Denney v. State

• Decision Date: 28 October 1959
• Docket Number: No. A-12743,A-12743
• Parties: Ida Belle DENNEY, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 359

346 P.2d 359

Ida Belle DENNEY, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12743.

Court of Criminal Appeals of Oklahoma.

Oct. 28, 1959.

Syllabus by the Court.

1. The Court of Criminal Appeals will not substitute its judgment for that of the jury, where there is evidence reasonably tending to support the conclusions arrived at by the jury. Held the trial court did not err in overruling defendant's demurrer to the State's evidence.

2. The Oklahoma statute prohibiting comment on failure of defendant to testify is comprehensive in the extreme and the Court of Criminal Appeals will not enlarge nor extend its provisions so as to prevent a fair discussion of the evidence, even though the defendant did not testify and called no witnesses in her behalf. This statute will not be deemed to go to the extent of prohibiting comment upon inferences reasonably to be drawn from a failure to controvert the State's evidence by proper proof other than that which might be given by the defendant personally. 22 O.S.A. § 701.

3. Instruction complained of and quoted in opinion covering flight, under fact situation in the within case, not found to be in conflict with suggested instruction in Wilson v. State, 96 Okl.Cr. 137, 250 P.2d 72.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Ida Belle Denney was convicted of the crime of murder, and sentenced to life imprisonment. Affirmed.

Thomas Dee Frasier, Tulsa, for plaintiff in error.

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

POWELL, Presiding Judge.

Ida Belle Denney, hereinafter referred to as defendant, was charged by information filed in the district court of Tulsa County with the crime of murder. Specifically, she was charged with the murder of Betty Jane Watkins by shooting her by use of a pistol. Defendant was tried before a jury, convicted and her punishment fixed at life imprisonment in the State Penitentiary at McAlester.

For reversal of the conviction, counsel advances some five specifications of error.

It is first and lastly urged that the evidence was insufficient to support the conviction. The State used some eleven witnesses. A demurrer was interposed to the State's evidence upon the ground of its insufficiency, and the demurrer was overruled. The defendant stood on the demurrer, and offered no evidence. A summary of the testimony is required.

Ruby Deatherage testified that she lived at 3010 North Frankfort Place, Tulsa, on April 1, 1958. That she was the mother of Betty Jane Watkins, the victim, who was 26 years of age at the time of her death. She said that her daughter on the date mentioned lived at 3008 North Frankfort Place, in plain sight of the home of witness, there being two vacant lots between the homes of mother and daughter. Witness stated that Betty Jane had two sons, six and eight years of age, who lived with their father, who was divorced from her daughter. She said that she had known the defendant, who lived about a block and a half from her home, for around eight years, but her deceased daughter had been acquainted with defendant ever since the daughter was about fourteen years of age. Defendant and Betty Jane were good friends, and defendant had a key to Betty Jane's home.

Witness testified that on the afternoon of April 1, 1958 her daughter, Betty Jane Watkins, driving her 1956 Pontiac came by the home of witness to take witness to pick up an ice crisper a friend had borrowed, but that they first drove to Ida Belle Denney's home. This was about 3 o'clock in the afternoon. Betty Jane was returning a sweeper, hat and purse to defendant, took them into Ida Belle's home, and then Ida Belle came out to the car with Betty Jane, and in conversation said that she had stayed all night with Miss Fry the night before, and said: 'Betty Jane, can I stay all night with you tonight?' and Betty Jane answered her, 'I guess so'. That then Betty Jane asked defendant if she wanted to go with her to pick up the ice crisper, and she said that she did. After this her daughter let witness out at her home. Later Betty Jane and Ida Belle came by the home of witness, about 6:30 or 7 P.M., and Bob, a son of witness, was there. She said that defendant had on a black coat and brown loafer shoes, and held a blue house-coat or dress on her arm. Witness identified the dress and coat, which were received in evidence over the objection of defendant. She said the items were clean when she saw them in possession of defendant, but described them as being dirty at time of trial.

Witness further testified that her daughter and defendant left together in Betty Jane's car to go to Betty Jane's home by way of the nearby drug store, where they wanted to purchase cigarettes. Later, about 9 o'clock that night, witness noticed Betty Jane's car parked in front of her home.

