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Chapter VII - The Apeal - 29 June 1912
(filed with W. H. L. Campbell, Clerk,
In the Criminal Court of Appeals State of Oklahoma)
(Service of this Brief in Case of N. L. Miller vs. The State of Oklahoma is hereby acknowledged. This June 29th, 1912. - signed by charles West, Attorney General - signed by Matson)
Appeal - No. A-1618
N. L. Miller - Plaintiff in Error
vs.
The State of Oklahoma, Defendant in Error
Brief of Plaintiff In Error
Statement of the Case
On the sixth day of January, 1911, this action was commenced by the County Attorney of Woods County filing an Information in the Distrcit Court of Woods County, wherein it was charged that the defendant, N. L. Miller, committed the crime of murder, the charging part of the information reads as follows: He, the said N. L. Miller, did then and there, in and upon the body of one, Mabel Oakes, then and there being, unlawfully, purposely, and feloniously, without authority of law, and of his deliberate and premeditated design to kill and murder and effect the death of her, the said Mabel Oakes, make an assault upon her, the said Mabel Oakes, and did then and there, unlawfully, feloniously and without authority of law, and of his the said N. L. Miller's premditated design to kill and murder and effect the death of the said Mabel Oakes, with a certain piece of cloth, same being commonly known as a scarf, then and there in the hands of him, the said N. L. Miller, held, kill and murder and effect the death of her, the said MabelOakes, by then and there winding and wrapping the said scarf upon, about and around the neck of her, the said Mabel Oakes, and did then and there and by the means of said scarf aforesaid, and in the manner aforesaid, unlawfully, and feloniously and without authority of law, and of his deliberate and premeditated design, to kill and murder and effect the death of her, the said Mabel Oakes, choke and strangle her, the said Mabel Oakes, until she then and there died, as was by the said N. L. Miller intended that she, the said Mabel Oakes should do. And so the County Attorney aforesaid and at the time and place and in the manner and by the means aforesaid charges and informs and gives the court aforesaid to know and be informed that the said N. L. Miller then and there did kill and murder and effect the death of her, the said Mabel Oakes."
To this Information the defendant presented a demurrer alleging that the Information did not substantially conform to the provisions of Chapter 68, Statutes of Oklahoma, of 1893, and amendments thereto, and that more than one offense is charged in the information, also that the facts stated in the Information do not constitute a public offense. This demurrer was overruled and exceptions saved.
On the application of Plaintiff in Error the case was taken on change of venue to the district court of Woodward County, Oklahoma, where a trial was had and defendant found guilty of murder as charged and his punishment fixed at life imprisonment at hard labor.
Motions in Arrest of Judgment and for a New Trial having been by the Court overruled and exceptions thereto duly saved by defendant's counsel.
The Court on the 15th day of September, 1911, pronounced judgment in accordance with the verdict.
Assignments of Error.
First Assignment of Error.
The Court erred in overruling the motion of Plaintiff in error for a New Trial.
Second Assignment of Error.
The Court erred in overruling motion of Plaintiff in Error in Arrest of Judgment.
These two propositions and assignments of Error will be discussed under specific assignments of error.
Third Assignment of Error.
The Court erred in not permitting counsel for Plaintiff in Error to save exceptions to remarks of counsel for the State at the time such remarks were made.
At page 654, Case made, the following proceedings are recorded:
Mr. Swindall: "Owing to the fact that the court did not permit counsel to save certain exceptions to the argument of counsel during the progress of the argument, and saw fit to insult counsel every time they saw fit to protect the rights of the defendant by threatening to send us to jail in the presence of the jury, we desire at this time to save an exception to the remarks made by Moman Pruitt in his closing argument to the jury in which he impersonated the jurors Harry McGriff, Henry C. Thompson, Mr. Philips, and George B. Welty, by calling their names during the course of his arguments to the jury, and to which impersonation the attorney for the defendant objected at the time and was by the court overruled and exception allowed. And also counsel for defendant objected to the State in its closing argument to the jury making the statement that "Where is Snoddy? Where is he? Why is he not here. They claim that black hand letters were given to him by Miller," "Snoddy was counsel in this case, Wilson was counsel in this case, he was here." And the defendant's counsel also objected to the argument of counsel referring to the fact that Snoddy wasn't present, and attempted to offer an explanation that the Snoddy referred to as being with the defendant, N. L. Miller, was not E. W. Snoddy who was of counsel in the case, but was a different person, to-wit, J. C. Snoddy, and the court thereupon in the presence of the jury stated to counsel for the defendant that if they did not quit interrupting the argument and cross firing and talking back and forth he would send them to jail, or words in substance to that effect."
By the Court: "I made no such statements. I did not say that I would send you to jail."
Mr. Swindall: "We wish to make the record show that we objected and that our exceptions were allowed."
While we have endeavored the best we can to make the record disclose to this Court exactly what took place on that occasion, yet these things went before the jury, and we were not permitted to call the reporter to take down the proceedings.
It will be seen from the record that E. W. Snoddy was at first of counsel for the defendant, but did not participate in the trial of the case and was not in fact at Woodward.
We submit that these remarks were highly prejudicial to the rights of the defendant. It is impossible to call the attention of the court to the many errors affecting the substantial rights of the defendant, as his counsel were not permitted to call the reporter to take down all that was said. While the Judge of the Court denies that he threatened to send the defendant's counsel to jail, he does not deny that the improper remarks were made by the Attorneys for the State, and that we were not permitted to correct the false statements made in the presence of the jury.
