Shimley v. State

• Decision Date: 14 July 1948
• Docket Number: A-10946.
• Citation: 196 P.2d 526,87 Okla.Crim. 179
• Parties: SHIMLEY et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

196 P.2d 526

87 Okla.Crim. 179

SHIMLEY et al. v. STATE.

No. A-10946.

Court of Criminal Appeals of Oklahoma

July 14, 1948

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Harold E. Shimley was convicted of the included crime of kidnapping and sentenced thereon to a term of three years in the penitentiary, and he appeals.

Affirmed.

Syllabus by the Court

1. In the trial of a criminal case the defendant cannot without provocation, voluntarily inject into the trial some prejudicial word or act and then assign the same on appeal as grounds for obtaining a reduction in the penalty imposed or for the purpose of effecting his release.

2. Opening statement of defendant made in his own defense examined, Held not prejudicial but self-serving.

3. The power of this court to modify judgment by reducing punishment in furtherance of justice, is not the power to commute by the Chief Executive, since judicial power to modify a judgment and executive power to pardon are distinct; one being an award of justice, another being an act of grace.

4. Criminal Court of Appeals has the power to modify a judgment and reduce a sentence inflicted by the jury or trial court but this power cannot be arbitrarily used and can only be exercised where it appears from the record that an injustice has been done in assessing the punishment upon the defendant. Held, this record does not warrant modification.

David Tant and Herbert K. Hyde, both of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Ass't. Atty. Gen., for defendant in error.

BRETT Judge.

This is an appeal by Harold E. Shimley from a conviction for the included crime of kidnapping (Title 21, § 741, O.S.A.1941, with a maximum penalty of ten years) and sentence thereon to a term of three years in the penitentiary. The charge as laid in the information is for kidnapping for the purpose of extortion under Title 21, § 745, O.S.A.1941, carrying a maximum penalty of death and a minimum penalty of ten years in the penitentiary.

Shimley does not contest the correctness of the verdict of the jury as to his guilt. He registers no complaint that the trial judge Albert C. Hunt did not give him a fair and impartial trial. He assigns no errors of law occurring during the trial as the reasons for this appeal. His sole and only ground for this appeal is that the sentence of three years in the penitentiary which the jury inflicted is excessive, when measured by the sentences of his co-defendants of one year in the penitentiary. This contention is predicated upon his claim that the evidence showed that the defendants were acting jointly and together. He says that the reason for the difference in the sentences inflicted upon him and his co-defendants is by reason of passion and prejudice which he aroused in an opening statement which he made before the jury in his own defense.

When this matter was first orally presented to the court it was urged that the difference in penalty occurred because of the passion and prejudice aroused by the opening statement made by Shimley in his own defense. In this connection the defendant Shimley insisted that he be permitted to make an opening statement. The court permitted him to do so. He made an extended argument which he felt sure would be to his advantage. He now feels it was prejudicial. He seeks to invoke in his favor the rule that the court has repeatedly announced that, where the punishment appears excessive in part resulting from passion and prejudice the judgment and sentence will be modified by reducing the sentence. Deal v. State, 59 Okl.Cr. 385, 60 P.2d 408; Cunningham v. State, 70 Okl.Cr. 131, 105 P.2d 264; Green v. State, 70 Okl.Cr. 228, 105 P.2d 795; Johnson v. State, 70 Okl.Cr. 270, 106 P.2d 149; Greer v. State, 74 Okl.Cr. 286, 125 P.2d 225; White v. State, 76 Okl.Cr. 147, 134 P.2d 1039; Kidd v. State, 76 Okl.Cr. 213, 136 P.2d 210; Daves v. State, 77 Okl.Cr. 343, 141 P.2d 603, and numerous other cases not cited. We find these cases, however, are cases where the passion and prejudice engendered was by the State for the purpose of influencing the conviction of the defendant. We found no cases where the defendant by an opening statement or argument made in his own defense had been granted relief where his own acts engendered passion and prejudice against him. The State and the court should not be held responsible for the acts of the defendant in the trial of a case resulting to his prejudice. We can think of no more abortive procedure in the administration of justice than to permit the defendant to become master of the trial and by his own conduct without provocation, voluntarily inject into the trial some prejudicial word, or act and then on appeal complain of the same as a means of obtaining a reduction in the penalty imposed or for effecting his release. If such were the case no defendant would be tried without extending his full length and then some, to bring about such an abortive situation. The court must hold on this situation that in the interest of orderly courtroom procedure that the defendant is bound by the same hard and fast rule of fair play as is the State in the trial of a criminal case. The State cannot play fast and loose in a trial, neither can the defendant. He cannot precipitate error in his own defense then use it as a springboard to his own advantage. The results in the trial of a case should be dependent upon the issues of fact. When this appeal was first presented to the court we were somewhat impressed with the argument on this ground but upon mature consideration it becomes apparent that it is wholly without merit.

