Dare v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BUSSEY; NIX, P. J., and BRETT
• Citation: Dare v. State, 378 P.2d 339 (Okla. Crim. App. 1963)
• Decision Date: 10 January 1963
• Docket Number: No. A-13091,A-13091
• Parties: Richard Henry DARE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

Page 339

378 P.2d 339

Richard Henry DARE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13091.

Court of Criminal Appeals of Oklahoma.

Jan. 10, 1963.

Syllabus by the Court.

1. Evidence of separate and similar offenses is admissible when it is material and proper to show (1) Motive, (2) Intent, (3) Absence of mistake or accident, (4) Identity of the person charged with the commission of the Crime for which an accused is put on trial, and (5) Common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.

2. Confessions should not on appeal be held erroneously admitted where no objection was interposed until after the principal facts, established in the admission of the first confession, had been told the jury, and where such confessions were used to establish the defense of insanity by defendant.

3. The testimony of experts is not conclusive on the issue of mental capacity since the law makes no distinction in weighing evidence between expert testimony and evidence of other character.

4. On murder prosecution, the question of insanity at the time of the commission of the crime presents a question of fact for the sole determination of the jury, and where there is evidence tending to support the finding it is not the province of the Appellate Court to weigh the same.

5. Instruction on insanity, based on M'Naghten Rules, was proper since same has been the test recognized by the Court of Criminal Appeals to be used in determining Criminal responsibility of an accused.

6. The doctrine of 'irresistible impulse' is not the rule followed in the State of Oklahoma as a test of mental competency.

7. Held: The M'Naghten Rules, as a test for criminal responsibility, will remain the law in this jurisdiction until The Court Of Criminal Appeals can conscientiously adopt rules, taking into consideration advances both legal and medical and the statutes of Oklahoma relating to criminal responsibility, which will better serve the orderly administration of justice.

8. The question of mental elements of responsibility is, and must be, a legal question for the meaning of responsibility is liability to punishment.

9. Only questions which are raised in trial court and adverse ruling had thereon, and exception taken thereto, and are incorporated in motion for new trial and assigned as error in petition in error will be considered on appeal.

10. Where evidence conclusively shows defendant guilty of the highest degree of the crime or not guilty at all by reason of his insanity, it is not error for the trial court to fail to instruct on second degree murder or manslaughter.

11. Punishment to be imposed for criminal offenses is secular and is prescribed by the legislative bodies of this state. It is therefore the duty of the jurors to follow the law enacted by the legislature, as interpreted by the courts in instructions to the jury.

12. Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

13. Evidence examined and held sufficient to support verdict of the jury finding defendant guilty of Murder and fixing his punishment at death.

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

Richard Henry Dare was convicted of the Crime of Murder and his punishment fixed at death, from which judgment he appeals. Judgment and sentence affirmed.

Don Anderson, Public Defender, Maurice Nagle, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Richard Henry Dare, defendant below, was charged by information with the Crime of Murder, tried by jury, convicted, and sentenced to the punishment of death for the murder of one Ted Harry Albert. From said judgment and sentence, rendered in the Oklahoma County District Court, he appeals.

On the evening of August 6, 1960, officers Donald J. Smith and C. A. Cox, Oklahoma City Police Department, were called to the residence of one Ted Harry Albert, 1737 Southwest 16th Street and were met by Mrs. Ruth Thompson, sister of Ted Albert, who being unable to reach her brother and his family, had summoned them.

Upon arriving at the Albert residence, they learned that the Alberts had not been seen since the day before, August 5th. The doors of the house were locked and Officer Smith, hearing a radio playing inside the house, unlocked a bedroom window screen, raised the window and saw what 'looked like two bodies under sheets'. Smith radioed for a detective crusier and E. B. Meals, police homicide officer.

Arriving at the scene, Meals crawled through the bedroom window, and upon entering the house discovered the bodies of Patricia Ann Dare and Virgie Albert in the 'back' bedroom, the body of Ted Harry Albert in the hall and the body of William McCormick in the 'front' bedroom.

