Harmon v. Territory of Oklahoma

1905 OK 14, 79 P. 765, 15 Okla. 147, 1905 Okla. LEXIS 9

• Court: Supreme Court of Oklahoma
• Decided: February 11, 1905
• Status: Published

Opinion

Opinion of the court by

Gillette, J.:

This case, revolting in its details, comes to this court for review upon seven propositions of error presented by the plaintiff in error. We will notice them in their order.

The first is that the verdict of the jury is contrary to the evidence. Counsel say that the story of the prosecutrix, considered with the evidence of the Territory corroborative thereof, in the face of the evidence of the several witnesses of the defendant, is unreasonable and improbable in the extreme, and adds:.

“We think it is within the province of the appellate court, also that it is the duty, in a case of this character, to review the evidence, and if, in the mind of the court, under the evidence, there is a reasonable doubt as to the guilt of the defendant, that a new trial should be awarded.”

If this is a correct proposition, the impanelling of a jury of twelve men to try the question of the defendant’s guilt or innocence is a useless waste of time and expenditure of money.

Under our jurisprudence a trial by jury is believed to be the safeguard of the citizen charged with the commission of crime. And when lawfully selected, impanelled and charged, that they must be satisfied beyond a reasonable doubt of the defendant’s guilt before they can be justified in returning a verdict of guilty against him the question of “reasonable doubt” is thereupon disposed of, and it is not properly within the province of the trial court or an appellate court upon review to determine a question of “reasonable doubt”, as it arises from the evidence, where there is any evidence to support each of the necessary ingredients of the crime stated in the indictment.

We know of no standard authority which lays down a rule different from this; and the courts have repeatedly announced the doctrine, that the weight to be given to the evidence in a case tried before a jury is not a subject of consideration. No method of preserving the record of a trial so that a court upon review may correctly determine the weight that should be given to all the testimony, has yet been invented. The appearance of a witness, his countenance and tone of voice, the mode and manner of -expression, general demeanor on the stand, his appearance of candor or want of it, has much to do with the weight that will be given to what a witness says, and often times influences a jury in estimating the weight they will give to testimony, as much as the words uttered, and yet that cannot be sent to this 'court with the record.

How a jury has been impressed, and tbeir verdict influenced by tbe manner and conduct of a witness, save as it is manifested by tbeir verdict, cannot be known, because it is not written in tbe record; and yet tbey are and always bave been legitimate sources from wbicb a correct estimate of oral evidence is drawn, and we know of no way in tbis case whereby this court may rightfully determine a question of reasonable doubt as here submitted for determination by the counsel for plaintiff in error.

We are not unmindful of tbe fact that tbe rule bere announced is at variance with that expressed by Mr. Justice Tarsney in Sower v. The Territory, 6 Okla. 436, and in so far as the opinion in that case is at variance with the opinion here expressed, the same is hereby overruled.

It will be observed by an examination of that case that the opinion is not fully concurred in by a majority of the court, and the same was handed down because of a special concurrence in the opinion of Mr. Justice Keaton, who said, speaking of the opinion as delivered:

“I do not agree with the reasoning therein contained to the effect that the evidence is wholly insufficient to support the verdict, or with the conclusion reached thereon.”

Mr. Justice McAtee, dissenting, and Justice Bierer not sitting, leaves that case .upon the point here considered supported by only two of tbe five Justices.

The testimony in the case now under consideration is unquestionably conflicting, and might reasonably support a verdict either way; under which circumstances it was the duty of the jury to cull from the whole that which they could believe, and reject that which they could not give credence to, and in doing so they manifestly gave credence to that of tbe two girls, Annie and Lucy Patt, rejecting tbe testimony of tbe defendant, wbo in bis testimony admitted that be was a gambler by profession, a constant and daily visitor of ibe gambling houses of tbe city, a frequenter of the bouses of prostitution, and a frequenter of Big Ann’s place, one of Hell’s recruiting stations, shown to have been in existence for ten years or more, itself a shame and disgrace to the public administrations that have permitted it, and a blot upon tbe fair name of the Territoiy.

