Parnell v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: JONES; BRETT, P. J., and POWELL
• Citation: Parnell v. State, 250 P.2d 474, 96 Okla.Crim. 154 (Okla. Crim. App. 1952)
• Decision Date: 19 November 1952
• Docket Number: No. A-11631,A-11631
• Parties: PARNELL v. STATE.

Page 474

250 P.2d 474

96 Okla.Crim. 154

PARNELL v. STATE.

No. A-11631.

Criminal Court of Appeals of Oklahoma.

Nov. 19, 1952.

Syllabus by the Court.

1. In every criminal prosecution it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.

2. The 'corpus delicti' means, when applied to any particular offense, the actual commission by some one of the particular offense charged.

3. The corpus delicti in a criminal case cannot be established by the confession of the defendant alone.

4. Testimony of accomplice can establish the corpus delicti.

5. The testimony of the accomplice, together with circumstantial evidence detailed by officers making arrest, were sufficient to establish corpus delicti, and where corroborated by confession of the accused, were sufficient to sustain the conviction.

6. Where a conspiracy is entered into to do an unlawful act the conspirators are responsible for all that is said or done pursuant to the conspiracy by their co-conspirators until the purpose has been fully accomplished.

7. As a general rule the arrest of co-conspirators may be said to effectively preclude any further concerted action, and ordinarily puts an end to the conspiracy; and ordinarily and statement by a co-conspirator out of the presence of his other co-conspirators made after his arrest and confinement in jail would be hearsay and inadmissible.

8. Where no objection is made to instruction at time it is given nor exception taken to the giving of such instruction, Criminal Court of Appeals will not consider assignment of error that instruction was erroneous, unless it is so fundamentally erroneous that it can be said that defendant was denied his right to a fair and impartial trial or that the instruction deprived him of a constitutional right.

9. The trial court is under a lawful duty to instruct on all the issues before the jury, but court acted properly in refusing to give requested instruction of defendant which did not pertain to any of the issues of the case.

10. Argument of county attorney did not constitute reversible error.

11. Sentence of three years in penitentiary and fine of $1,000 was excessive upon conviction for importation of alcoholic liquors without a permit, and was reduced to one year in penitentiary and a fine of $1,000.

Cicero I. Murray, Lindsay, Bowie & Bowie, Pauls Valley, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, Neal Parnell, was jointly charged with one Howard Lee with the crime of transporting alcoholic liquor into the state of Oklahoma without a permit from the state tax commission. A severance was had, Parnell was tried, convicted and pursuant to the verdict of the jury was sentenced to serve three years imprisonment in the penitentiary and pay a fine of $1,000, and has appealed.

The case has been well briefed and many assignments of errors are presented. We shall consider them in the order in which they are presented in the brief of defendant.

It is first contended that there was no proof of the corpus delicti.

The term 'corpus delicti' means, when applied to any particular offense, the actual commission by someone of the particular offense charged. Gorum v. State, 60 Okl.Cr. 248, 63 P.2d 765; Robinson v. State, 71 Okl.Cr. 75, 108 P.2d 196.

It is also established law that the corpus delicti in a criminal case cannot be established by the confession of the defendant alone. Capshaw v. State, 69 Okl.Cr. 440, 104 P.2d 282; Davis v. State, 71 Okl.Cr. 82, 108 P.2d 200; Osborn v. State, 86 Okl.Cr. 259, 194 P.2d 176. The corpus delicti however may be established by direct or circumstantial evidence. Ramey v. State, 69 Okl.Cr. 257, 101 P.2d 856. It is unnecessary in establishing the corpus delicti to prove that the defendant committed the crime, but the evidence either direct or circumstantial must show that a crime was committed.

In Osborn v. State, supra [86 Okl.Cr. 259, 194 P.2d 177], this court held:

'In every criminal prosecution it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.

'The 'corpus delicti' means, when applied to any particular offense, the actual commission by some one of the particular offense charged.'

Although the exact question has never been before the Oklahoma courts for determination, it has been held in other jurisdictions that the corpus delicti may be established by the evidence of a co-conspirator. People v. Bonilla, 124 Cal.App. 212, 12 P.2d 64.

