Hubbard v. State

• Decision Date: 02 April 1941
• Docket Number: A-9722.
• Citation: 112 P.2d 174,71 Okla.Crim. 373
• Parties: HUBBARD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

112 P.2d 174

71 Okla.Crim. 373

HUBBARD v. STATE.

No. A-9722.

Court of Criminal Appeals of Oklahoma

April 2, 1941

Syllabus by the Court.

1. Where two parties are charged jointly by information, but separately tried, the acquittal of one does not exonerate the other.

2. While it is well settled that this court will not reverse a conviction for insufficiency of the evidence, if there is any substantial evidence, although circumstantial, from which a reasonable and logical inference of guilt arises, the converse rule is also well settled that, it is not only the province but the duty of the court to set aside such a verdict when it is contrary to law and the evidence, or where there is no evidence to support it, or there is a failure to prove some essential matter to establish the offense charged or where it appears that the verdict was rendered as a result of passion or prejudice. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put on trial for an offense.

3. Section 1808, Okl.Stats.1931, Okl.St.Ann., title 21, section 172, provides: "All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals." Under the above statute, to be concerned in the commission of crime as a principal, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. A mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.

4. A confession, under the law, is a voluntary statement made by a person charged with a felony or misdemeanor, communicated to another person, wherein he or she acknowledges himself guilty of the offense charged and discloses the circumstances of the act or the share and participation which he or she had in it.

Appeal from District Court, Mayes County; N. B. Johnson, Judge.

Della Hubbard was convicted of murder and she appeals.

Reversed.

See also, 64 Okl.Cr. 18, 76 P.2d 915.

Mac Q Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen for the State.

A. C. Brewster, of Pryor, for defendant.

BAREFOOT Presiding Judge.

Defendant Della Hubbard was charged jointly with Roy Kinion with the murder of Ralph Hubbard, the deceased husband of defendant, in Mayes county, Oklahoma, on the 4th day of December, 1937; was tried, convicted and sentenced to serve a term of life imprisonment in the penitentiary, and has appealed.

Numerous errors are assigned by defendant. Careful reading of the record reveals the necessity for consideration of but one of the errors assigned. In defendant's brief two questions are asked, (1) was there a crime committed, and (2) did Della Hubbard commit it?

If these questions are properly answered, it then becomes unnecessary to refer to other alleged errors. This requires a reference to the facts as revealed by the record. The defendant Della Hubbard was jointly charged with Roy Kinion by information by the county attorney of Mayes county with having on the 4th day of December, 1937, murdered Ralph Hubbard, her husband. A severance was granted, and the defendant Della Hubbard was tried, convicted and sentenced to serve a life term of imprisonment in the penitentiary. The record reveals that thereafter her co-defendant Roy Kinion was tried and a verdict of not guilty was returned by the jury.

The facts are that the deceased and defendant lived on a small farm in Mayes county. That Roy Kinion was a nearby neighbor. He was married and was living with his wife. Roy Kinion and the defendant began a series of secret meetings and the exchanging of burning love letters. It is useless to encumber this record with their contents. They were such as two ardent lovers in their most thoughtless moment would write. Most of these letters were written in the summer of 1937 and three were written in November and December, 1937, prior to the death of Ralph Hubbard in December, 1937. A secret place under a rock was where the letters were placed, and a nearby hay stack was the meeting place of this couple. The record reveals that defendant admitted having had sexual intercourse with Roy Kinion. On Saturday, December 4, 1937, deceased and defendant returned to their home from the town of Strang in Mayes county at about 4 p. m. This was the last time deceased was seen alive by anyone other than his wife and co-defendant Roy Kinion. On Monday morning, December 6, 1937, at some time between 10 and 11 o'clock a. m., his body was found in a small stream of water about 200 yards from his home. He was found in this small creek lying face down with his head turned slightly to the right. He was lying on his face and on his stomach with his hands and arms outstretched. The ice was frozen around his body. There were several abrasions on his body and also bruises. There was also a discoloration on his left eye and back of his ear, and an abrasion on his chin and a scratch or two on his face. His face was partly buried in the water of the creek and the evidence of the doctors was, that he had in their opinion died from drowning after being struck with some instrument and rendered unconscious. There was also mud on the back of his jumper and a number of witnesses testified that it was a hand print in this mud, but nothing to indicate by whom it was made or to indicate it was the hand of a female person that made it. Cockleburs were found upon the clothing worn by deceased and in his hair, and tracks were seen upon the bank near where the body was found. There was no evidence that these tracks were that of a female person. The shoes of the deceased were clean.

