Irvin v. State , 11 Okla. Crim. 301 ( 1915 )

Plaintiff in error has assigned numerous errors, and the questions presented have been ably discussed by counsel on both sides, both orally and in the briefs. These questions will be discussed in the order in which they are presented. The principal proposition presented arises upon the rulings of the court on questions of evidence.

First. It is contended that the court erred in permitting the witness Norwood to testify to a conversation had with Doc (D.R.) Allen, one of the defendants, about the time of the murder, to the effect that there was $5,000 in it to be furnished by a Muskogee man named Irvin, if they would kill the children and their mother by blowing up and burning the house with dynamite, powder, and coal oil; and in permitting the witness Merriweather to testify to certain conversations with Doc Allen, in which conversations Allen stated that "He knew where Hardy Sells was," and wanted witness to go to Mexico and identify that party as Hardy Sells, and there would be in it for witness "expenses and $500"; and in permitting the witness Jefferson to testify to a conversation with Doc Allen, in which Allen solicited witness to go to Kansas and identify Hardy Sells, and in which Allen said, "If you identify him for Hardy, we can get a deed and make some money" — because the defendant Irvin was not present at such conversations, and because the evidence is not sufficient to show a conspiracy between the defendant Irvin, Doc Allen, and others, and that said testimony was therefore merely hearsay.

The testimony objected to was admitted by the court under the theory of the state that the defendant Irvin had conspired with his codefendants, F.L. Martin, John Coombs, and others, to procure by fraud and forgery the allotted lands of the children of Hardy Sells, including the lands of the murdered children, and that the murder of Castella Sells, as charged in the information, was an incident to that conspiracy.

Upon the theory of the state, we think the evidence objected to was properly admitted.

In the case of Starr v. State, 5 Okla. Cr. 440, 115 P. 356, it is said:

"The rule of law applicable to questions of this kind is well settled. In a trial for murder, any evidence which fairly tends to prove a conspiracy between persons to commit the murder and the motive for the murder is admissible, although not tending directly to prove the murder charged in all cases, where such testimony tends to corroborate the testimony tending directly to prove the murder charged. It is not necessary that the prosecution establish beyond peradventure that the acts, declarations, or conduct of the alleged conspirators were based upon the conspiracy or in reference to the crime charged. It is sufficient if they harmonize with and tend to confirm the charge of conspiracy, or show motive for the crime. If such acts, declarations, or conduct of the alleged conspirators could not be shown, unless the motive therefor, or the connection between the same and the crime, were made undisputably clear, the range of inquiry would be very limited. It is sufficient that such acts, declarations, and conduct have an apparent or probable connection with the crime. The general rule is that, where there is evidence of conspiracy to commit a crime, and of its subsequent commission, the prosecution may in support and corroboration thereof show acts, declarations, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy, or reasonably indicates preparation or motive to commit the crime."

Says Wharton:

"Where a conspiracy is shown to exist, which is usually inductively from circumstances, then the declarations of one conspirator in furtherance of the common design, as long as the conspiracy continues, are admissible against his associates, though made in the absence of the latter. The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all." (2 Wharton's Law of Evd. par. 1205.)

"Slight evidence of collusion is all that is required." (2 Rice on Evd. 865, par. 333; 1 Greenleaf on Evd. [13th Ed.] par. 111; Anarchist's Case, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320.)

Where there is evidence tending to show community of design between two or more persons for the performance of an unlawful act, the actions, and conduct, and statements of one of them are admissible in evidence in a prosecution against another of the conspirators for homicide alleged to have resulted from the conspiracy, and this is the rule though such acts were not done, or though such statements or declarations were not made, in the presence of the person against whom they were used.

See note and cases collated in People v. Lawrence, 68 L.R.A. 220.