In the case of Lamm vs. The State, 11 Pacific, 1002, which bears great resemblance to this branch of the instant case, the court there say that the evidence of the refusal of the trial court to permit counsel to take exceptions and call the stenographer to perpetuate such perjudicial remarks, may be shown by affidavits or other evidence, we have incorporated in the record at page 654 of case made what did take place, undenied by counsel for the State or the court, except that the court denies that he threatened to send us to jail. in view of his denial we will press only that matter which the court or counsel for the prosecution do not deny, to-wit, that the court refused to call the stenographer and cause him to take down what was said. That these remarks were highly prejudicial and unfair to the defendant, we call attention to the fact that J. C. Snoddy and E. W. Snoddy are different persons, E. W. Snoddy being an attorney of the Alva bar and at one time of counsel in this case. The attempt was made to impose upon the jury, and make them believe that J. C. Snoddy referred to in the testimony as Cook Snoddy, was the same person as E. W. Snoddy. J. C. Snoddy was present, but E. W. Snoddy was not. Counsel well knew that J. C. Snoddy was not the person to whom Miller had given the so called "Black Hand" letters, and with a full knowledge on the part of the court of the deception being practiced by Mr. Pruitt, the court refused to permit us to get the truth of the matter before the jury, and make the explanaion that should have been made, because it would have presented the truth to the jury. The importance of this error will be seen by referring to the testimony of N. L. Miller and exhibits from page 630 to 635 inclusive. The state was endeavoring to prove that defendant had committed adultery with Mabel Oakes, alleged to have been committed months before the alleged homicide , at the home of Mabel Oakes, by the testimony of N. J. Lewellen, page 399, and the defendant explained his presence at the house of deceased, by showing that he had knowledge of these threatening letters and went WITH others to the home of Mabel Oakes and did not commit adultery with her on that occasion as testified by the same N. J. Lewellen. See testimony of H. W. Noah, at page 518-529.
It will be observed that the State was trying to prove an entirely unrelated and distinct offense from that for which he and his counsel supposed from reading the Information he was being tried, and which could not have thrown any light on the issues which were supposed to be the subject of investigation. This evidence of N. J. Lewellen, page 399, in which he stated that Mr. Miller told him that he at some time had slept with Mabel Oakes, could have no other effect than to prejudice the jury against him.
It is doubtful whether a stronger illustration of the wisdom of the rule of law prohibiting the State from proving some other offense than the one for which he is being tried can be found than the case at bar. Such testimony would neccessarily powerfully influence the jury against the defendant, and second, the defendant is forced to meet the charge without any opportunity to do so.
This error will be more fully discussed under another assignment. The fraud and imposition upon the jury practiced in trying to make them believe that J. C. Snoddy and E. W. Snoddy were the same person should not have taken place. The Defendant's counsel should have been permitted to explain. The court of its own motion should have corrected the statement.
The errors complained of in assignment No. 3, appllies with equal force to assignments 4 and 5.
Assignment No. 6.
The court erred in admitting illegal and incompetent evidence. In Addition to the errors complained of under assignment No. 3, we wish to call the court's attention to much otgher evidence clearly incompetent and prejudicial.
It will be remembered that the charge which the defendant was required to meet was the murder of Mabel Oakes by choking her to death with a scarf.
It was denied that the defendant killed the deceased. The province of the jury was, among other things, to determine whether the deceased came to her death by means of strangulation as alleged in the Information, if it were shown that a homicide had in fact been committed, which from the evidence is very doubtful.
Certain witnesses claiming to be experts were permitted over the objections of defendant's counsel to invade the province of the jury, and determine for them how Mabel Oakes came to her death, not whether the means by which her death was alleged to have produced her death might have caused her death, but they testify that such means did produce her death.
At page 283 of case-made, Dr. Bilby testifies as follows:
Q. Now doctor, from the condition of that body, and its condition in all respects, what in your opinion or judgment would you say caused the death of that girl?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Invading the province of the jury. Let the jury determine.
By the Court: Objection overruled.
To which ruling of the court the defendant then and there duly excepted at the time.
A. I would say from all conditions and facts, that she was strangled. That she met her death by strangulation.
Q. The condition of this scarf that was around her neck, as tight as it was when you found her, would that produce death?
A. Yes, sir.
Mr. Swindall: Objected to as argumentative. Already having been asked and answered.
The Court: Overruled.
Defendant excepted.
Q. The condition you found that scarf in you say would produce death?
A. Yes, sir.
Q. Doctor state to the jury whether or not a human being could by their own efforts produce strangulation, one that would produce death, and then lay their hands upon their body, in the position this girl's hans were found?
Page 284.
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Calling for an opinion and a conclusion of the witness. Invading the province of the jury.
The Court: I cannot think of any one else that would be competent --
Mr. Pruitt: I will withdraw that question and use another witness first and then use the Doctor for the foundation of a hypothetical question.
The Court: Then the objection will be sustained.
Mr. Pruitt: I will withdraw that question, your honor.
Q. Doctor, have you read any works on strangulation?
A. Yes, sir. I have read Taylor and Whithouse & Becker, and other works.
Q. From your experience as a physician and from your learning do you think you are competent to testify as an expert as to what produced death there?
A. Yes, sir.
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Calling for an opinion of the witness concerning his own testimony.
The Court: I think that is a question for the Court.
Mr. Pruitt: What experience have you had along that line, Doctor?
A. Well, my experience has been mostly reading and then this case. I never saw very many cases of strangulation. It is a rare thing that we have in practice.
Q. You have been practicing how long?
A. Since 1894.
Q. State what you found there aside fromt eh scarf in connection with that body that was indicative of strangulation?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Let him state what it was and what it indicated is a question for the jury.
The Court: Sustained.
Mr. Pruitt: Q. I will ask you this question, doctor; in your judgment do you think it would have been possible for Mabel Oakes to have strangled herself and produced strangulation there to that extent, that it would bring about death, and then place her hands on her breast?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Invading the province of the jury, and calling upon the witness to pass upon the weight and sufficiency of the evidence.
