Akins v. State, A-11078

• Decision Date: 01 March 1950
• Docket Number: No. A-11078,A-11078
• Citation: 91 Okla.Crim. 47,215 P.2d 569
• Parties: AKINS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 569

215 P.2d 569

91 Okla.Crim. 47

AKINS v. STATE.

No. A-11078.

Criminal Court of Appeals of Oklahoma.

March 1, 1950.

Syllabus by the Court

1. Where a party has placed a witness upon the stand having reason to believe that he will testify to a given state of facts, and the witness then testifies to a different state of facts, the party calling him as a witness may show his previous statements for the purpose of affecting his credibility and to explain the reason for placing him on the stand and to counteract the injurious effect of his testimony.

2. A witness' prior contradictory statement when introduced is to be considered only for the purpose of impeachment and to explain the calling of such witness. It cannot be used as substantive testimony tending to prove the truth of the facts stated. The court, by proper instruction, should limit the application of such testimony to this purpose.

3. Verdict of jury in homicide case based upon conflicting evidence will not be disturbed on appeal on ground that the evidence is insufficient to sustain the judgment.

4. Where hearsay evidence has been received which did not contribute to a verdict of guilty, the reception of such evidence will not constitute grounds for reversal.

5. The scope of cross examination of a witness is largely a matter of discretion with the trial court, and where it is claimed that the trial court unduly restricted cross examination, the record will be carefully examined to determine whether the trial court abused its discretion.

6. Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial.

7. It is the duty of the county attorney in his opening statement and arguments to the jury to confine himself to the facts as shown by the evidence. But they have the right to draw their deductions and conclusions, and unless the statements or arguments are such that deprive a defendant of his substantial rights, or are such that would arouse the passion and prejudice of the jury to the extent that they would be swayed from arriving at a just verdict, the judgment and sentence will not be set aside.

Sam Y. Colby, Madill, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Earl Akins, defendant below, was charged by information with the crime of murder. It was alleged he killed his son-in-law Monroe Pierce on September 1, 1947 in Kingston, Marshall County, Oklahoma.

The crime occurred in Pierce's living room just after dark. There were only two competent eye witnesses to the killing, the defendant, and his daughter, Mrs. Pierce, wife of the victim of the crime. Mrs. Pierce testified for the state. She was unwilling, unco-operative and all but hostile.

The state's evidence discloses that Pierce and Akins were partners in the operation of a beer parlor about a mile east of Kingston. The parties lived in Kingston in the Pierce home. The defendant Akins stayed with them, and had done so for several years, but when they established the beer parlor Akins started staying there at nights. It was suggested by Pierce that Akins take his pistol with him and keep it with him there for protection against robbery. It appears however that this suggestion was never heeded and on the night of the killing the pistol was in the wardrobe top drawer. In operating the beer parlor, Pierce had permitted gambling at the place and the defendant objected. They were therefore in disagreement and not getting along well. Akins testified he objected because he was afraid they would lose their beer license if it continued. Apparently it was profitable to Pierce to let it continue, and it appears he wanted it so to do. On the evening in question Pierce came home and left, hunting for Akins. Just before he left Pierce said to his wife 'Well, you have to choose between me and your daddy'. Shortly thereafter Pierce and defendant returned together. They had a discussion about dissolving the partnership. They figured awhile and the defendant Akins paid his son-in-law Pierce about $38. The record is not clear as to who sold to whom or who bought out whom. But the partnership was nevertheless dissolved. During the argument about the poker game and the settlement, the defendant Akins used profane language in the presence of Pierce's two little children, 6 and 3, and Pierce rebuked him for it. Thereafter, Pierce told the defendant Akins 'Well, your plate is broke', meaning that he was through eating at Pierce's table. He also told him to get his stuff and get out. In response to this, the defendant went into the bedroom and returned with his pistol in his right hand. Mrs. Pierce said that her husband had brought some carpenter tools home Sunday the day before the killing. She said that when her father came back with his pistol instead of him leaving as he had ample time to do, he continued to argue about the beer parlor. While the argument ensued her deceased husband picked up a hammer and attacked the defendant with the hammer. She was between them and Pierce pushed her away and said 'let me to him'. Her father had started out and was standing in the front door. When Pierce rushed him Akins fired and went out the door. Pierce, dropping the hammer in the living room, followed him out into the yard where he fell to the ground and died from wounds in the abdominal cavity on the left side 45 minutes later in the Madill hospital. Mrs. Pierce said she later put the hammer on the ice box or on the shelf in the kitchen. The day following the shooting she said she came into the house and saw the hammer lying on the floor. She said she didn't know whether that was the same hammer or not. (It is interesting to note that the hammer was never found or produced as evidence by the defendant.) Mrs. Pierce further testified that she didn't know what became of the hammer. In this connection on the habeas corpus hearing to determine the defendant's right to bond, Mrs. Pierce testified that she could not swear whether her deceased husband had a hammer in his hand or not, that she did not see any. The state offered this evidence on the ground of surprise for impeachment and to counteract the injurious effect of her testimony, and the trial court erroneously excluded the same. The only thing to contradict the claim of surprise was the unsupported statement of counsel for the defendant that the county attorney could not plead surprise. It was competent and material and from the state of the record should have been admitted, particularly in view of the fact that the defendant offered no factual evidence to refute the claim of surprise. This court has held that:

'Where a party has placed a witness upon the stand, having reason to believe that he will testify to a given state of facts, and the witness then testifies to a different state of facts, the party calling him as a witness may show his previous statements for the purpose of affecting his credibility and to explain the reason for placing him on the stand and to counteract the injurious effect of his testimony.

'A witness' prior contradictory statement when introduced is to be considered only for the purpose of impeachment and to explain the calling of such witness. It cannot be used as substantive testimony tending to prove the truth of the facts stated. The court, by proper instruction, should limit the application of such testimony to this purpose.' Dunham v. State, 78 Okl.Cr. 54, 143 P.2d 834, 835. Foreman v. State, 38 Okl.Cr. 50, 259 P. 176; Donahue v. State, 38 Okl.Cr. 87, 259 P. 179. So limited, the evidence of Mrs. Pierce given at the habeas corpus hearing, was admissible for impeaching purposes. Not to so hold would obviously constitute a perversion of justice. After all what the law seeks to ascertain in the administration of justice is the truth, and justice can be predicated upon no other basis. Courts should never permit deceit to defeat ascertainment of the truth. For the foregoing reasons the tendered evidence was admissible.

Sheriff Hargis testified that immediately following the killing he picked up the defendant, and the defendant told him that the shooting occurred over 'just as near nothing as could possibly be'. He said the defendant at no time said anything to him about being attacked with a hammer. He testified he took the defendant to the residence and made an investigation, and that he did not see a hammer on the floor. He said he did find the gun in the wardrobe dresser where the defendant showed him it was. The foregoing is substantially the state's case in chief.

The defendant's plea was self defense. He testified in his own behalf that the day before the killing Pierce had done some repair work at the beer parlor and brought his tools home and left them in the living room. These tools consisted of a hammer, saw and a square. He said a few nights before that he came into the beer parlor and found a poker game going on. He told Pierce that that would not do, that they would lose their license. He said Pierce said to him 'I will take care of that, the license is on me'. He said Pierce did not like what he said about it. On Monday the day before the shooting, the defendant was at the Smith Domino Parlor, and the deceased Pierce called him from the back door and said 'I have a little business with you'. He got up and met him. Pierce took hold of his arm and they walked about ten steps from the building and Pierce told him he wanted a settlement out of the beer parlor business. They started for Pierce's home to work out the settlement. On the way home the defendant continued to argue...