A conspiracy can seldom be established by direct and positive evidence. It is, from the nature of the case, only evidence of circumstances tending to show conspiracy which ordinarily can be adduced. If there is testimony tending to show that the defendants pursued by their acts the same unlawful object, one performing one part and another another part of the same so as to complete it, with a view to the attainment of that same object, a sufficient and proper foundation has been laid for the admission of the acts and declarations of other conspirators made and done while the conspiracy was continuing in furtherance of the common design. In the case at bar, the fact that Castella Sells was murdered by some person or persons who hoped to gain by her death is undisputed. It was not claimed by the state that the defendant Irvin committed the act which caused the death of Castella Sells, but it was claimed that her death was caused by the criminal agency of the defendant acting with others, and that the motive for the murder of Herbert and Castella Sells was to secure their interests in very valuable oil lands.

The testimony of J.C. Johnson, who lived in Mexico City, was that Doc Allen came there in 1909, and asked him to impersonate Hardy Sells, and that he told the defendants Irvin and Martin, who came with Allen, that he could be Hardy Sells if there was enough money in it; that they gave him a lease which had the genuine signature of Hardy Sells for him to use in practicing how to sign the name of Hardy Sells; and that he executed deeds, one purporting to convey land in Okmulgee county, Okla., another purporting to convey lands in Muskogee county, Okla., also a deed from "Hardy Sells, father of Dewey Sells," purporting to convey land in Okmulgee county, Okla., by forging the name of Hardy Sells to said deeds, which purported to convey lands described therein to the defendant Irvin; that Allen, Irvin, and Martin returned to Mexico City in 1910, and at that time he forged the name of Hardy Sells to a warranty deed, purporting to convey the interest of Hardy Sells, as the father of Birdie Sells, deceased, in her allotment in the Creek Nation, to Wm. M. Irvin, F.L. Martin, and John Coombs, of Muskogee; and that at that time he forged the name of Hardy Sells to the supplemental contract, the same being acknowledged before the Consul General of the United States at Mexico City, and in favor of the defendants Irvin, Martin, and Coombs, which contract contains the following recital:

"Whereas, it was my intention at the time of executing said warranty deed, and now, to have the same relate back and have all the covenants and warranties therein relate back and to be of full force and effect as of the 26th day of April, 1906" — and further assigning to said parties all outstanding rentals, both agricultural and mining, and all choses in action that might have accrued to Hardy Sells.

In further corroboration of J.C. Johnson's testimony, and as independent facts connecting the defendant Irvin with the conspiracy and the crime, was his possession of certified copies of the official allotment plats, showing the allotments of children of Hardy Sells; also, evidence that the defendant Irvin, shortly before the explosion, inquired about rates to Mexico City; that shortly before the explosion he went to Taft carrying a heavy suit case, and that he was seen near there the morning following the explosion; also the testimony of the witness Thornburg, to the effect that in January, 1911, the defendant Irvin stated to him "that only two things stood between him and the Sells allotments, the two children and the wife of Hardy Sells," and the witness Eaton's testimony, to the effect that the defendant Irvin told him in February "that he could not get possession of the Sells land until he got the heirs out of the way." The defendant Irvin's frequent association with Doc Allen from the time of their first visit to Mexico City in 1909, until the time of the murder was proved by numerous witnesses. The fact that all the money used by Irvin in the transactions with J.C. Johnson, acting as Hardy Sells, was furnished by the defendants F.L. Martin and John Coombs, is undisputed. When the rest of the evidence is considered, it is apparent that the testimony of the witness Johnson is abundantly corroborated by facts and circumstances which go to prove the conspiracy and common design to secure by forgery and fraud the lands of Hardy Sells, and of his children. It follows that the acts and declarations of Doc Allen, a co-conspirator, in furtherance of the common design, were admissible against the defendant Irvin, although done and made in his absence. Burns v. State, 8 Okla. Cr. 554,129 P. 657; Bowes v. State, 8 Okla. Cr. 277, 127 P. 883; Terry v.State, 7 Okla. Cr. 430, 122 P. 559; Holmes v. State,6 Okla. Cr. 541, 119 P. 430, 120 P. 300; Wilson v. State,5 Okla. Cr. 649, 115 P. 819; Stockton v. State, 5 Okla. Cr. 310,114 P. 626; Starr v. State, 5 Okla. Cr. 441, 115 P. 356; Price v.State, 1 Okla. Cr. 358, 98 P. 447.