Overruled.
To which ruling of the court the defendant then and there duly excepted at the time.
Q. It would have been impossible for her to have strangled herself and placed her hands on her breast and also the ends of the scarf back under her head. That would have been impossible.
Beginning at page 317, case-made, Doctor Templin, another alleged expert, testifies as follows:
Q. Doctor, have you read any authorities or are you conversant with any authorities on strangulation?
A. Yes, sir, I have read some.
Q. Taking your experience as a physician, your knowledge of strangulation, your knowledge of the condition of that body, the ecchymotic condition, and in fact the entire condition of the body, taking everything into consideration, are you able to state what produced death in this case?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. And a subject that does not call for expert testimony, and invading the province of the jury, and for the futher reason that the data is not sufficiently wide to enable the physician to express an opinion.
The Court: Overruled.
To which ruling of the Court the defendant then and there duly excepted at the time.
Q. Are you in a position to state what caused death?
A. Yes, sir.
Q. What produced death in that instance?
A. Strangulation.
Q. Taking your experience as a physician, your knowledge of strangulation, and the condition of that body there, and the condition of the hands, the attitude of the body and all, are you able to state whether or not Mabel Oakes could have strangled herself to death?
Mr. Swindall: Objected to as incompetent, irrelevant, and immaterial. Not a subject calling for expert testimony, and invading the province of the jury.
The Court: Overruled.
Defendant excepting to the ruling.
A. Yes, sir.
Q. All right, what is your judgment about it?
Defendant objecting, because immaterial, irrelevant and incompetent, invading the province of the jury.
Objection overruled and exception saved.
Q. Tell the jury.
A. In the first place --
Q. I don't want any long explanation, I want to know could she or could she not?
A. I misunderstood the question. No, she couldn't.
Q. She couldn't.
A. No, sir.
At page 338, Dr. Grantham testifies as follows:
Q. Now doctor, taking your experience as a physician, your knowledge of works on strangulation, your knowledge of the condition of that body, the location of the scarf, the condition and location of the scarf, the condition and location of the hands and every condition and and all the surroundings that you found there at the time and from the time you found the body, and what you discovered when you made the exploration there, can you say, are you able to say what produced death?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Calling for a conclusion of the witness, and invading the province of the jury.
The Court: Overruled.
To which ruling of the court the defendant then and there duly excepted at the time.
The Court: Doctor they ask you if you are able to say that?
A. Yes, sir, I am able to state.
Mr. Pruitt: What in your judgment produced death?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Not a subject calling for expert testimony and invading the province of the jury.
The Court: Overruled.
To which ruling of the court the defendant then and there duly excepted at the time.
A. Death was due to strangulation.
Q. Now from your experience as a physician and the conditions that you found there, the condtions of the body at the time, can you state, are you able to state, whether or not Mabel Oakes strangled herself to death?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Calling for a conclusion of the witness and expert testimony upon which the testimony of experts is not required.
The Court: Overruled.
To which ruling of the courtthe defendant then and there duly excepted at the time.
Mr. Prueitt: And also the condition in which you found her hands?
A. I say she could not have stangled herself to death.
Edwin DeBarr's testimony begins at page 364.
The part to which we wish to direct the attention of the Court, commences at page 368, and is as follows:
Mr. Pruitt: If the court please, I wish now to prepare and ask the Doctor a hypothertical question.
Q. Doctor, take the body of a girl 23 years of age; robust girl, having a normal heart, the right heart being filled with blood of a dark color; liquid, dark liquid color, found in a room with hands laying peacefully across the chest; the face very dark, in fact almost black, and the eyes slightly protruding; lips almost closed, slightly open; clear white part of the eyes blood shotten in both eyes, and the lips protruding, tongue slightly protruding between the teeth, the body found lying on her back, straightened out; the feet together, there was a scarf, this scarf (exhibiting a scarf to witness) was drawn very tight twice around her neck, very tight, and the ends turned back resting beneath the head; the scarf being pressed deep into the skin, but it didn't cut the skin; but the skin was bulging out above the scarf; the face contorted; and discoloration above and below the scarf; the face and whole head was livid, almost black; and the face and neck; the flesh protruding out over the scarf, and when the scarf came off it left the impression all round, left the wrinkles in the skin, there had been an evacuation of the kidneys; there had been a very slight evauation of the bowels; ecchymosis or an ecchymotic condition both on the front part of the chest and on the back of the neck, and around over the shoulder blades; the lungs were congested and the stomach containing an ecchymotic condition and a little bloody froth or mucous coming out the mouth and a nose, and the body was turned over; finding a body in that condition as I have stated with the hands folded on the chest, from your experience as an expert and physician are you able to state what produced death?
Mr. Swindall: Objected to as not a proper hypothetical question as containing statements that have not been shown to exist in fact; and also incompetent, irrelevant, and immaterial, and for the further reason that the witness has not shown himself to be a physician and a doctor, and not qualified to speak on the subject, and as invading the province of the jury, being a question solely for it to answer, pass upon and determine.
Mr. Wilson: And for the further reason that the question contains statements contradictory to the evidence in this case.
The Court: Overruled.
To which ruling the defendant excepted.
Q. Are you able to state.
A. Yes sir, I am able to state, but there is one statement in there -- I am not a practicing physician. Yes, strangulation.
Q. Taking the condition of the body as described in the hypothetical question, are you able to state whether the deceased could have strangled herself to death?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial. Invading the province of the jury, and calling for facts upon which expert testimony is not admissible or competent.
The Court: Overruled.
To which ruling of the Court the defendant then and there duly excepted to at the time.