The next morning, April 2, 1958, about 8:45 she noticed her daughter's car still parked in front of the house, which caused witness some concern because the daughter was supposed to be at work at that time. Witness tried to telephone her daughter, but received no answer. She then telephoned defendant's number, and no one answered. Witness then went to her daughter's home, pounded on the front door, the windows and then the back door, but got no response. The house was locked and she could not get in. She then went west across the alley to where her son Bill lived and got him to try to get in Betty Jane's house. He finally was able to get a north window in the kitchen open. He then came to a back window, and following this witness went on to her home.

W. L. 'Bill' Deatherage, son of Ruby Deatherage and brother of Betty Jane Watkins, testified that he lived at 3007 North Frankfort, and that on April 2, 1958 he lived one block directly west of Betty Jane's home. That on April 2, 1959 at about 9 A.M. his mother came to his home and he went with his mother to his sister's home. That he tried the back and front doors, but they were locked, and he finally prized up a kitchen window and entered the house and went to his sister's bed room. She was in the bed, completely covered, and he pulled back the bed covers and found that his sister was dead. He covered her up again, called out of the window for his mother to go on home, and went out and asked a neighbor to call the police. He said that no one entered the house prior to arrival of the police.

Billy Harper, police officer, arrived at 3008 North Frankfort Place, Tulsa, at 9:21 A.M. on April 2, 1958. He found Betty Jane Watkins dead in her bed. He found parts of a bullet on the floor and a bullet in the east wall two feet seven inches from the floor, found blood spots, etc. He said Sgt. Ralph Phillips and officer Pete Annex were also in the room; that the victim was completely covered with a blanket, sheet and a spread. He made a diagram of the rooms and furniture arrangement, etc. He discovered two bullet slugs in the mattress, and what appeared to be bullet holes in the bed clothing. The house was tidy and in order. The windows were fastened down. The victim's jaw was fractured; there was a hole in the side of her face and lacerations and apparent powder burns. Witness said that he was in charge of the investigation until officer Jack Purdie arrived, about ten minutes after his arrival.

Officer Pete Annex said that when he and Sgt. Phillips found that there was a dead body under the covers, they went to the police car and called for the officers handling homicide cases.

James R. Bivens testified that on April 2, 1958 he was assigned to the homicide division in the Tulsa Police Department, and got a call to go to 3008 North Frankfort Place, and arrived six minutes before ten in the morning; that when he arrived Inspector Purdie, Chief McGuire, Sgt. Ray Jones, and Corp. Billy Harper were present. He saw certain photographs made and identified State's exhibit No. 4 as a picture accurately portraying the position and condition of the body of Mrs. Watkins in bed at the time the officers were in the home. The covers had been removed. He identified other pictures showing scenes in the bed room, and said Sgt. Ray Jones made the pictures. He said the pictures accurately depicted the scene. From the pictures there was no evidence of a struggle either in the bed, the room or the house. There was evidence of bullets in a wall and a dresser drawer and in bed clothing and the night grown worn by Mrs. Watkins. Witness recovered certain bullets and two fragments, all of which were sent to the Federal Bureau of Investigation, Washington, D. C., for examination. He identified the bullets and fragments which were received in evidence. Witness found an empty .32 calibre American H & R revolver in a hall closet, but there was no indication of recent firing.

Dr. Leo Lowbeer, pathologist, testified that he saw the body of Betty Jane Watkins on April 2, 1958 and performed a post mortem examination on the body, inside and out, and that the examination revealed six bullet wounds. He found a point of entrance of one bullet over the left cheek, which shattered the right jaw bone. There were powder burns at point of entrance. The second would of entrance was over the middle of the chin. The bullet travelled from left to right, as did all of the bullets. Another bullet entered on the right breast underneath the nipple, and another in the lower left chest wall and the exit was the right flank. Wound number five was the fatal wound. The bullet travelled through the aorta and hit the spinal column and was found in the spinal canal completely deformed. The sixth wound entered the left chest wall below the others. Witness found no defense marks on the body, no indication of a struggle.

Ray Jones of the Tulsa Police Department Bureau of Identification and Crime Laboratory, testified and identified certain pictures made of deceased and the rooms in her house on April 2, 1958. He testified...