Alberty v. State

• Decision Date: 21 December 1939
• Docket Number: A-9546.
• Citation: 97 P.2d 904,68 Okla.Crim. 246
• Parties: ALBERTY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

97 P.2d 904

68 Okla.Crim. 246

ALBERTY v. STATE.

No. A-9546.

Court of Criminal Appeals of Oklahoma

December 21, 1939

Syllabus by the Court.

1. Every person charged with crime, whether guilty or innocent is entitled to a fair and impartial trial according to the due and orderly course of law, and it is a duty resting upon the courts to see that the guaranty of such a trial conferred by the law upon every citizen shall be upheld and sustained.

2. Where incompetent evidence is admitted over the repeated objections of accused, and it is apparent from the record that the admission of such evidence deprived accused of a fair trial, the conviction will be reversed and cause remanded.

3. In the trial of an accused for robbery, where the issue is whether the defendant is the person who robbed the prosecuting witness, testimony of what prosecuting witness said in identifying or describing the robber at some other time or place is not admissible as original testimony. In like manner the testimony of the officer that he took with him forty odd pictures, that he had secured from the State Penitentiary to the home of the prosecuting witness and that from such pictures the prosecuting witness and wife identified the defendant, is pure hearsay and inadmissible.

4. No testimony was offered by the state tending to show that this defendant had ever been confined in the State Penitentiary.

5. The testimony of the officer as to what took place at the residence of the prosecuting witness and the examination and identification of the pictures he had secured from the State Penitentiary is what is known in law as "extrajudicial identification," and is held to be inadmissible.

6. The admission by the trial court of the testimony of the witness Liddell over the objections of the defendant deprived him of a fair and impartial trial.

Appeal from Superior Court, Okmulgee County; Harland A. Carter Judge.

Tom Alberty was convicted of robbery with firearms, and he appeals.

Judgment reversed.

Joe Eaton, of Okmulgee, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

DAVENPORT Judge.

Tom Alberty, the defendant in the trial court, was by information jointly charged with Leo Bailey and George Siggins; was tried separately, found guilty, and sentenced to serve a term of five years in the State Penitentiary. Motion for a new trial was filed, considered, and overruled; and the defendant appeals.

Ed Jones, the prosecuting witness, in substance testified for the state that he had lived in the City of Henryetta since 1932. "The defendant came to my house in the afternoon of the 21st day of November, 1934, in company with Willie Elmore and these other parties. Elmore introduced Bailey, Siggins, and Alberty to me. I had never met any of these parties prior to that day. They wanted to buy some whiskey. I told them I did not have any whiskey, and that they could buy it from some other parties as cheap as I could. I told them I would try to buy the whiskey, and they went away. I told them to be back about seven o'clock.

These parties were at my house about thirty minutes the first time they came. They returned and knocked on the door; came in and wanted me to take a drink of whiskey. I told them I didn't drink. They wanted to know if I had found the whiskey. I said, 'Fool around for awhile.' I went and got in my car and went to Blackie Myers' on the hill. He didn't have any. I came back and put my car in the garage. As I was closing the door, I was assaulted and robbed of $24.00 in money.

I was struck by Siggins; and, I think, I was struck by the defendant Alberty. I did not know. I had never met either of these defendants prior to that night."

The witness denied that he was engaged in the whiskey business.

"While I was putting my car in the garage, the parties that robbed me drove in the alley within twenty feet of my garage, behind me; then Siggins said, 'Did you make it?', and just hit me on the head with the gun; then Alberty hit me. I couldn't tell what he hit me with. I was knocked out, cut on the face. Bailey got out and beat me with the gun. I had a little better than $24.00 in my pocket.

I never saw Tom Alberty, the defendant in this case, after that time until the preliminary. It was ten or fifteen days, though.

This occurred in Henryetta, Okmulgee County, Oklahoma, November 21, 1934. The parties came to my house because Elmore said I might know where they could get some whiskey. I knew some who did handle whiskey. I went out and tried to find out where I could get whiskey for them. I went to Blackie Myers' and other places.

They didn't strike me from behind; they struck me square in front. I did not talk to them before they hit me. Siggins said, 'Do you have it?' 'No,' I said about the same time he hit me. I wasn't able to sit up for three days.

