McGrew v. State, A-12247

• Decision Date: 18 January 1956
• Docket Number: No. A-12247,A-12247
• Citation: 293 P.2d 381
• Parties: Bennie Westley McGREW, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 381

293 P.2d 381

Bennie Westley McGREW, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12247.

Criminal Court of Appeals of Oklahoma.

Jan. 18, 1956.

Syllabus by the Court.

1. Where the defendant and his codefendant are in custody the declarations of codefendant to an officer in the presence of defendant made after the offense was committed are inadmissible against the defendant.

2. An accused in custody is not called upon to contradict statements prejudicial to him, made in his presence, and although they are not contradicted, they constitute hearsay and are not admissible in evidence.

3. Instructions in a criminal case must conform to the evidence with due regard to the theory of the State and the defendant.

4. Court did not err in refusing requested instruction containing a correct statement of law which was not applicable to the evidence.

5. Failure of trial court to give requested instruction which would have been proper in murder case would not be reversible error where jury found accused guilty of manslaughter.

Appeal from the District Court of Oklahoma County; W. A. Carlile, Judge.

Bennie Westley McGrew was convicted for the crime of manslaughter in the first degree, and was sentenced to serve a term of 20 years imprisonment in the penitentiary. Reversed and remanded for new trial.

Homer Thompson, Public Defender, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

JONES, Presiding Judge.

The defendant, Bennie Westley McGrew, a 17 year old youth, was jointly charged with a foster brother, Kenneth James Brewer, age 16, with the crime of murder. A severance was granted, McGrew was tried, convicted of manslaughter in the first degree and pursuant to the verdict of the jury sentenced to serve a term of 20 years imprisonment in the penitentiary.

The alleged murder involved the death of Thomas Harris, an 18 month old infant. The parents of the Harris infant worked in Oklahoma City and for about two and one-half months prior to the death of their infant son, Mrs. Lucy Lee Roberts, mother of the defendant McGrew, had been employed to take care of the Harris children including Thomas Harris during the day while the parents were at work. Just a few days prior to the alleged murder Mrs. Roberts, mother of defendant, secured employment which required her to go to work at noon each day. By an agreement worked out with the Harris parents, Mrs. Roberts continued to look after the children until time for her to leave for work after which time the children would be supervised by defendant McGrew and his foster brother, Kenneth Brewer.

Mrs. Roberts testified that on the date of the alleged homicide she left her residence at noon, leaving the Harris children in the care of defendant and his foster brother; that the infant, Thomas Harris, appeared to be in good physical condition except for a slight cold and a dark blue place which extended from the corner of his eye down to his check resulting from a fall from a bed a day or so before that time and that he also had a small bruised spot on his hip which had been caused from a fall from a bed on a previous date.

W. O. Daniels testified that he was a neighbor of Mrs. Roberts, mother of defendant; that on September 24, 1954, the date of the alleged crime, defendant came to his place and asked him to come look at the child as something was wrong with it; that when he saw the child he thought it was near death so he took it to the hospital. That defendant Bennie McGrew went with him to the hospital and held the child in his arms all the way there and remained at the hospital.

Dr. H. E. Groves testified that he was called about 3:30 p.m. to go to the Capitol Hill General Hospital. That he arrived there above five minutes later and examined the Harris infant and found it was dead. That there were bruises on the body of the infant so Groves called the police department and reported the death. That he asked defendant the cause of the bruises and defendant told him the bruise on the left brow had been caused by a fall from a bed and he did not know what caused the other bruises.

Dr. Howard Hopps, a pathologist, testified that he performed an autospy upon the body of Thomas Harris about 9:00 p.m. the date of his death. That he found several areas of the body which were a deep reddish purple which represented trauma. They were particularly marked over the buttocks. The most serious wound and the one causing the death in the opinion of the pathologist was a hemorrhaging under the covering of the brain. The hemorrhaging had increased to such an extent that it pressed vital portions of the brain against bony ridges in the skull causing death. The injuries found by the pathologist were caused by an application of force.

