O'Neal v. State

• Decision Date: 25 February 1970
• Docket Number: No. A--13982,A--13982
• Citation: 468 P.2d 59
• Parties: E. W. O'NEAL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 59

468 P.2d 59

E. W. O'NEAL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--13982.

Court of Criminal Appeals of Oklahoma.

Feb. 25, 1970.

Rehearing Denied May 6, 1970.

Syllabus by the Court

1. Matters occurring during the trial of a case which counsel desires to assign as error must appear by proper recitation in the case made duly certified to as the law provides, independently of the motion for a new trial.

2. The court can require the testimony of a member of a grand jury to ascertain whether the testimony given before the grand jury is consistent with that which the witness gives before the court; and upon a charge for perjury: against a witness who testifies falsely before the grand jury, or when the witness reveals certain facts from which the jury may infer that the witness has otherwise committed perjury; and at the trial therefor.

3. When a witness before the grand jury only admits certain facts from which the jury may or may not infer guilt, there is no confession. A confession of guilt is an admission of the criminal act itself, not an admission of a fact or circumstance from which guilt may be inferred.

4. Witness under investigation by grand jury, who is subpoenaed, testifies, and thereby reveals criminating testimony is compelled within meaning of Art. 2, § 21 Oklahoma Const., absent positive showing he was advised of constitutional rights against self-incrimination and that he understandingly waived those rights; or, that he was granted immunity under Art. 2, § 27, Oklahoma Const.

5. All witnesses subpoenaed to appear before grand jury must give testimony regarding any matter of which they have knowledge, which testimony is not privileged, except where the testimony might tend to incriminate the witness for some past act.

6. The target of a grand jury investigation is not an ordinary witness and is entitled to be warned of his right against self-incrimination; and unless warned and advised of his constitutional rights related thereto, any testimony revealed by him before the grand jury may not be used against him in a later trial arising out of that testimony.

7. Constitutional right against self-incrimination may be waived as can any other constitutional right, but such waiver must be positively shown in later trial, for such testimony to be admissible.

8. Defendant subpoenaed duces tecum to appear before grand jury, who was not advised of constitutional right against self-incrimination, who testified honestly before grand jury and was not granted immunity, was compelled to testify and such testimony was not admissible at later trial arising out of grand jury confession of earlier offense.

An appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

E. W. O'Neal was convicted of the crime of Perjury and appeals. Judgment and sentence reversed and remanded with instructions to dismiss charge.

Red Ivy, Chickasha, for plaintiff in error.

G. T. Blankenship, Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

The Plaintiff in Error, E. W. O'Neal, hereinafter referred to as defendant, was charged by Information in the District Court of Oklahoma County in case no. 31054, with the crime of Perjury; was tried by a jury, found guilty, and the punishment left to be assessed by the Court. On November 8, 1965, defendant was sentenced to one year imprisonment in the state penitentiary at McAlester, and costs, in accordance with the verdict of the jury, and from that judgment and sentence he now appeals.

The opinion rendered on May 21, 1969, in which this Court affirmed defendant's conviction, was withdrawn from publication on February 25, 1970; and this opinion results from defendant's Petition For Rehearing filed on June 3, 1969, in accordance with Rule 16 of the Rules of this Court, is rendered in lieu of the earlier opinion.

I.

The record shows that on October 25, 1965--the day preceding trial--defendant filed an 'Amended Motion to Quash and Set Aside Information Filed Herein.' On the following day October 26th, the trial court entered the following order: 'that the defendant's demurrer, motion to quash, motion to suppress, and motion to dismiss to, and the same are hereby overruled.' Thereafter, defendant's trial commenced.

The facts adduced at the trial reveal that an appearance bond ¹ in District Court, No. 29289, was submitted in evidence, which stated on its face that on January 8, 1964, defendant was worth in excess of $3,000.00 and freeholder of property described as Block 3, Artesian Springs Second Addition to Oklahoma City, Oklahoma. Alene McGowan testified that defendant signed said bond before her. A quit claim deed ² was admitted in evidence showing transfer of the aforementioned property from Valdhe F. Pitman to E. W. O'Neal on August 1, 1963, which was filed August 2, 1963.

