Perry v. State

• Decision Date: 14 May 1947
• Docket Number: A-10672.
• Parties: PERRY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

181 P.2d 280

84 Okla.Crim. 211

PERRY v. STATE.

No. A-10672.

Court of Criminal Appeals of Oklahoma

May 14, 1947

Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.

Charles Perry was convicted of adultery, and he appeals.

Reversed.

Syllabus by the Court.

1. A prosecution for adultery that is not open and notorious cannot be maintained, unless such prosecution is commenced and carried on by the wife or husband of one or the other of the offended parties. 21 O.S.1941 § 871.

2. While statute (21 O.S.1941 § 871) prevents prosecution for adultery that is not open and notorious, except that it be commenced and carried on by injured spouse, it does not divest County Attorney of control over prosecution and County Attorney, even though alleged injured spouse may wish to prosecute, may in his discretion refuse to institute action or carry on prosecution where he is of opinion that the law or evidence does not justify the prosecution of the case.

3. The statutes of Oklahoma make it the duty of County Attorneys to guard the interests of the state and public and specifically confer authority upon them to determine when to commence criminal actions on behalf of the state.

4. A criminal action may not be dismissed except on order of the court.

5. Where County Attorney filed motion to dismiss adultery case it was error for trial court to refuse to dismiss said prosecution solely because of objections interposed by alleged injured spouse, and further erred in allowing Special Prosecutor employed by injured spouse to supersede County Attorney and control the prosecution.

6. Where trial court enters order dismissing case against two defendants charged with adultery, action of Special Prosecutor in making a pencil notation on order limiting the dismissal 'to Bertha Clifford, only' without approval of the court, is not effective. If court order did not speak the truth, matter should have been called to court's attention and corrected by the court to conform to facts.

7. Before any person can secure immunity under section 27 of the Bill of Rights of our Constitution, on account of incriminatory evidence given by him before any court of competent jurisdiction, such witness must have claimed his privilege of silence, and be denied that privilege by the court, and forced to testify over his objections, and must also in good faith disclose all the facts pertaining to the matter inquired about truthfully.

8. The constitutional right of witness to immunity on account of incriminatory evidence given by him before a court is a privilege that may be waived.

9. The determination as to whether witness has waived his constitutional right to immunity on account of incriminatory evidence given by him before a court, must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

10. Incriminatory statements accounting to a confession obtained from witness who was subpoenaed to testify at preliminary examination and appeared under such compulsory process while still suffering from gun shot wounds and under the influence of sedatives administered by physician to alleviate suffering, without counsel to advise him and without being advised of his right to refuse to testify in response to questions which might incriminate him, was inadmissible in evidence against witness in prosecution later instituted as a result of the testimony given by such witness.

11. Evidence of plea of guilty entered by accused upon arraignment before a Justice of Peace is not admissible on the trial of the issue in the District Court arising on a plea of not guilty.

12. Argument of Special Prosecutor held so grossly improper and prejudicial as to deny defendant a fair and impartial trial.

Hal Whitten, of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Judge.

The defendant, Charles Perry, and Bertha Clifford were jointly charged upon complaint of Franklin Hiram Clifford, husband of Bertha Clifford, with the crime of adultery in a complaint filed before a Justice of Peace of Oklahoma County. Subsequent to the preliminary examination, an information was filed in the District Court of Oklahoma County charging them with said crime of adultery. Thereafter, the County Attorney filed a motion to dismiss the action against both of the defendants but upon objection of the husband, Franklin Hiram Clifford, the action was continued as to the defendant, Charles Perry, and dismissed as to Clifford's wife, Bertha. The defendant, Perry, was tried to a jury, convicted, with the sentence left to the court. Perry was thereupon sentenced to serve two years in the State Penitentiary and has appealed.

Counsel for defendant have presented many assignments of error. Most of them have substantial merit, but in the view which we have taken of the case it is not necessary to discuss all of them.

