Jenkins v. State

• Decision Date: 17 October 1945
• Docket Number: A-10235.
• Citation: 162 P.2d 336
• Parties: JENKINS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

162 P.2d 336

JENKINS v. STATE.

No. A-10235.

Court of Criminal Appeals of Oklahoma

Oct. 17, 1945

Dissenting opinion.

For majority opinion, see 161 P.2d 90.

DOYLE Judge (dissenting).

In my judgment the majority opinion affirming the judgment of conviction contravenes certain fundamental principles and constitutional guaranties of personal liberty as set forth in the 'Bill of Rights' of both the Constitution of the United States and the Constitution of the State of Oklahoma in the procedure through which it was obtained, as hereinafter stated in my opinion, and also contravenes what has been the well settled law of this jurisdiction.

The law of the land guarantees to every person charged with crime regardless of race or color, a fair and impartial trial according to the due and orderly course of the law, and no duty rests more imperatively upon the courts than the enforcement of the constitutional guaranties of personal liberty and all provisions of the constitutions designed to safeguard the liberty and security of the citizen should be liberally construed by the courts.

As I interpret the law, the judgment of conviction in this case as shown by the record, and its affirmance, was and is a denial of due process of law.

To a correct understanding of the errors assigned and the issues presented by the record, and to fully comprehend the rulings of the court, it will be necessary to set out at length a statement of the undisputed facts disclosed by the testimony and the rulings of the court in refusing to admit competent and material evidence offered on behalf of the defendant, which rulings were duly excepted to, also the contention that the verdict and judgment of conviction is unsupported by the evidence and is contrary both to the law and to the evidence.

The record shows the following chronology:

September 9, 1941, information filed in the District Court.

September 10, the defendant arraigned and 'given until Sept. 11, 1941, to plead.'

Sept. 11, the defendant waived reading of information and enters plea of not guilty.

Sept. 22, State announced ready for trial, the defendant announced not ready, and filed application for continuance, the court passes said cause until Sept. 23.

Sept. 24, case called for trial, the jury impaneled and sworn to try the case.

Sept. 25, jury returned their verdict.

Sept. 29, motion for new trial was filed.

Oct. 4, 1941, motion overruled and judgment rendered in accordance with the verdict.

March 20, 1942, appeal by case-made with petition in error attached filed in this court.

June 30, 1942, application of plaintiff in error for order directing approval of bond and release from custody.

August 24, 1942, order entered directing approval of appeal bond by C. O. Beaver, District Judge.

October 19, application to disqualify Dick JONES, Member of the Court.

November 10, 1942, Judge Dick JONES certified his disqualification to participate in any of the proceedings in the case.

November 20, 1942, Hon. Leon C. Phillips, Governor, appointed Hon. Morton S. Rutherford, and who duly qualified as Special Judge in this case.

May 5, 1943, demurrer to application for disqualification of Hon. Morton S. Rutherford, as Special Judge, filed.

May 25, 1943, Hon. Morton S. Rutherford, having certified his disqualification as Special Judge, Hon. Robert S. Kerr, Governor, appointed Hon. LAWRENCE JONES of Bristow, who having duly qualified as Special Judge, did so participate in the hearing of this case.

August 19, 1943, cause submitted on record, oral arguments and briefs and assigned to JONES, Special Judge, for opinion.

March 17, 1944, letter addressed to writer, by Special Judge LAWRENCE JONES, concludes:

'I feel that on account of the unusual delay in disposing of this case, the opinion should be handed down as quickly as possible, and with that thought in mind, if you can possibly do so, it would be appreciated if you will submit a suggested opinion of written expression of your views within the next week or ten days.'

March 30, 1944, letter advising Special Judge JONES that I had prepared a tentative opinion and asked 'if there is any particular reason why a conference should be held without further delay. I wish you would inform me.'

Upon a conference a week or so later I submitted my opinion and delivered copies of the same to Special Judge JONES and Judge BAREFOOT.

On the following day Special Judge JONES stated that he would take time to prepare his opinion in the case and would submit the same at the next conference.

May 2, 1944, In Re Jenkins v. State, No. A-10,235, I addressed a letter to Special Judge JONES, among other things stating: 'I would like for you to name a date for final conference this week or next, if it suits your convenience.' Answering the same Judge JONES stated among other things: 'I will make it a point, however to meet with you sometime during the week of May 15.'