The state may prove the acts and declarations of a co-conspirator done and made in the absence of others before proving the conspiracy, provided such proof is afterwards made. The order of the testimony is largely in the discretion of the trial court. Nor is it material as to the admissibility of acts and declarations of the conspirators, in furtherance of its purpose and object, that the conspiracy should be charged in the information.

It is further contended that the court erred in refusing to permit the defendant to introduce certain evidence to show motive and opportunity of other persons to commit the crime. On the cross-examination of the state's witness Zeb Mackey, he stated that, when he married Hardy Sells' widow, she had her own allotment and that they sold her allotment to F.L. Martin, one of the defendants, and that he left his wife about that time. Several other questions along this line were asked, to which objections were sustained as not proper cross-examination. Thereupon the defendant made the following offer of proof:

"That when Mackey and his wife had sold her land, he took the money and left his wife, and took with him the live stock from the premises, and remained away from his wife until all the money had been used and squandered, and that he then returned to her because she was the mother of those children, and that he hoped to profit by their estate, and had a motive for perpetrating this crime himself."

The court sustained the objection, and directed the jury to disregard Mackey's testimony regarding the sale of Mrs. Mackey's land, and their separation.

The defendant further offered to prove that Mackey knew the income was $500 per month from Castella Sells' property, and $200 per month from Herbert Sells' property. An objection that it was immaterial and not proper cross-examination was sustained.

The following questions were also propounded to the witness, and objections thereto sustained on the ground that it was not proper cross-examination:

"Q. Is it not a fact that for some time prior to this explosion that you were intimate with the Perryman girl and having intercourse with her?

"Q. Is it not a fact that you were making arrangements to leave your wife, blow up these children, get the money, and take this Perryman girl and leave the country?

"Q. Is it not a fact, that a few months before this explosion, your wife, Priscilla Mackey, knocked that Tevis girl down there at the depot and beat her with a rock because of your relationship with the Tevis girl?"

The questions were severally objected to as incompetent, irrelevant and immaterial, and not proper cross-examination. That the rulings of the trial court in rejecting the proffered testimony, and in sustaining the objections made, were manifestly correct, is hardly open to controversy.

While it is competent for the defendant to show, by any legal evidence, that some other person committed the crime with which he is charged, and that he is innocent of any participation in it, such evidence must tend to connect such other person with the commission of the crime charged. An examination of the authorities will show that it is generally held that evidence which could have no further effect than to cast a bare suspicion upon another is incompetent and inadmissible.

In the case of Greenfield v. People, 5 N.Y. 76, 39 Am. Rep. 636, it is said:

"While evidence tending to show that another party might have committed the crime would be admissible, before such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts, disconnected, and outside of the crime itself, cannot be separately proved for such a purpose."

In State v. Moon, 20 Idaho, 202, 117 P. 757, Ann. Cas. 1913a, 724, it is said:

"We do not understand that an orderly and unbiased judicial inquiry as to the guilt or innocence of a defendant on trial contemplates that such defendant should be permitted by way of defense to indulge in conjectural inferences that some other person might have committed the offense for which he is on trial, or by fanciful analogy to say to the jury that some one other than he is more probably guilty."