A quit claim deed ³ was admitted into evidence which was dated August 2, 1963, and notarized the same day, showing the transfer of the same property from defendant back to Valdhe F. Pitman. This instrument indicated that it was filed February 11, 1964. There was also admitted into evidence, as State's Exhibit #4 a Memorandum Agreement between Valdhe F. Pitman and E. W. O'Neal, dated July 31, 1963; and two other exhibits were introduced.

In presenting its case in chief, in addition to the testimony of Alene McGowan the State offered the testimony of the following witnesses: W. H. Regan, deputy court clerk who identified the bail bond; Bryan Beaty, an employee of the County Clerk's Office, who identified the two quit claim deeds as having been filed in that office, and who testified on cross-examination that defendant was shown to be the record property owner from August 2, 1963, to February 11, 1964, and that there were no encumbrances filed against the property during that period of time; Ruby Jewell Rodgers, a secretary who typed and witnessed the first agreement (exhibit #4) between defendant and Pitman; Robert F. Pitman, vice president and attorney in the Liberty National Bank and Trust Company Legal Division, who identified certain signature cards--exhibit #5; J. Floyd Askew, a professional appraiser, who appraised the listed property on April 1, 1965, as being worth $1,300.00 and stated its value was the same on the date the bail bond was executed; Robert R. Harbour the Foreman of the grand jury before which defendant was subpoenaed to appear; Richard Gibson a member of the same grand jury; and Curtis P. Harris the county attorney who assisted the grand jury.

Robert Harbour testified that at a grand jury proceeding he was the Foreman, and that defendant disclosed he and Valdhe Pitman had entered into contract for a bail bond business by which defendant held certain properties in trust, but that defendant owned no property himself. Mr. Richard Gibson, also a member of the grand jury, testified to the same effect.

Curtis P. Harris testified that defendant disclosed to the same grand jury that he did not own the real estate in question, but merely held it in trust for Pitman and that the defendant testified before the grand jury that the quit claim deed from O'Neal to Pitman was executed on the date shown, the 7th day of August, 1963, and delivered back to Mr. Pitman.

The four propositions of error in defendant's brief, urged by defendant on appeal are: (1) that the court erred in refusing to grant defendant's Motion for Continuance; (2) that the court erred in overruling defendant's Amended Motion to Quash and set aside the information; (3) that the court erred in refusing to grant the defendant a mistrial when the County Attorney, Curtis Harris, while on direct examination voluntarily placed the defendant's character at issue and further error of the court in refusing to strike voluntary statements made by Robert Harbour with reference to matters when he placed defendant's character at issue; and (4) that the trial court erred in giving Instruction No. 14, and refusing to give defendant's requested Instruction.

Defendant's first assignment of error that the trial court committed reversible error in failing to grant his Motion for Continuance, is not properly before this Court, since neither the defendant's Motion, nor the court's ruling thereon, are contained in the casemade. This is also true in defendant's second assignment of error that the trial court erred in overruling the defendant's Motion to Quash the amended information since the record before us does not reflect the transcript of the testimony taken at the preliminary hearing.

In Cowan v. State, 5 Okl.Cr. 313, 114 P. 627, this Court said in Syllabus No. 3:

'If a defendant desires to bring a case here upon appeal, he must at least bring up enough of the proceedings of the lower court to enable this court to pass intelligently and safely upon the questions presented for decision.'

And further, in Lem Sing v. State, 4 Okl.Cr. 544, 113 P. 204, this Court held in Syllabus No. 2:

'Matters occurring during the trial of a case which counsel desire to assign as error must appear by proper recitals in the casemade duly certified to as the law provides, independently of the motion for a new trial.'

Defendant's third and fourth assignments of error will not be discussed herein for the reason such is not required. This matter is ultimately being determined on a Constitutional question, which is fundamental in nature and notwithstanding the fact that it is not treated in defendant's four propositions urged in his brief, the error is listed as his fifteenth assignment of error in his Petition in Error, being: 'Error of the Court in permitting the County Attorney and Members of the Grand Jury to testify as to statements purportedly or allegedly made before said Grand Jury.'

II.

The fundamental question squarely facing this Court is:

Is a prospective defendant, or a target of an investigation, who is required to appear before the grand jury by subpoena duces tecum,--Who is not...