Broyles v. State
| Decision Date | 03 October 1946 |
| Docket Number | A-10695. |
| Citation | 173 P.2d 235,83 Okla.Crim. 83 |
| Parties | BROYLES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Writ of Certiorari Denied December 9, 1946.
See 67 S.Ct. 358.
Appeal from Superior Court, Seminole County; Bob Aubry, Judge.
Harlin Broyles was convicted of murder and sentenced to death, and he appeals.
Affirmed.
Evidence sustained conviction of murder for killing a deputy sheriff and justified imposition of death sentence.
Syllabus by the Court.
1. Habitual criminal statute (21 O.S.1941 §§ 51, 52) authorizing increased punishment for subsequent conviction should not be used by prosecution in capital felonies, unless it is clear that the Court must charge the jury on some included offense because there can be no cumulative punishment in a capital case, and statute should not be used to prejudice an accused on trial for his life by admitting evidence of distinct offenses which tend to show the bad character of the accused.
2. County attorney did not err in reading information in murder prosecution charging prior conviction of defendant where no objection to the information had been raised prior to the trial, and at time of opening statement to jury county attorney did not know whether plea of self-defense raising issue of manslaughter in first degree would be made on behalf of defendant.
3. In examination of prospective jurors on voir dire, hypothetical questions are not competent when their evidence purpose is to have the jurors indicate in advance what their decision will be under a certain state of evidence or upon a certain state of facts.
4. Prospective juror, to ascertain whether he entertains conscientious scruples against death penalty, may be asked if in proper case where the law and evidence warrant he could without doing violence to his conscience, agree to verdict imposing death penalty.
5. In ordinary case assignment of error not set forth in motion for new trial, nor mentioned in petition in error, will not be considered on appeal.
6. Where defendant is sentenced to death upon conviction in capital case, Criminal Court of Appeals will consider all assignments of error in order to determine whether the accused has been convicted in accordance with the law.
7. Evidence that the defendant, at the time he was arrested, was armed, resisted arrest, and attempted to escape, is competent, and the admissibility of such evidence is not affected by the fact that incidentally it tended to prove the defendant guilty of other offenses.
8. Flight from the scene of a crime and acts done by a fugitive to hide his identity are circumstances tending to show guilt and proof of them is admissible in evidence.
9. Where instructions given clearly state the law, but counsel for defendant is of the opinion that additional instructions should be given, he should reduce them to writing and request that they be given. If counsel fails to do so, a conviction will not be reversed, unless the Court is of the opinion in the light of the entire record, that there was a failure to instruct upon some material question of law, and that by reason thereof defendant has been deprived of a substantial right.
10. Evidence is sufficient to sustain conviction for murder and sentence of death is approved.
Walter Billingsley, of Wewoka, and George L. Hill, of McAlester, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Bill Biggers, Co. Atty., and Hubert Hargrave, Asst. Co. Atty., both of Wewoka, for defendant in error.
The defendant, Harlin Broyles, was charged in the Superior Court of Seminole County by information with the crime of murder, was tried, convicted and sentenced to death, and has appealed.
It is alleged that the defendant shot and killed Eric Nicholson, a deputy sheriff of Seminole County, while the deceased officer was attempting to take the defendant to the police station in the city of Seminole on January 10, 1945, about five p. m. for questioning in connection with the alleged possession by the defendant of a forged check.
The proof of the state showed that about four p. m. on January 10, 1945, the defendant appeared at a store operated by C. P. Roberts, and sought to purchase a pistol which was laying in the window of the store. He presented a check purportedly signed by A. S. Wells of Seminole, but Mr. Roberts refused to accept the check and the purchase was not made. The defendant reappeared at the store again in about half an hour and again sought to purchase the pistol. At that time he remained in the store about ten minutes. His actions aroused the suspicions of Roberts and Rev. S.W. Nesmith, a customer of the store, who notified the officers immediately after the defendant had left. The deceased, Eric Nicholson, and another officer, Ode Lewis, went to Roberts' store in response to the call and were given a description of the man who had attempted to pass the check.
