State v. Johnson

• Decision Date: 06 May 1908
• Citation: 96 P. 26,21 Okla. 40,1 Okla.Crim. 154,1908 OK CR 17
• Parties: STATE v. JOHNSON.
• Court: Oklahoma Supreme Court

96 P. 26

21 Okla. 40, 1 Okla.Crim. 154, 1908 OK CR 17

STATE v. JOHNSON.

Supreme Court of Oklahoma

May 6, 1908

Will Johnson pleaded guilty to an indictment for murder, and the trial judge certified a statement of the proceedings conviction, and judgment to the Governor, who submits the same to the Supreme Court for its opinion.

March 26, 1908, there was returned by the grand jury into the district court of Pottawatomie county, Okl., its indictment wherein Will Johnson, the above-named defendant, was charged with the crime of murder, alleged to have been committed on the 23d day of January, 1908, upon the person of Mary Cubby defendant being charged with having beaten her to her death with a piece of two-inch plank and an ax handle. Defendant was arrested on March 27, 1908, entered a plea of not guilty and his case was set for trial on April 3, 1908. March 30, 1908, on it being made to appear to the court the defendant was without funds to employ counsel, the court appointed C. G. Pittman, an attorney of that bar, to defend him. April 4, 1908, the case not having come to trial, it was reset for April 6, 1908. April 6, 1908, defendant withdrew his plea, of not guilty, and his counsel filed a demurrer to the indictment, which was by the court overruled; no exception being saved thereto. On the same day defendant filed a motion for a continuance, setting up the fact that the indictment in the case was returned on the 26th day of March, 1908, and to that date, to wit, April 6, 1908, "defendant has not had a reasonable time within which to prepare for trial, and at this time cannot safely proceed to trial for the want of material testimony which he has been unable to procure." This motion was overruled, to which defendant reserved no exception. Thereupon he was again called upon by the court to plead to the indictment, and, refusing to do so, the clerk was by the court instructed to enter a plea of not guilty. Whereupon both parties announced ready for trial, and a jury was duly impaneled, and the county attorney, V. R. Biggers, Esq., made his opening statement. Whereupon the following proceedings took place: "Mr. Pittman: The defendant at this time desires to withdraw his plea of not guilty, and enter a plea of guilty. Mr. Biggers: If the court please, I doubt- I would rather object to his withdrawing his plea at this time. Mr. Pittman: He desires to plead guilty at this time. The Court: Have the defendant stand up. What do you want to do in this case? Will Johnson: Plead guilty. The Court: Do you want to plead guilty to the jury? Will Johnson: Yes, sir. The Court: Do you want to state to the jury why you plead guilty to this charge? Will Johnson: Yes, sir. The Court: And you make your statement to the jury of what you want to do? Will Johnson: Sir? The Court: And you make your statement to the jury what you want to do? Will Johnson: Gentlemen of the jury, I plead guilty."

Thereupon the court delivered the following instructions to the jury: "Gentlemen of the jury, this is an action wherein the state of Oklahoma prosecutes Will Johnson on a charge of murder, returned by the grand jurors of Pottawatomie county in the form of an indictment. The indictment has been read to you, and the opening statement of counsel for the prosecution made, after which the defendant has in open court and to you entered a plea of guilty. You are instructed, gentlemen of the jury, that, the defendant having entered a plea of guilty of murder, there are two grades of punishment that may be inflicted: The first punishment is by death; the second is by confinement in the state penitentiary for life. It is now, gentlemen, for you to say by your verdict what the punishment shall be. Two forms of verdict will be handed you-one imposing punishment by death, and the other imposing the punishment of life imprisonment in the state pentitentiary. You will retire, gentlemen, and consider of your verdict. You are instructed that when you shall have retired to your jury room you will select one of your number as foreman, and when you have reached a verdict he will sign it as such and you will all return into court with it. You are instructed, further, that you must be unanimous in your conclusions. Unless you all agree, of course, no verdict can be returned. And now, the hour of 6:30 p. m. having arrived, court is adjourned until such time as the jury may agree upon a verdict." The jury retired, and returned into court its verdict, finding "the defendant, Will Johnson, guilty as charged in the indictment of murder, and fix his punishment at death."

Motion for new trial was filed for the following reasons: "First, that said verdict is contrary to law; second, that said verdict is contrary to the evidence; third, that the court misdirected the jury in matters of law and fact arising during the course of the trial which were prejudicial to the substantial rights of the defendants." Such motion was by the court overruled, to which defendant saved his exception. He thereafter filed his motion in arrest of judgment, which was likewise overruled, to which the defendant excepted. The said motions were both filed on April 7, 1908, and were considered by the court on the 14th day of April, 1908. Upon the overruling of the said motions the court, upon the consideration of the verdict rendered by the jury, pronounced its judgment and sentence as follows: "It is therefore considered and ordered by the court that judgment be entered on the verdict of the jury in this case, and it is the judgment and sentence of this court that as a punishment of the crime which you have committed you be hanged by the neck until you are dead, and that your execution take place within the jailyard of the county jail of Pottawatomie county, state of Oklahoma, at eleven (11) o'clock in the forenoon of Friday, May 22, 1908."

On such sentence, Wilson's Revised & Annotated Statutes of 1903 of Oklahoma require (sections 5588 and 5589): "The judge of a court at which a conviction requiring a judgment of death is had must, immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial. The Governor may thereupon require the opinion of the judges of the Supreme Court or any of them, upon the statement so furnished." In accordance with this the clerk of the district court made a certified statement of the conviction and judgment and the proceedings had at the trial, and the judge of said court, Hon. W. N. Maben, transmitted the same to his excellency, Gov. C. N. Haskell, of the state of Oklahoma. In accordance with the terms of said statute, the Governor has required the opinion of the judges of the Supreme Court.

DUNN J.

Doubtless the purpose of the framers of the statute above quoted was to give the chief executive of the state proper information upon which to base his judgment upon an application for a pardon or a reprieve, and in addition thereto, and providing a further safeguard, by making it the duty of the judges of the Supreme Court, or any one of them, to give their opinion for his guide and assistance, to the end that so serious an act as the taking of a human life shall not occur without the same having the most deliberate and calm consideration of the highest executive and judicial officials of the state. The record before us, as is seen from the statement of facts and the recital of the manner and purposes for which it comes, is not filed as a suit in this court, upon which we could either affirm or reverse the judgment. It does not come in a manner required by law for such purposes. Bailey et al. v. Territory of Oklahoma, 9 Okl. 461, 60 P. 117. Yet we have given the same our most careful and attentive consideration, and we submit herewith for the consideration of his excellency, the Governor, the judicial and legislative expressions which have been uttered by other courts, text-writers, and states dealing with judicial admissions in cases of this grave character.

Greenleaf on Evidence, vol. 1, § 216, states the rule which seems to be followed very generally by most of the courts in cases of judicial confessions or admissions such as the one at bar. It is as follows: "Confessions are divided into two classes, namely, judicial and extrajudicial. Judicial confessions are those which are made before the magistrate or in court, in the due course of legal proceedings; and it is essential that they be made of the free will of the party, and with full and perfect knowledge of the nature of the consequences of the confession. Of this kind are the preliminary examinations, taken in writing by the magistrate pursuant to statutes, and the plea of 'guilty' made in open court to an indictment. Either of these is sufficient to found a conviction, even if to be followed by sentence of death; they being deliberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge." Bishop's New Criminal Procedure, vol. 1, § 795, is as follows: "Undoubtedly a prisoner of competent understanding, duly enlightened, has the right...