Franklin Hiram Clifford and Bertha Clifford were married in 1926. Two boys and two girls were born to that marriage and were living at the time this prosecution was instituted. The defendant, Charles Perry, age forty-eight, was a veteran of both world wars. After being honorably discharged from the Army, he commenced work for an ordance company in March, 1944. Franklin Clifford enlisted in the Army on October 14, 1943.

Subsequent to the enlistment of Franklin Hiram Clifford in the Army, his wife commenced working at the same ordinance plant where the defendant was employed. In April, 1944, the defendant and Mrs. Clifford became acquainted; later they were seen together on different occasions. On December 29, 1944, Franklin Clifford was discharged from the United States Army as a psychopathic case. He returned to live with his family but later trouble developed between him and Mrs. Clifford, and in January, 1945, Mrs. Clifford made arrangements with her husband to go to Arizona. Mrs. Clifford got in touch with the defendant, Perry, and he came on the train with Mrs. Clifford and her two daughters to Oklahoma. They commenced living together at a farm house near Choctaw in Oklahoma County, shortly after they came to Oklahoma. They were known in the neighborhood as Mr. and Mrs. Perry and the two girls enrolled in school under the name of Perry.

On February 5, 1945, Franklin Clifford who had followed his wife, located her and the defendant at their home near Choctaw. He went to the house shortly after dark, walked in and shot the defendant twice. One of the bullets from the pistol entered his right temple and came out through his left jaw, causing a paralysis to the defendant's right arm and right leg which had continued up to the date of the trial of the case out of which this appeal was taken. He was also shot in the stomach. The defendant, Perry, was taken to the Oklahoma City General Hospital where he remained about four weeks. Clifford was incarcerated in the County Jail and a charge of assault with intent to kill was filed against him. The preliminary hearing was postponed pending the outcome of the injuries sustained by Perry. When Perry had recovered sufficiently to be able to leave the hospital, the case against Clifford was set for a preliminary hearing. Both the state and the dependant issued subpoenas for Perry and he appeared at the preliminary hearing under the compulsion of the subpoenas which were served on him. Counsel who were employed to represent Clifford placed Perry upon the witness stand purportedly to testify as a witness in behalf of Clifford. He was asked if he had ever had sexual intercourse with Mrs. Clifford and Perry stated that he had on two different occasions. Based upon this statement of Perry, Clifford and his counsel made a demand on the County Attorney that adultery charges be filed against Perry and Mrs. Clifford.

Subsequently the assault with intent to kill charge was dismissed against Clifford. Thereafter, the County Attorney filed a motion to dismiss the adultery charge against the defendant, which motion reads as follows:

'Comes now Warren H. Edwards, the duly elected, qualified and acting County Attorney of Oklahoma County, State of Oklahoma, and moves the court to dismiss the above entitled cause for the following reasons, to-wit:

'The County Attorney is of the opinion that the facts in this case are not sufficient upon which to base a conviction and that the evidence is not sufficient to prove the defendants guilty beyond a reasonable doubt; that this action was instituted by Franklin Hiram Clifford, the aggrieved husband, and the available evidence points to the fact that the said Clifford is not of mentally sound mind; that at the preliminary hearing the two minor daughters of the complaining witness testified to facts tending to disprove the act of adultery, and that later one of these witnesses testified under oath to the contrary and admitted that her testimony at the preliminary hearing was false. To a large extent proof of the guilt will depend on the veracity of these minor children and we do not think their evidence is dependable. Further investigation shows that the complaining witness Clifford and his wife have become reconciled and are now living together or planning so to do, and that the wife of the complaining witness, Bertha Clifford, will not testify against the defendant to actual adultery; that the only definite proof of adultery was given by the defendants, Charles Perry and Bertha Clifford, at the preliminary trial of Franklin Hiram Clifford wherein Clifford was charged with the crime of assault with a dangerous weapon and that said witnesses were by the said Clifford's attorney and by the Magistrate compelled to

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