Hardesty v. State

• Decision Date: 23 November 1955
• Docket Number: No. A-12123,A-12123
• Citation: 291 P.2d 351
• Parties: J. W. HARDESTY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 351

291 P.2d 351

J. W. HARDESTY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12123.

Criminal Court of Appeals of Oklahoma.

Nov. 23, 1955.

Syllabus by the Court.

1. Existence of a conspiracy need not be established by direct evidence, but proof of circumstances from which existence of a conspiracy may fairly be inferred is sufficient.

2. Participation in a conspiracy, or that one aided and abetted his conspirators, need not be established by direct evidence, but proof of circumstances from which participation may fairly be inferred is sufficient.

3. Where evidence is sufficient to support the finding of guilt, the same will not be vacated or set aside on appeal for insufficiency of evidence.

4. In an indictment for conspiracy, it is only necessary to plead the essentials of a conspiracy and said indictment need not recite evidence.

5. It is only necessary in a conspiracy charge upon the facts pleaded in the indictment, to state crimes defined by statute, and state them sufficiently to apprise the defendant for present purposes, and to identify him for future use in a possible plea of former acquittal or conviction.

6. It is the duty of the defendant to question the jurors on their voir dire as to their qualifications; and if he fails to do so, he waives any objections on that point, even though the disqualification is unknown to him until after the rendition of the verdict.

7. The disqualification for unsoundness of mind amounting to a disability is cause for challenge of a juror propter defectum, on account of personal objection, and, if voluntarily, or through negligence or want of knowledge, such objection fails to be insisted on, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental, as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it.

8. Criminal Court of Appeals will not reverse a case for ruling on evidence occurring at the trial unless the record discloses a miscarriage of justice, or that the error relied on constituted substantial prejudice to defendant's rights.

Appeal from the District Court of Tulsa County; Elmer Adams, Judge.

The plaintiff in error, J. W. Hardesty, defendant below, was convicted for the crime of conspiracy to commit offenses against the State of Oklahoma; sentenced to serve 18 months in the State Penitentiary, and to pay a fine of $6500.00, and he appeals. Modified and affirmed.

W. C. Henneberry, Holly L. Anderson, Tulsa, for plaintiff in error.

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

Opinion of September 7, 1955 is withdrawn, and this opinion substituted therefor.

BRETT, Judge.

Plaintiff in error, J. W. Hardesty, defendant below, was charged by indictment on November 3rd, 1953, in the District Court of Tulsa County, Oklahoma, for the crime of conspiracy to commit offenses against the State of Oklahoma, 21 O.S.1951 §§ 421 and 424, to-wit: to cheat and defraud the State of Oklahoma, by doing acts defined as unlawful, under the provisions of 21 O.S.1951 §§ 341 and 343, to which should have been added in the indictment, 62 O.S.1951 § 303, and 69 O.S.1951 §§ 324 and 327, prohibiting and penalizing County Commissioners direct, or indirect, interest in any contract for construction, or improvement, of roads, etc. The conspiracy was allegedly entered into on or about the 15th day of July, 1949, by and between J. W. Hardesty, defendant, County Commissioner of Tulsa County, District No. 1, John L. Baker, and Mrs. John L. Baker, doing business as Baker Auto Salvage and/or Baker Transport Company, and one Dale Bryson, successor to the Bakers in the operations herein involved and, whom, it is alleged joined said conspiracy and adopted its objects and purposes, and continued its operations with the defendant, Hardesty. The defendant, Hardesty, was tried by a jury, and convicted; the jury being unable to agree on the punishment, the same was left to the trial court, who assessed a penalty of 18 months in the State Penitentiary, and a fine of $6,500. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