A. I would say that she came to her death by strangulation by another person aside from herself.
We have given the testimony of three physicians and a chemist, Edwin DeBarr, the testimony upon which the State relies to prove the corpus delicti. It will be observed that over the protests and objections of the defendant these witnesses were permitted to testify that death was caused by strangulation, not that death MIGHT have been caused by strangulation. Instead of being tried by a jury of twelve men the defendant was in fact tried and convicted by three Doctors and a Chemist.
It will be remembered that the defendant denied the killing of the deceased, denied that any homicide had been committed.
We desire first to call attention to the celebrated case of the State of Missouri vs. Hyde, tried at Kansas City. Dr. Hyde was charged with killing Col. Swope by means of poison. The supreme court of that state at page 331 Southwestern Rep., say: "The defendant complains that the experts for the State were allowed to tesify that in their opinion Col. Swope died from the effects of poison; also, that Chrisman and Margaret had been poisoned, and that the experts were thus allowed to usurp the functions of the jury, whose province it was to decide these questions."
"There was propounded to Dr. Hekteon, expert witness for the state, a hypothetical question detailing the history and symptoms of Col. Swope's case ending thus: State to the jury what in your opinion that man was suffering from and died from, and the witness over defendant's objection, stated: Death resulted from some convulsing and paralyzing poison or combination of poisons."
"There are many cases," say the Court, "where the expert may give an opinion upon the very point in issue, for instance, where insanity is the only issue before the jury or where there can be but one conclusion from conceded facts as death from wounds. But where the cause of the existing condition is in dispute, and the jruy must determine which to the causes claimed by the respective parties is the right one, an expert should only be allowed to state that, in his opinion a certain cause MIGHT produce the condition -- not that it DID produce it. The latter is for the jury. Another expert may testify that some other cause might produce the existing condition. In case of such contrariety of opinions, it is for the jury to say, considering the opinions together with all the evidence in the case, which opinion, if either, they will accept."
There is the same contention here that existed in the Hyde case, the corpse delicti was hotly contested, the State proved that both strychnine and morphine were found in the stomach of the deceased, and the defendant proved that deceased was in the habit of having sinking spells, and that she habitually used strychnine and perhaps morphine, and that in all probability she came to her death from one of these causes.
State vs. Hyde, 136 S. W. 316, (Mo.)
In the Hyde case the experts gave opinions only and the Supreme Court of Missouri say they had no right to do so.
In the case at bar the three Doctors and the Chemist did not deign to give a mere opinion, they state that they are able to say and do say in positive terms in answer to hypothetical questions what DID cause the death of the deceased. The error here complained of is far more vicious and palpable than that made in the trial of Doctor Hyde. How can an honest and unprejudiced witness testify positively to such things as were permitted in this case: If the expression of an opinion on a point which a jury must decide is wrong, how much more vicious is the testimony of these so-called experts when they pretend to know the facts and so answer in reply to hypothetical questions, which could honestly be answered by an opinion only. Yet these so-called experts were permitted to usurp the functions of the jury, and in effect deprived the defendant of his constitutional right to be tried by a jury. See Taylor vs. Railroad, 185 Mo. 239. 84 S. W. 873, also 84 S. W. 878.
Reasoning is the proper function of judge, jury and counsel. It is not a part of the normal functions of a witness. Cyc. Vol. 17, page 25.
We believe that it is an elementary proposition that expert testimony is admissible only where the conclusion, judgment or inference relates to a fact which is collateral, or relatively unimportant; and is rejected where the fact sought to be established is either in issue or so material thereto as to involve the substantial rights of the parties to a jury trial. Cyc. Vol. 17, pages 27-28. People vs. Heacock. 102 Pacific, 543, and cases there cited. These California cases are squarely in point. Also 17 Cyc. 41.
In the case at bar these "experts" were permitted to state not merely as an opinion, but that the deceased came to her death in a certain way. This expert testimony was in a matter most vital to the issue and took away from the jury the right to decide the case for themselves. We say that the experts decided this case for the jury. The jury did not, could not know that this evidence was incompetent and as it was permitted to go to them by the court, they would necessarily infer that they were bound by the testimony of these so-called experts. They were sworn to decide according to the law and the evidence the court permitted them to hear, and in so permitting such evidence to go before the jury they were morally bound to accept it however erroneous, and the conclusions of the so-called experts must have caused the jury to conclude without reasoning on their part that Mabel Oakes came to her death in the manner told by the alleged experts.
If this were a matter for expert testimony, and the so-called experts had testified that the scarf MIGHT have produced the death of Mabel Oakes, these witnesses failed to show that special knowledge that the law requires before they can testify as experts.
The Court erred again in permitting one N. J. Lewellen to testify to other and independent offenses. Beginning at page 394, case made, Mr. Lewellen testifies as follows:
A. Well, about the first time he said that he thought there was not a better girl living than Miss Oakes. He thought she was a perfect lady in every respect and he thought the world of her as a clerk and as a woman.
Mr. Vigg: Is that all that he said?
A. Then later on he said, "I am not getting along just right at home, and if anything ever comes up that I can do it, I am going to marry that lady --"
Mr. Wilson: Objected to as incompetent, irrelevant and immaterial, throwing no light on the question at issue, and we ask that the answer be stricken from the record and withdrawn from the consideration of the jury.
The Court: Overruled.
To which ruling the defendant then and there duly excepted at the time.
A. It is a pretty (hard?) thing for me to tell this thing. If you want the whole conversation.
The Court: That is just what we want.
A. Well, to get this thing right, I have got to use some of my own language.
Mr. Vigg: Go ahead, go ahead and tell us what you and he said, tell us the whole conversation.
The Court: Overruled. The defendant excepting.
A. Well, hold on, I don't know whether it was four, five or six months. You must understand that I am not positive as to the time. I don't know what time it was.
Mr. Wilson: and I further object to the question for the reason that he is not positive as to the time and as indefinite, giving us no chance to meet it with evidence.
