Ex Parte Harkins , 7 Okla. Crim. 464 ( 1912 )

The petition for habeas corpus in this case was first presented to the Honorable T.L. Brown, judge of the Second judicial district, and for some reason, which is unexplained, he did not pass upon the merits of the case, and the petition was withdrawn, at his request, and then presented to this court. The effect of this is the same that it would have been if he had heard the case and refused bail.

It is not a necessary prerequisite to the issuance of a writ of habeas corpus by this court that the case should have been previously passed upon by the judge in whose district the case is pending; but, owing to the great volume of business which we have before us, and the further fact that the judge of each district is acquainted with the conditions existing therein, and knows better what weight should be given to the testimony of the witnesses, we think it is the safer policy that, before coming to this court with a petition for habeas corpus, the matter should first be submitted to the proper district judge, where justice can be administered much more cheaply and expeditiously. Where counsel do not take this course, but apply first to this court for relief, the inference is natural that they must have some reason beneficial to their client for doing so; otherwise they would not incur this additional expense, trouble, and loss of time. It amounts almost to a confession that the district judge would deny the relief asked. Of course, this would not apply in a case where the district judge was sick or absent from his district, or for any reason could not act expeditiously upon the case. Neither would it apply in a case where the district judge was disqualified; but none of these conditions are shown to exist in this case. We therefore feel that we should treat this cause as one in which the district judge had heard the evidence, and had decided that bail should not be granted. So we will start out, in considering this case, as though Judge Brown, upon a full hearing, had denied bail to the petitioner. This places an additional burden upon the petitioner to show that he was entitled to bail.

The first question to be considered is as to what extent this must be shown. Section 16, Williams' Const. of Okla., is as follows:

"All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof of guilt is evident, or the presumption thereof is great."

There are two conditions in this provision, under either or both of which bail should be refused. First, in a capital case, when the proof of the guilt of the accused is evident; second, where from the evidence in a capital case the presumption of the guilt of the accused is great. In attempting to arrive at the intent and true meaning of this provision of the Constitution, we will discard all precedents based upon hairsplitting distinctions, finespun theories, and involved reasoning, and will give to the Constitution that common-sense construction which it must have received at the hands of the people, whose votes adopted and placed it in force. It is true that the intention of the framers of the Constitution is entitled to great respect; but it must also be remembered that the Constitution derives its power and authority from the people, who adopted it. The question then is: What did the people have a right to believe that it said and meant when they voted for it? This can only be determined by giving the words used in the Constitution that import which is given to such words in everyday use among the people in the common affairs of life. From this standpoint, there is absolutely no uncertainty as to what the provision of our Constitution now under consideration means.

Under the first clause of this provision, if the guilt of the accused is evident (that is, free from reasonable doubt), then bail must be refused; but, on the other hand, as that which is involved in reasonable doubt cannot be evident, if, on a review of the entire evidence, there is a reasonable doubt as to the guilt of the accused, it could not be said that his guilt was evident, and he would, if this provision stood alone, be entitled to bail as a matter of right. But the Constitution does not let the matter rest here, but goes further and, using the disjunctive conjunction "or," states that bail should also be denied when the presumption of the guilt of the accused is great. From a common-sense standpoint, the people must have understood that the last words used mean something, and that they do not constitute a mere rhetorical flourish. We therefore conclude that, although the guilt of the accused might not be free from reasonable doubt, yet, if, from the entire testimony, there arose a great presumption of the guilt of the accused in a capital case, he should be refused bail. It is true that on a final trial the accused cannot be convicted upon a presumption arising from the preponderance of the testimony, but must be proven guilty beyond all reasonable doubt; but when it comes to an application for bail, under the express provisions of our Constitution, the rule is different. The reason for this distinction is plain. The verdict of the jury is intended to be final and permanent; the judgment denying bail is only temporary. It merely says there is so much evidence against the accused that it is best that he be restrained of his liberty pending a final trial. Of course, this does not mean that he should be denied bail upon a mere preponderance of the testimony. It only means that this preponderance must be so strong as to constitute a great presumption of guilt.

