Lyons v. State

• Decision Date: 04 June 1943
• Docket Number: A--10108.
• Citation: 138 P.2d 142,77 Okla.Crim. 197
• Parties: LYONS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

138 P.2d 142

77 Okla.Crim. 197

LYONS v. STATE.

No. A--10108.

Court of Criminal Appeals of Oklahoma

June 4, 1943

Rehearing Denied Aug. 18, 1943.

Syllabus by the Court.

1. A judicial confession is one made before a committing magistrate or in a court in the due course of legal proceedings.

2. An extrajudicial confession is one made elsewhere than before a magistrate or in court.

3. Confessions are either voluntary or involuntary. If voluntary they may be admitted in evidence. If involuntary, they are inadmissible.

4. A voluntary confession is one made by an accused freely and voluntarily, without duress, fear or compulsion in its inducement, and with full knowledge of the nature and consequences of the confession.

5. A confession of the accused shown not to have been freely and voluntarily made, but induced by hope or promise of benefit or through fear, or by personal violence and torture, or threats thereof, except to the extent that it may in some instances be used to impeach the testimony of the accused, is involuntary and inadmissible.

6. When two or more confessions are made by an accused, some of which are voluntary and some of which are involuntary, the ones made voluntarily are admissible and the ones made involuntarily are inadmissible.

7. The general rule is that where a confession has been obtained in such a manner as to come within the terms of an involuntary confession, any statement made by accused while under that influence is inadmissible. However, a voluntary confession thereafter made is not affected by the fact that a previous one was obtained by improper means if it is shown that these influences are not operating when the later confession is made.

8. The presumption that a subsequent confession of the same crime flows from the same improper influences which induced a prior confession is not a conclusive one and may be overcome by proof that the influences present at the prior confession did not operate on the second or subsequent confessions.

9. Where the question arises as to whether a confession is voluntary or involuntary, the correct practice in this State is for the court to immediately withdraw the jury, and hear all of the evidence both for and against the competency of the same, and all the facts and circumstances under which the same was made, and decide whether the confession was voluntary or involuntary. If voluntary, it is presented together with all the facts and circumstances surrounding the giving of the same, to the jury. If involuntary, it is inadmissible.

10. The court may then by proper instructions present to the jury the question of the voluntariness and involuntariness of the confession, and permit them to pass upon the evidence as to whether the confession was freely and voluntarily made, and if they find it was, to give it consideration, and if they find it was not freely and voluntarily given that they should disregard the same, and not consider it as evidence against the party giving it. But it is first the duty of the court to determine whether it is voluntary or involuntary before submitting this issue to the jury.

11. Record examined and found that the trial court followed the procedure as above outlined, and the first confession was held to be involuntary and therefore inadmissible in evidence, but that the second and third confessions were voluntary, and therefore admissible. Held that the court did not err in permitting the second and third confessions to be introduced in evidence.

12. By permitting the introduction of confessions designated as number two and number three, defendant was not denied due process of law, and equal protection of the law, as guaranteed by the Constitution of the United States.

13. Where a second and third confession are admitted in evidence as voluntary, defendant has the right to introduce before the jury evidence of previous confessions for two reasons. (a) For the purpose of having the court instruct the jury and permit them to pass upon the question of whether or not the latter confessions were voluntary confessions; and (b) for the purpose of permitting all of the evidence to be placed in the record so that it might be contended that the subsequent confessions were so connected with the first that the defendant at the time of making the later confessions was under fear by reason of the conditions which existed at the time he made the first confession.

14. Where the evidence as above outlined is introduced by the defendant, it can not be complained that it was error for which the State was responsible.

15. Where the general charge given by the court covers the principles contained in a requested instruction, it is not error for the court to refuse the requested instruction.

16. Elected public officials should with diligence and zeal use every lawful effort to ferret out crime and punish offenders but persons arrested therefor should not be subjected to indignities, punishment, or inquisitorial examinations such as are modernly known as the "sweat box."

