Gillespie v. State

• Decision Date: 16 May 1911
• Citation: 115 P. 620,5 Okla.Crim. 546
• Parties: GILLESPIE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 620

5 Okla.Crim. 546

GILLESPIE v. STATE.

Court of Criminal Appeals of Oklahoma

May 16, 1911

Syllabus by the Court.

To permit a demand to be made on a defendant in a criminal case in the presence of a jury, to produce a paper or document referred to, containing incriminating evidence against him is a violation of the immunity secured to him by section 21 of article 2 of our Constitution, providing that no person in a criminal case shall be compelled to give evidence against himself which will tend to incriminate him, even though no order for the production of the paper is made.

Appeal from Garfield County Court; James B. Cullison, Judge.

A. W Gillespie was convicted of illegal sale of liquor, and appeals. Reversed.

Robberts & Curran, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

Upon the trial of this cause, the state placed Winfield Scott, an attorney residing at Enid, upon the witness stand, and by him proved that he had delivered to appellant certain letters signed by A. W. Gillespie or the Gillespie Drug Company, which were addressed to Glazner B. Company; that the said attorney represented the Glazner B. Company in collecting a claim against appellant; that at the time the witness delivered to appellant the letters in question appellant gave witness a check in payment of the claim which witness held against appellant; that said claim was for $288.10; that appellant had said to witness that he would pay up, but that he wanted his letters; that thereupon appellant gave witness a check for the claim, and that witness gave appellant the letters in question.

The record then shows that the following proceedings were had: "Mr. McKeever: At this time the state, having learned that the letters are in the hands of the defendant, asks the defendant and his attorneys to produce said letters at this time. Mr. Robberts: To which request the defendant objects, and here and now takes exceptions, which they ask to be noted of the fact, that they have requested in open court, in the presence of the jury, the defendant to take some action or step in this case. Mr. McKeever: At this time the request, as shown in the record, is withdrawn and corrected by the state's attorney as follows. Mr. Robberts: To which the defendant objects, for the reason that it is irrelevant, incompetent, and immaterial, and improper. The Court: The objection will be overruled. (To which ruling of the court, the defendant then and there duly excepted at the time.) Mr. McKeever: The state's attorney now requests the counsel for the defendant to produce the letters as testified to by the witness Winfield Scott. Mr. Robberts: We object to the request made of the defendant and his counsel in the presence of the jury. The Court: The objection will be overruled. (To which ruling of the court, the defendant then and there duly excepted at the time.) Mr. McKeever: At this time the state's attorney withdraws the request as made above for correction, and requests at this time the counsel to produce the letters referred to by the witness Winfield Scott. Mr. Robberts: To which request the defendant objects, and at this time excepts, and asks that the exception be made a part of the record and allowed by the court. The Court: The request on the part of the state's attorney to request the defendant's counsel to furnish the letters testified about by the witness Winfield Scott, and objected to by the defendant, is overruled, for the reason that said letters have not been shown to have any connection with the facts in the case on trial."

The clear and unmistakable inference from this testimony was that Glazner B. Company were wholesale liquor dealers, and that appellant and the Gillespie Drug Company had been ordering intoxicating liquors from said firm, and that the letters that were referred to related to purchases of intoxicating liquors by appellant and the Gillespie Drug Company from said firm. It is true that the witness Scott did not state this in so many words; but, as we have before said, this is the inference which was necessarily drawn by the jury from his testimony. When the county attorney had proven that these letters had been delivered to appellant, and that appellant had claimed them as his, it was then the right of the state to question the said Winfield Scott as to the contents of said letters; but the county attorney did not have the right to demand, in the presence of the jury, of the defendant, or the defendant's counsel, the production of such letters. Section 21 of article 2 of the Constitution of this state provides that no one shall be compelled to give evidence which would tend to incriminate him. This is not merely a formal technical rule, which may be enforced or dispensed with at the discretion of the courts. It is a mandatory constitutional provision, securing to every defendant a valuable and substantial right. If a county attorney can, in the...