The Court: Overruled. The defendant excepting.
A. Him and me was talking in regard to her and other tings came up in the conversation, and he told me he had Mabel out buggy riding a few days ago and he told me what took place.
Q. What did he say took place?
Mr. Wilson: Objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
A. Well, he said him and Mabel Oakes had sexual intercourse, or "did business". I don't know what you call it.
Q. What else did he say?
A. Will you allow me to tell you what he did say about it?
Q. That is exactly what I do want.
A. In af ew days afterwards he told me that if told me -- he was drinking a few days after that and he denied it and he said if he told me that that he was drinking and didn't know what he said, and he denied it again.
Q. What did he tell you at that time, that he said Mabel Oakes did the next day after he had sexual intercourse with her?
A. He said she cried all the next day.
Q. Now tell the jury when after that he told you he had sexual intercourse with Mabel Oakes, the deceased, if at all?
Mr. Wilson: Objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
A. There is the trouble, I cannot tell just how far apart it was from that time, but it was along, if I recollect right it was along about peach time.
Q. Well, tell what he said.
A. He said he slept iwth Mable Oakes one night at her house. That the folks, her folks, were not at home.
[For some reason that this writer has just found out -- I am missing pages 32 & 33 of Brief of Plaintiff in Error. I am assuming that it dealt with N. J. Lewellen's testimony that you can also read by Clicking on N. J. Lewellen Testimony.] -- Page 34 continues below:
bed, and that it had been that way for some time. Maybe three months.
Q. How often did he tell you those things?
Mr. Wilson: Objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
Q. (Read.)
A. Well, sir, I cannot tell. I tell you I cannot answer that question.
Q. Just your best judgment.
A. Three or four times, five or six, we talked pretty often. You fellows won't let me tell why these conversations came up so often. I would like to put that in while this is up.
Q. Just tell what he said.
A. He said they wasn't living together.
Q. Did he say, for the purpose of refreshing your memory, that he and his wife had separated?
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
A. Well, I don't know that he ever told me in words that they had separated. That is that they had separated for good, he said he wasn't living with her now and he didn't think they ever would.
Q. What, if anything, did he tell you about getting a divorce from his wife and marrying Mabel Oakes?
Mr. Wilson: Objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
A. Well sir, he told me two or three days prior to him and his wife making up, that he had the thing arranged. That she would either make up with him and live with him as heretofore or he had everything arranged and that he would get a divorce.
Q. Did he tell you with whom he had made arrangements to get a divorce?
Mr. Wilson: objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
Q. What did he say?
Mr. Wilson: Objected to as incompetent, irrelevant and immaterial.
The Court: Overruled. The defendant excepting.
A. I don't know ehether I can speak the man's name, but it was the man who was the District Judge of the Alva district, I believe his name is Loofbourrow.
Q. did you say that he and his wife made up after that, when was that?
A. Well, if my mind serves me right, and I am not off at all, but I will say this was about three or four weeks before the death of Mable Oakes.
Q. What did he tell you?
A. He told me that he had the arrangements made with "Bert" to decide whether she would live with him or not, and if she did decide that she would live with him, there would be nothing of it, and if she didn't he had the arrangements made for him to get a divorce at the district court tomorrow morning at 10 o'clock.
Q. Were you with N. L. Miller the night preceding the 9th day of November, 1910, or election night?
A. Yes, sir.
Q. State what he did and said in your presence relative to Mabel Oakes, the deceased.
A. Him and me were riding around trying to find out the election news, up to about 9 o'clock and at 9 o'clock we went to my house and he got a little girl by the name --
Mr. Wilson: Objected to as not responsive to the question.
Mr. Vigg: Just answer the question.
A. He didn't say a word to me in regard to Mabel Oakes, that night, he didn't say nothing.
This dialogue is followed up by the County Attorney trying to coax the witness into saying something derogatory of the defendant.
We thus quote somewhat at length the testimony of the witness on this point. That of trying to prove another and independent offense than the one for which he was tried against the defendant, to-wit, adultery, for the purpose of prejudicing the jury against him.
While there is scarcely a probability that this witness's story is true, but at the time it was given the alleged experts had given such testimony and had unjustly aroused such a prejudice against the defendant that the jury was not in that frame of mind to weigh this witness's testimony as it should hahve been weighed. The cross examination shows the ture character of this witness.
On a proposition so elementary forbidding evidence of independent offenses of the one for which a defendant is on trial, we will refer only to the exception permitting evidence of other offenses. The recognized exceptions can be reduced to these: When theevidence tends to show (1) motive, (2) intent, (3) to negative mistake, accident and misadventure, (4) a common scheme or plan connecting the offense charged with related offenses.
It cannot be successfully urged that the testimony of the witness Lewellen that the defendant had told him that he had committed adultery with Mabel Oakes comes within any of the recognized exceptions to the rule prohibiting evidence of crimes other than the specific offense for which the defendant was tried.
It will be observed that this same witness was permitted to testify in regard to the family relations of the defendant. This testimony, if the jury believed it, must have powerfully impressed them against the defendant.
That defendant's rights provided by the Constitution of Oklahoma, Sec. 20, of Article 2, Bill of Rights, were violated, we refer again to the testimony of this same N. J. Lewellen. Se also State vs. Hyde, supra, syllabus No. 5.
At page 384-5, the State introduces the testimony of W. M. Bickel, and he gives the following testimony:
Q. I will ask you to state to the jury whether or not, prior to the 9th of November, 1910, you had a conversation with the defendant and in which conversation he spoke to you something about his having studied medicine?
Mr. Swindall: objected to as incompetent, irrelevant and immaterial, he is not on trial for studying medicine.
By the Court: Overruled. The defendant excepting.
