Doser v. State

• Decision Date: 09 February 1949
• Docket Number: A-10870.
• Citation: 203 P.2d 451,88 Okla.Crim. 299
• Parties: DOSER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

203 P.2d 451

88 Okla.Crim. 299

DOSER v. STATE.

No. A-10870.

Court of Criminal Appeals of Oklahoma

February 9, 1949

Appeal from District Court, Atoka County; Roy Paul, Judge.

Ann Doser was convicted for the crime of murder and sentenced to life imprisonment in the penitentiary, and she appeals.

Reversed and remanded for a new trial.

Syllabus by the Court.

1. Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the same and determine the facts.

2. Where the evidence is substantial, though conflicting, the Criminal Court of Appeals will not reverse the same on the ground of insufficiency.

3. Evidence of other crimes prior to or subsequent to the crime charged in the information or indictment is inadmissible particularly where the evidence of other specific crimes has no direct relation to or connection with that charged in the information or indictment, but to this rule there are well recognized exceptions.

4. Evidence of other crimes is competent to prove the specific crime charged when it tends to establish a scheme or plan or as part of a general conspiracy or is a part of the res gestae or shows intent or motive, or where it is so closely linked to the crime for which accused is on trial as to throw light on it.

5. When the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or unlawful intent the proof must clearly come within the exception to the general rule; and where the offenses are wholly independent and no visible connection between them, even though of the same kind, an objection by the defendant to the proof should be sustained. If the trial court is doubtful whether the alleged other offenses are admissible, he should resolve the doubt in favor of the defendant and refuse the admission of such evidence.

6. It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former.

7. Evidence of the theft of an automobile used by the defendant and her accomplices in conveying themselves from the scene or locale of one crime to another point, as part of an entire transaction, concluding in murder, growing out of an attempted robbery, to replace the stolen automobile, which broke down, constitutes part of the res gestae and is admissible.

8. On the trial of an information for murder, evidence of the commission of two burglaries allegedly committed by the defendant and accomplices, is admissible where said evidence shows that the person murdered was killed by pistols taken in the burglaries, and used in an attempted robbery culminating in the murder of the robbery victim.

9. Evidence of other crimes committed are admissible as throwing light upon the guilty knowledge of the defendant in the crime charged in the information.

10. After a conspiracy is shown to exist all acts of the conspirators in furtherance of the conspiracy, and all declarations of the conspirators, or any of them touching upon the subject of the conspiracy before the object of the conspiracy is consummated or its purposes abandoned, are competent against the one on trial.

11. Where several persons having united for an illegal purpose any act done by one of them, or any of them, or any declaration made touching the prosecution of the common purpose or design, being regarded as the act of all, is admissible against all or any of the conspirators.

12. Evidence of statements made by a defendant in the presence of his accomplices, made in organization of and in furtherance of a conspiracy and explanatory of the defendant's connection therewith, are admissible on behalf of the State.

13. It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the State, unless he puts his character in issue by introducing evidence of good character.

14. Cross examination of defendant should be confined to the issues of and the transactions which are pertinent to the charge as laid in the information, and it is the duty of the trial court to so confine the cross examination.

15. Cross examination of a witness is not to be confined to the particular questions asked nor the precise subject called to his attention on direct examination, but such an examination must not extend to matters foreign to the subject matter of the examination in chief, and must be designed to limit, explain or modify the evidence given in chief.

16. It is prejudicial and highly improper to seek to degrade a defendant by cross examination as to relationships existing between a defendant's parents, in relation to such matters as separation and divorce, and as to where as a child he lived, etc., which matters, so far as the defendant is concerned, are involuntary and not matters of choice.

17. It is not competent to introduce testimony as to what a witness may have sworn or stated on some previous occasion, simply to confirm or bolster up the testimony of said witness as delivered before the jury, in the absence of some attack on the testimony of said witness, as by showing that the witness had sworn differently or stated differently to the testimony delivered on the trial of the case, or in the absence of some effort made to impeach the witness.

18. The court should not permit a rehash of a witness's testimony given in chief under the guise of rebuttal. Counsel for the state have no more right to reserve the principal testimony and introduce it under the guise of rebuttal nor to rehash testimony introduced in chief under the guise of rebuttal, than the accused would have to re-introduce his testimony after the state has closed the rebuttal.

19. Where an instruction that is given is technically incorrect, yet if the same is favorable to the defendant he cannot complain. In order to constitute grounds for reversal the instruction given must have deprived defendant of some substantial right.

20. Evidence corroborating the testimony of an accomplice need not cover every material point testified to by the accomplice, nor need it be sufficient alone to warrant a verdict of guilty, but if the accomplice is corroborated with respect to one material fact by independent evidence tending to connect defendant with the commission of the crime, the jury may infer that the accomplice speaks the truth, though such corroborating evidence must show more than the mere commission of the offense or circumstances thereof.

21. The trial court should avoid as far as possible unnecessary repetitions of facts and of correct propositions of law, since to do so, is liable to give undue prominence to them in the minds of the jury.

22. The trial court should avoid the giving of unnecessary instructions not covered by any factual situation in the case.

23. Where the defendant does not put her character in issue, the trial court should not give an instruction, undertaking to tell the jury why the state cannot offer evidence as to the defendant's character, and outlining the conditions under which such evidence is admissible, since to do so would leave the unsavory implication that the defendant was of bad character, which the state was prevented from showing only because the defendant was unwilling to submit her character as an issue in the case.

Joe Ralls, of Atoka, and Brown, Darrough & Ball, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

Defendant, Ann Doser, was charged in the District Court of Atoka County, Oklahoma, by information jointly with Oma Dixon Claunch, Junior, William Eugene Slussler and Ernest England with the murder in Atoka County of McGraw Edward Streckenfinger on August 21, 1945. The record discloses at the time herein involved the defendant herein, Ann Doser, was 18 years of age, that her accomplices William Eugene Slussler was 17 years of age, Oma Dixon Claunch, Junior, was 15 years of age, and Ernest England was 14 years of age. It further appears that Claunch and Slussler plead guilty to the charge of murder of Streckenfinger and were sentenced to life imprisonment; that England was tried separately and was found guilty by a jury and his punishment fixed at life imprisonment. The defendant Ann Doser was tried in May, 1946, which trial resulted in a hung jury. The second trial, from which this appeal was perfected, resulted in a verdict of guilty and the fixing of punishment at life imprisonment in the penitentiary at McAlester, Oklahoma.

The record is more than 600 pages long. It discloses that some time during the year 1944 while residing in Nicoma Park, a suburb of Oklahoma City, with her mother and stepfather, Ann Doser made a trip to Austin, Texas, where she was employed in the Austin State Hospital as a psycopathic nurse from August 16 to August 31, 1944. It was during this time she first met Slussler and his family for whom she worked a short while. Thereafter, she returned to Oklahoma City and remained until the early part of August when she determined to again return to Austin, Texas. On August 8, 1945, she arrived in Austin where she sought to obtain employment as a telephone operator, but not being in possession of a birth certificate her employment as such was delayed, and in fact never consummated. The record further discloses she endeavored to get employment as a waitress, but failed because she had no health certificate and was without funds to procure the same. Moreover, it appears that during this time she sought financial aid from her stepfather, a Mr. Bill Adams, without success. She became an object of...