Moreover, an examination of the opening statement made by Shimley does not impress us as being prejudicial to his rights, but on the contrary it appears in every line and syllable a masterpiece of design intended to create prejudice in his own favor--a grand piece of self-serving declaration designed to relieve the jurors' minds of the motive for this crime, to establish that he was not in the whiskey business, but was a family man even though a gambler by profession. How it can be said that this opportunity afforded by our system of jurisprudence was anything but an advantage to him we cannot see. However, if it proves a disadvantage he and he alone is responsible. If we are wrong in our impression that it was not prejudicial to him, still he cannot hold the State responsible, to his advantage for the error he himself injected into the trial. There would be no end to misconduct on the part of defendants in trial procedure if such a rule were established. If such a rule were established it would mark the end of orderly courtroom procedure. The administration of justice would degenerate and become a mere travesty. We therefore cannot follow Shimley's contention in this regard.

The defendant further contends that his three years sentence is excessive when measured by the one year sentence meted out to his co-defendants, since the evidence shows that they acted jointly and together. In this connection to determine what the basis was for the difference in penalty, we have carefully reviewed the 1115-page record which includes the justice court preliminary proceedings, the latter being offered in evidence by the defendant for impeaching the testimony of the State's witnesses. This was done by the defense in a sort of flourish 'for whatever it is worth' attitude. The defense however did not take the pains to point out wherein it was impeaching. After an examination of the same we believe it would have been better for the defense to have left it out. As to the main thread of the story and principal acts complained of it is highly corroborative of the complainants. This record discloses that Shimley and his co-defendants acted jointly and together as he contends but it shows more. It shows that they did not act in equal roles. Moreover, it presents a picture of the defendant's attempt to eliminate by rule of tooth and claw W. J. Kelley a competing bootlegger, with gambling facilities. It shows they tried to muscle in, push him out and take over his business. It presents a picture of racketeering in unlawful enterprises culminating in the kidnapping of W. J. Kelly and Claudia Jo Sam.

In the foregoing connection it is well that we briefly review the facts as found by the jury from the record. In substance the facts were W. J. Kelly owned and operated two establishments, one a telephone whiskey bootleg distribution point and a suburban eating, drinking and gambling dive known as the San Diego Club. He was apparently doing well financially in both places. This record discloses it was the desire of Shimley and one of his co-defendants to take over his whiskey business and his gambling facilities. Shimley and one of his co-defendants the record discloses called on W. J. Kelly and told him he had sold a one-half interest in his club to Shimley. This apparently was much of a surprise to Kelly. He denied this. Moreover, he declined to sell. He was then told that if he did not lease both his club and telephone numbers to some other parties to be named by Shimley's associates his place would be raided by the officers and torn up. This he also declined to do. Next he was offered $2,000.00 for his phone numbers and $4500.00 for his club. This he further declined. From then on the record shows he had difficulty with Shimley, the gambler, and his associate, who claimed to be king of the Oklahoma City bootleggers. When he could not be moved to sell or lease his San Diego Club was raided and chopped up just as he was warned it would be.

The record then reveals that W. J. Kelly became involved with one of Shimley's co-defendants and other parties from Chicago in a whiskey...