Harrold v. Territory

• Decision Date: 15 February 1907
• Citation: 89 P. 202,18 Okla. 395,1907 OK 47
• Parties: HARROLD v. TERRITORY.
• Court: Oklahoma Supreme Court

89 P. 202

18 Okla. 395, 1907 OK 47

HARROLD v. TERRITORY.

Supreme Court of Oklahoma

February 15, 1907

Syllabus by the Court.

A prisoner who takes the witness stand in his own behalf waives his constitutional privilege of silence, and the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the crime.

[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses § 814.]

On cross-examination of a witness, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief, but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain contradict, or discredit any testimony given by the witness in chief or to test his accuracy, memory, skill, veracity character, or credibility.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 949.]

The extent, manner, and course of the cross-examination of a witness, even though it extends to matters not inquired about in his examination in chief, is very largely within the control of the court in the exercise of a sound discretion, and the exercise of that discretion, unless flagrantly abused, is not reviewable on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 923-930.]

When a prisoner on trial for a crime voluntarily takes the witness stand in his own behalf, he waives all privileges which he is entitled to by remaining silent, and subjects himself to the same rules of cross-examination and impeachment as any other witness; and he may be asked if he has not made certain statements, admissions, or confessions out of court inconsistent with his testimony in the cause, and if he admits making such statements, he may explain or show the circumstances and conditions under which the statements were made; and if he deny making such statements, then the prosecution on rebuttal may prove the statements or admissions made by him, and this may be done, even though the admissions or confessions would not have been admissible had he remained silent, by reason of not having been voluntary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1054.]

Error from District Court, Comanche County; before Justice F. E. Gillette.

Jim Harrold was convicted of stealing cattle, and brings error. Affirmed.

J. A. Baker, Geo. D. Key, and S. H. Harris, for plaintiff in error.

P. C. Simons, Atty. Gen., and Don C. Smith, Ass't. Atty. Gen., for the Territory.

BURFORD C.J.

The plaintiff in error was convicted in the district court of Comanche county of the crime of stealing cattle, and sentenced to serve a term of four years in the penitentiary.

On the trial of the cause the territory offered to prove certain statements made by the prisoner in the way of confessions. The prisoner's counsel objected to the competency of the confessions on the ground that they were not voluntary, but were induced through a promise of leniency by the prosecuting officers. It appeared that there were other prosecutions pending against the prisoner, and some propositions had been made to him to dismiss some of the cases if he would tell all he knew about the stealing of cattle in the other cases. The court inquired into the circumstances under which the confessions were made, and excluded them. A portion of this inquiry was in the presence of the jury, and a portion after the jury had been withdrawn. It is contended that the action of the court in permitting the witnesses to testify as to the circumstances under which the confessions were made, is reversible error. In the case of Kirk v. Territory, 10 Okl. 46, 60 P. 797, this court said: "Where the competency of confessions is objected to, on the ground that they were not voluntary, or made under duress or promises of leniency, the court should withdraw the jury and hear all the facts and circumstances attending such alleged confession, and determine its competency. If it is held incompetent, the matter should go no further; but, if held competent and proof of same admissible, then the jury should be recalled, and are entitled to all the facts and circumstances attending such confession; not for the purpose of passing on its competency, but in order to determine the weight and credit to be given such confessions. It is not prejudicial error to hear such evidence in the presence of the jury where, on such hearing, the confessions are found to be competent, and evidence of such confessions is admitted. It could only be prejudicial error to hear such evidence in the presence of the jury where, on such hearing the court should hold the confessions incompetent, and exclude the evidence of the confessions. And even then it might not be prejudicial error. This question should be determined from a consideration of the entire record of the trial."

Plaintiff in error cites this case in support of his contention that the trial court committed prejudicial error in not withdrawing the jury during the time evidence was being heard upon the competency of the confession. Upon an examination of the whole record, we think his contention untenable. The defendant went upon the stand as a witness in his own behalf and was examined fully, and testified as to his whereabouts actions, conduct, and whom he met or saw during the evening and night of the alleged larceny; also testified generally that he did not steal the cattle, and had no knowledge on the subject. On cross-examination, he was asked if he had not made certain statements to various parties inconsistent with his testimony. These statements were in part the confessions which had been excluded by the court when offered by the prosecution in its case in chief. He denied making some of the statements, admitted making some, and explained some others. The prosecution in rebuttal submitted proof of the admissions and statements made by him and denied by him on cross-examination. If this evidence was properly admitted it cured any error that may have been committed in hearing the testimony as to the competency of the alleged confessions in the presence of the jury. In fact, if the evidence was competent in the last instance, it made the former testimony favorable to the defendant, in that they were then advised of all the circumstances and conditions under which the admissions were made. The action of the court in permitting the defendant to be cross-examined upon these matters over the objection of his counsel, is assigned as error, and presents an interesting question. The question as to whether a person on trial charged with a crime, could be compelled to testify to any matters on cross-examination, was for a long time a subject of much speculation. But the question is no longer open to discussion. In the case of Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078, Mr. Justice Brown, speaking for the court, said: "Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf, and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are. Had another witness been placed upon the stand by the defense, and sworn that he was with the prisoner at Clancy's and Kennedy's that night, it would clearly have been competent to ask what the prisoner wore, and whether the witness saw Corbett the same night, or the night before, and whether they were fellow occupants of the same room. While the court would probably have no power of compelling an answer to any question, a refusal to answer a proper question put upon cross-examination has been held to be a proper subject of comment to the jury (State...