Fitzgerald v. State
| Decision Date | 22 December 1947 |
| Docket Number | A-10561. |
| Citation | 188 P.2d 396,85 Okla.Crim. 376 |
| Parties | FITZGERALD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Oklahoma County; A. P. VanMeter, Judge.
Robert R. Fitzgerald was convicted of conspiracy, and he appeals.
Reversed and remanded.
Syllabus by the Court.
1. Evidence of other offenses is admissible when it tends directly to establish the particular crime, and such evidence is usually competent to prove the particular crime when it tends to establish motive, intent, or a 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. One cannot be convicted upon the uncorroborated testimony of an accomplice; but the testimony of the accomplice must be corroborated by such evidence as in itself, and without the aid of the testimony of the accomplice, tends to in some degree connect the defendant with the commission of the offense. The corroborating evidence in this case examined and held to be sufficient.
3. Where, under the undisputed facts in a case certain of the State's witnesses are as a matter of law accomplices, and as to whether other witnesses are accomplices, the facts are disputed, and are reasonably susceptible of either interpretation, defendant was entitled, upon request, to an instruction which would submit to the jury the question whether or not the witnesses are accomplices.
Clayton Carder, of Hobart, and J. B. Dudley, of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
The defendant Robert R. Fitzgerald, together with Leon C. Phillips, was charged in the District Court of Oklahoma county, Oklahoma, August 10, 1943, by information filed on said date charging them in the first count thereof with the crime of conspiracy to receive bribes in connection with the issuance of executive clemency to one J. W. Eisiminger, a prisoner serving a life sentence upon the charge of murder in the Oklahoma State Penitentiary at McAlester, Oklahoma, and the second count charging them with the crime of bribery in connection with the same transaction. Both the defendant Robert R. Fitzgerald and the said Leon C. Phillips entered pleas of not guilty. A severance was granted, following which the state elected to proceed to trial, first against the defendant Robert R. Fitzgerald; thereafter the state dismissed the second count of the information without prejudice to further prosecution and proceeded to trial against the defendant Robert R. Fitzgerald upon the first count of the information charging the crime of conspiracy. Thereafter the defendant was tried, convicted and sentenced to pay a fine of $500 and costs. He has perfected an appeal to this court.
In substance the first count in said information charges that on February 9, 1942, and for a long time prior thereto, Leon C. Phillips and defendant conspired and agreed with each other and with one Fred D. Lowe and one William H. Strong, and with divers other persons to the informant unknown, to procure a bribe for the issuance of clemency to J. W. Eisiminger detailing that on February 1, 1941, defendant Phillips did cause Lowe, theretofore his personal investigator, to be appointed tag agent for Oklahoma County, Oklahoma, and on or about August 1, 1941, cause defendant Fitzgerald, theretofore his personal investigator, to be appointed to the office of Pardon and Parole officer in the office of the Chief Executive of the State of Oklahoma. Continuing it charges seven separate overt acts in connection with the issuance of two paroles to Eisiminger.
It appears from the record that in June, 1941, Dr. J. W. Eisiminger, an osteopath, was serving a life sentence in the State Penitentiary at McAlester, Oklahoma, for a conviction entered in the district court of Oklahoma County of a plea of guilty to the crime of murder, the charge being based upon the death of a young woman who died as the result of an illegal abortion charged as performed by Eisiminger. At such time Eisiminger was also under a sentence of fifteen years as the result of a conviction on a plea of guilty entered to a charge of perjury and conspiracy in the United States District Court at Houston, Texas, the conviction providing the sentence should run concurrently with the life sentence for murder assessed in the Oklahoma case and further providing that should Eisiminger be released from the Oklahoma State Penitentiary prior to the expiration of fifteen years, he was to be delivered to the United States Penitentiary at Leavenworth, Kansas, to complete the fifteen year sentence imposed by the Federal Court.
In June, 1941, Marie Eisiminger, his wife, met C. D. McNally, and discussed with him the matter of obtaining clemency in regard to the federal conviction. Shortly thereafter the two interviewed Eisiminger at the State Penitentiary, following which McNally made a trip to Washington, D. C., taking an application for federal clemency for Eisiminger. While there he was advised the application was premature until such time as Eisiminger was pardoned in connection with the Oklahoma offense and released from the State Penitentiary.
