Newton v. State

• Decision Date: 26 January 1937
• Docket Number: A-9005.
• Citation: 71 P.2d 122,61 Okla.Crim. 237
• Parties: NEWTON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

71 P.2d 122

61 Okla.Crim. 237

NEWTON v. STATE.

No. A-9005.

Court of Criminal Appeals of Oklahoma

January 26, 1937

Syllabus by the Court.

1. Information charging the crime of robbery with firearms conjointly committed, examined and held sufficient.

2. In a prosecution for robbery with firearms, evidence examined and held sufficient to support the verdict and judgment.

3. A peace officer may arrest one on a well-founded suspicion for the commission of a felony, where a felony has in fact been committed, and the officer has reasonable grounds to believe that the person arrested was the perpetrator.

4. The immunity guaranteed by section 30 of the bill of rights (Const. art. 2) against unlawful searches and seizures does not extend to the implements of crime, records, papers, or other things found on the person or in the possession of the person lawfully placed under arrest, where such implements records, papers, or other things have been or manifestly may be used to perpetrate the crime charged.

5. Arresting officer may take from person lawfully arrested any instrument of crime or anything reasonably deemed necessary to his own or public safety and admission of such thing or instrument in evidence against person arrested is not objectionable as obtained by unlawful search and seizure. Const. art. 2,§ 30.

6. A defendant upon trial on a criminal charge is not entitled to introduce evidence to show the jury that some other person has confessed that he committed the crime, and that the defendant had nothing to do therewith and was not concerned therein. Proof of such confessions is mere hearsay, and is excluded for this reason.

7. For the same reason a confession of guilt by a third person that he was guilty of the crime charged is not admissible as a dying declaration; the fact that the declarant is dead does not alter the character of the declaration made by him and render it admissible.

8. The verdict of a jury cannot be impeached by the affidavit or oral testimony of a juror.

9. Affidavits or testimony of jurors in relation to what took place in the jury room while the jury was considering its verdict cannot be received, to impeach their verdict on the ground of misconduct.

Appeal from District Court, Garfield County; O. C. Wybrant, Judge.

Joe Newton was convicted of robbery with firearms, and he appeals.

Judgment affirmed.

Baxter Taylor, W. H. C. Taylor, and Edwards & Robinson, all of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for the State.

DOYLE Judge.

This appeal is from a judgment of conviction pronounced and entered by the district court of Garfield county in pursuance of the verdict of a jury finding Joe Newton guilty as charged in the information and he was sentenced to imprisonment in the state penitentiary for a term of 20 years.

Appellant, Joe Newton, and his brother, Willis, were jointly charged in the preliminary complaint with the crime of robbery with firearms, alleged to have been committed in Grant county on the 14th day of April, 1932.

Upon his separate trial Willis Newton was convicted in the district court of Grant county and was sentenced to serve a term of 20 years in the state penitentiary, which conviction was on appeal affirmed by this court. See Newton v. State, 56 Okl.Cr. 391, 40 P.2d 688.

The information in this case filed March 7, 1935, in the district court of Grant county charges the crime of robbery with firearms. On appellant's application, the court granted a change of venue to Garfield county.

