Hudson v. State

• Decision Date: 17 February 1965
• Docket Number: No. A-13433,A-13433
• Citation: 399 P.2d 296
• Parties: Perry Edward HUDSON, 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 296

399 P.2d 296

Perry Edward HUDSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13433.

Court of Criminal Appeals of Oklahoma.

Feb. 17, 1965.

Syllabus by the Court

1. Where a prosecutor acting in good faith improperly phrases his questions and inquires of a witness whether he has been previously charged with the commission of a crime, and the court promptly sustains defendant's objections to such questions and admonishes the jury to disregard them, and thereafter, in response to questions properly phrased the witness admits previous convictions of crime, the error is cured and will not constitute a basis for reversal.

2. The jury is the exclusive judge of the weight of the evidence and credit to be given to the witnesses. Where there is a direct conflict in the evidence, or it is such that different inferences may be properly drawn from it, the jury's determination will not be interfered with upon the ground that the evidence is insufficient to sustain a conviction, where there is competent evidence in the record from which the jury might reasonably conclude that the defendant is guilty.

3. The general rule is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible.

4. Evidence of other crimes in order to be admissible must come within one of the well-recognized exceptions to the rule. That it tends to establish (1) Motive, (2) Intent, (3) The absence of mistake or accident, (4) A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and, (5) The identity of a person charged with the commission of the crime on trial.

5. Where the evidence of guilt is clear and convincing, and it appears that errors influenced the jury to impose maximum punishment, the Court of Criminal Appeals in the interest of justice will modify such sentence and affirm the same.

An appeal from the District Court of Tulsa County; Robert O. Simms, Judge.

Perry Edward Hudson was convicted of the offense of Rape in the Second Degree, and appeals. Modified and affirmed.

Thomas Dee Frasier, Frank A. Greer, Tulsa, for plaintiff in error.

Charles Nesbitt, Atty. Gen., David Hall, Tulsa County Atty., Thomas S. Crewson, Asst. Tulsa County Atty., Tulsa, for defendant in error.

BUSSEY, Presiding Judge.

Perry Edward Hudson, hereinafter referred to as defendant, was charged with Rape in the First Degree in the District Court of Tulsa County. He was tried by jury who found him guilty of the included offense of Rape in the Second Degree and assessed his punishment at fifteen years in the State Penitentiary. Judgment and sentence was pronounced in accordance with the verdict of the jury, and he appeals.

On appeal he urges three assignments of error.

It is first contended that the County Attorney committed reversible error in the following instances: After the defendant had testified that on the night in question he did not have a state drivers license (because it had been revoked as a result of a wreck) he was then asked if he had been charged with any crime as a result of that wreck. To which question the defendant objected and the court sustained that objection and admonished the jury to disregard it.

Thereafter, the Assistant County Attorney asked if the defendant had ever been convicted of a crime, to which the defendant objected and the same was overruled. The Assistant County Attorney then asked the defendant if he had not been charged with Resisting Arrest on the 3rd day of November, 1957, and the defendant again objected to the form of the question. The court sustained the objection and admonished the jury to disregard the same and advised the Assistant County Attorney that he did not wish to hear a question in that form again.

Thereafter, the defendant was asked what crimes he had been convicted of and he answered that he had been convicted of Burglary in the Second Degree.

The defendant was then asked where he had sustained the conviction, which question was objected to by the defendant and the court sustained the objection. The prosecutor repeated the question and the court sustained the defendant's objection but denied his motion for mistrial. The defendant was then asked if it was not a fact that on the 15th day of December, 1960, he had been convicted of Reckless Driving in Fairfax, Oklahoma, to which the defendant objected and the objection was overruled by the court.

The defendant then admitted on cross examination that he had been convicted of the crime of Reckless Driving in Pawhuska, Oklahoma, but stated that he could not remember whether or not he had been convicted of Disturbing the Peace in Fairfax, Oklahoma. He denied having been convicted of Assault and Battery in Fairfax, Oklahoma.

It is urged by the defendant that it is improper to ask a defendant witness whether he has been arrested, imprisoned, or indicted for any offense whatever before conviction, and the state concedes that this practice is error, but it is the state's position that on the three occasions when the Assistant County Attorney inquired of the defendant whether he had been charged with the offense of Reckless Driving and Resisting Arrest, these errors were corrected by the prompt action of the court in sustaining the objection to the form of the question and admonishing the jury to disregard them.

Under the facts here presented it is readily apparent that the Assistant County Attorney, either through inadvertence or inexperience, improperly phrased his question. After the court had advised the Assistant County Attorney that he did not wish to hear a question in that form again, the Assistant County Attorney properly phrased the question and the defendant admitted convictions for Reckless Driving, Burglary in the Second Degree and Resisting Arrest. Moreover, it appears that the Assistant County Attorney, although improperly phrasing his question, was acting in good faith as reflected from the record appearing in the casemade.

'THE COURT: * * * and I will inquire of counsel, now outside the presence of the jury, if he has investigated his records to ascertain whether or not these questions are being asked in good faith.

'MR. CREWSON: Yes, sir, I have, I have consulted with Mr. Pat Williams, Assistant County Attorney at Pawhuska, Oklahoma, also with the County Attorney at Fairfax, Oklahoma, they prosecuted Mr. Hudson on these charges. Mr. Williams himself participated and filed charges and assured me that these were correct, and provided me with this information.'

Title 12 O.S. § 381 provides:

'No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.'

We are of the opinion and therefore hold that where, as in the instant case a prosecutor acting in good faith improperly phrases his questions and inquires of a witness whether he has been previously charged with the commission of a crime, and the court promptly sustains defendant's objections to such questions and admonishes the jury to disregard them, and thereafter, in response to questions properly phrased the witness admits previous convictions of crime, the error is cured and will not constitute a basis for reversal.

Under defendant's first assignment of error it is further contended that the prosecutor improperly exhibited to the jury an alleged police record or 'rap sheet' and referred to this improper exhibit while questioning the Defendant concerning these previous 'arrests'. This assignment of error is not supported by the record for from the casemade appearing at Pages 426 and 427 the following appears:

'MR. FRASIER: Comes now the defendant * * * and objects to the County Attorney obviously sitting there, going down a prepared rap sheet in the presence of the jury; * * *

'THE COURT: Come up here. I think the record should show that is no rap sheet, as has been described by defense counsel, in view of the jury at this time, though he is reading from a yellow legal pad, which has certain writing thereon, at a distance of approximately seven feet from the jury, with the back of the pad facing the jury, * * *'

We deem it unnecessary to consider this assignment of error since it is not supported by the record.

Since the defendant's second contention is addressed to the sufficiency of the evidence, it will be necessary to set forth the evidence as adduced from the record.

The testimony introduced on behalf of the state was in substance that on the evening of April 16, 1963, Joyce Thompson, age fourteen, prosecutrix, with her parents consent, accompanied Mrs. Ann Wood and her teen age daughter in the Wood's family pickup to Cotton's Drive-In in Tulsa County, Oklahoma. Th...