Q. You may state what, if anything, he said to you at that time.
A. He told me that when he was a young man, he had studied medicine sufficient to have been admitted to practice, had he pursued that line.
Q. What was the occasion for his telling you that?
A. Well, we had gone up Northwest to hold an inquest, he was acting as Coroner, and I was Deputy County Attorney at that time,and we wanted the service of a Doctor to examine the corpse and look at the wounds and the extent of them, it was a long distance to a Doctor and it was twelve o'clock at night and he suggested that he could probe the wounds and at that time he said he had had the experience.
Q. Waht did he do?
A. He manufactured a probe --
Mr. Swindall: Objected to as incompetent, irrelevant and immaterial.
Mr. Vigg: Withdraw the question.
By Mr. Wilson: We ask that the testimony of Judge Bickel be withdrawn from the consideration of the jury as incompetent, irrelevant and immaterial.
The Court: Overruled. the Defendant excepting.
It is difficult to understand why this evidence was premitted to go to the jury, but in view of the great latitude given the State, it was probably for the purpose of showing the jury that if the defendant had not caused death by the means alleged, he had administered poison or produced or endeavored to produce an abortion, and may have effected death in that way.
Assignment No. 6.
The Court erred in refusing Instructions requested by the defendant, and marked "A", "B", "C", "D", "E", "F", "G", "H", "I", "J".
Instructions requested marked "A" is at page 662 case-made, and
reads as follows:
The Court instructs the Jury that the Information in this case is not any evidence whatever, but simply a formal charge upon which the defendant is placed upon trial, and you are instructed to so consider it.
The refusal of this instruction was certainly improper, as the defendant's constitutional right to be confronted face to face with the witnesses against him was infringed.
Instruction "B" is probably given as instruction No. 2.
Instruction No. "D" reads as follows: Where a conviction depends upon circumstantial evidence alone, each fact necessary to establish the guilt of the accused must be proved by competent evidence beyond a reasonable doubt, and the facts and circumstances proved should not only be consistent with the guilt of the accused but must be inconsistent with any other reasonable hypothesis than that of his guilt.
The circumstances of suspicion no matter how grave or strong, are not evidences of guilt, and the accused must be acquitted unless the fact of his guilt is proven to your satisfaction by the evidence beyond a reasonable doubt.
The above instruction was refused, and as we believe stated the law of the case. It may be claimed that the substance of this isntruction was given by the court in instruction No. 7. We submit that the latter, found at page 679, case-made, does not give the defendant the whole benefit of the law of circumstantial evidence as in the instruction refused.
We desire particularly to call the attention of the Court to instruction "G", as requested byt he defendant and rejected by the Court. It reads as follows:
An expert witness is one who is skilled in any art, trade or profession, being possessed of peculiar knowledge concerning the same, acquired by study, observation and practice. Expert testimony is the opinion of such a witness, based upon the facts in the case as shown by the evidence, but it does not even tend to prove any fact upon which it is based and before you can give any weight whatever to expert testimony, you must first find from the evidence that the facts upon which it is based are true, and that all the facts relating to the physical condition and drugs or medicine are covered by the expert in the facts upon which he baseds his opinion. The opinions of a medical expert are to be considered by you in connection with all the other evidence in the case, but you are not bound to act, and should not, upon them to the exclusion of other testimony. Taking into consideration these opinons and giving them just and proper weight, you are to determine for yourselves from the whole evidence whether the defendant did or did not on the 9th day of November, 1910, kill Mabel Oakes by strangling her to death by then and there winding a scarf about her neck as charged in the information.
In view of the fact that the court permitted these so-called experts to usurp the functions of the jury, this instruction, had it been given, might in some way have called the attention of the jury that it was their province and not that of the experts to determine the guilt or innocence of the defendant.
That this instruction is the law will hardly be disputed by counsel for the State. That it was peculiarly applicable to the case will be admitted. Without this instruction the jury were, perhaps, led to believe that the conclusions of the experts were the facts in the case.
Instruction "H:, page 665 case-made, will be discussed in connection with instruction "G", and is follows:
Bearing upon the question as to how the deceased, Mabel Oakes, came to her death, or what was the cause of her death, certain witnesses have been called upon to testify, and who are what is known as expert witnesses. Such witnesses are called to testify, not because they were present and witnessed any fact about which they are here to tell you, but because they are supposed to have given this particular branch of science more study and attention than you, the Court, or the attorneys, and hence they come here to give you their opinion, or their judgment. Now, gentlemen, that evidence in theend is subject to your supervision, and to your judgment. They give you their opinion as I have said before, upon a supposed state of facts --- supposing certain things to exist as shown from the evidence. Now, it becomes important for the jury, just as far as you can, to look into the evidence, and determine whether the facts, which are supposed to exist in the hypothetical questions asked of the Doctors to actually exist, -- whether there is any evidence upon which to base them, in this case, and whether the facts supposed to exist are true or not, because if one fact supposed to be true, included in the question, is untrue, not supported by the evidence, then the opinion of the Doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and we do not know what his opinion would be if one of those facts were withdrawn.
Requested by the defendant. Rejected by the Court.
People vs. Foley, 31 N. W. 94.