It is true the testimony of tbe defendant is supported by tbe evidence of tbe railroad conductor and brakeman, and in minor respects by the evidence of Underwood, Cassidy and Jessup, but tbe evidence of these witnesses is tainted by the same moral leprosy which infects that of tbe defendant himself. It is also true that the evidence discovers tbe prosecutrix and her sister in tbe same bouse in which the defendant and bis witnesses are found, and this fact was plainly before the jury, and in addition tbe circumstances under which the several 'parties went there. Those girls, as shown by the testimony, were recently from Holland, and that evening in company with their uncle, their natural guardian and protector, were by him invited to go in and there to sec how Americans danced as distinguished from their native custom, and did not carry into that house the same immoral stench that accompanied the defendant and his witnesses when they went there. The railroad men, leaving families behind them that morning, on their arrival at Oklahoma City went immediately to Big Ann’s, and there spent the night with the habitues of the place, the other witnesses leaving a Sunday evening theater, and going direct to Big Ann’s place, there to finish the day’s revelry. The society and associations they were seeking were thoroughly understood by them. The acts of these were criminal from both a moral and legal standpoint, and their character was fairly expressed by their act. Such cannot be truthfully said of the girls, and the jury manifestly took this view of the situation, for all this was before the jury. The attributes of the human mind are such as to enable it to draw a distinction in giving weight and value to the declarations'of individuals.

The jury in this- ease, having given credence to the testimony of the girls as distinguished from that of the defendant and his witnesses, the court is unable to say that their conclusions are not justified by the evidence.

The second ground upon which a reversal of the judgment of this case is asked, is that of misconduct on the part of the assistant prosecuting attorney during the trial of the ease, which was prejudicial to the defendant.

The first item of' misconduct set forth in defendant’s brief is the fact as stated that counsel in the cross-examination of defendant’s witnesses, upon answers being made thereto, would grunt and give expression to certain inarticulate utterances expressive of contempt for the answers made.

We have examined the record in this respect, and are unable to find therein such utterances or ejaculations as would lead to a conclusion that the jury were prejudiced on account thereof. It is also urged that counsel for the Territory characterized Bert Herron as a “smart aleck,” and also when'a petitipn in a civil action by the prosecutrix against Big Ann, which petition was not prepared by counsel in this case, was offered in evidence, counsel for the Territory characterized counsel preparing such petition as a “shyster” or “jack leg.”

Such language by counsel ought not to be used in the trial of a cause, nor in fact any irritating or exasperating expressions. They occur however at times in the trial of a cause, often unthoughtedly, sometimes intentionally and with a purpose, and in each instance deserve the rebuke of the trial court, which was immediately given in this instance, upon objection being made by counsel for defendant.

Upon presentment of this ground for a new trial, to wit, misconduct of attorney, counsel for the Territory asked a question which assumed that George Garrison, referred to in the evidence, had been convicted; also Butterfly Kid, and again the question was propounded as to whether or not Garrison was in the penitentiary. Objection was made, and the same sustained by the court, and with reference to the first the jury was admonished not to consider it.

Complaint is also made that leading questions were permitted to be asked and answered. In all of this we are unable to find reversible error, especially upon the ground stated, that of misconduct of counsel. Few cases are tried which might not be reversed if the ground here stated were held sufficient. Leading questions ought not to be indulged in when the same ban reasonably be avoided, but it often happens where witnesses, as in this instance, imperfectly understand the language, that plain and direct questions are permitted. This is left largely to the discretion of the trial judge.

One other objection is made 'under tliis title, which in substance charges counsel for the Territory with referring in uncomplimentary terms to witnesses for the defendant, which is charged to have been outside of the record, and also in the closing argument counsel for the defendant were re ferred to as perjurers and standing politicians, men who sported titles which they gave themselves, etc. This appears in the record in connection with the motion for new trial only. What was said upon the trial and in the argument was in the presence of the trial court, who had considered the objection, and held it as insufficient to justify vacating the verdict reached in the case; and this court, from the record here presented is unable to deten nine that in this respect there is such prejudicial error as to justify a reversal of the judgment found and entered.

The third point argued by counsel for plaintiff in error is the introduction of incompetent evidence, which as stated was the evidence of Lucy Patt, wherein she testified not only to what she saw with reference to her sister Annie, the prosecutrix, but also to what happened to and was done to her by others than the defendant, to wit, George Garrison and one Butterfly Kid, who had previously been convicted of the rape of Lucy.

The court in admitting the evidence advised the jury of the purpose of admitting it as follows:

“The court: Just a moment. Perhaps the jury ought to understand the purpose for which this evidence is being introduced. (To the jury) I probably may as well explain to you now as at any time, and so I will instruct you would not be authorized to infer that this defendant was guilty of ravishing the other girl, though you should find that George Garrison ravished this girl. This testimony is offered for the purpose of explaining her conduct while she was in there and the reason, if any, why she did not go to the resuce of her sister; that is the purpose of it.”

Counsel for the defendant complain that the defendant in this case was prejudiced by this evidence, that it was not competent as against him to show that at the time he is charged with having committed the crime of rape upon Annie Patt, her sister Lucy was being ravished- by George Garrison and Butterfly Kid.

