Bunn v. State, A-10725.

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: JONES, Judge.
• Citation: 184 P.2d 621,85 Okla.Crim. 14
• Parties: BUNN v. STATE.
• Docket Number: A-10725.
• Decision Date: 03 September 1947

184 P.2d 621

85 Okla.Crim. 14

BUNN v. STATE.

No. A-10725.

Court of Criminal Appeals of Oklahoma

September 3, 1947

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Saul Bunn was convicted of indecent exposure, and he appeals.

Reversed and cause remanded with instructions.

See also 190 P.2d 464.

Syllabus by the Court.

1. The general rule is that evidence, which in any manner shows or tends to show that accused has committed an offense other than that for which he is on trial and wholly independent thereof, even though an offense of the same sort is inadmissible, since accused must be convicted, if at all by evidence which shows him to be guilty of the offense charged.

2. Under exception to general rule that accused must be convicted, if at all, by evidence showing him to be guilty of the offense charged, evidence of other offenses recently committed by accused, similar to the offense charged, is admissible when such evidence tends to establish a common scheme or plan, embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or when such evidence shows or tends to show guilty knowledge or intent in the commission of the offense charged.

3. Before evidence of other offenses may be admitted against the accused to show a common scheme or plan or intent, such other alleged offenses must not be remote as to time and there must be a visible connection between such other alleged offenses and the charge alleged against the accused in the information.

4. The fact that one person may commit similar crimes does not justify the admission of the other offenses if they are independent of each other. Where the trial court cannot clearly see a visible connection between the alleged other offenses to the one charged, he should refuse to admit the other offenses in evidence. If the trial court is uncertain as to the admissibility of such evidence, he should give the benefit of such doubt to the defendant, as it is manifestly unfair to the accused to force him to prepare to defend himself against any collateral crime other than the one charged against him in the information.

5. Court committed reversible error in admitting in evidence other similar offenses for alleged purpose of showing unlawful intent on part of the defendant.

Morton Perry, Bruce & Rowan, and Robert O. Swimmer, all of Oklahoma City, for plaintiff in error.

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

JONES Judge.

The defendant, Saul Bunn, was charged by information filed in the District Court of Oklahoma County with the crime of indecent exposure, was tried to a jury who returned a verdict of guilty, but left the punishment to be assessed to the discretion of the trial court. The defendant was thereupon sentenced to serve a term of five years imprisonment in the state penitentiary and has appealed.

The principal assignment of error presented by counsel for defendant is their contention that the court erred in admitting in evidence over objections of the defendant other alleged acts of indecent exposure committed by defendant at times and places other than that alleged in the information.

The information charged the defendant with committing the crime of indecent exposure on June 25, 1945, on the front porch of the building occupied by the State Health Department, at 3400 North Eastern Avenue in Oklahoma City. During the trial of the case, the State was allowed to introduce evidence over objection of defendant's counsel by the testimony of parties other than the prosecuting witness which allegedly showed that the defendant committed the crime of indecent exposure at the railway shelter just east of the State Capitol building about June 19, 1945, and in the early part of May, 1945.

On behalf of defendant, the proof showed that defendant stopped at the building occupied by State Health Department on his way to the county for the purpose of using the mens toilet, and that if he exposed himself in any way, it was not with intention of being seen by anyone. He denied ever being at the other places where it is alleged he illegally exposed himself on occasions other than the one alleged in the information. In support of his defense against the other alleged offenses, he introduced in evidence records from Armour and Company in Oklahoma City to show that on the date and hour testified to by the witnesses for the State, he was working at the Armour Plant several miles from the place where he allegedly exposed himself. Several witnesses testified on behalf of defendant to his good reputation in the community where he resided as a law abiding citizen and a person of good moral character.

In Michelin v. State, 66 Okl. Cr. 241, 90 P.2d 1081, the law relative to the admission of other crimes is stated in the first syllabus as follows:

'The general rule is, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this general rule there are, however, well recognized exceptions, which are as well embedded in the law as the rule itself. Some of those execeptions as presented by the record in this case are:

'(a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as where it shows or tends to show guilty knowledge or intent in the commission of the offense charged.

'(b) Evidence is not inadmissible when it tends directly to prove the defendant's guilt, though it may prove or tend to prove him guilty of another offense.

'(c) When the evidence is so closely linked that in the proof of one the other forms a part of the res gestae.

'(d) When the proof establishes a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.'

The case of Davidson v. State, 20 Okl. Cr. 368, 209 P. 779, is similar in many aspects to the instant case. The defendant Davidson was there charged with the indecent exposure of his person. In the information, he was alleged to have exposed his private parts on the public highway to a great number of female school children on March 22, 1918. At the time of the trial, evidence was admitted as to several alleged indecent exposures at the same place at other times. In disposing of that question, it is held (Second Syllabus):

'Where, on the trial of one charged with lewd conduct, the court permitted the introduction of testimony tending to show that the defendant may have been guilty of other like offenses about that time, it was error, under the circumstances in this case.

'a. Under such circumstances no one could say whether all the jurors concurred in the guilt of the defendant as to the particular offense charged.'

In the body of the opinion it is stated:

'Furthermore, the defendant had a right to the concurrence of at least five jurors in any verdict rendered in this case. Under the evidence here one or more jurors may have believed him guilty of one offense and innocent of the others. Other jurors may have believed the defendant guilty of still another offense. Under such a state of the testimony, this court cannot say whether there was a concurrent verdict on the offense charged. True, there were no objections interposed to the testimony tending to show other offenses about that time, but we think the error fundamental under the circumstances. There was indefinite testimony to the effect that several offenses were committed; who, then, can tell on which offense the verdict was in fact based? Persons accused of an offense should not be convicted on general accusations; the evidence should be confined to the specific crime charged.

'The evidence of the other alleged offenses did not tend to explain any motive of...