In the case of People vs. Foley, the Supreme Court of Michigan uses this language:
"In regard to the expert testimony, the court further charged the jury: 'Bearing upon this Question, as to how that child came to his death, or what was the cause of it, certain physicians have been called as experts. They are called to testify, not because they were present, and witnessed any facts which they came here to tell you about, but because they are supposed to have given this particular branch of science more study than you or I, or the attorneys, and hence they come here to give you their judgment, based upon certain facts which are supposed to be proven from the evidence; and, upon that statement of those facts, they give you their opinion or their judgment. Now, gentlemen, that evidence, in the end, is subject to your supervision and to your judgment. They give you their opinion, as I have said before, upon a supposed state of facts, -- supposing certain things to exist as shown from the evidence. Now, it becomes important for the jury, just as far as you can, to look into the evidence, and determine whether the facts which are supposed to exist in the hypothetical question that is asked of the doctors do actually exist, whether there is any evidence upon which to base them in this case, and whether the facts supposed to exist be true included in the question, is untrue, not supported by the evidence, then the opinion of the doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and we don't know what his opinion would be if one of thosoe facts were withdrawn.' "
People vs. Foley, 31 N. W. Rep., Page 94
That this and the preceding instruction requested by the defendant should have been given. See Hovey vs. Chase, 52 maine, 304, 83 Amer. Dec. 514. Treat Vs. Bates, 27 Michigan 390.
We submit that under the authorities above quoted that we were entitled to both these instructions.
The danger is great that, without any kind of an instruction to guide them in distinguishing between the expert's opinion, and the facts in the case as shown from the evidence, the jury will accept the opinions of experts and determine the guilt or innocence of the defendant on their testimony alone. The jury should certainly have been instructed that the final determination of what had been proved rested with them.
The denial of this instruction was to deny the defendant his constitutional right of trial by jury, and as a substitute he was tried by experts.
It cannot be pretended that this instruction so vital to the rights of the defendant was given in some other form.
Instruction "J", requested by defendant and rejected by the court, is as follows: You are instructed that the court has permitted some evidence to go before you for your consideration that the deceased, Mabel Oakes, was pregnant with child, and that the defendant discussed with certain witnesses about producing an abortion upon said deceased, which was permitted to go before you for the purpose only of showing a motive or lack of motive.....
[For some reason that this writer has just found out -- I am missing pages 48 & 49 of Brief of Plaintiff in Error. I am assuming that it continuing dealing with Instruction "J".] -- Page 50 continues below:
4th. Justifiable homicide.
The Court instructs you that homicide is murder in the following cases: 1st. Perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or any other human being. 2nd. When perpetrated without any design to effect death by a person engaged in the commission of a felony.
We submit that the Court committed error in giving the foregoing instruction. The defendant was only charged with murder under the first subdivision of the statute, and it was error for the Court to instruct the jury under the second subdivision.
In the case of William Vaughn vs. the State of Oklahoma, Number A-789 (which we have been unable to find in the Criminal Court of Appeal Reports) this Court uses this language:
"When an indictment charges murder under the first subdivision of the statute, it is error for the trial court to submit an instruction to the jury authorizing them to convict if the proof shows the offense to have been committed under the second of third subdivision thereof."
It would necessarily be prejudicial to the substantial rights of the defendant under the circumstances of this case to give this instruction for it will be observed that the whole theory of the prosecution during the course of the trial of this case was to show that the defendant if not guilty of the crime charged was guilty of adultery with the deceased, Mabel Oakes, and that he was the author of Mabel Oakes' ruin, and at the time of her death was engaged in an attempt to procure an abortion on said deceased and that he had purchased instruments for that purpose, and that he had studied medicine and understood the use of said instruments,and, also, that if the defendant did not cause the death of deceased by the means charged that he might have done so by poison, as will be seen from the testimony Edwin DeBarr, at page 367, after testifying that he had examined a stomach sent to him by Doctor Bilby, he testified as follows:
A. I found one-fourth grain of strychnine in the contents of the stomach and three-fourths of a grain of morphine.
Q. State whether that quantity of strychnine was a sufficient quantity to produce death?
Mr. Swindall: Objected to as incompetent, irrelevant, and immaterial, and calling for a conclusion of the witness. Invding the province of the jury, and for the further reason that the witness has not shown himself competent to testify on the subject.
A. The quantity I found in the stomach was not sufficient to produce death.
At page 374 this same chemist, pharmacist and toxicologist testifies as follows.
Q. All the strychnine taken in the stomach does not remain in the stomach does it?
A. No sir.
Q. It goes to the liver and kidneys also does it not?
A. Yes, sir.
Q. You don't know how much strychnine there was in the whole body, do you?
A. No, sir.
Q. You only examined the stomach and found one-fourth of a grain in the stomach?
A. Yes, sir.
Q. You don't know how much was in the kidneys?
A. No sir.
Q. Or in the liver?
A. No sir.
Q. Would it go to any other organs besides the kidneys and liver?
A. Morphine does.
Q. Wouldn't the strychnine?
A. Yes sir, if you waited long enough it would got to all parts of the body.
Q. Did you examine the entire stomach?
A. The contents of the stomach, the coating of the stomach in that jar, I examined all of it.
Q. And that is the only part you examined?
A. Yes sir.
It will be observed that witness DeBarr examined only the stomach and tells us what everybody knows, that strychnine goes to the liver and every part of the body.
It is difficult to understand why this testimony was admitted. The charge was murder by strangulation. It is true the witness testifies that he examined only the stomach and that he did not find enough poison in the stomach to cause death, and that the strychnine penetrates the liver, kidneys and other organs. Taking the whole of the testimony of the chemist it maybe be and perhaps is true that the decease had sufficient strychnine and morphine in her system to produce death, as much of the poison had probably lodged in other organs.
We were compelled to introduce evidence to show that Miller did not furnish the strychnine, or at least that the deceased was in the habit of buying stychnine.
We refer to this evidence for the further reason that it shows that the deceased probably came to her death by means other than alleged in the information, and that the proof of the corpus delicti is very much contested.
Mr. J. F. Greenlee testifies at page 513, as follows:
Q. Were you acquainted withMabel Oakes in her lifetime?
A. Yes sir.
Q. What is yoru business?
A. I am a druggist and pharmacist.
Q. And you have a drug store at Alva?
A. Yes sir.
Q. State whether or not you have ever furnished any kind of drug for Mabel Oakes?
A. I have on prescriptions.
Q. do you know what that was?
A. Well, during the time she had her arm broken, the Doctor prescribed morphine tablets and some strychnine tablets at the same time.