In view of the circumstances of this case, limited in its application as it was by the instruction of the court above stated, there-was'no error; in fact, we are not "certain but that the court limited the application of this testimony to a narrower compass than was justified under the circumstances.

Counsel for the defendant in discussing this proposition state the rule with reference to the introduction of such testimony we think correctly, as follows:

“We understand the law to be that such evidence is incompetent, unless it be a crime committed in contemplation of and connected with the crime, charged in the indictment, or by way of preparation for the crime charged in the indictment, or the concealment of the crime charged in the indictment.”

Underhill in his work on Criminal Evidence saj^s at page 109:

“No separate and isolated crime can be given in evidence. In order that one crime may be relevant as evidence of another, the two must be connected as parts of a general and composite scheme or plan.”

And again at page 112, the same author says:

“The general rule is well settled that all evidence must be relevant. If evidence is relevant upon the general issue of guilt or innocence, no valid reason exists for its rejection merely because it may prove, or may tend to prove, that the accused committed some other crime, or may establish some collateral or unrelated fact.”

With this rule in mind let us examine the facts under which this testimony was admitted.

On the night in question the defendant Harmon, known as Arkansas Kid, John McGuire, Millard Woodson, known as Butterfly Kid, Jim Finn, and George Garrison, went from the Two Johns saloon and gambling house to the resort of Big Ann, and there met Lucy and Annie Patt, whose testimony shows, that their uncle was thrown out of the room, and they were assaulted by Ayo men, and dragged to separate rooms for their defilement. Three of these men are identified in the testimony of the girls, Harmon the defendant, Butterfly Kid and George Garrison, as being three of the persons who committed this assault, and ravished these girls. If these five men, acting conjointly, made an assault upon these two girls with a purpose and intent to accomplish their defilement, notwithstanding their resistance, and did accomplish it, they are each guilty as particeps crimmis in the crimes there committed. The prosecutrix, Annie could not have been there forcibly ravished without some disposition being made of Lucy; else the crime would have been open and notorious, and the criminal records forbid such a conclusion and the manner in which Lucy was disposed of became a serious subject of investigation which was shown by, the testimony objected to.

The conclusion would be almost irresistible that no force was used in accomplishing Annie’s defilement, if the record showed that Lucy quietly awaited Annie’s return after being forcibly taken to a room in that house of sin, and equally so if the record were silent with reference to Lucy’s acts and whereabouts under such circumstances., It was, the duty, we think, of the public prosecutor to clear away 'such clouds upon the possibility or probability of guilt, if there was in existence evidence or proof of facts or circum stances sufficient to do so, and such, proof would be competent, although it may have shown a double, instead of a single crime, by the individuals making the assault.

In the trial of the case, other than the declaration of the defendant that be did not have sexual intercourse with the prosecutrix, no defense is offered except that the defilement of these girls was accomplished without force. These girls were respectively of the age of 18 and 22 at the time of the trial, and the law enjoined upon them as a duty to make their utmost resistance before they could be justified in charging their assailants with the crime of rape.

It has been said that a failure to make an outcry by a female at the time of an assault being made upon her with the evident purpose and intent of committing the crime of rape upon her, where there are others within hearing distance, is some evidence of her consent, as distinguished from a claim of resistance. This could not be true except in the nature of things, that such an outcry would bring assistance and relief. It is shown by the testimony of the prosecutrix that she made such an outcry, and at about the same time heard an outcry made by her sister; and it is shown that Lucy heard her outcry; that she did not go to her sister’s relief because she was at the time being forcibly held and debauched by Garrison and Butterfly Kid, a hand of one of them being laid over her mouth tq prevent as far as possible her own outcries. This evidence explains why she did not go to her sister’s relief, as well as the fact that an outcry was made by Annie.

We conclude that the two crimes, having their inception in the assault made upon these two girls by these persons, apparently acting conjointly, are so interwoven in their de tails and circumstances that the proof of one is corroborative evidence of the other, and the evidence of this witness was not incompetent because it tended to prove a separate and distinct offense.

Counsel for defendant, as a fourth ground for the reversal of the judgment urge that it was incompetent for the stenographer of the third judicial district, Frank Inglis, in his testimony which was offered for the purpose of impeaching the testimony of Tom Underwood, to use a carbon copy of his longhand transcript of his stenographic notes of Underwood’s testimony taken in another case. Mr. Inglis testified that this carbon copy was made by himself and was a correct transcript of Underwood’s testimony in the case referred to; that he had examined it and found no changes made in the same since it was made, and he was thereupon permitted to use such' carbon transcript in testifying with reference to what Underwood’s former testimony was.