Marjorie Harris, mother of the deceased, testified that on September 24, 1954, she left all five of her children with Mrs. Roberts as usual; that Thomas Harris was lying in bed laughing when she left; that he appeared to be all right when she left except that he had one bruise on the left side of his face caused when he fell out of his bed on Sunday night. That defendant Bennie McGrew called her about 3:15 p.m. and told her the baby had fallen out of bed and for her to come home at once. That she took a taxi immediately and rushed home and when she arrived there she learned that her neighbor had taken her baby to the hospital so she went on to the hospital. That she talked to defendant who told her the baby had fallen out of bed and had gone into convulsions.

Jack Jordan, a policeman, testified that on the morning of September 25, 1954, he went to the residence of defendant and talked to defendant and Kenneth James Brewer in the presence of McGrew's mother in the living room of their home. That he told McGrew and Brewer that the baby appeared to have been beaten to death and asked them how it happened. That they each said the baby had been bruised when it fell out of bed a few days before that time. That he then asked them where the other bruises came from and they said the only thing they could think of was that while the baby was holding the mirror and trying to hold it up in front of himself so that he could see, that he would fall. Jordan then related that he took the two boys out to the police car and separated them. That he directed defendant McGrew to sit on the curb while he talked to Brewer in the police car. Over the objection of counsel for the defendant Jordan was permitted to relate a conversation had with Kenneth Brewer in the police car relative to the bruises on the body of the infant. As a predicate to the admission of this testimony Jordan testified that defendant was sitting on the curb about five feet from the automobile and in hearing distance of the conversation had with Brewer. Over repeated objections Jordan testified that Brewer stated that he and McGrew had made up the first story about how the baby got the bruises on the body and that the truth was that during the day they tried to make the baby walk. That they had placed it up in front of a mirror to try to make it walk and that its legs would give out from under it and that the baby would fall and strike its head so they decided to not do that. They then took the baby into the living room and sat on a divan. That Brewer attempted to get the baby to stand up and the baby would not stand so Brewer struck the baby with his open hand several times on the buttocks. That during this time Bennie McGrew struck the baby with his open hand across the face knocking it down. That Bennie McGrew struck the baby somewhere about the head region or shoulder and knocked it to the floor. That Brewer tried to stand the baby up again but the baby didn't mind so Brewer struck it with his open hand and knocked it to the floor again. That Brewer picked the baby back up and tried to get it to walk but at this time it would not put its feet on the floor but it would draw its feet up under him so Brewer put the baby between his legs and tried to squeeze the baby in such a manner as to try to push the baby's feet to the floor. That McGrew got hold of the baby's knees and pulled them together to try to make the baby put its feet on the floor so as to try to teach it to walk. That when Brewer released the baby the baby fell on the floor so at this time Brewer took his belt from his pants and struck the baby several times with the belt. That defendant slapped the baby again. That Brewer spanked the baby again on the buttocks and later the baby became nauseated so Bennie McGrew suggested they take the baby over to the Harris home and put him in his bed. That Bennie carried the baby over and put it in its bed but the baby vomited on the way over to the Harris home. That Bennie put the baby in its bed and attempted to give it a bottle but the baby would not attempt to take the nipple and his left leg and hand appeared to be rigid. That Bennie became alarmed and ran to a neighbor's house for help. Jordan further testified that after this conversation with Brewer he talked to McGrew and McGrew admitted striking the baby twice with his open hand. That he then took the boys and Mrs. Roberts to the police station. That he called in a stenographer and in the presence of the mother and the stenographer he asked Bennie McGrew to repeat what he had said to him in the automobile concerning the death of the infant. This statement was admitted in evidence without objection and reads as follows:

'Q. Benny, state your full name? A. Benjamin West McGrew.

'Q. Can you read and write? A. Yes, sir.

'Q. You understand Benny that we are taking this statement which will be typed on typewriter paper and that after it is just exactly as you have given, will you sign it? A. Yes, sir.

'Q. We have not made you any promise or threatened you in any way to obtain this statement, is that right? A. Yes, sir.

'Q. What you say in...