About three months following McNally's return to Oklahoma and in November of 1941, he suggested to Mrs. Eisiminger that they appeal to William A. Strong for assistance, stating that Strong had a friend, Fred D. Lowe, who could be of assistance in procuring executive clemency. Mrs. Eisiminger interviewed Strong in December of 1941 and was advised by him it would take $10,000 to procure the pardon--$5,000 for the Governor, the balance to be divided between Strong and Lowe. Mrs. Eisiminger offered to pay $1,000 for a pardon and after negotiation the amount to be paid was by agreement fixed at $8,000 and on January 9, 1942, Strong and Mrs. Eisiminger entered into a written escrow agreement conditioned that if Strong procured the pardon he was to be paid that amount, the money and contract being placed with an Oklahoma City bank as escrow agent. During the times mentioned defendant was serving as Chief Investigator out of the office of the Governor but his principal duties appeared to be in connection with the administration of the Pardon and Parole Office, there being no Pardon and Parole Attorney at such time. On January 9, 1942, the date of the escrow agreement, the defendant gave the petition for federal clemency of Mrs. Ruth Page, Clerk of the Pardon and Parole Office, asked her opinion of its contents and then suggested she write Mr. Lewis Morris, the County Attorney who handled the State prosecution of Eisiminger, for an opinion in the matter, which was done. Later defendant and Lowe inquired of Mrs. Page whether an answer had been received in response to this letter and on January 15, 1942, jointly suggested to her that she write a second letter. Pursuant to this letter, a reply was received from Mr. Morris in which he reviewed the history of the case but made no recommendation with reference to clemency, stating that as far as his office was concerned it was a closed matter. Defendant then directed Mrs. Page to prepare a file of the case for the Governor. She thereupon prepared a digest of the Eisiminger file and delivered it to defendant.
Later the Governor called her and stated the file wasn't complete, suggesting its completion with recommendation by defendant and herself, which was done, and thereafter and on February 5, 1942, a parole for Eisiminger was issued and delivered to the Pardon and Parole Office, Mrs. Page delivering it to defendant who in turn delivered it to Lowe, who was in his office at the time. Lowe delivered the parole to Strong the same day, who then met with Mrs. Eisiminger, who strongly objected to the fact that a pardon had not been issued, and refused to accept the parole. Two days later Lowe and Strong persuaded Mrs. Eisiminger to accept the parole, the parties then going to the bank where the $8,000 was paid to Strong who then paid McNally $1,250, Lowe $1500 and kept the balance. The next morning Mrs. Eisiminger visited her husband in the penitentiary and showed him the parole, which he refused to accept. She returned to Oklahoma City with the parole and employed an attorney, Jean P. Day, to sue Lowe and Strong for the return of the money. On February 27, 1942, a second parole was issued, the defendant and Mrs. Eisiminger's attorney taking the parole to McAlester where, after some hesitation, it was accepted by Eisiminger. There was no material dispute as to any of the above facts.
In addition, Fred Lowe testified that when Strong solicited his assistance the latter stated he would give $1,000 if he could obtain a pardon for Eisiminger, Strong gave him the petition for federal clemency, which he took to the Governor discussed the case with him and stated $1,000 had been offered for clemency. He testified it was decided the money should be used to employ Senator Robert Burns to present the case to the Governor. Upon Burns' refusal to present the case, he saw the Governor again and asked what could be done and was advised to see the defendant Fitzgerald, the Governor stating that 'he was giving him some loose rope.' He then saw defendant, told him $1,000 had been offered and defendant stated he had talked to Eisiminger and would do whatever he could and later suggested he obtain a letter of recommendation from Mr. Morris. Lowe testified that no actual agreement was reached with the Governor that he would accept any part of the money, and that only a 'tacit' understanding existed between defendant and him. On February 27, 1942, Strong delivered $1,500 to him and the following week he delivered $500 of the money...
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