Bingham v. State

• Decision Date: 23 January 1946
• Docket Number: A-10483.
• Citation: 165 P.2d 646,82 Okla.Crim. 5
• Parties: BINGHAM v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

165 P.2d 646

82 Okla.Crim. 5

BINGHAM v. STATE.

No. A-10483.

Court of Criminal Appeals of Oklahoma

January 23, 1946

Appeal from District Court, Tulsa County; S. J. Clendinning, Judge.

Alfred Clarence Bingham was convicted of murder, and he appeals.

Affirmed.

Syllabus by the Court.

1. In capital case where death penalty has been assessed, any error alleged to have been committed during the trial of accused will be considered by Criminal Court of Appeals, whether such assigned error was properly presented to lower court by motion for new trial or not.

2. An expert witness is one possessed of scientific knowledge acquired by study or practice or by both study and practice and is, ordinarily, a person who has experience and knowledge in relation to matters which are not generally known to the people.

3. Where it is desired to introduce testimony of expert as to matters not coming within his personal knowledge, a hypothetical question should be asked and this question should be based upon and so framed as to include and be responsive to the entire testimony in the case and none other.

4. In propounding hypothetical question, it is necessary to include all of relevant facts in evidence before the jury so that opinion of expert will be based upon issues before the jury.

5. The weight and credibility of the opinion of the expert is a question for determination of the jury.

6. If the opinion of expert is not well-founded, it may be shown by cross-examination.

7. Statement of County Attorney in argument 'Nobody ever tried to get him declared insane prior to the institution of this case,' his reference to defendant as a 'no-good, drunken bum,' and statement, 'If this isn't a case for the electric chair, then someone ought to tell the Warden to chop it up into toothpicks for the boys to use down there,' considered in reference to the evidence, and held not reversible error.

8. Time of convening and recessing court is ordinarily a matter resting in sound discretion of trial judge and action of judge in holding night session of court will not be considered improper unless there is a clear showing that defendant was prejudiced by such action.

9. Under statute, if doubt arises in mind of court regarding sanity of defendant, he must order a jury to be impaneled from jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into sanity of defendant, either before the trial or before judgment and sentence is pronounced.

10. The question of defendant's sanity may be raised on application for continuance, motion for new trial, motion in arrest of judgment, by ex parte affidavit or by a declaration of bystander, or by court of its own motion and although the court cannot act arbitrarily, it may look to source of information and motive in determining whether there is a doubt which would justify a sanity hearing.

11. If a claim coming from a reputable source is made, either at beginning of trial in criminal case or at time for judgment and sentence, that defendant is presently insane, with a reasonable showing or tender of proof in support thereof trial court has duty of submitting the question to a jury.

12. The inquiry to be submitted to a jury in a proceeding under statute for a determination as to defendant's sanity, is whether the defendant is mentally competent to make a rational defense, and not whether defendant is able to distinguish between right and wrong.

13. Where counsel for defendant interposes defense of insanity at time of commission of crime, which issue is properly submitted to the jury, trial court did not have duty to submit to a separate jury the question as to defendant's present sanity, in the absence of any request made on behalf of the accused for such a hearing and in the absence of substantial testimony or other evidence which was sufficient to raise a doubt in the Court's mind as to present sanity of accused.

14. Where evidence clearly shows a case of aggravated murder, Criminal Court of Appeals will not interfere with verdict of jury on ground that death penalty is excessive punishment.

15. In prosecution for murder, with sentence of death, record examined, judgment of conviction affirmed, and date for execution set.

Harold S. McArthur, of Tulsa, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES Presiding Judge.

The defendant, Alfred Clarence Bingham, was charged in the District Court of Tulsa County with the crime of murder; was tried, convicted, and sentenced to death, and has appealed.

The information filed against defendant alleged that he killed his wife, Mary Bingham, on August 8, 1943, by cutting her throat with a sharp pocket-knife.

At the trial of the case, the killing of Mary Bingham was admitted by the defense and no evidence was offered or contention made that the homicide was excusable or justifiable, but the sole defense offered was that of insanity.

