of the trial court. The defendant had the benefit of the services of an able lawyer appointed by the court to defend him, and the record discloses that he was defended with great ability. We are of the opinion that it was not error for the court to overrule the applications for continuance.

It is also insisted that the court erred in refusing to permit the defendant to introduce in evidence and read to the jury Exhibits 1 to 7, inclusive, which were offered in evidence by the defendant and excluded by the court: Exhibit 1, an envelope addressed, "Oklahoma City Times, Oklahoma City, Okla.," with letter therein, bearing no date, signed "Laney Reed." Exhibit 2, an envelope addressed, "Miss Euna Reed, Trousdale, Okla.," with letter therein, dated "Oklahoma City, March 9-14," signed "Laney Reed." Exhibit 3, an envelope addressed, "Miss Euna Reed, Edmond, Okla.," with letter therein, no date, signed "A.L. Reed." Exhibit 4, envelope addressed, "Dr. C.C. Reed, Trousdale, Okla.," with letter therein, dated "Oklahoma City, March 10-14," signed "Lannie." Exhibit 5, envelope addressed, "Miss Hattie Simmons, Clarksville, Ark.," with letter therein, dated "Edmond, January 19, '14," signed "Lannie." Exhibit 6, envelope, with letter therein, dated "Oklahoma City, Nov. 1-14," addressed "Dear Mother," signed "Lannie." Exhibit 7, a note addressed to "Claude," no date nor signature.

As a predicate for the introduction of these exhibits, Dr. C.C. Reed testified that shortly after the homicide he found these envelopes in the defendant's trunk, at his home in Edmond; that Miss Maude Olden and his two sisters were present at the time; that the handwriting was, and the signatures thereto were, the defendant's. On cross-examination, he was asked:

"Q. Did you ever take a writing tablet to your brother after he was put in jail on the charge of this crime? A. I may have — I don't remember."

Miss Olden and the defendant's two sisters testified that they were present when Dr. Reed found the letters in the defendant's trunk; that thy did not know anything about them until Dr. Reed found them there. In practically all of these so-called letters the defendant states that he was present and witnessed the killing of Kennedy in the rear of Berry's store at Norman; that Capshaw, Bumgarner's brother-in-law, and Key Boyd, his nephew, were present, assisting Bumgarner, when he hit Kennedy with a scale weight; that if he had shot Bumgarner there and stood his trial he would be out free now; that he should have made known the fact that he was present and witnessed this murder; that his failure to do so was the cause of his ruin; that he was going to do what he should have done seven or eight years before. In two or three he states that he intends "this to be his last letter."

The following objection was made to the offer of each exhibit:

"Mr. Williams: Objected to, for the reason it is incompetent, irrelevant, and immaterial, no proper foundation having been laid for its introduction; has no postal mark, and no witness has testified that the defendant wrote it before he killed Mr. Bumgarner."

Exceptions were taken to the rulings of the court excluding these exhibits. Counsel for the defendant contends that the letters were competent and admissible as tending to show that the defendant was insane. The case of Blume v. State, 154 Ind. 343, 56 N.E. 771, is relied upon to support his contention. In the Blume Case, a trial for murder where the defense was insanity, certain letters written by the defendant to the deceased were introduced by the state over the objection of the defendant for the purpose of obtaining the opinion of an expert witness upon the question as to the sanity of the defendant at the time of the homicide and shortly before that occurrence. After such examination, and upon the basis of the same, the witness was permitted to give his opinion as to the sanity of the writer. The court held:

"Where the sanity of the accused is in issue, letters written by him during the period of his alleged insanity may be given in evidence for the purpose of obtaining the opinion of an expert as to his sanity."

In the opinion it was said:

"Written communications, as well as oral conversations, may afford evidence of the soundness or unsoundness of the mind of the writer, and may constitute a sufficient basis for the opinion of a skilled physician or alienist upon that subject. Indeed, evidence of this character is regarded as of especial value in many cases, and as furnishing important tests of insanity. The following, from a standard work upon Medical Jurisprudence, is directly in point: `The value of letters or other writings, as tests of insanity, has been shown by abundant illustrations by Marce, in a monograph on this particular topic. To these might be added a series of cases, English and American, in which the sanity of testators and of obligors has been in a large degree determined by the characters of written documents emanating from them. Nor is such evidence without its worth in criminal prosecutions, especially where the question is whether insanity is genuine or simulated. It is not merely the contents of writings that contribute to the decision of the question. The style and handwriting often supply important tests. "What experienced forensic physician," asks Liman, "is not familiar with the writings of certain classes of lunatics, namely, the so-called `querulants' — writings teeming with flourishes, words and sentence italicized singly, doubly, or trebly, with parenthesis, interlineations, notes of quotation; writings often very voluminous, swollen with citations of alleged laws?" In other cases of lunacy are noticed peculiar modes of construction, words and expressions both original and incomprehensible, such as are familiar to every psychological physician. The first stages of paralysis are characterized by flightiness of writing, omissions of words and sentences, blots,' etc. 1 Whart. S. Med. Jur. par. 387."