The evidence further reveals that about 50 steps from where the body was found that the cockleburs were broken down and that a path which led to where the body was found indicated that it had been dragged from this spot to where it was found in the small creek. His cap was also found. Up to this point, the only evidence connecting the defendant with this matter was that, when the body of deceased was taken from the creek, a blue button fell to the ground either from the pocket of deceased or from his clothing. This button was identified as coming from the coat of the defendant, and she admitted that it had, but her explanation of this circumstance will be hereafter referred to.

A coroner's inquest was held on the creek bank where the body was found and many persons were present to view the body. Much of the testimony in the record is from these witnesses and it is not material to the issue here involved. There is nothing in any of this testimony that either directly or indirectly connects this defendant with the murder other than has been heretofore stated.

The defendant made three different statements. These statements are here copied. They were somewhat conflicting, but give the facts. The first was made at the office of the county attorney on Wednesday, December 8, 1937. The second was made at the Green Funeral Home in Pryor on December 9, 1937, when defendant was shown the body of her deceased husband, and the third was made at her home on December 11, 1937.

The first statement was as follows:

"Statement taken from Della Hubbard this 8th day of December, 1937. By H. A. Kehn, County Attorney.

Q. Your name is Della Hubbard? A. Yes, sir.

Q. Have you consulted a lawyer since this trouble came up? A. No, sir, I just talked with the sheriff.

Q. Now, Della, I want to ask you some questions but it is my duty to tell you that any answers you might make may be used against you if this case ever comes to trial. And now, with that in view I want to ask you some questions. A. All right,--

Q. How long have you and Mr. Hubbard been married? A. Ten years.

Q. Do you have any children? A. No, sir.

Q. When did you last see Mr. Hubbard alive? A. Sunday morning at eleven o'clock.

Q. Where was he then? A. Cutting wood.

Q. How far is that from the house? A. Right close to the kitchen.

Q. Did he cut any wood? A. He cut four sticks and came in and built up my fire so that I could get my mince meat finished.

Q. You say that was on Sunday morning? A. Yes, sir.

Q. When did you first become uneasy about him? A. Between two and three o'clock.

Q. That same day? A. Yes, sir.

Q. You had been having domestic troubles, hadn't you? A. No, sir.

Q. Was he not jealous of some one? A. No, sir.

Q. Didn't he accuse you of being intimate with some one? A. No, sir.

Q. He never did accuse you of that? A. No, sir.

Q. From where the body was found how far was it to the house? A. I don't know how far it was.

Q. About how far from the hat was the body? A. I didn't see the body only at a distance, and I never seen the hat at all. They showed me the things they took from his pockets.

Q. Della, I am going to tell you what we know about this case. That man was not at home Sunday morning; he was not there Saturday night. It was cold Sunday, wasn't it? A. Yes, sir.

Q. The ground was frozen, wasn't it? A. Yes, sir. Q. Then, did you notice those tracks around there? A. No, sir.

Q. Why is it that you became uneasy so soon after you missed him? A. I noticed that he had quit chopping wood, and I thought he had gone up to the corner to get the paper. I gave him plenty of time to get back and when he didn't come back, I went up to Ed Kinion's and asked if he had been

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