17. It is provided by Okla.Stat.1931, § 2760, Tit. 22 Okla.Stat.Ann.1941, § 176: "If the offense charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrants or some other magistrate in the county." And § 2765, Okla.Stat.1931, Tit. 22 Okla.Stat.Ann.1941, § 181 "The defendant must, in all cases, be taken before the magistrate without unnecessary delay."

Every officer should follow the terms of these statutes.

18. The mere fact that a defendant did not have counsel appointed to represent him at a preliminary hearing is not a reason for holding that he was denied the due process clause of the Constitution of the United States, where the record discloses that counsel for his co-defendant appeared at the preliminary examination on behalf of both defendants, and that he had able counsel to defend him at his trial, and they had ample opportunity and time to prepare therefor.

Appeal from District Court, Choctaw County; Geo. R. Childers, Judge.

W. D. Lyons was convicted of murder, and he appeals.

Affirmed.

Stanley D. Belden, of Cushing, and Thurgood Marshall, of New York City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Norman Horton, Co. Atty., of Hugo, for defendant in error.

Morris L. Ernst and Benjamin Kaplan, both of New York City, for American Civil Liberties Union, amicus curiae.

BAREFOOT Judge.

Defendant, W. D. Lyons was charged jointly with one Van Bizzell in the District Court of Choctaw County, Oklahoma, with the crime of murder, secured a severance, was tried, convicted and sentenced to serve a term of life imprisonment in the State penitentiary, and has appealed.

For a reversal of this case, the following errors are cited:

"I. The admission in evidence of the second confession obtained at McAlester was a denial of due process of law and equal protection of the laws as guaranteed by the United States Constitution and therefore reversible error.

II. Statements made to Sheriff Duncan at McAlester likewise should not have been admitted in evidence.

III. The refusal to grant the defendant's requested instruction No. 2 was reversible error."

Before proper consideration of these errors, it is necessary to give a brief statement of the facts upon which they are based.

The charge of murder against this defendant was the outgrowth of the killing of Elmer Rogers and his wife and minor son, Elvie Dean Rogers, age four years, in their country home near Fort Towson, in Choctaw County, Oklahoma, on the night of December 31, 1939. Both Mr. and Mrs. Rogers were shot to death with a shot gun, and Mrs. Rogers was mutilated with an axe. Coal oil was then poured on the house and it was set on fire, burning the bodies of both, together with their young son who was asleep in the home, beyond recognition. Two other young sons of Mr. and Mrs. Rogers, James Glenn Rogers age eight, and Billy Don, a small baby, escaped from the house and were saved. The oldest son was a witness for the State at the trial of the defendant. The information charges defendant with the murder of Elmer Rogers.

The crime is one of the most revolting that has ever been perpetrated in this State. A man and his wife were killed, and with their minor child, their bodies were burned beyond recognition. The motive for the killing was robbery.

The defendant was arrested the evening of January 11, 1940, at his home in Hugo, Choctaw County. He was taken by officers to the county jail. He remained in jail for a period of eleven days and no charges were made against him until after that time.

On the night of January 22, 1940, or the following morning, a confession was taken from the defendant by the officers of Choctaw County. The facts surrounding the securing of this confession will be further discussed in this opinion. It will be denominated as confession number one.

After this confession had been secured, and in the afternoon of January 23, 1940, defendant was taken from the Choctaw County jail at Hugo, to Antlers, the county seat of Pushmataha county, by Floyd Brown, a deputy sheriff, and special officer Reasor Cain, and placed in the county jail of that county. Some time near six or six thirty on the same afternoon, deputy sheriff Van Raulston and Roy Marshall, a barber at Antlers, took defendant to the State penitentiary at McAlester for safekeeping. Mr. Raulston had been severely injured in an automobile accident and was still physically weak, so Mr. Marshall went along to drive the car.

There is some conflict in the evidence as to the exact time they arrived at the penitentiary, but it was some time between eight and nine-thirty that night. Upon their...