Pettigrew v. State
| Decision Date | 10 November 1959 |
| Docket Number | No. A-12704,A-12704 |
| Parties | James Lewis PETTIGREW, 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 |
Syllabus by the Court.
1. Only those allegations in an indictment or information which involves guilt of a defendant are to be proved beyond a reasonable doubt. The venue of an offense does not come within this class, but there must be some proof of venue. Venue may be proved by circumstantial evidence.
2. While it is always a simple matter, and is much the safer plan, for the state to prove venue directly and positively, yet one essential test is whether or not the venue has in some way been proved, and if it is proved by circumstances or indirect statements which fix the venue, the requirements of the law have been met.
3. If the defendant desires to challenge the venue because of insufficient proof of venue, not only should this issue be raised in the motion for a new trial, but request for an instructed verdict should be interposed, in order that the trial court might have opportunity to pass on the matter.
4. A conviction cannot be had upon a defendant's extrajudicial admission alone, unless the state proved in some way the corpus delicti, independent of the defendant's admission. Direct and positive proof is not essential to establish the corpus delicti, and it may be proved by circumstantial evidence, the question should be submitted to the jury along with other questions of fact in the case, as to whether or not the state has established the corpus delicti beyond a reasonable doubt.
5. Where a dead body is found with marks of violence upon it or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant's confession, establishes the corpus delictic in a murder case.
6. Where a party has placed a witness upon a witness stand believing he or she will testify to a given state of facts by reason of testimony given or statements made, and the witness then testifies to a different state of facts injurious to the party calling said witness and in conflict with her previous testimony or statement, the party placing such witness upon the stand may impeach his or her testimony. This may be done upon the ground of surprise and to explain the placing of the witness upon the stand and to counteract the injurious effect of his or her testimony.
7. If such impeachment is permitted the impeaching testimony should be expressly limited to her impeachment only. It is the duty of the court to clearly inform the jury that said statements cannot be used as substantive evidence against or in favor of the defendant, but can only be considered for the purpose of effecting the credibility of the witness. This duty rests primarily with the trial court, but secondly, its weight falls on the defendant in that he should request the instruction if the court fails to give same.
8. Where witness surprises county attorney by becoming an unfriendly witness and repudiating previous statements or testimony, the court did not err in permitting county attorney to prove witness' relationship with the defendant prior to trial and that she had spent the night before trial with defendant. This was admissible to explain witness' change in attitude thus affecting her credibility.
9. Testimony of pathologist, as to findings of an autopsy not performed in compliance with statute, is not rendered inadmissible because the evidence was obtained in an irregular manner; Defendant not being proper party under statute to authorize or object to performance of autopsy upon deceased.
Appeal from the District Court of Pontotoc County; John Boyce McKeel, Judge.
James Lewis Pettigrew, Plaintiff in error, was convicted of Manslaughter in the first degree and appeals. Affirmed.
Robert J. Wimbish, Ada, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
James Lewis Pettigrew, hereinafter referred to as the defendant, was charged by information in the District Court of Pontotoc County with the crime of manslaughter, 1st degree. He was tried before a jury, found guilty, and sentenced to twenty years in the state penitentiary.
The defendant lodges his appeal in this court in due time and asserts three propositions of error as follows:
1. That the court erred in overruling defendant's motion for a new trial for failure of the court to prove venue.
2. That the court erred in refusing to instruct the jury to return a verdict of not guilty because the state failed to prove the 'corpus delicti.'
3. That the court erred in admitting evidence which was incompetent and prejudicial to the defendant.
The defendant's first contention of error involving the question of venue has been passed on by this court, in numerous cases, unfavorable to the defendant. It is true that there is no positive proof of venue by direct question and answers but the record is full of circumstances from which venue could be established.
An employee of the Smith Funeral Home testified he received a call on January 25, 1958, to go to the Pettigrew home. His testimony was as follows:
'Q. On January 25, 1958 did you receive a call to the Pettigrew home in the Three Hundred Block of East Sixteenth in the City of Ada? A. Yes, sir.
'Q. And about what time was it, Tom? A. Oh, it was about 7:30, or, maybe, just a little earlier than that.
'Q. A. M. or P. M.? A. P. M.
'Q. Tell the Court and jury what happened when you got there. A. Well, the call came in and I asked them if it was an emergency and they said, yes, it was, and I ran an emergency out there and got there as quick as possible. In running an emergency I could park on either side of the street, so I parked on the wrong side of the street, heading east, and a lady came running out with a baby in her arms, or a bundle--it was wrapped up--and saying, 'My baby is dying' and was quite hysterical and started to get in on my side and I told her to run around on the other side and get in--and Murl Harris was with me and he let her get in on the other side. And I ran an emergency out to the Valley View Hospital and when we got out there Murl carried the baby in and the girl had fainted, or 'passed out', seemingly--* * *
'
The mother of the deceased child testified on June 5, 1958 that she and her children moved into the Pettigrew home in August and remained until the past February:
'By Mr. Wimbish: We object to that as incompetent, irrelevant and immaterial----
'By the Court: Overruled.
'By Mr. Wimbish: --that has nothing to do with the issues in this case.
'By Mr. Wimbish: Exception.
The father of the defendant testified in regard to the address as follows:
'
His testimony further reflects that defendant was in the Pettigrew home along with the deceased child during the date of the alleged crime. The defendant also testified that he, Sue, and the three boys shared a room in the Pettigrew home on North Broadway.
It is obvious from a review of the record that the alleged crime occurred in the city of Ada. This court has often said that the court and the jury in aid of proof of venue may take judicial cognizance of the location of cities and towns as within the location of the boundaries of certain counties. See Ford v. State, 52 Okl.Cr. 321, 5 P.2d 170. This court takes judicial notice that the city of Ada is in Pontotoc County. In a very similar case, Payne v. State, Okl.Cr., 276 P.2d 784, 793, this court made the following recitations as to the question involved:
'* * * In Kilpatrick v. State, 90 Okl.Cr. 276, 213 P.2d 584:
'In the body of the opinion it was further said:
"It is solely a question of the court's jurisdiction over the particular offense alleged in the information.'
'In Swift v. State, 92 Okl.Cr. 43, 220 P.2d , 302, it is said:
"* * * and venue need not be shown beyond a reasonable doubt.'
'To the same effect is Vanderslice v. State, 59 Okl.Cr. 192, 57 P.2d 267; ...
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