Lyons v. State

• Decision Date: 18 August 1943
• Docket Number: A-10108.
• Citation: 140 P.2d 248,77 Okla.Crim. 197
• Parties: LYONS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

140 P.2d 248

77 Okla.Crim. 197

LYONS v. STATE.

No. A-10108.

Court of Criminal Appeals of Oklahoma

August 18, 1943

For former opinion, see 138 P.2d 142.

On petition for rehearing; Rehearing denied.

DOYLE Judge (dissenting).

The petition for rehearing is in part as follows:

"Section 2760, 22 O.S.1941 § 176, provides that where the crime is a felony the officer making the arrest must take the defendant to the magistrate issuing the warrant or some other magistrate in the same county.

Plaintiff in error was arrested on January 11, 1940. Instead of following the Oklahoma statutes and taking Lyons before a magistrate, he was taken immediately to the sheriff's office where he was severely beaten. (C.M. 106, 107, 108 349, 148)

Eleven days thereafter he received the severe beating and mistreatment leading to the first 'confession', which beating and treatment were condemned both by the trial judge and by this Court. It should be noted that the first 'confession' was obtained in the county prosecutor's office, in the court house and on the same floor where the court room is located. Lyons was not brought into the court room before a magistrate. He was carried around the county to different places and then to the penitentiary. Lyons was not returned to the court house to be carried before a magistrate until after he had made the other 'confession'. It is quite obvious that Lyons was taken to the penitentiary for the purpose of attempting to so change the factual situation as to attempt to bolster another confession. Otherwise he would have been carried before the magistrate before being carried to McAlester.

There is no dispute as to the following facts: Lyons was 'arrested' by civilians without a warrant. No warrant appears in the record. Lyons was not formally charged with the crime until his appearance before a magistrate on January 27, 1940. He did not have the advice of counsel until February 4, 1940. All of the 'confessions' were secured prior to that time. This is the chronology:

Lyons was arrested January 11, 1940 (C.M. 236)

'Confession' obtained at Hugo morning of January 23 1940 (313-314)

'Confession' signed 2:00 P. M. same afternoon (C.M 129)

'2d. Confession' obtained at McAlester same night (C.M. 130)

'3d. Confession' obtained at McAlester two days later (C.M. 228)

Lyons before magistrate without counsel January 27, 1940 (C.M. 140)

First advice of Counsel on February 4, 1940 (C.M. 369)

Information filed August 29, 1940 (C.M. 2)

Arraignment December 30, 1940 (C.M. 5)

Trial started January 27, 1941 (C.M. 7.)

The confessions were introduced by county prosecutor Horton who was present during the time Lyons was beaten and who in his cross examination at the trial admitted he was present when Lyons was beaten and who likewise knew that the other confessions were obtained before Lyons was carried before a magistrate and before he had opportunity to secure counsel.

The trial court also was acquainted with the facts that these confessions were obtained before Lyons was carried before a magistrate and in violation of the statutes of Oklahoma. This Court likewise is acquainted with the facts apparent on the face of the record. The failure of the officials of the State of Oklahoma to take the necessary corrective steps to protect the fundamental rights of plaintiff in error to elementary due process of law, as prescribed by the statutes of the State of Oklahoma, is a denial of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

The United States Supreme Court in two opinions rendered this year have redefined the meaning of due process of law. In the case of McNabb v. United States, [318 U.S. 332, 63 S.Ct. 608, 615] 87 L.Ed. [819] (decided March 1, 1943), regarding the question concerning the admission of confessions obtained by federal officers, Mr. Justice Frankfurter speaking for the Supreme Court, stated: *** 'The circumstances in which the statements admitted in evidence against the petitioners were secured reveal a plain disregard of the duty enjoined by Congress upon federal law officers. Freeman and Raymond McNabb were arrested in the middle of the night at their home. Instead of being brought before a United States Commissioner or a judicial officer, as the law requires, in order to determine the sufficiency of the justification for their detention, they were put in a barren cell and kept there for fourteen hours. For two days they were subjected to unremitting questioning by numerous officers. Benjamin's confession was secured by detaining him unlawfully and questioning him continuously for five or six hours. The McNabbs had to submit to all this without the aid of friends or the benefit of counsel. The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law.'

It is further stated:

Mr. Justice Frankfurter, in the opinion for the Supreme Court, said that the use of these confessions violated the due process clause of the Fifth amendment, for the reason that: '*** The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. ***' ([318 U.S. 332, 63 S.Ct. 615] 87 L.Ed. [819].)

Applying this rule to the admitted facts in the instant case there is a clear duty upon this Court to reverse the conviction, as was done in the McNabb case.

It is further stated: 'This Court, in its opinion, points out, on page 7 [138 P.2d on page 148], that Lyons "the next morning was taken to the scene of the crime". All the evidence in the case points to the fact that Lyons was taken to the scene of the crime on the same morning as the confession was obtained. On page 15 [138 P.2d on page 152] of the opinion it is pointed out that "Here the second confession which was introduced in evidence was made at a time far removed from the first confession, and at a place where the defendant knew that he was secure from violence." In the first place, the second confession was not obtained at a time "far removed" from the first confession. The first confession was signed at 2 o'clock in the afternoon. The second confession was obtained, according to Warden Dunn, on the same day at either 8:15 or 9:30 o'clock.'

It is further stated:

'As to the "confession" to Cap Duncan, no effort was made to show that the influence of the prior 'confessions' had been removed. Lyons was still without counsel, had not been before a magistrate and was still in the custody of law enforcement officers. To him Cap Duncan likewise was a law enforcement officer. The influence of Cheatwood was still present and subsequent to that time Cheatwood came to the penitentiary with other officers from Hugo.

'It is clear, therefore, that the "confessions" used where obtained while Lyons was still under the influence of the threats and force used to obtain the first 'confession'. The use of said "confessions" was a denial of due process of law guaranteed by the Fourteenth amendment to the United States Constitution.'

It is further urged that the refusal to give requested Instruction No. 2 is reversible error, for the reason:

This Court in its opinion pointed out, on page 43 [138 P.2d on page 165], that 'counsel in their brief state, after citing a number of cases to substantiate the proposition that when a confession is made under improper influences that the presumption arises as to the subsequent confessions flows from the same influence, that: 'It has also been clearly established that this presumption must be overcome before the subsequent confession can be received in evidence'. Admitting this as true ***' Plaintiff in error requested instruction no. 2 as an accurate statement of the very same proposition as advanced by this Court in its opinion. The trial court's instruction did not mention the presumption at all. Plaintiff's requested instruction no. 2 was a request for an instruction on this presumption. The opinion of this Court, as stated above, justifies completely the reasons for granting plaintiff in error's instruction no. 2, and failure to do so is reversible error.

Conclusion

It is respectfully urged that this Court grant a rehearing in this matter, in order that the State of Oklahoma may not be guilty of failure to take the necessary corrective steps to prevent the denial of due process of law to plaintiff in error."

The law of the...