This brings us to a consideration of the state's evidence. Howard Lee, the co-defendant, testified that he lived in Longview, Texas; that on May 9, 1947 he was driving a Ford truck on the highway near the town of Lindsay in Garvin County; that he had several cases of whiskey and gin on the truck covered with hay; that he obtained the load of whiskey and gin at Shreveport, Louisiana; that the defendant Parnell had employed him to drive the truck and so far as he knew Parnell was the owner of the whiskey; that he obtained the whiskey in Louisiana the day before his arrest and that he hauled it directly from Louisiana to where he was arrested; that he had no permit from the state of Oklahoma for the transportation of liquor that was found in the truck. On cross-examination he testified that after his arrest he was charged in the County Court of Garvin County with the illegal transportation of liquor but that at a hearing in the county court the case was dismissed on the ground that the liquor was an interstate shipment.

Claude Swinney testified that he was sheriff of Garvin County and arrested the defendant with 139 cases of whiskey and five cases of gin just west of the town of Lindsay; that Howard Lee was driving the truck and did not have a permit from the tax commission for the importation of such liquor into the state of Oklahoma; that at the time the truck was stopped it was traveling northwest toward Chickasha and was about twenty-five miles from Chickasha. The truck was traveling in the direction of the home of the defendant Parnell, who lived four or five miles from Chickasha; that he had a conversation after the seizure of whiskey with the defendant Parnell in which the defendant told him that the liquor belonged to the defendant. Later after an order of the county court was served on him he refused to deliver the liquor to the defendant Parnell upon the advice of the state's attorneys. Howard Lee had no bill of lading for the whiskey.

Robert Hood, deputy sheriff of Garvin County testified to substantially the same evidence as related by sheriff Swinney.

Clarence McKinney testified that he was the jailer of Garvin County and as such helped stack the cartons of intoxicating liquor in the vault in the sheriff's office; that neither the cartons nor any of the containers of the liquor had a stamp on them and there was nothing on the outside to show the name and address of any purchaser or consignee.

The crime charged involves an alleged violation of the alcohol permit law. Title 37 O.S.1941 §§ 41 to 48. Section 43 of such act provides 'Any person, individual, firm, corporation, or association desiring to import, bring in, or transport intoxicating liquor, containing more than four (4%) per cent of alcohol by volume, shall first secure from the Tax Commission of the State of Oklahoma, a permit as herein provided. Such permit shall accompany such intoxicating liquor at all times while being imported, brought into and transported into and in the State of Oklahoma, shall be in possession of the person or carrier transporting the same and shall, upon demand, be exhibited to any peace officer or other duly constituted agent or representative of the State of Oklahoma, or such officer of the United States of America. When said intoxicating liquor shall have reached its destination, such permit shall be returned to the said Tax Commission and by it marked 'cancelled'. In any complaint, information, indictment or other proceeding laid or brought under this Act, it shall not be necessary to negative the issuance or possession of a permit, and the burden of establishing such issuance and possession shall be upon the person or party claiming the benefit thereof. Failure to produce and exhibit such a permit upon demand as provided in this Act, shall constitute prima facie evidence of the lack of such permit.' (Italics ours.) Title 37 O.S.1941 § 43.

In order to establish the corpus delicti of this offense it was incumbent upon the state to show an importation or transportation of intoxicating liquor into the state. As pointed out by counsel for defendant, a transportation wholly within the state would not constitute a violation of this particular act but there must be proof that the liquor was brought 'into' the state from without the state.

The testimony of the co-conspirator showed that the whiskey was loaded at the Brush Liquor Company in Shreveport, Louisiana and that he drove with it directly to the place where he was arrested in Garvin County, the Liquor was tax paid liquor. It was not manufactured in Oklahoma. There was no permit in the possession of the truck driver. Neither were the cartons in which the bottles of liquor were contained stamped with the name and address of any consignee as required by the federal laws pertaining to an interstate shipment. 18 U.S.C.A. § 390 [1948 Revised Criminal Code, 18 U.S.C.A. § 1263].

We think the testimony of the accomplice Lee together with the circumstances detailed by the officers who made the arrest were sufficient to show that some one had committed the crime of transporting intoxicating liquors from without the state into the state of Oklahoma without a permit from the state tax commission. The corpus delicti having been established, then the confession made by the defendant to the officers that the liquor...