Mays v. State

• Citation: 197 P. 1064,19 Okla.Crim. 102
• Decision Date: 03 June 1920
• Docket Number: A-3528.
• Parties: MAYS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

197 P. 1064

19 Okla.Crim. 102

MAYS v. STATE.

No. A-3528.

Court of Criminal Appeals of Oklahoma

June 3, 1920

Rehearing Denied June 3, 1921.

Syllabus by the Court.

The judgment in a murder case will not be reversed on appeal as not sustained by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or unless it fails so far to support the verdict that the necessary inference is that the jury acted from partiality or prejudice, or was controlled by undue influence.

A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it.

Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions, in order to be admissible, must be entirely free and voluntary.

Confessions induced by a promise of benefit or a threat of harm, made to the defendant by a prosecuting attorney, or an officer having him in custody, or by any one having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence.

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.

The fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which would otherwise be competent.

The fact that statements of the defendant offered as a confession of murder were made to the arresting officer in answer to questions which assumed his guilt, and that the officer told him that it would be better to tell the truth, does not show that the confession was not voluntary.

In a trial for murder, held, on the evidence that whether the alleged confessions of the defendant were voluntary was for the jury. Held, further, that where the voluntary nature of the confessions was submitted to the jury under proper instructions, a verdict against the defendant is conclusive on the issue.

An extrajudicial confession of the defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and where the corpus delicti is established by independent evidence, a conviction based upon the defendant's voluntary confession is warranted.

The mere fact that a juror picked up the pistol introduced in evidence and examined it as the jury were retiring to deliberate did not constitute receiving evidence out of court.

The fact that while the jury were in charge of the bailiff one of the jurors spoke to a bystander in the presence of the other jurors about a matter not connected with the case, while an irregularity, will not warrant a reversal of the judgment.

In a prosecution for murder, the evidence examined, and held sufficient to warrant the verdict convicting the defendant of murder, but insufficient to justify the extreme penalty, and for this reason the jury abused its discretion in assessing the punishment of death. The judgment and sentence is therefore modified to imprisonment for life at hard labor.

Appeal from District Court, McIntosh County; R. W. Higgins, Judge.

William Mays was convicted of murder and sentenced to death, and he appeals. Sentence modified, and conviction affirmed.

William Mays was convicted and the death penalty assessed for the murder of Kelsey H. Shephard, at Brush Hill, in McIntosh county on or about the 23d day of November, 1918.

Mrs Shephard, widow of the deceased, the first witness for the state, testified:

"I saw my husband in the store just before dark. He went to haul some wood. I shut the front door of the store with the latch, and barred it with a wooden bar. I went out the back door, locked it, and went home to cook supper. It was after dark when he came in and unloaded the wood and went on to the store. About an hour or an hour and a half from the time he left the store to go after the wood I found him in the store behind the counter, and he said he was shot. I asked him if he knew who did it. He said it was a white man or a yellow negro; that the man was a little smaller than he was. I called my son-in-law to come and help carry him to the house, which was about 100 or 150 yards from the store. Dr. Lee came and dressed his wounds. About Monday noon we took him to the hospital at Muskogee. He lived 13 days and died on the 6th day of December, 1918. He was 49 years old the day before he died. I am a citizen of the Creek Nation. Lundy Allen is the husband of my oldest daughter. My husband was her guardian. Lundy Allen lived 50 or 75 yards north and west of the store."

Dr. N. P. Lee testified:

"I found the deceased suffering from gunshot wounds. One bullet entered the right side just above the third interspace a little to the left of the nipple, and one in the left side just below the clavicle, and these wounds caused his death."

H. G. Caughran testified:

"On the 23d of November, at Checotah, I heard a conversation between the defendant and a smaller yellow darkey, who said to the defendant, 'Are we going over yonder to-night?' and the defendant said, 'Yes; are you with me?' I was about 30 feet away from them at the time. I never saw the defendant before that I know of."

Frank Wiser testified:

"I am in the mercantile business at Brush Hill; I have seen the defendant off and on for 2 or 3 years. About 7 o'clock that evening the defendant and McKinley Mims came into my store, and one of them asked if I had any 38 cartridges; said he wanted 50 cents worth, and I sold him 20 cartridges. Proctor, a colored man, was in there. I don't know who left first, Proctor or the defendants. There was nothing out of the ordinary in the conduct of the defendants that evening. I heard a wagon going west. My store faces south, and Shephard's store faces east. It is about 100 yards west of my place. Something like 30 minutes after these boys left the store I heard a noise but could not say it was shots. I heard that I was accused of the killing. I don't remember who it was I heard it from."

Dan Moudy testified:

"I live a mile south and three-quarters east of Brush Hill. I was at deceased's place between 8 and 9 o'clock. I went to the store about 4 o'clock in the morning, and with some other parties made an investigation. I found a battered bullet in the back end of the store. It was laying on a box under a window. I noticed a hole cut in the front door and the glass of a window broken out. I was with the officers, and we followed some wagon tracks going west from the store that led to the Grayson farm. We tracked this wagon to where the road made a turn to Mims' house. The last wagon went on past this road and turned to the right, and made a circle and came back to the south towards Mims' house. I judge it to be a mile and a quarter from Shephard's store to Mims' house. The soil in the road around the west of the store was sandy and for a half mile west no timber."

J. W. Sampson testified:

"I live at Checotah; was deputy sheriff and went to Brush Hill with other officers. We arrived there between 1 and 2 o'clock. We all went to the Mims place, and found seven men and boys there in one room, and I saw colored women there. We arrested Will Mays and McKinley Mims. We found 17 cartridges in Mays' pockets. We investigated some tracks on the road. With me was McCune, Moore, Sampson, Wisner, and Frank Shephard and Bays, a detective from Muskogee, and possibly another one or two. We found where one wagon went west from the store, and we tracked the wagon to Mims' place. The soil is sandy for about half a mile west from the store. We started with the defendants to Brush Hill. We stopped on the way, and the defendant made a statement."

At this point the state desired to introduce certain confessions made by the defendant. The defendant objected, and the court caused the jury to retire, and heard all the evidence offered bearing upon the question. After hearing the argument of counsel, the court overruled the defendant's objections, and held the alleged confessions admissible. The jury was recalled.

Lundy Allen, the next witness on behalf of the state, testified:

"I live at Brush Hill, about 50 or 75 yards northwest from Shephard's store. I am a son-in-law of Mr. Shephard. The last time I saw Mr. Shephard before he was shot was at his home just about dark you might say. It must have been three-quarters of an hour before I saw him again. He was behind the counter in the store, and he told me he was shot. That evening I went with Mr. Shephard after the load

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