When the defendant came down here, he had on work clothes."

"Q. What is there about this man that makes you think he is the man? A. I picked his picture out of about fifty.

Q. I didn't ask that. A. I talked to him twice.

Q. What is there about him that makes you think he is the man? A. Because I remember him.

Q. You just remember him? A. How else would I remember?

Q. Anything you can point to and describe that would pick him out from any other man? A. Wouldn't you know me the first thing?

Q. Not asking you that. You could be mistaken-you can be mistaken sometimes? A. I might be in some small things, but take a fellow who wants you to go to a friend to buy whiskey, you really look him over.

Q. You were not in the whiskey business? A. No, he come to a friend of mine to see if I could get it.

Q. You looked him over? A. Yes, sir.

Q. That is the reason you remember him so well? A. Just know him, that's all there is to it."

Fannie Jones stated that she was the wife of Ed Jones on November 21, 1934, living at 902 West Division in Henryetta, Oklahoma. "About five o'clock, November 21, 1934, three men drove up in a red wheeled Chevrolet coupe with a rumble seat. I noticed Mr. Jones and Mr. Elmore sitting on the porch. This party was on the east side of the car. He had on work clothes and a khaki cap.

About supper time while we were having supper, I heard a knock on the door, and I started to get up, and my husband said, 'I will go.' This defendant and two others were standing in the door. I didn't know the gentlemen. One said, 'Have you gone yet? I said, 'What on earth?' Mr. Jones said, 'No,' he would go. He told me he was going out to see if he could get them some liquor.

In about thirty minutes Mr. Jones came in bloody as a hog. He had a cut on his head, the side of his face, and his head was broken in. I called Tom Liddell and Dr. Kilpatrick. The next night Tom Liddell and Cliff Sullins brought a big lot of pictures."

By Mr. Eaton: "That is incompetent."

By the Court: "Yes."

"I saw the defendant Alberty at the preliminary. I identified him as one of the three that came to our house. The fellow that sat in the middle didn't have a hat. The one at the steering wheel was a little taller and had on a hat. When they came to the door about seven o'clock, this fellow didn't have his cap on. They all left the house together."

On cross-examination the witness stated that about five o'clock in the afternoon before the alleged robbery was the first time she ever saw the defendant. "It was about dark when they came to our house. I met Jim Hammond the next morning. I didn't inquire what the men came to our house for. I had an idea what they came to our house for, but I really didn't know. Mr. Jones told me what they wanted. I didn't see them any more from that evening until the preliminary.

The defendant is one of the men that were at our house. He suits my recollection of one. He had on work clothes and a khaki cap. I have been mistaken lots of times in trying to identify people. I cannot point out anything that would make me know him. I didn't pay that close attention to him. I don't believe I ever mistake somebody for anybody else. I don't claim to be perfect at identification."

Willie Elmore, testifying for the state, stated: "I lived in Henryetta on November 21, 1934; was living north of town. I know the defendant Tom Alberty. I know when he was out to my place. I had seen him a few times prior to that. I had come from town on the day of the alleged robbery. I live about a quarter north of Henryetta. These parties drove down to the section line and overtook me.

Leo Bailey and this defendant and, I believe, they introduced me to another fellow as Steadham or Steadman; never saw him before. Leo Bailey called me over to the car and wanted to know if I knew of anybody who had any whiskey. They asked me where a fellow named Allen lived. They said they were going to have a party in Tulsa and wanted some whiskey. I told them several people in Henryetta handled whiskey. He said, 'Pay you well.' I went to town with them to see Jones, the prosecuting witness in this case. Got out of their car and called Jones out. He told them they could buy the whiskey cheap as he could, but told them he would try to locate some and to come back at seven o'clock. They drove me back out home. I never saw them after that."

Cross-examination:

"Q. That has been about four years ago, hasn't it? A. Count it yourself.

Q. I asked you."

By the Court: "Answer his questions."

"A. About four years, I guess."

"I don't remember every word that was said. I work on the W.P.A. I was farming at that time, about four miles and a half north of Henryetta. Leo Bailey had been to my house to a dance, a hoedown. I guess he lived at Okmulgee, I couldn't tell."

"Q Leo Bailey lived in the penitentiary a long time, do you...