Kidd v. State

• Decision Date: 31 March 1943
• Docket Number: A-10074.
• Citation: 136 P.2d 210,76 Okla.Crim. 213
• Parties: KIDD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

136 P.2d 210

76 Okla.Crim. 213

KIDD v. STATE.

No. A-10074.

Court of Criminal Appeals of Oklahoma

March 31, 1943

Syllabus by the Court.

1. An application for continuance on account of the absence of a witness must show diligence has been used to procure the witness or his testimony.

2. No person is obliged to attend as a witness before a court out of the county where the witness resides or is served with the subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the county attorney, or of the defendant, or his counsel, stating that he believes that the evidence of the witness is material and his attendance at the trial necessary, shall endorse on the subpoena an order for the attendance of the witness.

3. In reviewing the refusal of an application for continuance on account of absence of a witness, the testimony taken at the trial is considered by this court for the purpose of determining whether the absent testimony was probably true as well as whether it was material, if true.

4. Confessions induced by a promise of benefit or a threat of harm made to a defendant by the county attorney or an officer having him in custody will be deemed involuntary and will be inadmissible in evidence.

5. Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant 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. If it is held competent and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.

6. An instruction should not be given upon any question of law which is not applicable to the evidence.

7. It is not error for the court to refuse to submit to the jury the issues of manslaughter in the first and second degrees where there is no evidence from which the jury could reasonably find the defendant guilty of either of such lesser degrees of homicide.

8. Record examined, instructions approved, and judgment of conviction for murder with penalty of death affirmed.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

Elijah Kidd was convicted of murder and was sentenced to death, and he appeals.

Judgment and sentence affirmed.

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

JONES Presiding Judge.

The defendant, Elijah Kidd, was charged by information duly filed in the District Court of Logan County with the crime of murder, was tried, convicted and sentenced to death, and has appealed.

The information, in substance, alleged that the defendant, Elijah Kidd, and one Allen Anderson, without authority of law and with a premeditated design to effect the death of one Henrietta Jackson, did drive, operate and propel a 1936 model Ford V-8 coach against the body of the said Henrietta Jackson, then and thereby inflicting certain mortal wounds from which said wounds the said Henrietta Jackson did die on January 2, 1941.

Fred Streeter, Chief of Police at Guthrie, testified that early in the morning of January 2, 1941, pursuant to a call, he went to the 300 block on South Capitol Hill Street in the City of Guthrie and there found the deceased, a colored woman, lying in the center of the street; that the body was in a pool of blood. He gave a description of the road at that point and testified to facts which indicated that the body had been struck and dragged about twenty steps. Some ornaments off of a car were found close to the body. A broken radiator ornament was found in the road with some hair matted in it and other pieces were scattered about. The body was taken to a funeral home in Guthrie and there held until the night of January 9, when it was identified by one Walter Davis who had been brought to Guthrie by two colored officers from Oklahoma City. That on January 10 he saw the defendant Kidd in the Detective Bureau in Oklahoma City. That defendant, in the first conversation had with witness, related that he had insurance on the life of Henrietta Jackson, payable to himself as beneficiary, and defendant further stated that he had hitchhiked to Guthrie and was there on New Year's Eve but specifically denied knowing anything about the killing. That he brought the defendant to Guthrie and took him by the funeral home to view the body of the deceased. That when defendant saw the deceased he said, "That's Henrietta", and that defendant raised his right hand and further stated, "I ask God to strike me dead if I had anything to do with this." That the next morning the defendant told the witness that he was ready to sign a confession about the killing but that he would not say that he shoved the deceased in front of the car. The witness notified the county attorney that defendant desired to make a confession and he was taken to the county attorney's office where the proof showed that the defendant gave a statement which was taken in writing and afterward signed and sworn to by the defendant. This statement is as follows:

"State of Oklahoma

County of Logan

ss

Elijah Kidd, of lawful age, being first duly sworn upon his oath, states:

I am also known as Reverend and Preacher Kidd. I have been warned by County Attorney Hugh J. Adams in the presence of Chief of Police Fred Streeter and Officer Allen Fields that anything that I say may be used in evidence against me and that I do not have to make a statement. I have been informed that I am entitled to have a lawyer present. I make this statement freely and voluntarily without being promised anything whatever. No force, fear or violence has been used on me and I am making this statement because it is the truth.

About October 1st, 1940, Freddie Adams, Walter Davis and I planned to kill Henryetta Jackson so I could collect her $700.00 insurance which was made out to me. The deal was that I was to pay them $300.00 a piece and keep $100.00 for myself. They said the policy would pay more than $700.00. They said if I didn't let them do the job they would tell on me. That is, if anyone else killed Henryetta they would tell about the insurance unless they got $300.00 a piece. About the last of October we made plans to kill Henryetta at Dunbar school on East Sixth street in Oklahoma City. We never put this plan in effect however, since we couldn't get together on how to divide the money. They wanted $600.00 and I wouldn't consent to give them that much. I agreed to split it four ways but they wouldn't agree to this. The fourth one was Allen Anderson but they didn't know this.

Later on New Year's day Allen Anderson and I made our plans to kill Henryetta Jackson. We talked the deal over on our way to Guthrie in Anderson's car, a 1936 V-8 Ford. We left the City around 3:30 or 4 o'clock P. M. and arrived in Guthrie about 5:30 P. M. We decided to do the job at night. We thought we would visit in Guthrie with Luke Ballard and Lela Ellis. We decided we would do the job that night and split the insurance money 50-50. We decided we would kill Henry etta Jackson around 12:30 or 1 o'clock A. M. January 2nd, 1941. We decided we would get Henryetta in the car and drive around until we found a suitable spot and then he would nudge me. Then the plans were that I was to get out of the car with Henryetta and he was to drive around the block and when he came back around I was to shove her in front of the car.

When we got in to Guthrie we visited the Ballards, Mrs. Ballard is my wife's aunt. We visited them for a while and left about 7:30 or 8 P. M., we took Luke Ballard, Mrs. Ballard & Maureen & Maxine with us and visited the colored school and listened to a concert by the colored high school band. After the concert Anderson and I took the Ballards home then we visited the skating rink where they were having a colored dance. We paid a dime a piece to get in. We went there about 10 P. M. and stayed there about 30 minutes and then went back to Oklahama City. We got back to the City about a quarter to twelve. We went to my house at 1506 Drury Lane and picked up Henryetta Jackson. We waited just long enough for Henryetta to change her clothes. Then we--that is, Anderson, Henryetta Jackson and I--drove back to Guthrie in Anderson's car, arriving in Guthrie about a quarter to twelve at night. We drove around Guthrie for about five minutes and then when we got to where Henryetta was killed Anderson nudged me and I said to Henryetta, 'We better get out here.' She said 'all right.' Then Anderson drove south to the corner and turned right then to the right again and drove two blocks north and then one block east and turned south again so he would have two blocks to gain speed. Anderson gunned the motor and must have been making around 60 miles an hour when he approached Henryetta and me. Just as the car was about 10 feet away I shoved Henryetta in front of the car. The car struck her dead center and sucked her in. Then she fell and was drug by the car, I can't say how far.

I got Henryetta Jackson to get out of the car and wait with me because she wanted to meet Joe Armstrong, that is the young Joe Armstrong. She had seen his picture and wanted to mee him I told her that he would

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