The witness Roberts testified that he walked out on the street with the deceased, and in a few minutes they were able to locate the defendant standing in front of a theater. The deceased went up to the defendant and said, 'Come on, I want to talk to you,' and they started walking south toward the police station. When they had almost arrived at the police station, various witnesses testified that they saw the defendant jerk loose from the officer and start backing up. That defendant had on a leather jacket and pulled a gun out of the leather jacket, and, as the officer started toward him, the defendant fired two shots, one of which struck the deceased in the heart, killing him almost instantly.
Immediately after the shooting, the defendant fled down an alley, through a freight depot, across some railroad tracks to a water pump station operated by the city of Seminole. At that point, he forced two employees of the city, Bill Adams and Wallace Smith, to get into the Adams car with him and drive west to the Bowlegs highway. When they reached the highway, Smith jumped from the car and ran. The defendant then forced Adams to drive south toward Bowlegs city. Adams continued to drive the car until it ran out of gas at a point west of Bowlegs. The defendant continued to keep Adams with him for some time in the woods. Early in the night they walked to some houses owned by the Gulf Oil Company where the defendant stole an automobile and forced Adams to drive it. The lights were not working, and they abandoned this car and later stole another automobile which he likewise forced the witness Adams to drive. During the defendant's travels with Adams that night, he stopped and stole a mackinaw coat out of the car of a Mr. Gilley. After Adams had been with the defendant about five hours, the defendant released him on a section line not far from the Harjo community. The defendant in the meantime stole a pair of overalls off a clothes line from a man named McVay.
The proof further showed that prior to the killing and on January 7, 1945, the defendant, under the name of George McDaniel, appeared in Shawnee, Oklahoma, and rented a room, telling the landlady that he was an under-cover man working for the Government. The landlady testified that on the night of January 10, 1945, the defendant did not occupy his room, but that he came to Shawnee the next morning, January 11; that his actions were very suspicious, and the landlady told him to leave the following day. The defendant was not heard from again until about February 2, 1945, when he was stopped by a policeman in Waco, Texas, for questioning. The defendant at that time told the policeman that he was farming at San Angelo. When asked to show his draft card, the defendant produced a card made out to George McDaniel, Route 1, Granby, Missouri, and said that his name was George McDaniel. After questioning him further, the policeman started with the defendant toward the police station. When they were within about a block of the police station, the defendant pulled a gun and fired two shots, one of which went into the officer's stomach and another one penetrated his little finger. The officer was not killed, but was able to draw his gun and shot the defendant, wounding him sufficiently that he was captured by some bystanders at that place. When the defendant was searched, the officers found a small address book in which were written the names of three attorneys living at Seminole, Oklahoma, including the name A. S. Wells, which was forged to the check allegedly presented by defendant to C. P. Roberts; also the name First State Bank of Seminole was written in the address book. The officers then searched the room where the defendant said he had been staying and found a suitcase with the name George McDaniel thereon. In the suitcase were some clothing and several shells of different caliber. Also in the suitcase was a letter addressed to George McDaniel, 230 North Bell, Shawnee, Oklahoma, which was mailed from Topeka, Kansas, on January 9, 1945. The officers also found in the billfold of defendant two Social Security cards, one of which was made out to George Harvey McDaniel and the other to George Eugene Mason.
The defendant under questioning by the officers at that place admitted that he had formerly been living at 230 North Bell in Shawnee, Oklahoma, and that the letter was from a girl friend at Topeka. The Waco officers then communicated with officers in Oklahoma, and two car loads of people who had seen the defendant at the time of the shooting or shortly before, and including one of the men, Bill Adams, who was kidnapped after the shooting, went to Waco and positively identified the man as the one who had killed Officer Nicholson.
The defendant told the officers that he had been visiting some with his...
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