The evidence shows that on the night of April 13, 1932, the First National Bank of Medford was robbed by two men who entered by prying open a window. The steel safe, 4 inches in thickness, was burned through by an acetylene cutting torch and $4,400 in money taken from the safe, also bonds and travelers' checks. The evidence further discloses that about 1 o'clock that morning Ed Heiland, who was night watchman for the city of Medford, whose duty it was to guard the bank and other business houses was in a café about a block from the bank. The proprietor and another person were present. Heiland had just ordered a cup of coffee when Willis Newton came in holding a pistol, ordered the three men in the café to lie on the floor, face down with their hands stretched forward, he then tied the hands of all and tied them together. He took from Heiland a pistol, and forced them to go with him to the bank where he was joined by a masked man, holding a double-barrel shotgun, the prisoners were then held under guard near the bank building. Willis Newton then went to the telephone exchange, disabled it, and took in custody all persons there, forcing them to go with him. By using one of the telephone men as a decoy, he captured under sheriff Hamilton, and took him, with his car, to the bank, then placed seven of these captives in Hamilton's car. Willis Newton then drove a car equipped with an acetylene torch, tank, hose, and material for steel cutting to the sidewalk alongside the bank and a window was forced open. The other man positively identified by five witnesses as appellant, Joe Newton, then proceeded to hook up the acetylene torch equipment, entered the bank, and cut into the safe. During the operation several persons passing were stopped and taken into custody by Willis Newton who was guarding the prisoners, so that, by the time the operation was completed, about twenty persons were held captive, some of them in their cars. These prisoners included two men driving bread vans and a man driving a milk delivery. One young man was pressed into service to aid in the work inside the bank and two others were for a time kept inside the bank. The job was finished shortly after 5 o'clock that morning. The Newtons then entered their car, Joe Newton at the wheel, drove North on Main street. On November 18, 1932, Willis Newton and appellant, Joe Newton, were arrested at Chandler. The officers found in their car a double barrel shotgun, three pistols, two bullet proof vests, an acetylene outfit, with tank, hose, blow torch, and goggles. Appellant, Joe Newton, was delivered to Texas officers. Willis Newton claimed the acetylene outfit, and it with the car was turned over to him by the Chandler officers. Willis Newton was arrested at Tulsa, November 27, 1932. Three alibi witnesses testified that on April 13, 1932, defendant, Joe Newton, was at San Antonio, Tex., and the next morning at Uvalde, Tex. Appellant did not take the witness stand.

The first objection urged is that the information is insufficient to charge the crime of robbery with firearms.

The information was sufficient and for the reasons stated in opinion in the case of Newton v. State, supra, the demurrer thereto was properly overruled.

Numerous other errors are assigned, most of which relate to rulings of the court upon the admission and exclusion of evidence; others on exceptions taken to certain instructions, alleged misconduct of the jury, and error in overruling the motion for a new trial. The defense was an alibi.

Complaint is made that the court erred in overruling the defendant's motion to suppress evidence obtained by the search of the car at Chandler and its admission in evidence was incompetent, prejudicial, and in violation of his constitutional rights, because the officers searching the car had no search warrant.

In the case of Griffin v. State, 57 Okl.Cr. 176, 46 P.2d 382, 383, this court held: "The immunity guaranteed by section 30 of the Bill of Rights (Const. art. 2) against unlawful searches and seizures does not extend to the implements of crime, records, papers, or other things found on the person or in the possession of the person lawfully placed under arrest, where such implements, records, papers, or other things have been or manifestly may be used to perpetrate the crime charged."

In the case of Crossmann v. State, 28 Okl.Cr. 198, 230 P. 291, it is said: "A peace officer may arrest one on a well-founded suspicion for the commission of a felony, where a felony has in fact been committed, and the officer has reasonable grounds to believe that the person arrested was the perpetrator."

A peace officer has the right without a warrant to arrest a fugitive from justice. Davis v. State (Okl.Cr.App.) 57 P.2d 634; Methvin v. State (Okl.Cr.App.) 60 P.2d 1062.

It appears that appellant was at that time arrested as a fugitive from justice.

It follows that the objections made were properly overruled.

Arbie Beall testified that she lives at Medford; handed a picture marked Defendant's Exhibit A, she was asked: "Can you tell the jury whether or not you have ever seen the man whose picture you now hold?" Upon the state's objection the court excused the jury. Witness then testified in substance that on the night of April 13, 1932, between 10 and 11 o'clock she saw a man standing by a big car parked in front of the Medford post office and Johnson's drug store, that she lived over the drug store and was sitting at the window looking down on the street, the man had the hood of the car up. Mr. Ed Heiland came along and the man asked him for a flashlight; that she could not say for sure, but her judgment was the man she saw that night was the man in the picture.

Charles T. Warner, in the absence of the jury, testified that he lived at Turley, Okl., was a deputy United States Marshal in 1932. Identified Defendant's Exhibit A as a picture of John Blanther, a man he had shot and arrested in Delaware county on December 30, 1932, and that he talked to him in the jail at Vinita that day. He further testified: "I asked him how he was feeling and he said, 'I don't think I will make it through the day.' I said, 'Well, John you haven't got any...