Upon the question of the insanity of a defendant charged with crime, evidence of his acts, conduct, and declarations, so far as they relate to, are connected with, or illustrate, or afford material evidence of, his mental condition at the time of the commission of the act charged, is admissible, and written communications, as well as oral statements, tending to show his insanity, are admissible; but there must be a reasonable discretion in a trial court to restrict such evidence, and to exclude it when it is not entitled to any legitimate effect upon the question of his mental condition at the time of committing the act charged. However, a defendant cannot make substantive evidence in his own favor by proving self-serving declarations or written statements out of court, under the claim that the same would afford ground for argument that he was insane, and thus make his defense of insanity, without being subject to cross-examination as a witness in his own behalf. In the Blume Case, the letters were not self-serving declarations as in this case. In fact, the writings offered in evidence in this case are not, strictly speaking, letters. At most they are merely written statements, and as such were admissible only for the purpose of obtaining the opinion of an expert thereon as to the writer's sanity. They were not offered for this purpose; hence there was no error in their exclusion.

The next and last error assigned and argued in the brief is:

"Misconduct of the county attorney in his opening argument to the jury, in which he indirectly referred to the fact that the defendant did not testify."

This assignment is not properly presented by the record. The objection or exception taken to the alleged remarks of the county attorney is attempted to be shown by an unsigned bill of exceptions to the effect that the county attorney in his opening argument made the following statement:

"`After this defendant shot and killed the deceased, when the bystanders ran in and took charge of him and disarmed him, he said, "You need not hold me; I cannot get away in all this crowd, and I will not try to; I have done what I came here to do, and I am willing to take the consequences;" and then he just closed up like a clam and he has been closed up ever since.' To which statement of the county attorney the counsel for the defendant at the time objected, which objection was by the court overruled, to which action of the court the defendant by his counsel excepted, and still excepts.

"J.B. DUDLEY, Attorney for Defendant."

In opposition to the bill of exceptions submitted, J.D. Grigsby, county attorney, filed his affidavit, in which he admits that he used in substance the language set forth in the bill of exceptions of the defendant, and concludes as follows:

"Which argument was based upon the testimony of witnesses of the state in said cause, and the county attorney, further discussing the conduct, action, and statement of the defendant, said, or attempted to say, when interrupted by counsel for the defendant, after his conversation with Claude Pickard, the sheriff of Cleveland county, that some time he would tell all about the trouble, but in substance that it would take him a considerable length of time to relate the trouble, but he closed up like a clam, and never did tell Mr. Pickard what caused the trouble, as he agreed to tell him. That I, the county attorney, J.D. Grigsby, in my argument to the jury, only referred to the conversation of the defendant with Claude Pickard, as to what the defendant agreed to tell him about the cause of this trouble, and never did, directly or indirectly, refer or attempt to refer to the defendant's failure to take the stand."

The defendant filed the affidavit of J.B. Dudley, and offered the affidavits of Tom Cheatwood and Dr. Claude Reed, brother of the defendant, in support of the bill of exceptions. The court refused to settle or sign the bill of exceptions. Under the provisions of our statute, it is the privilege of a defendant to have the argument of counsel taken by the court reporter, and the proper way to present misconduct on the part of a prosecuting attorney is by objection made and exception duly reserved in the record. However, under our practice, if the court settles and signs a bill of exceptions, showing alleged misconduct, the question will be reviewed; but where, as in this case, the court has failed to settle and sign the bill of exceptions, the question is not properly presented for review. However, we will say here that we are inclined to think that the remarks of the county attorney, as shown by the unsigned bill of exceptions, were a proper and legitimate comment upon the evidence of the case, and were not intended or calculated to direct the attention of the jury to the fact that the defendant did not elect to testify as a witness in his own behalf.

No objection was made or exception taken to the instructions given by the court, and the law applicable to the defense of insanity was fully and fairly submitted to the jury. Upon a careful consideration of all the evidence no possible doubt of the defendant's guilt can be entertained; his whole conduct showed a deliberate purpose to kill and murder the deceased, and the shooting was the willful, deliberate, and premeditated act of a person who understood perfectly well the nature and consequences of his act. Upon the whole record we are of opinion that the defendant had a fair and impartial trial, with every right accorded to him that the law justifies or requires, and it would have been a miscarriage of justice, as we think, if upon the evidence any other verdict had been rendered.

The judgment of the district court of Cleveland county herein is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.

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