Davis v. State

• Decision Date: 27 April 1966
• Docket Number: No. A--13586,A--13586
• Citation: 413 P.2d 920
• Parties: William Eugene DAVIS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 920

413 P.2d 920

William Eugene DAVIS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--13586.

Court of Criminal Appeals of Oklahoma.

April 27, 1966.

Syllabus by the Court

1. No person shall be deprived of life, liberty, or property without due process of law. Okl.Const., Art. II, § 7.

2. Due process of law is intended to protect the citizens against arbitrary action and to secure to all persons equal and impartial justice.

3. Every man charged with the commission of a crime shall be provided a fair and impartial trial, in accordance with proper judicial procedure.

4. Regardless of the apparent guilt of the accused, he is entitled to stand trial based entirely upon the facts, fairly and impartially presented, and as borne out by he evidence.

5. If the matter is irrelevant or collateral, the witness' answer is conclusive upon the party examining him, even though the question is asked for impeachment purposes, or to show bad character of the witness.

6. The rule relating to the conclusiveness of answers given on cross-examination to questions on collateral matters is applied to the answers of the defendant the same as in the case of the ordinary witness. Thus, while the cross-examination, subject to the discretion of the court, may go into collateral matters when the purpose is impeachment of the witness, the answer of the defendant to such questions is conclusive.

7. It is improper for the county attorney to state his personal opinion as to the defendant's guilt or to state facts not proven by evidence or otherwise given before the jury, that which amounts to his own opinion.

8. A case will not be reversed for insufficiency of evidence if there is any substantial evidence, although circumstantial, from which a reasonable, logical inference of guilt arises.

9. Verdict will be set aside when it is contrary to law and evidence, where there is no evidence to support it, where there is a failure to prove some essential matter to establish offense charged, or where verdict was rendered as a result of passion or prejudice.

10. The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains the objections to the question.

11. Permitting the prosecuting attorney to ask questions manifestly calculated to create prejudice against the witness, and to influence jury to find against defendant because of prejudice, is an abuse of judicial discretion.

Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

William Eugene Davis was convicted of the crime of grand larceny, and appeals. Reversed and remanded with directions.

Benjamin E. Stockwell, Norman, Dick Jones and Charles Jones, Oklahoma City, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

This is an appeal from a conviction for the crime of grand larceny, in the district court of Cleveland County, Oklahoma.

Plaintiff in error was tried before a jury, convicted, and sentenced to serve five years in the state penitentiary. His motion for new trial was overruled, and he has perfected his appeal to this Court. Hereafter, plaintiff in error will be referred to as defendant, as he appeared in the district court.

Defendant cites thirteen assignments of error in his petition. In his brief he treats those assignments under two general propositions, while discussing six specific errors.

The first proposition stated is: 'The defendant was denied a fair and impartial trial because of improper and prejudicial misconduct of the county attorney'; and the second is stated: 'Error of the court in permitting the introduction of incompetent, irrelevant, immaterial and improper evidence which was materially and fundamentally prejudicial to the rights of defendant.'

The Attorney General's brief provides his answers to the six specific errors, to which defendant filed a reply brief. In his reply brief, defendant argues the violation of defendant's fundamental and constitutional rights.

We have considered the record, and the briefs of both sides most carefully, and choose to discuss only those matters most affecting the rights of this defendant, which might be prejudicial.

Defendant cites Art. II, § 6 of the Oklahoma State Constitution, which provides, among other things, that every man shall have a fair trial, without prejudice. Art. II, § 7 provides that 'No person shall be deprived of life, liberty, or property, without due process of law.' Included in the phrase 'due process of law', are the elements of fairness and impartiality.

'Due process of law is * * * intended to protect the citizen against arbitrary action and to secure to all persons equal and impartial justice.' In re Lutker, Okl.Cr., 274 P.2d 786.

In substance, these provisions are intended to assure that every man charged with the commission of a crime shall be provided a fair and impartial trial, in accordance with proper judicial procedure. This Court has held many times that regardless of the apparent guilt of the accused, he is entitled to stand trial based entirely upon the facts, fairly and impartially presented, and as borne out by the evidence. It is the duty of the courts to see that the guaranty of such fair and impartial trial shall be upheld.

We believe, in this case, the defendant did not receive a trial entirely without prejudice. We do not say the prejudice was intentional, but whether intentional or not, it is present in the record before this Court.

When the county attorney was permitted to go into collateral matters concerning certain bank deposits, which he contended were made by the defendant, without offering any proof of his contentions, he left insinuations and implications with the jury that the funds deposited were illegally acquired.

We observe also, that as the county attorney continued to dwell on those deposits, defendant finally said, '* * * This money that you're adding up here, all these deposits, you didn't substract a cent one for groceries or anything else, that's just total deposits.'

As we review the record, the defendant was correct in his statement. From the record, we assume the county attorney was attempting to reflect the total deposits, in comparison with the apparent source therefor.

However, notwithstanding the fact that the prosecution has great latitude in cross-examination, there are limits to which it is permitted to go. And, when it clearly appears that the questions asked create undue prejudice in the minds of the jury, whether intentional or not, then the cross-examination has exceeded the limits of proper cross-examination. This is particularly true when no proof appears in the record to support the nature of the cross-examination.

During the county attorney's cross-examination of the defendant, defendant denied certain alleged deposits. At no time did the county attorney offer any proof to overcome defendant's denials. The county attorney was therefore bound to accept defendant's statements as being true. As stated in Wharton's Criminal Evidence, 12th Edition, Volume 3, § 860:

'If the matter is irrelevant or collateral, the witness' answer is conclusive upon the party examining him, even though the question is asked for impeachment purposes or to show bad character of the witness.'

A subsequent paragraph, § 886, in Wharton's Criminal Evidence, supra, states further, with reference to 'Conclusiveness of Answers':

'The rule relating to the conclusiveness of answers given on cross-examination to questions on collateral matters Is applied to the answers of the defendant the same as in the case of the ordinary witness. Thus, while the cross-examination, subject to the discretion of the court, may go into collateral matters when the purpose is impeachment of the witness, The answers of the defendant to such questions is conclusive.' (Emphasis added.)

Nonetheless, the county attorney continued to pursue the matter of deposits, when in his closing argument he said: 'I'd like to review some other things, the defendant * * * a workingman, made $21,000 deposits in two years in a bank and a man who works for wages can't remember $3,000 worth of deposits.' Defendant cites this comment as one being prejudicial to his fundamental rights. The attorney general counters, in his brief, that the defendant waived any contention of error when the objection was not made at the time of the closing argument.

We are of the opinion that the county attorney's remarks were prejudicial to defendant's fundamental rights, and therefore failure to object did not waive the objection. During cross-examination, defendant did offer explanations of certain deposits, and denied others; but the county attorney would accept neither his explanation nor his denials, which he was bound to do. We observe from the record also that on re-direct, defendant offered to permit the county attorney to examine his bank records, which offer was not accepted. Instead, the county attorney continued to invoke his own method of calculation, which we are unable to follow.

Referring to the cross-examination of the defendant, the attorney general states in his brief, '* * * that the defendant had earlier on direct examination testified about saving money to buy his farm near Prague, about his and his wife's employment, and about the actual buying of the farm in December, 1962. Presumably the purpose of this testimony about defendant's financial condition introduced by the defense was to show the improbability that he would commit a crime for financial gain. It, therefore, was a proper subject for inquiry by the prosecution on cross-examination.' He then cites from 3 Wharton's Criminal Evidence, (12th Edition) § 858 at page 235:

'A full cross-examination of a witness upon...