Hendrickson v. State

• Citation: 229 P.2d 196,93 Okla.Crim. 379
• Decision Date: 07 March 1951
• Docket Number: No. A-11296,A-11296
• Parties: HENDRICKSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 196

229 P.2d 196

93 Okla.Crim. 379

HENDRICKSON v. STATE.

No. A-11296.

Criminal Court of Appeals of Oklahoma.

March 7, 1951.

Syllabus by the Court.

1. Where accused was arrested on suspicion of murder and in connection with alleged sex crimes, and is brought to the court house for questioning (warrant not being necessary under Tit. 22 O.S.A. § 196) and during the course of the questioning the next day the suspect admits that he had sexual relations with his adopted daughter (the friend of one of the sex victims), commenced when she was about eleven years of age and continued for about two years, until she moved out of his home, and said defendant is held in custody by the officers for two more days while these statements are being investigated along with other statements, before defendant is arraigned on the crime of statutory rape; held, that such delay alone was not sufficient, as a matter of law, to render the confession inadmissible.

2. The inquiry in this jurisdiction is as to the truthfulness and reliability of the confession made, and delay in arraignment does not ipso facto vitiate a confession, but if there is a question of such delay having brought about the confession, then the jury may by proper instruction be required to consider such delay in determining whether or not the confession was coerced.

3. The Federal rule with reference to the admission of confessions made prior to arraignment as promulgated in McNabb v. United States, (318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819) and Upshaw v. United States (335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100), and which is contrary to the Federal rule prior to 1943, (a rule of procedure in federal courts) and does not involve a Constitutional question and is therefore not binding upon state courts, and in the absence of legislative act, will not be adopted by this court, being contrary to the settled law in this jurisdiction.

Hickman & Hickman, Tulsa, for plaintiff in error.

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

POWELL, Judge.

The plaintiff in error, Burch Andrew Hendrickson, who will hereinafter be referred to as defendant, was charged by information filed in the district court of Tulsa County with the crime of first degree rape, was tried before the court without aid of jury, a jury having been waived, was found guilty and his punishment fixed at fifteen years in the State Penitentiary. Appeal was duly perfected to this court.

A brief summary of the facts prior to a consideration of the legal question involved, is indicated.

The record discloses that the defendant was taken into custody on the night of July 19, 1948, and on the following day the confession in question was made and reduced to writing by two policewomen who questioned the defendant, and the charge was filed on the following day after arraignment before a magistrate was duly made.

It appears that defendant was taken into custody for questioning concerning the unsolved murder of a woman named Ruth Norton. At this time two young women had been assaulted, and Clydene Hendrickson, defendant's adopted daughter, then thirteen years of age, had been a friend and companion of one of these girls, and for such reason had been questioned concerning the matter. She was no longer living with her foster-parents, but had recently been living with a Mrs. Fuller, a friend of her foster-mother's. It seems that Clydene had 'gotten religion' and was must upset on learning of her chum being assaulted, and she told Mrs. Fuller and finally the officers about her past relationship with her foster-father. His confession followed questioning by the officers.

At trial the evidence developed that Clydene Hendrickson had been adopted by the defendant and his wife when the child was two or three years of age. These people had four other children, but all of them had married and moved away from home when the acts complained of took place.

Clydene testified that she was born January 16, 1934; that in 1945 when she was eleven years of age, she slept upstairs alone at her foster-parents' home in Tulsa, and that sometime before daylight on November 7, 1945, her foster-father came to her bed, made her move over and got in bed and had sexual intercourse with her by putting his privates in her private parts; that a few nights afterwards he again came up some time prior to daylight, she thought around two o'clock in the morning, and had intercourse with her, and that this continued every few nights over a period of about two years. That her foster-mother sent her to Mrs. Fuller's to have her fair fixed, and she refused to return and stayed on with Mrs. Fuller. That when her father telephoned her she told him she would not return on account of the way he had treated her. She further testified that no one else ever had sexual relations with her except defendant's married son had sexual relations with her one time after her foster-father commenced his relationship. She claimed that she fought her foster-father but was afraid he would kill her if she cried out. He warned her to tell no one.

Dr. Jess Billington testified that he was the county physician and that he made a pelvic examination of Clydene in July, 1948, and found that her hymen was absent and that she had a large outlet and there was no evidence of any trauma, and that in his opinion she had had intercourse a number of times.

Defendant's confession was introduced, and in it he was asked:

'Q. Have you had sexual relations with Clydene? A. Yes, but I've never had complete intercourse. * * *

'Q. Have you penetrated her? A. I started to but she said it hurt and I quit. I did penetrate her far enough that it hurt her. * * *

'Q. Isn't it true that Clydene objected to you having sexual relations with her? A. Yes.

'Q. But in spite of her objections, you continued this sexual relationship? A. Yes.'

Mrs. Ola Mae Hendrickson testified that she was a housewife and preacher, and went about over the country preaching at times. She denied that her husband left her bed long enough to visit the foster-daughter and perform the sexual acts without her discovering it, and she stated that she never missed her husband except when he would go to the toilet, which was downstairs.

The defendant testified that he was fifty-eight years of age; he stated that the night he was arrested and questioned about the Norton case he was also asked about his relations with his foster-daughter, Clydene, and the next day a policewoman questioned him and took his statements down on a typewriter and he read the paper and thereafter signed it. He stated that he had never put his privates in Cyldene's; that what he meant by penetration was his fingers, but it hurt and he quit. Clydene on rebuttal testified that it was not his fingers that she complained of; that he placed his hands on her breasts, but that she saw his penis and that is what he put in her.

There was much other evidence, but further summary is unnecessary in view of the legal point involved.

The court at the close of the evidence stated: 'I will enter my decision now. In my opinion, the evidence shows beyond a reasonable doubt the defendant is guilty of the crime of first degree rape, as charged. The explanation he gives as to the meaning of the statement, in my opinion, is not consistent with the answers he gave when he gave the statement. It is apparent to me, and should be to anybody, from reading the statement, at the time the officers were questioning him, they were talking about sexual intercourse. When he said he did not have a complete act, he means he attempted to with his penis but never had penetrated her. Further than that, there has been no motive shown on the part of Clydene to make the statement. All of the surrounding circumstances convince me the story she tells is true. Altho I think some of the statements she made are not quite true and possibly she has exaggerated some, but I think on various occasions and on the occasion in the charge, the defendant is guilty of first degree rape by having intercourse with a girl fifteen years, or under.'

The legal proposition contended for and as stated by counsel, is that: 'A confession is inadmissible if made during illegal detention due to the failure promptly to carry a prisoner before a committing magistrate, whether or not the confession is the result of torture, physical or psychological.'

Counsel profess their familiarity with the fact that in the past this court has followed the voluntary-trustworthy test of admissibility of confessions, and being that the admissibility of a confession depends simply upon whether it is testimonially trustworthy. This rule was applied prior to 1943 by the Supreme Court of the United States in reviewing both state and federal court convictions involving confessions, as is illustrated in Wilson v. United States, 1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090, and Brown v. Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. This, even when the accused had been held for an unreasonable time without arraignment.

In the early case of Berry v. State, 4 Okl.Cr. 202, 111 P. 676, 31 L.R.A.,N.S., 849, in an opinion by Judge Richardson, this court held:

'Primarily there are two facts which render a confession inadmissible as evidence: First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant's constitutional privilege against self-incrimination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimony untrustworthiness. * * *

'Prima facie any confession is admissible in evidence; and, where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.

'The...