May 22, 1944, I addressed a letter to Judge JONES, stating:

'I wish you would find it convenient some day this week for a final disposition of the above entitled cause. If so, please advise me as to when.' No Response.

June 27, 1945, case assigned for conference on July 3, 1945.

June 29, 1945, plaintiff in error's application for disqualification of Judge B. B. BAREFOOT and Special Judge LAWRENCE L. JONES, presented to Clerk of the Court.

July 2nd, without notice to writer ordered filed as of June 29, 1945, and also order entered overruling application of disqualification.

July 2nd, without notice to writer, majority opinion filed with the Clerk of the Court.

Deleting the syllabus, also changing and correcting two or three pages to conform showing the same to be a dissenting opinion, my opinion as submitted and delivered to my associates in this case is as follows:

The information in this case was filed in the District Court of Okfuskee County, September 9, 1941, charging that in Okfuskee county, on or about the 11th day of August, 1941, the defendant, W. C. (Bill) Jenkins, then and there did kill and murder one Roy Bradburn, by shooting him with a pistol.

The record shows September 10, 1941, an entry of minutes of arraignment, omitting title, as follows:

'State appearing by Co. Attorney, Roy Parham; defendant appearing in person and by counsel, Stephenson and Stephenson. Defendant arraigned. Given until Sept. 11, 1941 to plead.'

September 11, 1941, an entry of minutes of arraignment herein, as follows:

'State appearing by Co. Attorney, Roy Parham; Defendant appearing in person and by counsel, Stephenson and Stephenson.

'Defendant arraigned. Waives reading of Information and enters plea of not guilty.'

That thereafter, on September 22, 1941, the defendant filed his affidavit for a continuance, omitting title, as follows:

'I, W. C. (Bill) Jenkins, of lawful age, being first duly sworn upon oath states:

'That I am the defendant in the above styled action. That I cannot safely go to trial in said cause on this date because of the lack of material evidence which I have not been able, with due diligence, to obtain, in this to-wit:

'That this defendant caused to be issued a subpoena for one Vess Fuquay; that no service has been had upon him and he is not present in Court. That, if said witness were present he would testify as follows:

'That he, the said Vess Fuquay, was a partner with Roy Bradburn, the decedent, in the horse and mule business. That on the day the decedent was killed he told said witness that he was going to kill Bill Jenkins, the defendant in this action. That he knows that Roy Bradburn carried a short barreled 38 caliber pistol and that he had said pistol in his right hand front pocket when said witness saw the said decedent, Roy Bradburn, and talked with him approximately 20 minutes before the decedent was killed * * * That he talked with him on the road * * * while decedent was on the way to the home of Nancy Seavers Bradburn from Weleetka. * * *

'That said witness will further testify, if present, that the said Roy Bradburn pulled a gun upon a group in the lot at the home of Nancy Seavers Bradburn approximately 60 days before the death of decedent, that the defendant was in said group, and that he threatened to kill the parties present at that time, including the defendant, herein, and that said witness, Vess Fuquay, persuaded the said defendant to quiet down.

'That said witness resides in Oklahoma County, Oklahoma in the City of Oklahoma City, the place to which said subpoena was issued, that said evidence is material, is not cumulative and this defendant has endeavored to obtain the testimony of said witness and obtain his presence at said trial by the issuance of said subpoena, by the sending of persons to try to locate him, the attorneys for this defendant, on the 20th day of September, 1941, and has used every means within his power to obtain the evidence and testimony of said witness.

'That defendant cannot safely go to trial without said evidence and, if this cause is continued for the term, that he can have said evidence and obtain the testimony of said witness.

'Wherefore, defendant prays that said cause be continued for the term in order that he may have said evidence.

'W. C. Jenkins

'Subscribed and sworn to before me on this the 22nd day of September, 1941.

'J. R. Day.

Court Clerk.'

'(Seal)

It appears from the record, that the plaintiff in error, herein referred to as the defendant, was from the date of his arrest, on the day of the homicide, August 11, 1941, to the date of the approval of his supersedeas bond herein, December 4, 1941, and all during the intervening period, confined, either in the county jail of Okfuskee county, or in the penitentiary at McAlester, Oklahoma.

The record shows ...