A well-considered case on the question here presented is Hornv. State, 12 Wyo. 80, 73 P. 705. The opinion by Justice Potter shows great research, and it is here quoted:

"It is urged that the court erred in these various rulings, and to support the contention the rule is invoked that, where the state depends on circumstantial evidence to convict a defendant, any testimony tending to show that some other person committed the crime is admissible. Counsel state the rule broader than that, and insist that testimony may be introduced tending to show that another person may have committed the crime; and the rule is so stated by some courts. But we think it is not generally or usually held that facts are competent which have no further effect than to cast a bare suspicion upon another. It is generally conceded that a defendant in a criminal case may, for the purpose of establishing his own innocence, prove such facts as tend to show that another is the guilty party, where the identity of the one committing the crime is a material point in issue. The question propounded to the witness Whitman does not on its face disclose a purpose or an ability to show such facts. In determining the admissibility of the testimony, therefore, the court had no further guide than the offer of proof made by counsel. Upon that offer, therefore, it is for this court to decide whether the exclusion of the testimony was or was not erroneous.

"One of the prominent rules of evidence is that it must tend to prove the issue. It is not necessary that every fact should bear directly upon the issue, but it becomes admissible if it tends to prove the issue, or constitutes a link in the chain of proof. The rule excludes all evidence of collateral facts which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and the tendency of which is to divert the mind from the point in issue, and to excite prejudice and mislead or confuse the jury. 1 Greenleaf on Ev. secs. 51, 52; Gillett on Indirect Coll. Ev. sec. 54; Com. v. Abbott, 130 Mass. 472.

"The identity of the person who shot the deceased was a material point in dispute in the case. True, the prosecution relied upon a confession of the defendant, as well as upon proof of circumstances to establish his guilt. But he denied the genuine character of the confession, while admitting the statements attributed to him, denied that he did the shooting, and denied that he was where the killing occurred at the time. We think therefore it would have been competent for him to show by proper testimony that the crime was committed by another; and to that end he was at liberty, if within his power, to produce evidence reasonably tending to show such fact. The direct inquiry therefore is whether the offer on behalf of the defendant was sufficient to constitute the evidence admissible.

"It is evident that no precise rule can be laid down to govern the admission of such evidence in all cases. Much must depend upon the circumstances of the case, as well as the character of the evidence offered. It is held in some jurisdictions that threats of a third person are inadmissible as being res inter alios acta. See State v. Davis, 77 N.C. 483;Alston v. State 63 Ala. 178; Carlton v. People, 150 Ill. 181 (37 N.E. 244, 41 Am. St. Rep. 346.) And evidence of mere threats against the life of the deceased without more, is not generally held to be competent, for the reason that it has no legal tendency to establish the innocence of the defendant on trial.State v. Beaudet, 53 Conn. 536 (4 A. 237, 55 Am. Rep. 155);State v. Hawley, 63 Conn. 47 (27 A. 417); Alexander v. UnitedStates, 138 U.S. 353 (11 Sup. Ct. 350, 34 L.Ed. 954); Com. v.Abbott, 130 Mass. 472; State v. Beck, 73 Iowa 616 (35 N.W. 684);Ogden v. State (Tex. Cr. App.) 58 S.W. 1018; State v. Taylor,136 Mo. 66 (37 S.W. 907); Underhill on Cr. Ev. 332; Gillett on Indirect Coll. Ev. 54.

"In Commonwealth v. Abbott, supra, the Massachusetts court, after stating that, as one step toward proving that some person other than the accused committed the crime, the latter had the right to prove such a state of ill feeling on the part of a third person as would furnish him with a motive for the commission of the crime, say: `The existence of ill feeling as a motive for the commission of crime will not alone justify submitting to a jury the question of the guilt of a person entertaining such feeling. It becomes material only when offered in connection with other evidence proper to be submitted, showing that the person charged with such ill feeling was in fact implicated in the commission of the crime.' In Carlton v. People, supra, it is said: `It is competent for the defendant to show by any legal evidence that another committed the crime with which he is charged, and that he is innocent of any participation in it; but this cannot be shown by the admission or confessions of a third person not under oath, which are only hearsay. The proof must connect such third person with the fact; that is, with the perpetration of some deed entering into the crime itself. There must be proof of such a train of facts and circumstances as tend clearly to point to him, rather than the prisoner, as the guilty party.'

