Spence v. State

• Decision Date: 29 June 1960
• Docket Number: No. A-12844,A-12844
• Citation: 353 P.2d 1114
• Parties: James SPENCE, 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 1114

353 P.2d 1114

James SPENCE, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12844.

Court of Criminal Appeals of Oklahoma.

June 29, 1960.

Syllabus by the Court

1. Where it appears that an accused signed a written confession in which he admitted firing the gun that killed an intended victim, and the confession is corroborated by other admissible evidence, it is not error to permit it to be shown by an arresting officer that an accomplice of defendant did most of the talking when confessions were given and that the defendant verified what he said, and specifically verified that he, the defendant, shot the gun that killed the decedent.

2. Weapons, bullets, instruments, or other articles used, or respecting which there is sufficient evidence to justify a reasonable inference that such weapons, bullets, instruments or other articles were or may have been used by the accused or his co-actors in the commission of a crime are admissible in evidence.

3. Where there is evidence tending to prove a conspiracy between defendant and others in the commission of the crime charged, and the defendant and such others soon after the commission of the crime are found together and arrested under circumstances tending to prove that the crime charged was committed by them jointly, weapons or other things connected with the crime charged are admissible against him.

4. It was not reversible error to admit in evidence the headline of a newspaper stating 'Woman Slain In Holdup Of Store', where the article delineating the fatal incident is excluded from evidence, and the paper was found in the apartment hurriedly vacated by defendant with almost a month's rent available to defendant, particularly where the fact of the killing was admitted in defendant's signed, witnessed, written, confession.

5. Evidence of a planned jail break while the perpetrators were awaiting trial constitutes proof of consciousness of guilt, and is admissible although the accused admits he is guilty of the crime with which he is charged.

6. The mere fact that a confession is made to police officer while the accused is under arrest, does not necessarily render the confession involuntary; but as one of the circumstances, may be taken into account in determining whether or not the statement was voluntary. * * * The burden is upon him who challenges the admissibility of a confession 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, and where such does not appear from state's case, or proof of defendant, confession is admissible in evidence.

Appealed from the District Court of Cotton County; Luther Eubanks, Judge; where petitioner, James Spence was convicted of the crime of murder. Affirmed.

John W. Tyree, Lawton, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Warren H. Crane, Co. Atty., Comanche Co., Lawton, for defendant in error.

BRETT, Judge.

This is an appeal by James Spence from a second conviction for the murder of Ruth Zimmerman, committed in Comanche County, Oklahoma on March 31, 1958. The case was originally brought by information against Spence and Eddie Oxendine as accomplices on which a trial was held in the District Court of Comanche County, Oklahoma. A conviction was obtained affixing the death penalty. From that conviction an appeal was taken in which we reversed and remanded the case for a new trial. Oxendine and Spence v. State, Okl.Cr., 335 P.2d 940. Thereafter the defendants applied for a severance which was granted. Spence sought a change of venue, which was granted and the case was remanded for trial, as to him, to Cotton County, Oklahoma. Spence was again tried in the District Court of that county and convicted, with the imposition of the death sentence. From that conviction, judgment and sentence, this appeal has been perfected.

The facts as developed at this trial by Spence's written confession and other corroborative evidence disclosed that James Spence, his brother-in-law, Eddie Oxendine, together with their wives, Leacy Spence and Donnie Oxendine, were traveling from Kingston, North Carolina to obtain work. They arrived in Lawton, Oklahoma about March 25, 1958. On March 31, 1958, Spence and Oxendine left their wives at the apartments where they were staying and went on a ride around town, stopping at about three places to drink beer. Sometime after 10 P.M. they approached an army surplus store known as Surplus City of which Reggie N. Zimmerman was assistant manager. Zimmerman, his wife, and infant child lived in the apartment above the store. Spence and Oxendine observed Zimmerman as he came out of the store and went up the stairs to the apartment. Spence said he told Oxendine 'that man ought to have some money', to which Oxendine responded 'yes, we are running short'. The record discloses that prior to this incident, and in apparent preparation therefor, Oxendine had purchased two .25 automatic pistols from a Lawton Pawn Shop, with which both men were armed. They stopped their car and Oxendine, alone, went to the apartment, representing to Zimmerman through a closed door that he needed help to repair a flat tire. Zimmerman opened the door and Oxendine stuck his pistol in Zimmerman's face with instructions that he step back. Zimmerman asked that he go away, stating, 'you are going to get in a whole lot of trouble here.' Instead of heeding that wise admonition Oxendine went into the apartment, and then cracked open the door and smiled at Spence, who immediately came up the stairs and into the apartment. Spence also had his gun and said, 'we want the money'. Zimmerman informed him that he didn't have the money. Spence then told Zimmerman 'we know where it is and you are going to get it.' Spence then instructed Oxendine to go down stairs to the store with Zimmerman to get the money. Spence informed Zimmerman that 'if you try anything I'll plug your old lady and I'll come and get you.' Oxendine went downstairs with Zimmerman, who turned on the light, but was told to turn it off. Then in the office where the safe was located, with the aid of light from a burning waste paper torch, Zimmerman opened the safe, sacked up the money, gave it to Oxendine, and together he and Oxendine returned upstairs. Spence and Oxendine then tied Zimmerman and his wife putting a towel around their mouths, notwithstanding their plea that they needed to take care of their baby which was 4 months and 10 days old. Spence and Oxendine then put Zimmerman and his wife in a back bedroom closet, as Spence said, 'so that they couldn't identify them.' They closed the door as if leaving, then suddenly stopped outside the door holding a hushed conversation which Zimmerman could not understand. Spence said in his confession that he got scared (no doubt he was frightened from fear of identification, and that is probably what the hushed conversation was about), and he told Oxendine to open the door, whereupon, Spence emptied his gun, firing into the helpless bodies of Mr. and Mrs. Zimmerman.

The record discloses that Ruth Zimmerman was shot three times and was killed instantly by a bullet that penetrated completely through the heart. Zimmerman was shot four times, three in the arm and once in the chest. The next day Spence and Oxendine left Lawton and were apprehended in Albuquerque, New...