Counsel urge that in order for the transcript used to be competent for the purpose used that it should be a transcript as required by see. 1904, Wilson’s Statutes, 1903, which provides:

"See. 1904. The shorthand reporter shall file his notes taken in any ease with the clerk” etc.

"Any longhand transcript of notes so filed, duly certified by the reporter of the court who took the evidence as correct, shall be admissable in evidence, etc.”

In the first place the.provision of the statute above referred to has little if any application to the proposition here submitted. No attempt was made to file the longhand transcript of Underwood’s testimony. To have done so would have required a full compliance with the provisions of the statute. But in this case the official reporter was himself, testifying to certain questions which were put to and answered by Underwood in the former case, and for the purpose of accuracy 'was using a carbon copy of his longhand transcript, which having been made by himself was by him known and proved to be correct. We think the court committed no error in so allowing its use. In fact we do not think a carbon copy of any longhand transcript of a stenographer’s official notes, made by the stenographer himself at the time he makes the transcript and as a part of that transaction, is a copy in the sense in which the word copy is ordinarily used, any more than several books or newspapers printed upon the same press at the same time and from the same type, are copies of each other.—See Cyc. p. 886, title copy; Am. & Eng. Enc. of Law, [2nd. Ed.], vol. 10, p. 318, title duplicate and note. Cutter v. Territory, 8 Okla., 101.

The fifth objection by counsel for defendant, to the effect that a medical examination of the prosecutrix -had not been made, verifying and corroborating the statements of the prosecutrix that a rape had been committed upon her, presents no question for discussion — as proof of the result of' such examination is not essential — to justify a verdict of guilty tender a charge of this kind.

As a sixth ground of error counsel urge that the charge of- the -court- did not sufficiently apprise the jury as to the amount of resistance which the prosecutrix was required to put forth, and the extent and duration of such resistance: second, that the charge did not caution the jury that the charge of rape wás easily made, hard to prove, and harder still to disprove or defend against, even" though never so innocent; and, third, the charge of the court was erroneous,; in that the jury was authorized to consider the evidence for any purpose given by the witness, Lucy Patt, as to an alleged rape having been committed upon her by Garrison, Butterfly Kid or an}”- other person.

In the fourth instruction the court instructed the jury as follows:

“Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where she resists, but her resistance is overcome by force and violence. And in this connection the court instructs you that if you find by the degree of evidence stated in these instructions, that the defendant, James Harmon, alone or aided by any other person or persons, within the county of OMahoma and the Territory of OMahoma, as charged in the indictment, did, unlawfully, wrongfully and feloniously accomplish an act of sexual intercourse with one Annie Patt, the prosecuting witness herein, and that said Harmon accomplished said act of sexual intercourse by force and violence and against her will, and that said Annie Patt was a female, and at said time was not the wife of „the defendant, James Harmon, then and in that event you should find the defendant guilty. as charged in the indictment. But in order' to convict the defendant, the Territory must also establish by the degree of evidence stated in these instructions, that the said prosecuting witness resisted to her utmost capacity, and that her resistance was overcome by force and violence. On the other hand, if you should entertain a reasonable doubt as to whether the defendant, James Harmon, accomplished an act of sexual intercourse with the prosecuting witness, Annie Patt, as charged in this indictment and as defined in these instructions, you should return a verdict of not guilty.”

We think the foregoing instruction correctly stated the law. This disposes of the first and second grounds of the objection to the instructions of the court.

The third objection has heretofore been fully considered in this opinion.

The seventh ground for reversal contended for by counsel for defendant, to wit, that one of the jurors took notes of the evidence during the trial, and notwithstanding the admonition of the court such juror used the said notes in the jury room while they were deliberating upon their verdict, is not supported by the evidence taken upon a motion for a new trial.

One J. H. Gill, a juror was called as a witness on the motion for a new trial touching this question and being questioned by the court answered as follows:

“Q. Do you recall the particular point on which he referred to his note book'?

"A. Yes, sir.

“Q. Did you agree with him that his statement was correct ?

“A. Why, I just heard what — there was nothing — shall I state just what it was?

“By the court: No, just answer my question; did you all agree with him, with his statement of what the evidence was on the trial?

“A.’ Why, I don’t "think it was with reference to any thing connected with the evidence at all."

It is thus not apparent that the note book was one made use of by the juror on the trial, or that it contained anything relating to the trial, or that the jury were in any way influenced by the note book, or anything in it.

We find no error in the proceedings in the court below, arid the judgment and sentencé of the trial court is therefore affirmed.

Bunveil, J., wbo presided in the court below, not sitting; Beauchamp, J., absent: all the other Justices concurring.