"In the Missouri case above cited, the court held that mere threats by third persons to commit the crime are wholly inadmissible in defense of the party on trial, because such matters are purely hearsay. But it was said that if the offer had been accompanied by the further offer to prove that the one making the threats had done some overt act toward the perpetration of the crime, or even had been seen in the immediate vicinity of the crime, at the time of its perpetration, a different ruling would perhaps he required.

"The question was discussed at length in the case of State v.Beaudet, supra, and it was held that proof of the threats offered would not have shown the party making them guilty of the murder, nor rendered the circumstances relied upon by the state inconsistent with the guilt of the accused or inconsistent with his innocence. And the court say: `It does not seem to us possible that the proposed evidence could have impaired in the least the circumstantial evidence against the accused, and surely no one would claim that it could affect the evidence derived from the confession of the prisoner.'

"Now, the offer in the case at bar was not to show an ill feeling on the part of one individual, but of several, and it was not connected with any other offer to show overt acts on the part of such individuals toward the commission of the crime charged against the prisoner, nor even an opportunity on their part to have perpetrated the crime. Nor was there any evidence to that effect. It must be assumed that no evidence on the subject beyond that proposed was to be tendered. The offer was limited to the showing of a possible motive on the part of some one to do some injury to some member of the Nickell family, and perhaps to take the life of some member of that family. In our judgment, the offer cannot be construed as going beyond that. The proposal to show the general situation in the community we cannot conceive to have been at all competent, unless it would have had some relevancy in relation to the res gestae; and it is not explained how it would have been material in that aspect. It was not stated what it was expected would be proven concerning the general situation, except the inference to be gathered from the remainder of the offer, viz., that feuds existed between the Nickell family and its neighbors. In the discussion so far, we have omitted any reference to the fact that the offer of proof was not specially directed to the killing of Willie Nickell, and that there was an entire absence of explanation as to what the proof would show as to the effect of the feuds upon the deceased, and in what manner they would be shown to be accountable for his murder.

"We do not perceive that the offered testimony would have had any reasonable tendency to establish the innocence of the defendant. Its effect, if any, could have been no greater than to generate a mere suspicion that some other person might have committed the crime solely because he entertained a feeling of ill will or hatred against the Nickell family at some time and may have uttered threats of taking life. The evidence offered does not come within the rule relied on by counsel for plaintiff in error, and the court did not err in excluding it."

The defendant offered nothing beyond the evidence which we have considered tending to connect Zeb Mackey with the crime charged, except the offer of proof made by calling Lou Janey Perryman as a witness to prove that Zeb Mackey was the father of her child, and that he had promised to get some money and leave the country with her. The evidence offered affords no reasonable presumption or inference as to the guilt or innocence of the defendant, and the only effect such course of examination could have would be to degrade the witness.

In Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132, it is said:

"The privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded, and allowed only on the exercise of the judicial discretion, * * * and then only to affect the credibility of the witness."

Error is assigned upon the refusal of the court to give a series of instructions on the law of descent and distribution. The first was to the effect that, inasmuch as the undisputed evidence in the case shows that the two deceased children, Herbert Sells and Stella Sells, were minors, and lived with their mother at the time of their death, and that the father of said children was not at the time of their death, nor for years prior thereto, living with their mother, the court charges you that all the property belonging to said children at the date of their death was inherited by their mother, and that their father, if living, or if he had been living at that time, would have inherited nothing. The second was to the effect that the Creek law of descent and distribution was in force with respect to the allotments set apart in the name of the deceased citizens of the Creek Nation, and the court charges you that, under such law, where the deceased allottee left both father and mother and brothers and sisters, the mother inherited the entire allotment to the exclusion of the father, brothers and sisters. The third was to the effect that, under the supplemental Creek agreement, the provisions of the original agreement putting in force the Creek law of descent were repealed, and the Arkansas law of descent and distribution was put in force and effect in the Creek Nation, and the court charges you that, under such law, where the deceased child left an allotment, the allotment descends to the father and mother jointly, to the exclusion of the brothers and sisters of the deceased.