The bodies of Virgie Albert and Patricia Ann Dare were covered with sheets and a cord had been securely tied around their necks. The body of William McCormick (with a cord around his neck) had been stripped of his trousers and an empty wallet lay beside him on the floor. Autopsies (performed August 7) disclosed that Patricia Dare and Virgie Albert died as a result of strangulation, and that William McCormick and Ted Harry Albert died as a result of gun shot wounds. Time of death was fixed at 40 to 48 hours earlier, or the afternoon and early evening of August 5th.

Neighbors disclosed that they had seen Richard Henry Dare (defendant) visiting the premises on two different occasions on the day of August 5. After further investigation, an all-points bulletin was issued to arrest and hold the said Richard Henry Dare for investigation of the homicides.

An intensive search of McClain County, Dare's former home, was conducted, and on the 7th of August at 10:00 o'clock in the evening, Sheriff Joe Huddleston of that county received a telephone call from a Mr. Carter (Dare's brother-in-law), and in response to the call drove to the Carter home where Dare surrendered to him. Dare was taken to the McClain County Court House by Sheriff Huddleston, who gave him a sandwich and then, released him to the custody of Don Cunningham and Jack Mullenix, law enforcement officers, who proceeded to transport Dare to the Oklahoma City Police Department (a distance of approximately 40 miles).

While en route Dare (having been informed of his constitutional rights to remain silent) told Cunningham, 'he might just as well go ahead' and tell him about the murders in Oklahoma City. He stated that he had killed his wife, Patricia Ann Dare, his father-in-law, Ted Harry Albert, his mother-in-law, Virgie Albert and his wife's nephew, William McCormick and related the facts surrounding the four slayings. This oral confession, made in the presence of two law enforcement officers during the drive from Purcell (McClain County) to Oklahoma City (Oklahoma County), will be denoted as Confession #1.

The officers and Dare arrived at the Oklahoma City Police department somewhere around 11:00 or 11:30 P.M., Sunday, August 7, where Dare was placed in the custody of E. B. Meals. Dare was taken into the Chief of Detectives Office; informed again of his constitutional rights; asked to repeat his story; and, with his permission, this confession, detailing facts of the four slayings was recorded. The confession made at this time, will be referred to as Confession #2. (The recording of this confession was completed at 12:58 A.M., Monday, August 8, 1960, and witnessed by Officers Meals and Cunningham.)

Dare's account of the slayings was then broken down into four separate statements (each relating to separate homicides) and each was recorded separately. The recorded statement, relating to the death of Ted Harry Albert, was completed at 1:11 A.M., August 8, and we shall refer to this statement as Confession #3.

No question is raised on appeal as to the admissibility of the first confession. Evidence of this statement, given to Officer Cunningham by Dare, while en route to Oklahoma City, was testified to by him (Cunningham) as follows:

'He told us that he had gone over to his mother-in-law's house to talk to his wife about a money problem and when he got over there she asked him for some money and they got into an argument and he was drinking a glass of water and he took this glass tumbler and hit her up the side of the head with it and then they got into a scuffle and she started choking him and he started choking her and he choked her until he thought she was dead, or almost dead, and then he drug her into another room and tied a cord around her neck so that he would be sure that she was dead, then he told me that shortly thereafter her mother came home and he tried to explain to her that he killed her daughter and she became violently angry and she started scratching him, scratched him a few times on his face, and the marks were still on his face, and he said then that he decided that he would just have to kill her too. So he strangled her to death and tied a cord around her neck and put her in the room by her daughters body, then he decided that he,--he said that he decided he best go ahead and finish the job, so he hid behind a divan and waited for the husband, Mr. Albert, to come home about three hours later and shot him with his rifle, and tied a cord around his neck and put him in another room and then his nephew came in and he said the nephew walked in the front door and went to the room where the bodies were hidden, so he decided then that he had to kill the nephew for fear he would find the bodies, so he shot him and tied a cord around his neck and...