Henderson v. State

• Citation: 230 P.2d 495,94 Okla.Crim. 45
• Decision Date: 18 April 1951
• Docket Number: No. A-11293,A-11293
• Parties: , 23 A.L.R.2d 1292 HENDERSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 495

230 P.2d 495

94 Okla.Crim. 45, 23 A.L.R.2d 1292

HENDERSON v. STATE.

No. A-11293.

Criminal Court of Appeals of Oklahoma.

April 18, 1951.

Syllabus by the Court.

1. Record examined, and the evidence is sufficient to sustain the defendant's conviction of rape in the first degree, and the judgment and sentence imposed as modified.

2. A judgment imposing the death penalty will not be affirmed unless the record reveals a case in which the question of identification is free from possible speculation and doubt.

3. The results of lie detector tests were not admissible in evidence for the reason that no foundation was laid by showing that such tests had attained scientific and psychological accuracy, and general recognition, and its operators were capable of definite and certain interpretation.

Harry Seaton, Public Defender, Amos T. Hall, Tulsa, for plaintiff in error.

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

BRETT, Presiding Judge.

The plaintiff in error Inzion Henderson, defendant below, was charged by information in the district court of Tulsa county, Oklahoma, with the crime of rape in the first degree, allegedly committed on the night of September 16, 1948 on the outskirts of Tulsa. The information in substance alleged that the crime was committed upon the person of Mrs. Eleanor Nelson by means of force and fear, the defendant threatening to kill Mrs. Nelson and thus overcoming all resistance on the part of the said victim. He was tried by a jury, convicted, and his punishment fixed at death. Thereafter, judgment and sentence was entered accordingly.

