Steeley v. State

• Decision Date: 02 March 1920
• Docket Number: A-3277.
• Citation: 187 P. 821,17 Okla.Crim. 252
• Parties: STEELEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

187 P. 821

17 Okla.Crim. 252

STEELEY v. STATE.

No. A-3277.

Court of Criminal Appeals of Oklahoma

March 2, 1920

Syllabus by the Court.

An attorney cannot represent conflicting interests or undertake to discharge inconsistent duties, and where an attorney appeared for the defendant on his preliminary in a prosecution for murder, and files a motion for continuance and then waives a preliminary examination, he is disqualified as county attorney to sign and present an information in the case.

Under section 5882, Rev. Laws 1910, providing that neither husband nor wife shall in any case be a witness against the other and that neither "shall in any event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other," the defendant, in a prosecution for killing his wife's paramour, is incompetent as a witness to disclose communications made by his wife to him.

The statute which prohibits either the husband or wife from testifying to communications made by one to the other has no application to a third person or persons who may overhear communications between them, and such person or persons may testify to communications overheard by them between husband and wife.

Where there is evidence tending to show defendant's insanity just prior to and at the time of the commission of the homicide, it is competent for defendant to testify concerning statements and admissions made to him by deceased relative to deceased's immoral conduct with the wife of the defendant, and also of defendant's personal knowledge of such immoral conduct, as tending to show actuating causes of defendant's alleged insanity. It is also competent and admissible as tending to show provocation.

In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.

Appeal from District Court, Delaware County; John H. Pitchford Judge.

John Steeley was convicted of murder, and he appeals. Reversed, and cause remanded, with directions.

E. B. Hunt and E. H. Beauchamp, both of Grove, and J. W. Miller, of Jay, for plaintiff in error.

S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

DOYLE P.J.

This appeal is from a judgment of conviction for murder; the punishment having been assessed at imprisonment for life at hard labor. The information charges that in Delaware county on the 18th day of April, 1917, John Steeley then and there did kill and murder one Tom Grider by shooting him with a shotgun and with a pistol. It is signed, "G. W. Goad, County Attorney."

The first assignment of error is that the court erred in overruling the defendant's motion to set aside the information.

It appears from the record that upon arraignment the defendant appeared in person and by his attorneys, E. B. Hunt and J. W. Miller, the state by G. W. Goad, county attorney, W. W. Hastings, and Williams & Williams, counsel assisting the county attorney. The following proceedings were had:

"Mr. Goad: If the court please, I never have had any connection with this case by employment or otherwise, but I acted as an accommodation for Mr. Hunt at the preliminary trial. Mr. Hunt was sick on that day, and asked me to file an application for continuance for him, for the reason that he was sick. I never have had any employment of any kind in the case; have never talked to the defendant about the case or ascertained the facts in the case. I filed that application for Mr. Hunt at the preliminary trial. I didn't appear as counsel for the defendant, and told the court at that time I didn't represent him, that I merely appeared for Mr. Hunt and presented his application for a continuance for the reason that Mr. Hunt was sick. I want to make that statement to the court and let the court see whether or not that will disqualify me.

The Court: You were not representing him as counsel? A. No, sir.

The Court: You had no arrangement about employment or about a fee? A. None whatever.

The Court: No hope of any? A. No, sir.

The Court: And what you did was purely an accommodation for Mr. Hunt? A. Yes, sir; as an accommodation for Mr. Hunt is all.

The Court: That would not disqualify you. You may arraign the defendant." Thereupon the county attorney, G. W. Goad, reads the information to the defendant:

"The Court: What do you say, guilty or not guilty?

Mr. Hunt: If the court please, the defendant files a motion to set aside the information in this case on the following grounds: First, said information is not indorsed, presented, or signed as required by law, in this, that said purported information was not and is not signed, presented, indorsed, or exhibited by the county attorney or Attorney General or any one authorized by law to present informations in this state; second, that the defendant herein has not had a preliminary examination and has not waived the same, but is being prosecuted upon a purported information without having had a preliminary or waiving the same as required by law; that the defendant is being proceeded against without authority of law. Wherefore movant asks that the information be set aside."

To sustain the motion the defendant was sworn as a witness and testified:

"I was in custody of the officers, and they took me before Mr. Ingram, justice of the peace at Jay, and I took a change of venue, and the case was sent to J. L. Johnson, a justice of the peace near Sycamore. On the day the case was set for trial the officers took me before this justice. I had employed Mr. Hunt as my attorney, but he was not present. Mr. Goad was present, and told me Mr. Hunt was sick, and Mr. Goad prepared an affidavit for continuance on the ground that Mr. Hunt was my counsel and was unable to appear for me, and I signed it and was sworn by the justice. It was filed, and Mr. Goad made a talk, and the justice said it did not make any difference to him who was defending me, Woodrow Wilson, or who it was, the motion would be overruled. Mr. Goad then asked me what I was going to do about it, and I said I did not know what to do, and he said, 'I would just waive the preliminary.' I never said anything at all."

Cross-examination by Mr. Hastings:

"Q. Didn't you tell the justice of the peace you would waive it? A. No, sir.

Q. Didn't Mr. Goad for you? A. Yes, sir; he told him that."

The duly certified transcript of the committing magistrate as filed in the office of the court clerk was then introduced, and is in part as follows:

"On the 4th day of May, 1917, the case was called for trial, and the defendant appeared in person and by Attorney G. W. Goad. The state announced ready for trial, and defendant filed a motion for continuance on account of the absence of counsel, which was overruled by the court, whereupon the defendant then waived preliminary examination in the district court."

It is also stipulated, and the fact is admitted, that W. W. Miller, the legally elected and qualified county attorney, was at the time of the trial temporarily absent by reason of having been drafted into the army, and that the county commissioners in regular session found that fact and declared there was a vacancy in the office of county attorney, and thereupon appointed G. W. Goad as county attorney.

"The Court: The motion to set aside the information will be overruled. (To which ruling of the court the defendant excepts.)"

Counsel for the defendant in their brief say:

"Now, Mr. Goad either represented Steeley or he had no attorney, and if Mr. Goad did represent Steeley, which he did not, he certainly never waived preliminary examination."

In the Attorney General's brief it is stated:

"The court was wrong in assuming that Mr. Goad represented Mr. Hunt instead of the accused. Mr. Hunt was not on trial. The court, however, we would think, was right in assuming that as a matter of law in this case that Mr. Goad was not disqualified to appear on behalf of the state, for one reason at least, that the defendant, by failing to object, in law released Mr. Goad from his obligation of attorney to client"

-citing among other cases State v. Howard, 118 Mo. 127, 24 S.W. 41, holding that:

"A conviction will not be reversed because an attorney assisted counsel for the prosecution, after having been appointed counsel for defendant at a previous term, where such attorney neither appeared nor prepared papers in the cause, did not advise with defendant as to its merits, and was excused from further service as counsel for defendant"

-and concluding:

"Had the defendant interposed objections to Mr. Goad representing the state by reason of former representation of defendant, following what we think are the best precedents, it would have been reversible error for the court below to have overruled his objections."

We think that upon the record the objections made sufficiently raised the question, although no exception was reserved to the ruling of the court holding that Mr. Goad was qualified to file the information and prosecute the case as county attorney. This court ' has held that the office of county attorney is quasi judicial, and a county attorney is disqualified from becoming in any way entangled with private interest or grievances connected with the private practice of the law (McGarrah v. State, 10 Okl. Cr. 21, 133 P 260); that a county attorney who, prior to his election and qualification as such, was counsel for a defendant in a criminal action then pending, is disqualified to appear and...