This is a case depending entirely upon circumstantial evidence. While, to a limited extent, a false consistency of circumstances may be constructed, yet experience teaches that this is almost impossible where there are a considerable number of circumstances involved. A single circumstance, standing alone, might amount to but little, and be entirely consistent with innocence, yet, when this circumstance is considered in connection with other circumstances, they are to be taken and combined together and may result in an irresistible conclusion of the guilt of the accused. As was said by this court, in the case of Ex parte Hayes et al., 6 Okla. Cr. 333, 118 P. 609:

"We think that the application of the chain theory to circumstantial evidence is improper. No chain is stronger than its weakest link, and will never pull or bind more than its weakest link will stand. With its weakest link broken, the power of the chain is gone; but it is altogether different with a cable. Its strength does not depend upon one strand, but is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight; but when these different strands are all combined together they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore think that it is erroneous to speak of circumstantial evidence as depending upon links; for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands, and all of the facts relied upon should be treated as a cable."

Applying these principles to the evidence before us, first, was a crime committed? Take the testimony of Dr. Edwin De Barr. He is professor of chemistry in our State University, and is known to the people of Oklahoma as an eminent scientist and a gentleman of the highest character for intelligence, integrity, and impartiality. He testifies that he found morphine in the stomach and liver of Arvie Hurst, which was evidently taken with whisky; that the windpipe and lungs of said deceased did not show any traces of fire or heat, and that the deceased did not come to his death from inhaling flames or gas; that, in his opinion, the deceased was drugged and then burned; that there was nothing to indicate that he was asphyxiated; that, in his opinion, deceased was drugged, and probably oil was poured over him, and then burned; that he examined the viscera of Elsie Adams; that he found one-sixteenth of a grain of cyanide of potassium in her stomach; that, in his opinion, she did not come to her death from inhaling flames or gas; that she was drugged, and probably oil was poured over her body, and then burned. This evidence raises a great presumption that Elsie Adams and Arvie Hurst were foully and brutally murdered. Petitioner was the last person seen with Elsie Adams, and had taken her home that night. It was proven by his own statements that he was at the house where the fire occurred about one hour before the fire was discovered. It was also proven, and not denied, that she was pregnant. Petitioner admits that she was his sweetheart. He admitted having had trouble with one of her brothers about the girl, and said "Bill started to cause trouble, and if he had not the girl would have been well today." This is a most significant and damaging admission. Petitioner stated this as a fact. Then the inference is irresistible that he knows more about how her death was produced than he disclosed on the witness stand. There is nothing in the record that indicates that any person, other than the petitioner, was the father of her unborn child. Petitioner was proven to be a veterinary surgeon, and must have been familiar with drugs and poisons. After taking her home on the night of the fire, he went back to what was called a dance hall, but only remained there for a few minutes. As he had no business at the dance hall, and did not speak to any one there, this looks like preparation to prove an alibi. He had ample time to return to the house and complete his deadly work. He testified he was to marry Elsie Adams within a week. It is therefore argued it would be unreasonable for him to try to kill her. If his conduct had been reasonable, it would not have been criminal; for crime is always unreasonable. What could be more unreasonable, and therefore more criminal, than the seduction of a sixteen-year-old girl, in the sacred name of love, by a mature man of the world? Read pages 181 and 182 of 5 Okla. Cr. 114 P. 269, 270, Hast v. Territory. Is there any crime which such a man would hesitate to commit, if it suited his purposes? No man can tell what a man will do who has been entertaining illicit relations with a girl. Such conduct could not even be understood by King Solomon, although he was the wisest man who ever lived; for in the eighteenth and nineteenth verses of the thirtieth chapter of Proverbs he says:

"18. There be three things which are too wonderful for me, yea, four, which I know not:

"19. The way of an eagle in the air; the way of a serpent upon a rock; the way of a ship in the midst of the sea; and the way of a man with a maid."

If Solomon with all of his wisdom and long and varied experience could not understand these things, how can they appear reasonable to ordinary mortals? We only know from experience that illicit love has been the most prolific source of murder from the most ancient days to the present time. Take the case of King David. In the eleventh chapter of II Samuel, beginning with the second verse, we find the following:

"2. And it came to pass in an eventide, that David arose from off his bed, and walked upon the roof of the king's house; and from the roof he saw a woman washing herself; and the woman was very beautiful to look upon.

