O'Donnell v. State
| Decision Date | 17 September 1941 |
| Docket Number | A-9872. |
| Citation | 117 P.2d 139,73 Okla.Crim. 1 |
| Parties | O'DONNELL et ux. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The rule of the common law was, that where a crime, with some exceptions, was committed by a married woman conjointly with or in the presence of her husband, prima facie she was not criminally liable, as it was presumed that she acted in obedience to his commands and under his coercion.
2. This doctrine has been repudiated by statute in many states. In others it has been limited by the decisions of the courts.
3. The view adopted by the decisions of this court, is that the presumption is slight, and may be rebutted by slight circumstances. The individual facts in each case must be considered to determine whether there has been proof to overcome the presumption.
4. Where the facts justify it, it is the duty of the trial court to submit this issue to the jury under proper instructions. A failure to do so is reversible error.
5. Facts examined, and a judgment and sentence of thirty-five years in the penitentiary, where one is charged with robbery with firearms, which carries with it a punishment of death by electrocution or imprisonment in the penitentiary for life held not to be excessive.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Peter Joseph O'Donnell and Florence Nightengale O'Donnell were convicted of robbery with firearms, and they appeal.
Judgment affirmed as to Peter Joseph O'Donnell, and judgment reversed and cause remanded as to Florence Nightengale O'Donnell.
Mac Q Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
Willis R. Stark, of Oklahoma City, for defendants.
Defendants Peter Joseph O'Donnell and Florence Nightengale O'Donnell, were jointly charged in the District Court of Oklahoma county with the crime of robbery with firearms; were tried, convicted, and the defendant Peter Joseph O'Donnell was sentenced by the court to serve a term of thirty-five years in the penitentiary and defendant Florence Nightengale O'Donnell was sentenced to serve twenty years in the penitentiary, and they have appealed. As these defendants were unable to give bond pending appeal and are now confined in the penitentiary at McAlester, their cases have been advanced and decided at this time. The defendants were husband and wife and were jointly charged with their son, Thomas William Hugart.
The only questions presented on this appeal are: First, that the court erred in refusing to sustain a demurrer to the evidence as against the defendant Florence Nightengale O'Donnell for the reason that the evidence was insufficient to sustain a conviction as against her; and Second, that the sentence of thirty-five years imposed against the defendant Peter Joseph O'Donnell is excessive and should by this court be reduced. The first contention is based upon the question of coverture, in the absence of proof that she participated, or aided and abetted in the commission of the offense. To properly consider these questions it will be necessary to briefly review the evidence as revealed by the record.
The defendants resided in St. Louis, Missouri. They left there some time prior to May 10, 1939, with the son of Florence Nightengale O'Donnell, Thomas William Hugart, who was seventeen years of age, and were traveling in a 1934 Terraplane automobile bearing a Missouri tag. They ostensibly were coming to Vinita, Oklahoma, or Denison, Texas, for the purpose of defendant, Peter Joseph O'Donnell, securing work upon one of the dams that were being constructed, he being an iron worker. They, however, visited quite a number of towns and cities in Texas and Oklahoma, and arrived in Oklahoma City on the evening of the 9th of May, 1939. They camped that night at Rotary Park. Next morning they were driving over the city, all three being in the car. The car was parked near a grocery store and church about a block from the substation of the Oklahoma Natural Gas Company in Capitol Hill. The defendant Florence Nightengale O'Donnell remained in the car and the defendant Peter Joseph O'Donnell and his stepson, Thomas William Hugart, immediately went to the substation of the Oklahoma Natural Gas Company. Charles C. Masters and J. B. Smith, employees of the company, were on duty there behind the counter in said building. Upon entering young Hugart demanded of them that they "Get them up." The defendant Peter Joseph O'Donnell was in the rear and held in his hand a pistol which was pointed in the direction of the employees. They went behind the counter and young Hugart directed the two employees to enter a store room in the rear of the building, and he there tied their hands behind them with wire which was furnished by the defendant Peter Joseph O'Donnell. They ordered the employees to lie on the floor. They then proceeded to rob the safe and money drawers of the company and secured, as shown by an audit, the sum of $241.50. They immediately proceeded to where they had left the automobile and entering the same drove west out of the city contacting highway number 81 and going to El Reno. They stopped at a roadside park, and young Hugart changed clothes there and buried a black box which he had secured at the time of the robbery and which contained only valuable papers belonging to Mr. Masters, one of the employees, and having his name thereon. This box was afterwards recovered by the officers under the direction of young Hugart.
After the party left El Reno going north on United States Highway number 81 they were intercepted by two state highway patrol officers who had been informed by radio of the robbery and who had a description of the car. They were taken to the police station at El Reno, and there they, their luggage and their car were searched. The officers found different sums of money at different places. The sum of $17 was found in defendant Peter Joseph O'Donnell's billfold, $71 in defendant Florence Nightengale O'Donnell's purse, $7 in a green colored coat found in the car, $16 found in a man's coat in the car, and $8.52 in silver was found in a compartment of the automobile and in defendant Florence Nightengale O'Donnell's purse. A matron in the Oklahoma City jail found $69 on the person of defendant Florence Nightengale O'Donnell when she was searched there.
Officers from Oklahoma City came to El Reno, and the defendants were taken to Oklahoma City police station. The defendant Peter Joseph O'Donnell rode in the car with one detective and the defendant Florence Nightengale O'Donnell and her son with the other. When they arrived at Oklahoma City and got out of the automobile young Hugart handed his mother a dirty handkerchief and she placed it in her brassiere. She was afterwards searched by the matron in the city jail and this handkerchief was found to contain $57 in bills.
Some conflicting statements were made by defendants as to where they had been during the past few weeks. The two employees of the Oklahoma Natural Gas Company, Mr. Masters and Mr. Smith, both immediately identified the defendants Peter Joseph O'Donnell and Thomas William Hugart as being the parties who had entered the building and robbed them. They were picked out from five other persons. The defendant Hugart made a written statement to the officers after being told by his stepfather to tell the truth. This defendant, who upon arraignment entered a plea of guilty, afterwards went on the witness stand at the time of the trial and told a quite different story, claiming that he and a man whom they had picked up in Rotary Park on the morning of the robbery had committed the robbery and that the defendant Peter Joseph O'Donnell did not participate therein. This statement was submitted in evidence by the court for the purpose of impeachment of the witness Hugart, and the jury was directed not to consider it for any other purpose.
No instruction was given by the court upon the question of duress by reason of coverture as to the defendant Florence Nightengale O'Donnell, nor was any request made for such instruction. The defendant Peter Joseph O'Donnell represented himself and his wife. The public defender was also present and assisted in the defense of each of these defendants.
The Oklahoma statute with reference to subjection inferred from coverture is Oklahoma Statutes 1931, Section 1802, Oklahoma Statutes Annotated, Title 21, Section 157, and is as follows:
It is also provided by Oklahoma Statutes 1931, Sections 1801 and 1804, Oklahoma Statutes Annotated, Title 21, Sections 156 and 159:
These statutes have been before this court for construction in many cases...
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Keeney v. State
...with the assent of her husband, ***."Said statute has been discussed several times by this court. In the recent case of O'Donnell v. State, Okl.Cr.App., 117 P.2d 139, the various decisions were reviewed and said discussed at length. It is well-settled that where the wife commits the act out......