We think these requests were all properly refused. Whether or not the defendant had knowledge of all these rules of descent and distribution was wholly immaterial, under the undisputed facts in evidence. The motives of men should be judged from the information upon which they act, rather than the accuracy of such information. The defendant's motive should be judged from his supposition as to the law of descent and distribution, rather than from the accuracy of his views upon that subject. As a witness in his own behalf, corroborated by the testimony of his codefendant Martin, it is admitted that they purchased from J.C. Johnson the allotment of Hardy Sells, and the interest of Hardy Sells, whatever it might be, in the allotments of his deceased children. Also, the allotment of his widow, Mrs. Zeb Mackey. By introducing this evidence, the defendant committed himself to the theory of defense that all his transactions with J.C. Johnson were in good faith; that he believed Johnson was the genuine Hardy Sells; and that the deeds so executed and delivered to him conveyed all the right, title, and interest of Hardy Sells in the lands described therein.

We have carefully scrutinized all the instructions in the case, and we are clearly of the opinion that no error was committed by the trial judge. The charge of the court fairly and correctly stated the law of the case, and was fully as favorable to the defendant as he had any right to request.

It is also contended that the judgment should be reversed because of improper remarks of counsel for the state. In the course of his closing argument for the state, Mr. Rutherford, counsel for the state, used the following language:

"Why don't you bring John Coombs here, and Doc Allen? You all represent the whole bunch, and they are in your control.

"Mr. Noffsinger: If the court please, we desire to object to the statement of Mr. Rutherford, and we ask an exception to that remark be at this time allowed to the defendant, and a record made of the same, as being prejudicial to the defendant.

"Judge De Graffenried: Your exceptions are allowed."

It is claimed that counsel for the state in making this remark was guilty of such misconduct that under the provisions of the statute entitled the defendant to a new trial. The statute provides that:

In all criminal proceedings, "the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him, nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial." (Section 5881, Rev. Laws.)

A codefendant is competent as a witness only at his own request. He is given the option to testify if he desires to do so. Under the constitutional provision that "no person shall be compelled to give evidence which will tend to incriminate him" (section 21, Bill of Rights), and of the statute above quoted, he cannot be compelled to testify, either for himself, a codefendant, or for the state, while he is a party in the case(Buxton v. State, ante, 143 P. 58), and any comment on the failure of a codefendant not on trial to testify is not within the latitute of legitimate argument. However, a comment on the failure of a codefendant not on trial to take the stand cannot be considered as a comment on the failure of the defendant on trial to testify within the purview of the last clause of the statute above quoted. The cases cited by the defendant's counsel are all based upon comments on the failure of the defendant on trial to testify in his own behalf. Therefore, these cases do not establish the doctrine contended for by the defendant's counsel. But assuming that such remark was in violation of the spirit and contrary to the intent of the statute, and a misstatement of the law, it does not necessarily follow that the judgment should be reversed. There was ample evidence to sustain the verdict of the jury, and the remark of counsel could not necessarily have influenced the jury in arriving at their verdict. At most, it is a technical error that should be disregarded by this court, where it appears from the record, as it does in this case, that the defendant's counsel merely reserved an exception. Upon a proper request the error could have been corrected by an instruction of the court, or on motion to withdraw from the consideration of the jury the improper remark as not being within the legitimate argument. No such request or motion was made by counsel for the defendant.

Upon the most careful consideration of the record, and of the questions raised by the learned counsel for the defendant, we are unable to find any serious or substantial error, and we think it would have been most unfortunate for the administration of justice, if upon the evidence in this case any other verdict had been rendered.

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

FURMAN and ARMSTRONG, JJ., concur.