"3. And David sent and inquired after the woman. And one said, Is not this Bathsheba, the daughter of Eliam, the wife of Uriah the Hittite?

"4. And David sent messengers, and took her; and she came in unto him, and he lay with her; for she was purified from her uncleanness; and she returned unto her house.

"5. And the woman conceived, and sent and told David, and said, I am with child.

"6. And David sent to Joab, saying, Send me Uriah the Hittite. And Joab sent Uriah to David.

"7. And when Uriah was come unto him, David demanded of him how Joab did, and how the people did, and how the war prospered.

"8. David said to Uriah, Go down to thy house, and wash thy feet. And Uriah departed out of the king's house, and there followed him a mess of meat from the king.

"9. But Uriah slept at the door of the king's house with all the servants of his lord, and went not down to his house.

"10. And when they had told David, saying, Uriah went not down into his house, David said unto Uriah, Camest thou not from thy journey? Why then didst thou not go down unto thine house?

"11. And Uriah said unto David, The ark, and Israel, and Judah, abide in tents; and my lord Joab, and the servants of my lord, are encamped in the open fields; shall I then go into mine house, to eat and to drink, and to lie with my wife? As thou livest, and as thy soul liveth, I will not do this thing.

"12. And David said to Uriah, Tarry here to-day also, and to-morrow I will let thee depart. So Uriah abode in Jerusalem that day, and the morrow.

"13. And when David had called him, he did eat and drink before him; and he made him drunk; and at even he went out to lie on his bed with the servants of his lord, but went not down to his house.

"14. And it came to pass in the morning, that David wrote a letter to Joab, and sent it by the hand of Uriah.

"15. And he wrote in the letter, saying, Set ye Uriah in the forefront of the hottest battle, and retire ye from him, that he may be smitten, and die.

"16. And it came to pass, when Joab observed the city, that he assigned Uriah unto a place where he knew that valiant men were.

"17. And the men of the city went out, and fought with Joab; and there fell some of the people of the servants of David; and Uriah the Hittite died also.

"18. Then Joab sent and told David all the things concerning the war;

"19. And charged the messenger, saying, When thou hast made an end of telling the matters of the war unto the king,

"20. And if so be that the king's wrath arise, and he say unto thee, Wherefore approached ye so nigh unto the city when ye did fight? knew ye not that they would shoot from the wall?

"21. Who smote Abimelech, the son of Jerubbesheth? Did not a woman cast a piece of a millstone upon him from the wall, that he died in Thebez? Why went ye nigh the wall? Then say thou, Thy servant Uriah the Hittite is dead also.

"22. So the messenger went, and came and shewed David all that Joab had sent him for.

"23. And the messenger said unto David, Surely the men prevailed against us, and came out unto us into the field, and we were upon them even unto the entering of the gate.

"24. And the shooters shot from off the wall upon thy servants; and some of the king's servants be dead, and thy servant Uriah the Hittite is dead also."

What could have been more unreasonable than the conduct of King David? Illicit love caused both Beattie and Richeson to go to the electric chair within the last few months; and the courts are constantly filled with murder cases which grow out of such relations. Petitioner testified that he was a Sunday school teacher. Richeson was a preacher. The illicit relations existing between Richeson and his victim caused him to poison her with the very drug which, according to the testimony of Dr. De Barr, sent poor, trusting Elsie Adams to her death. Had it not been for the fact that Richeson's victim was in a delicate condition, he could have broken off his engagement with her; but he knew that what had passed between them would soon tell its own tale and involve him in ruin. Hence she must be put out of the way. Elsie Adams was also in a delicate condition, and her brother had been causing trouble. If she remained alive, her condition would soon become public. Petitioner stated that, had it not been, for the brother causing trouble, Elsie Adams would be well today. If he knew why she died, he must also know how she died, and who killed her. If he knows these things, how can he be innocent? There are many other incriminating circumstances in this case; but it is not necessary for us to discuss the testimony further, as what has been discussed fully sustains the conclusions at which we have arrived. We believe that under both provisions of the Constitution bail should be refused in this case.

The writ of habeas corpus is discharged, and the petitioner is remanded to the custody of the sheriff of Nowata county to await trial on the charge now pending against him.

ARMSTRONG and DOYLE, JJ., concur.