Bennett v. State

• Decision Date: 04 December 1968
• Docket Number: No. A--14385,A--14385
• Citation: Bennett v. State, 448 P.2d 253, 1968 OK CR 219 (Okla. Crim. App. 1968)
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Master BENNETT, Plaintiff-in-Error, v. The STATE of Oklahoma, Defendant-in-Error.

Page 253

448 P.2d 253

Master BENNETT, Plaintiff-in-Error, v. The STATE of Oklahoma, Defendant-in-Error.

No. A--14385.

Court of Criminal Appeals of Oklahoma.

Dec. 4, 1968.

Syllabus by the Court

1. Only those questions which were raised in the trial court and on which adverse rulings were made and exceptions taken, and which are then incorporated in a motion for new trial and assigned as error in the Petition in Error, will be considered on appeal.

2. Under Article 2, § 17 of the Constitution of the State of Oklahoma, prosecutions may be indictment or information as they are alternative modes and a prosecution by information does not violate either the 14th or 5th amendment of the Constitution of the United States.

3. A defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the venire or jury roll from which petit jurors are drawn; neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.

4. The hearsay written opinion of a psychiatrist or physician is not admissible under either the provisions of 12 O.S. § 499 or 12 O.S. § 501, merely because it has been properly authenticated under the provisions of those statutes, when the psychiatrist or physician is not present in court and subject to cross-examination by the adverse party. In order to be admitted into evidence under the provisions of 12 O.S. § 499 and 12 O.S. § 501, the authenticated public records must otherwise be admissible and hearsay statements as to opinions are not rendered admissible where the declarant is not present in court and the opposing party has no opportunity to cross-examine.

5. Where after examining the totality of the circumstances, together with the record, it appears that the defendant is guilty, but that errors of omission and commission resulted in the jury imposing a greater punishment than would have been imposed by another jury under similar circumstances, absent these errors, the judgment and sentence will be modified in the interest of justice, and as so modified, affirmed.

Appeal from the District Court of Oklahoma County; Boston W. Smith, Judge.

Master Bennett was convicted of the crime of Murder, was sentenced to death, and from said judgment and sentence, appeals. Judgment and sentence modified to life imprisonment and as so modified, affirmed.

Archibald B. Hill, Jr., Oklahoma City, Attorney for plaintiff in error.

G. T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Master Bennett, hereinafter referred to as Defendant, was charged by preliminary information in the Court of Special Sessions for Oklahoma County, with the crime of Murder. The more specific allegation of the information was that the defendant, on June 14, 1965, discharged a .38 calibre revolver into the body of one Ted L. Oulds, and as a result of the wounds inflicted by this assault, the victim died instantly. After preliminary hearing was had in said court, the defendant was bound over for trial in District Court on July 28, 1965.

Subsequently, upon the application of his attorney, a judge of the District Court on October 6, 1965, ordered that the defendant be committed to Central State Hospital at Norman, Oklahoma, for observation and examination for a period not to exceed ninety days. By its order of December 15, 1965, the District Court, upon advice of the attending physician at the hospital, found that the defendant was able to distinguish right from wrong and could advise his attorney in his own defense. The court therefore ordered that he be returned from the hospital. The defendant was so returned, but on December 20, 1965, the District Court issued an order in which it was determined that the defendant was presently insane and should be committed to Central State Hospital for treatment until such time as the doctors at said hospital should declare him to be presently sane. He was so committed to said hospital until the District Court, by its order of December 6, 1966, found, upon advice from the hospital, that the defendant was presently sane and ordered that he be returned for further criminal proceedings.

The trial of this defendant, by a jury, commenced on January 17, 1967, and was concluded on January 19, 1967, on which date the jury returned a verdict finding the defendant guilty of the crime of Murder and assessing his punishment at death. Thereafter, counsel for the defendant filed a Motion in Arrest of Judgment and a Motion for New Trial. A hearing on said motions was held on February 2, 1967, and at the conclusion of same, both motions were denied. On that same date judgment and sentence was entered in accordance with the jury's verdict. It is from such judgment and sentence that this appeal is brought to this Court.