The indictment alleges in substance, that the defendant J. W. Hardesty, was the duly elected, qualified, and acting County Commissioner for District No. 1, of Tulsa County, Oklahoma, from July, 1949, up to and including the return of the indictment, ans as such County Commissioner, it was his duty to maintain and repair the County roads in Commissioner's District No. 1. It appears therein, that John L. Baker, and Mrs. John L. Baker, during the time herein in question, up to and including June 15, 1953, were doing business as the Baker Auto Salvage, and the Baker Transport Company, transporting and spreading road oil for hire. The indictment further alleges that the defendant, J. W. Hardesty, and John L. Baker, doing business as hereinbefore set forth, on or about July 15, 1949, entered into an agreement, whereby the Bakers would transport to the defendant, Hardesty's County Commissioner's District No. 1, road oil, and spread the same on the County Highways in said district for 2cents per gallon. As a part and parcel of this agreement, the Bakers, in order to get the business, unlawfully agreed to kickback to Hardesty, the sum of 1/2cents per gallon on all the road oil transported and spread on the highways in Commissioner's District No. 1, in Tulsa County, Oklahoma, by the Baker interests. It is further alleged in said indictment that the defendant, J. W. Hardesty, knowing of his personal profit in the operations, would vote his approval of the Bakers' claims for transporting and spreading said road oil in said County Commissioner's District No. 1, for the purpose of unjustly enriching himself, contrary to law. This unlawful agreement, it is alleged, was carried out by the Bakers until June, 1953, during which time they made numerous unlawful payments according to said agreement, to the then County Commissioner, J. W. Hardesty. In June, 1953, the Bakers leased their business to Dale Bryson, retaining a 5% interest in the gross profits from the operations. In this connection, the indictment alleges that Bryson, named as co-conspirator, agreed to continue the unlawful kickbacks to Hardesty, and pursuant to said unlawful agreement, Bryson did make certain payments to the defendant, J. W. Hardesty, and continued said agreement in effect up to July 21, 1953, the date of the last alleged overt act. The indictment alleges a total of 132 overt acts performed by the alleged conspirators in performance of the alleged conspiracy, its objects and purposes.

The defendant, complaining of the conviction, judgment and sentence, urges first, that the trial court erred in not sustaining the defendant's demurrer to the evidence because of the lack of corroboration of the accomplices' testimony. This contention necessarily requires a consideration of the State's evidence. The evidence of the State, in support of these charges, briefly as possible, and still as consistent with the necessities of clarity, is in substance as hereinafter set forth:

The State's proof shows that John L. Baker was a man who had suffered several paralytic strokes, and was unable to get around readily; therefore, he was compelled to rely on his wife and others for the actual operations connected with his business. It appears he sat in his office and gave directions from time to time. His office and place of operations was located at 48 North Peoria Street, in Tulsa, Oklahoma. Mr. Baker testified that he met J. W. Hardesty, at this address, through a man named E. E. Pope, an employee of defendant, Hardesty. Baker's testimony discloses that he had hauled oil for Mr. Pope when Pope was employed by the State. He related that shortly after Hardesty went into office in July of 1949, that Pope brought the defendant and him together, and the conspiracy herein alleged was entered into by and between Hardesty, Mrs. Baker, and himself, in the presence of Pope, and Lloyd Barnes, an employee of the Bakers. He testified, in substance, that under the terms of this unlawful agreement, the Bakers were to haul road oil purchased by the County from the Mid-Continent Petroleum Corporation, in Tulsa. Baker was to deliver this oil and spread it on the roads in the County Commissioner's District No. 1, for 2cents per gallon, with a 1/2cents kickback to Hardesty. The payments for the road oil, as well as the hauling, were made to the Mid-Continent Petroleum Corporation. The Mid-Continent Petroleum Corporation would then make payment to the Bakers for the transportation, or freight charges, for hauling the oil. Occasionally payment for hauling the oil herein involved was made by the County, to the Bakers, but the State's evidence clearly shows, no matter who made payments to the Bakers, whether the County, or the Mid-Continent Petroleum Corporation, Hardesty was to get his kickback of one-fourth from the Bakers, or 1/2cents per gallon. It is well to explain that the County paid for both the oil and the hauling, regardless of who paid the Bakers on the items hereinafter set forth.

The Bakers testified they did their banking business through the First National Bank and Trust Company, in Tulsa, but Mrs. Baker was the person who handled the money and wrote the checks. When the payments were received from the Mid-Continent Petroleum Corporation, Baker testified Mrs. Baker would obtain cash and place one-fourth of the transportation payment made to Baker by the Mid-Continent Petroleum Corporation, in an envelope and give it to the defendant, J. W. Hardesty. He testified he saw these transactions take place, which he thought occurred about once a month. Baker testified the unlawful agreement continued in operation between himself, Mrs. Baker, and Hardesty, until June 15, 1953, when they leased the business to ...