The defendant raises but one point on his appeal, that is, that the identification of him is not beyond doubt. The evidence in relation thereto is as follows in substance. The victim, Mrs. Nelson, is married and the mother of 3 children. Her youngest child at the time the alleged rape was committed was about 3 months old. Mrs. Nelson testified that on the night of September 16, 1948 she went to a friend's home for the purpose of organizing a quartet. About ten o'clock she left the meeting place in her automobile to return home. At the northeast corner of Peoria and Pine there is a filling station. When she reached the intersecting corner of Peoria and Pine traveling west she stopped for the stop light. As the light changed Mrs. Nelson started forward and the defendant, who was leaning against a gasoline pump, informed her she had a flat rear tire. Mrs. Nelson testified she pulled across the street out of the traffic and stopped. She testified further, she got out of her car on the right hand side and went around the back and found no flat tire. She got back into her car and was leaning over from the wheel to close the door when some one pulled the door open and the defendant, a colored man, got into the car beside her. The man had a banana knife in his right hand and said 'drive around like I tell you and you won't get hurt'. At the trial Mrs. Nelson pointed out the defendant as the same man who was leaning up against the gasoline pump as she passed. She testified he got in the middle of the front seat and with his left arm on her shoulder across the back seat and the knife in her right side. He admonished her again 'drive on and you won't get hurt'. Mrs. Nelson drove on as he directed her to the first intersection, when he directed her to turn right, after which she drove eight blocks north on Norfolk Street. During this time he leaned over and kissed her on the right cheek. She continued to drive as he directed until they came to a dirt road angling off to the northeast. The defendant then forced Mrs. Nelson to get in the back seat and he drove a little while. Finally he parked the car and got in the back seat with Mrs. Nelson. Then, after preliminary maneuvers, he required her to take off her belt and panties. Then, she testified, he unbuttoned his pants, pushed her back on the seat and had sexual intercourse with her. She testified there was full penetration. After the rape Mrs. Nelson said he talked to her for about 5 minutes. He asked her if she would know him if she saw him again. To which she responded, 'I don't think so'. To which he replied, 'Yes, you would too'. Mrs. Nelson's retort was 'I haven't had a very good look at you, with your hat pulled down over your face'. The party who raped her, she said, asked 'Who all are you going to tell about this'. She told him 'I guess I will tell my husband'. To which he replied, 'Yes, you would too', you in trouble'. The defendant, she said, then asked her for her driver's license, and she told him she had none. He then took her purse and removed some of its contents such as postcards and her garbage bill. Mrs. Nelson said the defendant held the garbage bill up to the light of the moon and read it. He asked her if she lived at 1635 Elwood. When her answer was in the affirmative he put the garbage bill in his shirt pocket, and said, 'If you talk, I will send my boys around to see you'. Mrs. Nelson said the defendant asked if she had money, and she told him, ten dollars. He wanted to know the size of her family and if they were people of wealth. Her answer was in the negative. She said the defendant did not take her money. The conversation after the rape lasted for about 5 minutes, or a little longer. Mrs. Nelson further testified the defendant got out of the car, but she remained inside. She said the defendant wiped the fingerprints off the door, and steering wheel, dashboard, the window panes, and the back part of the back seat. Thereafter Mrs. Nelson said she got in the front seat, under the wheel and the defendant got in the seat beside her. He told her to swing the car around and start driving back. When they got within a half block of Peoria, Mrs. Nelson was directed to stop again. He put one foot out of the car, and handed Mrs. Nelson his handkerchief and told her to wipe off her purse and the cards and things in her purse, which she did. All the time he was there with his knife on her. Then the defendant tied his handkerchief over his face and shut the door, and Mrs. Nelson said she drove as fast as she could. She was confused about directions and drove out of town, then she turned around and drove back, got her bearings and went home. The first person Mrs. Nelson talked to after she got home, she said, was her husband. She said the defendant's voice was different to most colored people's voice, it was soft and educated. The next time she saw the defendant was some time in December, 1948, in a police line-up. She identified the defendant then, she said, and was positive that he was the man who raped her. On cross examination, Mrs. Nelson said her look at the defendant at Peoria and Pine was just a fleeting glance, she had never seen the defendant before. She said she was impressed when the defendant told her she had a flat, because the week before she had two flats on her rear tires. She admitted she didn't see the defendant until he got in the car beside her. Mrs. Nelson described the man's dress, as a shirt and pants and said she didn't notice them especially. But she stated the defendant did have on a real dark brown hat pulled down over his eyes. She did not know the color of his shirt except it was khaki or darker. When asked if she took a good look at him, she stated she saw his lips, as well as the line of his jaw and neck and shoulders and things like that, when he reached over and kissed her. (She was kissed on the cheek, she testified.) She did not look at him, she said, when they were driving around. When they stopped she said she didn't stare at him, she was too scared, but she stated she saw his lips. But she testified that she did see his eyes when he talked to her in the back seat. (The state had offered the knife in evidence taken from the defendant's overcoat, when he dropped the coat, while in flight, after being shot at by Officer Alexander.) She identified the knife positively in her evidence in chief. She stated on cross examination that she observed no identification marks on the knife, but that the one in evidence was either the same knife or one just like it. She was certain it was a banana knife. She stated he held the knife in his right hand all the time. She testified the defendant used good English all the time. The foregoing in substance constitutes the state's case as to the commission of the crime; and all the evidence as to identification.

Art Nelson, the victim's husband, testified that he was at home when his wife came into the room in hysterios, fell down on the bed crying, and in a nervous rigor. Finally he got her calmed down enough to get her to tell him what was the matter. He said she told him a Negro man raped her.

Opal White testified that on the night of December 4 she saw the defendant Henderson between Iroquois and Kenosha streets, with a knife just like the one involved in this case. On cross examination she didn't know if that was the same knife but it looked just like it. On recross examination by the defendant she testified that he 'put the knife on her', that he had it around her neck and throat. On redirect examination by the state, she testified he cut her in the corner of her mouth and on her neck, on the hand, and chin. It was a banana knife. She positively identified Henderson in the court room. It was competent for Opal White to identify the knife as belonging to the defendant, but evidence of other offenses was clearly inadmissible. Williams v. State, 68 Okl.Cr. 348, 98 P.2d 937; Landon v. State, 77 Okl.Cr. 190, 140 P.2d 242; Quinn v. State, 54 Okl.Cr. 179, 16 P.2d 591, and numerous other cases. This evidence in relation to assault upon Opal White was highly prejudicial to the defendant, and though brought out by defendant on cross examination was avidly pursued in amplification by the county attorney in redirect examination. Certainly, had this evidence been objected to, the...