Prather v. State

• Decision Date: 28 April 1943
• Docket Number: A-10189.
• Parties: PRATHER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

137 P.2d 249

76 Okla.Crim. 385

PRATHER v. STATE.

No. A-10189.

Court of Criminal Appeals of Oklahoma

April 28, 1943

Syllabus by the Court.

1. Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions, in order to be admissible, must be entirely free and voluntary.

2. Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant 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. If it is held competent and the proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.

3. The fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which would otherwise be competent.

4. Where reporter, who took the confession of defendant in form of questions and answers between the county attorney and defendant, testified that the statement as transcribed by her was true and correct, the confession is admissible though not signed by defendant.

5. Where a conspiracy is entered into by several convicts to effect an escape from the state penitentiary, and during the continuance of said conspiracy, and in furtherance thereof, a person is killed by one of the co-conspirators, all of such persons so conspiring and confederating together for the purpose of the escape are alike guilty of murder.

6. Where the testimony clearly shows an aggravated case of murder, Criminal Court of Appeals will not interfere with verdict of jury upon the ground that the death penalty is excessive punishment and should not be inflicted.

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Hiram Prather was convicted of murder, and he appeals.

Affirmed.

W. J Hulsey, of McAlester, for plaintiff in error.

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

JONES Presiding Judge.

This is an appeal from a conviction for murder with the sentence of death in the District Court of Pittsburg County.

The charge of murder of Warden Jess Dunn filed against the defendant, Hiram Prather, is an outgrowth of an attempt on the part of four long-term convicts to escape from the State Penitentiary, which attempt resulted in the death of Warden Jess Dunn, Deputy Sheriff Tab Ford and three of the four convicts. The defendant, Hiram Prather, was the only convict who survived.

The facts established by the proof of the state show that about 10:00 A.M. on Sunday morning, August 10, 1941, Warden Jess Dunn was in the prison yard at the State Penitentiary with one J. H. Fentriss, who had been employed by the State Board of Public Affairs to install a communication and public address system at the Penitentiary. Warden Dunn and Fentriss were in the yard making a check to determine where to install the communication equipment when they were seized from behind by four convicts, three of them armed with sharp dirk knives and one of them with a razor. The knives and razor were held at the throats of both Dunn and Fentriss, their hands were tied behind them, and with a convict on each side of them Warden Dunn and Fentriss were marched to the first of two east gates of the Penitentiary. A few minutes' controversy there occurred before the guards at the tower in charge of the first gate would open the gate to allow the four convicts and the two kidnapped men to pass. It was only after one of the convicts, holding a sharp knife to the breast of Warden Dunn, had commenced pressing the knife toward the heart of the Warden to where blood was streaming out of the wound and showing on the Warden's shirt, that the guard in charge of the gate opened the same to allow them to pass. A short distance from the first east gate was a second gate which formed the outer boundary of the prison walls. Another argument with the guards at this gate occurred which finally resulted in the guards lowering a pistol and a 30-30 Winchester rifle which were seized by the convicts. After passing through the outer gate the convicts, together with their hostages, seized an automobile and commenced to flee.

During the period of time which had been taken by the arguments with the tower guards, the officers of Pittsburg County had been notified and Deputy Sheriffs Bill Alexander, Bob Pollock and Tab Ford drove to the Penitentiary. They arrived shortly after the convicts had fled and immediately commenced pursuit. The convicts took a road from the Penitentiary which led to a barrier where the road was being repaired. When they reached this barrier they turned their car and started back. Deputy Sheriff Alexander saw them approaching and blocked the road with his automobile, forcing the convict car to stop. A gun battle ensued between Deputy Sheriff Alexander, armed with a rifle, and the convicts, resulting in the deaths of the parties hereinbefore mentioned. The defendant Prather, together with convicts Beavers and Anderson, attempted to flee from the car after it stopped and take refuge in a ditch adjacent to the road. After Alexander had killed Beavers and Anderson, Prather came out of the ditch with his hands in the air and surrendered. Warden Dunn and convict McGee were both dead in the front seat of the automobile. The proof showed that Warden Dunn had been shot three times in the back of the head, close to the right ear, by one of the convicts armed with a pistol.

The testimony of all of the witnesses was to the effect that the man who sat on the right side of the rear seat was the one who fired the shots that killed Warden Dunn and the proof showed that the defendant was the convict who sat at this position.

In this connection the witness Fentriss testified that he was sitting in the middle of the back seat. He further testified as follows:

"Q. (By Mr. Hulsey, Counsel for Defendant) Do you say and tell this jury that Prather, the defendant, was the man that was sitting at your right? A. Yes, sir.

Q. Did you see him with a gun? A. Yes, sir.

Q. What kind of gun? A. Pistol."

He further testified that when the shooting commenced he rolled over to the bottom of the car and did not actually see the shots fired that killed the Warden.

Officer Alexander also testified that the convict on the right-hand side of the rear seat was armed with a pistol and fired the first shot.

None of the three bullets fired into the head of the Warden emerged, but two of them were removed and a ballistic expert testified that he fired a test bullet from the pistol used by the convicts and that this test bullet, when compared with the two bullets removed from the head of Warden Dunn, showed conclusively that they had all been fired from the same gun.

It is apparently undisputed that Warden Dunn was killed by a pistol in the hands of one of the convicts, but it was the contention of the defendant that the shots which killed the Warden were fired by convict McGee and not the accused. This contention is not based on any testimony of the defendant, as no evidence was offered in his behalf, but is based wholly upon a discrepancy appearing in the testimony of one of the state's witnesses who said that the convict who did the shooting had on what is described as weed-row clothes, which were blue denim with small stripes, while the testimony of the Deputy Warden showed that the defendant Hiram Prather had been working in the mess hall and was dressed in white.

Another physicial fact, however, disputing the claim of defendant that Roy McGee fired the fatal shots at the Warden, was the fact that McGee was sitting in the front seat with the Warden and was found slumped over dead against the Warden after the shooting had ended. The fact that the Warden was shot in the back of the head, close to the right ear, makes it practically...