Q. So on that prescription you furnished her with morphine tablets and strychnine tablets, did you?
A. Yes sir.
The Court erred in giving instruction No. 8, duly excepted to by the defendant. This instruction reads as follows:
The Court instructs the jury that circumstantial evidence is to be regarded by the jury in all cases.
It is many times quite as conclusive in its convincing power as direct and positive evidence of eye witnesses. When it is strong and satisfactory, the jury should so consider it, neither enlarging of belittling its force. It should have its just and a fair weight with the jury; and it it is all taken as a whole, and fairly and candidly weighed, it convicnes the guarded judgment, the jury should act on such conviction. You are not to fancy situations and circumstances which do not appear in the evidence, but you are to make those just and reasonable inferences from circumstances proven as the guarded judgment of a reasonable man would ordinarily make under such circumstances.
The objection is sepecially to that portion of this instruction which reads as follows:
It is many times quite as conclusive in its convincing power as direct and positive evidence of eye witnesses.
Besides our objection to the substance of this instruction, we call attention to its ambiguity. Does it mean that circumstantial evidence is far more convincing than direct testimony, that it is many times as convincing: It might have misled the jury.
If properly worded and free from ambiguity it is objectionable as a comment by the Court on the weight of the evidence.
The Supreme Court of Nebraska, while condeming an instruction containing the objectionalbel features last mentioned and refused to reverse the case onthat error alone, Smith vs. State 61, Neb. 296, 85 N. W. 49. 115 Fed. 69, 75, but under the holdings of our court where the jury are the sole judges of the facts, it was an invasion of teh province of the jury. Sims vs. State of Oklahoma, 120 pacific 1032.
It is not denied that it is proper for the court to admit this testimony of circumstances tending to show a defendant guilty of crime, but we insist that under the decisions of our court that it is a matter for the jury to determine, in this case, whether the circumstantial evidence was many times quite as conclusive in its convincing power as direct and positive evidence of eye witnesses.
The Court erred in giving instruction No. 11,. in words as follows:
Gentlemen of the jury the court has permitted expert testimony to be given in the trial of this case and in this connection the court instructs you that the opinions of expert witnesses are to be considered by you in connection with all other evidence in the case.
You are not to act upon such opinion to the exclusion of other testimony. In determining the weight of the testimony of expert witnesses you are to apply the same general rules that are applicable to the testimony of other witnesses.
Taking into consideration the opinion of expert witnessed, together with all other evidence, you are to determine for yourselves, from the whole evidence, whether it establishes the guilt of the defendant beyond a reasonalble doubt, as charged in the information.
It is contended by the plaintiff in error that this instruction was calculated to mislead the jury. It in no way protected the defendant fromt he jury accepting the expert's testimony as the facts upon which the hypothetical questions were based.
The true rule for weighing the testimony of experts was contained in Instruction "G" and "H" offered by defendant and rejected by the Court.
Assignment No. 9.
The Court erred in refusing to permit counsel to put leading questions to witness for the State, on cross-examination.
At page 253-4 case-made, Judge Lawhon, a Justice of the Peace, testifies, in part, on cross examination, as follows:
Q. Is it not a fact when --- Is it not a fact that he said to you, and has it not been discussed, that there was no such office as Coroner, and that you had no right to hold an inquest. Isn't that what he said to you?
Mr. Tincher: Objected to as incompetnet, irrelevant and immaterial.
The Court: Ask the witness what he said. Do not lead the witness.
Mr. Wilson: Why, your honor, this is cross examination and we have a right to lead him.
The Court: No sir, you do not. Ask him what he said.
The defendant excepting.
It seems incredible that such as this could take place in a court in Oklahoma, but we quote the record.
It was of the utmost importance to the defendant that his counsel should then have the full right the law gives, in the cross examination of this witness. What was said by Miller was used against hima nd we should have had the privilege to propound our questions, subject to the rules of evidence, in our own way.
This was a rival Justice of the Peace and all of his testimony shows that he was hostile to Miller, the defendant, and there was no means of laying the foundation for impeachment unless we could put our questions for that purpose.
The right of cross-examining witnesses against a defendant is one of the mst valuable rights given him by law, and it is reversible error per se to deprive a defendant of this right. Spear vs. The State 123 Pacific, 852, (Criminal court of Appeals, Oklahoma.)
Assignment No. 12.
The Court erred in permitting counsel for the state to except, in the presence of the jury to every adverse ruling to the contention of the counsel for the State.
It would perhaps be asking a great deal of this Court to examine minutely every page of this voluminous record to ascertain the truth of this assignment, but we believe that in practically every instance where the ruling was adverse to the state, its counsel persisted in excepting to the ruling. This would naturally lead the jury to believe that the court had wrongfully admitted or rejected testimony, and was such misconduct on the part of the prosecuting officers as to prejudice the rights of the defendant. Pickerel vs The State, 116 Pacific, 957.
Assignment No. 15 discussed under Assignment No. 6.
Assignment No. 16.
The Court erred in not sustaining the demurrer to the evidence interposed by the plaintiff in error, and advising the jury to return a verdict to not guilty.
Under this assignment, we maintain that the case does not show the guilt of the defendant, by any legal and competent testimony, and ask the State to point out the proof, if there is any, showing the corpus delicti, not only that a murder was committed, but the criminal agency of the defendant in causing the death of the deceased.
For the many prejudicial errors affecting the substantial rights of the plaintiff in error, we ask that this cause be reversed and motion for a new trial granted.
Respectfully submitted,
L. T. Wilson and Chas. Swindall,
Attorneys for Plaintiff in Error.