Grimes v. State

• Decision Date: 18 October 1961
• Docket Number: No. A-12942,A-12942
• Citation: 365 P.2d 739
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Billy E. GRIMES, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

Page 739

365 P.2d 739

Billy E. GRIMES, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12942.

Court of Criminal Appeals of Oklahoma.

Oct. 18, 1961.

Syllabus by the Court

1. Design to kill is inferred from the fact of killing, unless the facts and circumstances raise a reasonable doubt as to whether such design existed, and the issue of design is one for the determination of the jury.

2. When the victim of a killing is fatally shot in the back, the design to kill is evidenced beyond doubt.

3. 'Alibi' is a physical circumstance and derives its entire potency as a defense from fact that it involves physical impossibility of guilt.

4. To entitle defense of alibi to consideration, evidence must show that at very time of commission of crime accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached scene of crime so as to have participated in commission thereof.

5. Court of Criminal Appeals will not interfere with the jury's verdict where the same is logically and reasonably sustained by the evidence, and circumstances established are consistent with the guilt of the accused, and consistent with each other, and inconsistent with any other reasonable hypothesis than that of defendant's guilt beyond a reasonable doubt.

6. A verdict of a jury based upon circumstantial evidence comes to the appellate court as any other verdict, and unless the court can say that the inference of guilt drawn from the evidence is wholly unwarranted, the court cannot interfere.

7. Ordinarily error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial.

8. Before the final submission of a case, the legal presumption is that the jurors performed their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that during an adjournment of the trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that his substantial rights were prejudiced.

9. Evidence of different offenses from the one charged are admissible when both offenses are so closely linked as to form a part of the res gestae.

10. Where evidence is introduced that tends to negate its use as an instrument of death, it may nevertheless be admissible as tending to establish the fact that another weapon not accounted for was used in the commission of the homicide and removed from the scene of the crime.

11. When a telephone conversation involved is in the nature of a spontaneous declaration of a participant or bystander, or an integral part of the crime charged so as to be part of the res gestae, the same may be admissible in evidence.

12. The identification of the parties to a telephone conversation may be proven, not only by direct but also by circumstantial evidence, and it must be established prima facie, either directly or by circumstantial evidence, that the participants in the telephone conversation are persons whose utterances are competent evidence.

13. When the circumstances offered in evidence are such as to attest, with reasonable degree of assurance, the worthiness of such evidence, it is competent, and it is the province of the court to preliminarily pass on its admissibility and leave it to the jury to determine its weight.

14. Telephone conversations, if not strictly competent when introduced, may be made competent by a consideration of all the testimony.

15. The fact that a person speaking over the telephone gave his name, is some evidence of identification so as to render such evidence competent.

16. Objections must be made to improper argument during the trial, and defendant must go further and move the objectionable argument be stricken from the jury's consideration, unless the remarks were such they could not be cured by their withdrawal from the jury.

17. Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

Appeal from the District Court of Cotton County; Luther B. Eubanks, Judge.

Billy E. Grimes was convicted of the crime of murder, sentenced to life imprisonment, and appeals. Affirmed.

Harris & Field, Lawton, for plaintiff in error.

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

BRETT, Judge.

This is an appeal by Billy E. Grimes, who was convicted in the district court of Cotton County, Oklahoma, on March 31, 1960 on a charge of the murder of his father, George L. Grimes, allegedly committed on December 3, 1959. The case was tried to a jury, and on its finding of guilty, judgment and sentence was entered April 14, 1960, from which this appeal has been perfected.

As briefly as possible, the facts developed on purely circumstantial evidence are substantially as hereinafter set forth.

It appears that the twenty-year old defendant saw his parents on Thanksgiving day, November 26, 1959. Two days later he was in Temple, Oklahoma, where he contacted a Mr. Norman at Seaton's filling station concerning borrowing three or four hundred dollars, or going on defendant's note for such sum, neither of which Mr. Norman did.

It then appears that the defendant, who had been away from home for some time, next contacted his parents in the town of Walters at a public drawing about four o'clock on the afternoon of December 3, 1959, as he told Sheriff Kerr. It is not apparent why the contact was made there, but it seems arrangements were made for his mother to pick up a pair of trousers belonging to defendant and that had been left at the cleaner's, and take them home with her, which the undisputed evidence and defendant's admissions clearly established that she did. What the defendant's real object in contacting his parents in Walters was, is a matter of inference. In the light of the foregoing, it could have been because he needed money.

Instead of Mr. and Mrs. Grimes going home from Walters, they apparently abruptly went from Walters to Lawton, Oklahoma, where the undisputed evidence shows they bought groceries, consisting of meat, flour, soap, milk and a few other ordinary items, about 5:35 P.M. It was conclusively established that it was from 26 to 28 minutes drive from Lawton to the Giles home, eight miles northwest of Walters. Presumably they reached their home around 6 P.M., or shortly thereafter. The grocer in Lawton was the last known person to see them alive, except their son, the defendant, who admitted in a signed and witnessed statement that he saw them, but said it was about 5:30 P.M., at their home, and then only for about fifteen minutes, and that he helped carry in the groceries and other things from the car. The statement will hereinafter be further detailed.

On Sunday, December 6, 1959, a neighbor, Henry Renschen, and two other men about 1 P.M. discovered a dead calf in Mr. Grimes' pasture, and went to his home to advise him. On arrival at the house they smelled escaping butane gas. They could not arouse any one, so they pushed the door open and discovered the dead bodies of Mr. and Mrs. Grimes, and that the gas stove jets in the living room and dining room were open, but not lighted. The hot water heater was burning. Mr. Grimes had been shot in the back through the heart. The .22 calibre bullet was found on his chest, after passing through his body. It was in a good state of preservation. Mr. Grimes body was in a little hall-way between the living room and dining room. Grass on his clothing and a pool of blood on the ground outside the back screen door established the fact that his body had been dragged from outside near the back door to where it was found. A blood analysis showed that the blood found in the outside pool where his body had fallen was the same as that from Mr. Grimes' body. The grass on his clothing was the same as that from the back yard.

Mrs. Grimes' body had been shot twice, once in the back and once in the front of the chest, with a .22 calibre gun of some kind. The upper part of her body was lying on a red rubber foot-mat on which she had apparently been dragged from the back porch to the door-way between the kitchen and dining room.

The sheriff and crime bureau agents were called and in addition to some of the foregoing things, their investigation disclosed a jacket in the dining room that had blood on the front which the chemist testified was the same type of blood as that of Mr. Grimes. The defendant admitted to the officers that the jacket was his. In the pockets were some Winston cigarettes, the brand the defendant smoked, and his check book. The defendant's bloody shirt was also found at the scene of the crime, but no trousers. There was an empty shell-hull found in one of the pockets of the jacket, the same kind as two others found on the ground, one about three feet from the blood on the ground about twelve feet south of the back door, and one 50 or 60 feet south of the house, in line with the drive-way; apparently all used in affecting the death of Mr. and Mrs. Grimes, according to the testimony of the ballistic expert, who made tests. The three empty shell-hulls were all fired from the same gun, the expert testified. The gun that fired those shells was never found. Two unfired shells of the same kind were found about thirty feet out in the back yard. These shells and cartridges all looked...