Pate v. State

• Citation: 361 P.2d 1086
• Decision Date: 19 April 1961
• Docket Number: No. A-12901,A-12901
• Parties: Gerald PATE, 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 1086

361 P.2d 1086

Gerald PATE, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12901.

Court of Criminal Appeals of Oklahoma.

April 19, 1961.

Rehearing Denied May 24, 1961.

Syllabus by the Court

1. In murder prosecution, if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. 22 O.S.1951 § 561.

2. The mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the guilt or innocence of an accused to the extent that an accused cannot have a fair trial by an impartial jury.

3. The presumption is that a defendant can get a fair and impartial trial in the county in which the offense was committed; and if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto.

4. The ease with which a jury was obtained and qualified on their voir dire to try the cause before the application for a change of venue is denied is of some probative force to show that a change of venue is not necessary to insure the defendant a fair trial.

5. The granting of a change of venue is a matter within the sound discretion of the trial court, and unless it clearly appears that there is an abuse of such discretion, the decision of the trial court will not be reversed for failure to grant a change of venue.

6. Primarily there are two facts which render a confession inadmissible as evidence: first, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant's constitutional privilege against self-incrimination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness.

7. Prima facie, any confession is admissible in evidence; and where its admissibility is challenged by the defendant the burden is on him 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.

8. When a photograph is shown to be a faithful reproduction of whatever it purports to reproduce, it is admissible in evidence, as an appropriate aid to the jury in applying the evidence and this is equally true whether it relates to persons, things, or places.

9. Although it is error to receive in evidence gruesome photographs of a homicide victim, designed primarily to arouse the passion of the jury, such photographs are admissible; when they are relevant to the issues before the court and their probative value is not outweighed by the danger of prejudice to the defendant.

10. That one party has admitted a fact does not estop the other party to prove the fact by means of relevant evidence, inasmuch as facts, when admitted, frequently lose their probative force.

11. A doubt as to sanity may arise in the mind of the court upon application for a continuance, motion for new trial, motion in arrest of judgment, by ex parte affidavit or declaration of a bystander, or the court of its own motion; and while the court cannot act arbitrarily in the matter, it has the right to look to the source of the information, and come to a proper conclusion, from all the facts and circumstances, whether there is a doubt in his mind as to the sanity of the defendant.

12. If a claim coming from a reputable source is made, either at the beginning of the trial or at the time for judgment and sentence, or on motion in arrest of judgment, that the defendant is insane at the time, with a reasonable showing or tender of proof in support thereof, it is the duty of the court to submit the question to the jury, but when there is no such showing the court may deny the hearing, without an abuse of discretion.

Appeal from the District Court of Pottawatomie County; J. Knox Byrum, Judge.

Gerald Pate was convicted of the crime of munder, sentenced to death by electrocution, and appeals. Affirmed.

Bailey & Whitlock, Norman, Kenneth Kienzle, Shawnee, for plaintiff in error.

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

BRETT, Judge.

The plaintiff in error, Gerald Pate, defendant below, was charged by information in the district court of Pottawatomie County, Oklahoma, with the crime of murder (21 O.S.1951 § 701) committed by means of strangulation upon the body of Mary Jane Haygood. The crime was alleged to have been perpetrated on September 16, 1959 in said county and state. The information was filed on October 20, 1959. Defendant was tried by a jury, convicted, and his punishment fixed at death. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

The record discloses the information was attacked on October 22, 1959 in the trial court by demurrer, which was overruled, and that ruling is not at issue on this appeal, for the apparent reason that the information is sufficient.

On October 22, 1959 a motion to quash and plea in abatement to said information was filed, and on November 8, 1959 overruled. This action is not questioned herein.

On December 29, 1959 a petition for change of venue was filed in the trial court under provisions of 22 O.S.1951 § 561, reading in part as follows:

'* * * and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court.'

Attached to the petition were three affidavits of citizens in Pottawatomie County. The gist of the petition and affidavits in support thereof, was that great prejudice had been engendered in the southern part of the county by reason of this crime committed therein, and that such prejudice had spread to the entire county, principally through the mediums of radio, television and newspaper publicity accorded the crime, so that the minds of the citizens of said county were such that the defendant could not obtain a fair and impartial trial in said county; it being specifically alleged in said petition that it had been heard repeatedly and widely discussed in other communities that the defendant should be electrocuted without delay, and the right of due process should not be accorded. The three affiants and the defendant's attorney verified the petition.

To the defendant's petition for change of venue the State made response. Therein it was alleged that the wide publicity given to the case had created no fixed opinions in the minds of the public of Pottawatomie County that the defendant actually committed the crime, but the opinions of the people were largely that whoever did commit this crime should be punished. To the answer the State attached fourteen affidavits by responsible citizens, all to the effect that they did not have any fixed opinion about the guilt or innocence of Gerald Pate, and that it was their belief that the people of Pottawatomie County generally had no fixed opinion about the defendant's guilt or innocence, notwithstanding the television and radio broadcasts and the newspaper stories in the Oklahoma City and Tulsa papers, as well as those published in Pottawatomie County. That in discussions heard here and there the opinions of the people who discussed the matter, some speculated one way and some another. All of the State's affidavits were by citizens of Pottawatomie County, Asher in the southern part, Saint Louis in the southeast, Wanette in the southwest, Maud on the east side, Shawnee in the northern part, Tecumseh in the north central section, and McCloud in the northwestern part--a fair spread from over the county.

On January 7, 1960 the petition for change of venue was heard by Judge J. Knox Byrum of the district court of Pottawatomie County. At said hearing the defendant offered in evidence newspaper articles from Tecumseh Standard, and the Shawnee News-Star (six different issues) dealing with various news releases covering the crime, the results of the investigation, defendant's confession, and incidental matters in relation thereto preceding the trial of the case.

In addition to the foregoing the defendant offered as witness his mother, Mrs. Milam, who said she had been to Tecumseh, Shawnee, Wanette and Asher and talked with people in these communities and it was her opinion that her son could not get a fair and impartial trial in Pottawatomie County because of the existing prejudice against him. She got three of thep ersons to whom she talked to verify the petition for change of venue. Others she said refused to sign because they were afraid. Some of the people with whom she talked did not think her son actually did the killing, and they had read the papers she said, and that 'it was just a mess', some of them even thought her son was framed.

Kenneth Kienzle, Jr., a law student and son of defense counsel, testified that he talked to people in Wanette, Asher, Tecumseh, McCloud and Shawnee, and about ninety per cent of the people with whom he talked told him they believed Pate guilty from what they had heard and read in the papers. He admitted that he, himself, formed an opinion from reading the newspapers that the defendant was guilty, but that after being exposed to what might be the evidence in the case, his opinion had changed.

The defendant rested and the State offered evidence in response.

J. C. Winterringer, assistant county attorney, testified for the State that his investigation made over the county disclosed to him that there was prejudice against the crime, but that the people with whom he talked had no fixed opinion as to the guilt or innocence of the defendant. He admitted he had a fixed opinion because of his investigation of the crime, and not from what he read in the papers or heard on radio or...