Briefly stated, the facts adduced on the trial reveal that the defendant and Patricia Oulds were divorced on April 28, 1965, and in the divorce proceedings the defendant was given visitation rights to his three children, whose custody had been awarded to the wife. On June 14, 1965, at about 8:00 a.m., the defendant picked up the children at the home of Patricia's parents where she was living after the divorce. Shortly thereafter, the defendant returned the children to their mother. He pushed his way into the house through the front door and Patricia could see that he had a gun behind his back. She ran to a bedroom where her father, Ted L. Oulds, was sleeping. Before proceeding into the bedroom behind Patricia, the defendant was confronted by Veldas Oulds, Patricia's mother, who had come into the living room of the house. The defendant fired one shot at Mrs. Oulds, hitting her in the arm. He then proceeded into the bedroom where Ted Oulds sat up in bed and inquired what was going on. The defendant fired a shot into the head of this victim and another shot into some part of the bed, missing Mr. Oulds this time. He fired a shot at Patricia, who had crawled under a bed, hitting her in the arm. The defendant then fired two more shots into the body of Ted Oulds, who was pleading with the defendant not to shoot him again. The defendant then left the house and drove away. Shortly thereafter, after a description of his car had been given to policemen on duty at the time, he was arrested by Officer Hubert Box, after he was observed sitting in his car across the street from the police station.

Through the testimony of Betty Williams, sister of Patricia Oulds, and daughter of Veldas Oulds and the deceased Ted Oulds, the State presented evidence that on June 13, 1965, the witness had a conversation with the defendant, in which the defendant said that he would kill Patricia and the whole family if Patricia did not come back to him. This witness further testified that the defendant had made the same threat previously when he was separated from his wife.

The defendant did not testify in his own behalf. His principal evidence was the testimony of Dr. Huber, a psychiatrist at Central State Hospital, who testified that he was not in charge of the treatment of the defendant, but that he saw him every other week during the year that he was treated at the hospital. He further testified that it was 'probable' that the defendant was insane on June 14, 1965. The only other evidence of any possible significance presented by the defendant was the testimony of Roy McMillin, the defendant's immediate supervisor at his place of employment at Tinker Field, and Billy Lair, a jailer at the Oklahoma County jail. The former testified as to the defendant's reputation as he knew it and to the fact that a few days before the homicide in question, he had a conversation with the defendant and at that time the defendant was quite disturbed about some financial problems and about his broken marriage. The jailer merely testified that the defendant was quite nervous when he was in jail following the homicide, and that he was taking medicine prescribed by the jail doctor.

On appeal the defendant argues several assignments of error which we will treat in the order in which they arose in the trial, and during the preliminary proceeding, and not necessarily in the order in which they were presented in the defendant's argument and brief.

From the record it appears that a preliminary hearing was conducted in the Court of Special Sessions before the Honorable John H. Porter, on the 28th day of July, 1965, at the conclusion of which the defendant was bound over to the District Court of Oklahoma County. Neither at the preliminary hearing, nor prior to his trial in District Court, nor in his Motion for New Trial, did the defendant question the jurisdiction and authority of Judge Porter to conduct the preliminary hearing, but instead, for the first time on appeal, he raises the issue of the judge's authority to act in conducting the preliminary hearing and in finding probable cause to bind the defendant over to the District Court. As authority, the defendant cites 22 O.S. § 451, which provides:

'When the indictment or information is filed, the defendant must be arraigned thereon before the court in which it is filed, if triable therein; if not, before the court to which it is removed or transmitted.'

He further relies on Koch v. Keen, 124 Okl. 270, 255 P. 690, and Rath v. LaFon, Okl., 431, P.2d 312 (Feb. 21, 1967).

We are of the opinion that the decision rendered in Rath v. LaFon, supra, is decisive of this issue, where, in the body of the opinion, the Supreme Court of the State of Oklahoma, held:

'* * * we hereby determine that all acts, order, decrees and judgments of the Honorable John Porter entered and/or performed by him in the capacity and while acting as Judge of the Court of Special Sessions of Oklahoma County which have now become final, as well as those similar acts of said court which may attain final status prior to this decision...