The defendant was a painter and paper-hanger by trade. He had been married to the deceased, Mary Bingham, for about fourteen years. During their married life, the defendant had had periodic drunken sprees, and, on some occasions, it had become necessary for the deceased to take her three children and go to her mother's home in Tulsa, to secure food and clothing for herself and the children. In 1941, the deceased obtained a divorce from defendant on the grounds of extreme cruelty and habitual drunkenness of defendant, but they continued to live together thereafter as man and wife. About three months before the homicide, the deceased, together with her three children, moved into the home of her brother, who lived in the City of Tulsa. She went to work for the Douglas Aircraft Company at Tulsa, and was supporting herself and the children. During this three-month period, the defendant had been drinking heavily. On the few occasions when he saw the deceased, he would curse her, accuse her of infidelity, and had threatened her life. On Sunday evening, August 8, 1943, the defendant came to the home of the brother of the deceased and inquired for the deceased. Mrs. Rusher, mother of the deceased, told defendant that she had gone to the picture show and was not at the house, to which the defendant replied, 'Oh, I know where she is--she is out with some man.' The defendant had a knife in his hand at that time and told the Rushers that if the deceased came home with some man that he was going to kill her. At that time, little Jess Bingham, age 10, the son of defendant and deceased, came around the house to the defendant, and defendant took him by the hand and left.

Mrs. Rusher, sister-in-law of deceased, testified that about thirty minutes later she heard little Jess Bingham scream and that she and her husband ran to where he was screaming. That they found the deceased, Mary Bingham, lying against the curb. Her throat had been cut and she was bleeding terribly. She died in a few minutes. The defendant was not present when the Rushers arrived at the scene of the homicide, but had fled. He was arrested three days later by a Tulsa policeman. After the defendant was taken to police headquarters, he gave a detailed statement concerning the crime, which statement was reduced to writing and introduced in evidence. The statement was quite lengthy and this opinion will not be burdened by quoting all of it. The statement was in question and answer form and was taken in shorthand and later reduced to writing and signed by the defendant. Some of the essential parts of said statement are as follows:

'Q. Now, on the evening, the early evening of August 8, what had you been doing? A. I had been in whiskey joints and beer parlors.

'Q. Do you remember what ones? A. Different ones.

'Q. How long had you been drinking that day? A. All day long.

'Q. You didn't work that day? A. No.

'Q. Had you seen your wife Mary earlier that day? A. No.

'Q. You knew where she lived at 713 W. 4th? A. Yes.

'Q. When did you first go to your wife's home? A. Along late in the evening. It was dark.

'Q. Your wife was not home then? A. I didn't see her.

'Q. Did you see your son? A. Yes.

'Q. Where? A. He came out and met me.

'Q. This is the only time you were at your wife's house that day? A. The only time that I know of.

'Q. When you went down to your wife's house, did you have a knife? A. I had a pocket knife.

'Q. What kind of a knife as best you can describe? A. Either a two blade or a three blade knife.

'Q. Where did you get it? A. I found it in a pair of painter's overalls, about two weeks ago.

'Q. And you carried it from the time you found it? A. No, sir, not all the time.

* * *

* * *

'Q. When you got up there to your wife's home and your little boy met you, did you have any conversation with him? A. It seems like that I picked my finger nails with that knife.

'Q. Do you remember telling him what you were going to do to your wife if you found her coming home with another man? A. I have some faint remembrance of saying something to him but I do not know exactly what it was.

'Q. Do you remember telling your boy that you were going to rip her wide open if she came home with another man? A. I don't know whether I did or didn't.

'Q. How long had you been over there at your wife's house with your little boy before your wife came home? A. Off hand, I couldn't say. I'd been there talking for some time.

'Q. You were in the front yard there at 713 W. 4th when you first saw your wife coming toward the house? A. I was on the lawn there in front some place.

'Q. What did you do when you saw her coming? A. Seems like I met her down the street.

'Q. You still had your knife in your hand that you had been cleaning...