Thoreson v. State

• Decision Date: 21 March 1940
• Docket Number: A-9662.
• Citation: 100 P.2d 896,69 Okla.Crim. 128
• Parties: THORESON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

100 P.2d 896

69 Okla.Crim. 128

THORESON v. STATE.

No. A-9662.

Court of Criminal Appeals of Oklahoma

March 21, 1940

Syllabus by the Court.

1. An attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith.

2. Where two or more defendants are jointly charged but are separately tried, counsel appearing for one defendant is not by such fact alone precluded from aiding in the prosecution of another defendant.

3. The defendant may be convicted of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.

4. Assault is not necessarily included in the offense of robbery under our statute.

5. It is error for the trial court to submit an instruction on the offense of assault where the information charges only the offense of robbery.

6. Where the county attorney is in doubt as to which of two offenses has been committed, he may in his information set forth separate counts, charging each offense where both counts are based upon the same transaction.

7. It is fundamental error for a prosecutor to refer either directly or indirectly to the fact that the defendant did not testify.

Appeal from District Court, Texas County; F. Hiner Dale, Judge.

R. B Thoreson was convicted of assault, and he appeals.

Judgment reversed, and new trial ordered.

Hughes & Dickson and Rizley & Dale, all of Guymon, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant R. B. Thoreson was charged with one Harry Hall in the District Court of Texas County with the offense of robbery, was tried, and a verdict was rendered finding the defendant "guilty of assault, as charged in the information herein and fix his punishment at 30 days in the county jail and pay a fine of $100.00." Judgment and sentence was pronounced in accordance with said verdict, and an appeal has been taken to this court.

The information filed against the defendant, omitting the formal parts, reads as follows: "That the said R. B. Thoreson and Harry B. Hall did knowingly, wilfully, unlawfully, wrongfully and feloniously make an assault in and upon one Donald G. Neil by representing themselves to be officers of the law, thereby putting the said Donald G. Neil in fear of immediate and unlawful injury to his person if he, the said Donald G. Neil resisted, and did then and there under and by means of the use of force and putting in fear, unlawfully, wilfully, wrongfully and feloniously against the will of him, the said Donald G. Neil take, steal and carry away from the present possession and immediate possession and immediate presence of him, the said Donald G. Neil, certain personal property to-wit: One Dollar and Thirty-five Cents ($1.35) in good and lawful money of the United States of America with the unlawful, wrongful and felonious intent then and there on the part of them, the said R. B. Thoreson and Harry B. Hall to rob and deprive the said Donald G. Neil of said property and to convert same to their own use and benefit; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State."

The proof in substance shows that the complainant Donald Neil was twenty-five years of age: lived in Cleveland, Ohio. That he had been out West and was returning to his home in Cleveland on November 8, 1938, when he stopped in Guymon to spend the night. That he was a hitchhiker and had worked for a farmer at Dalhart, Texas, that day before coming to Guymon and had $1.35 on his person when he arrived in Guymon. That he met Hall and Thoreson at the Wheat Belt Grill where he had come to see about a job in the restaurant; that Hall poured a drink of whiskey into a glass and he drank it at Hall's insistence. That he left Hall and Thoreson and went into the Recreation Parlor. While he was drinking a cup of coffee, Thoreson and Hall came in and said, "You are going with us." Neil was forced off the stool and pushed out of the restaurant. Thoreson's pick-up was in front of the café. Thoreson got in first, then Hall, and then the complainant, with Thoreson under the wheel. They drove to the east end of the courthouse and stopped, and ordered the complainant out of the car. Thoreson ripped open the front of the complainant's jacket, went through his pockets, and took out the $1.35. The jacket was introduced in evidence and showed where three buttons had been torn from it.

The complainant stated that he did not resist because he was facing Thoreson with Hall immediately behind him. That they all three then got back in the pick-up and drove about a mile and a half or two miles out on the highway where they put the complainant out and ordered him to leave town. That the complainant made his way back to Guymon and reported the incident to the officers the next morning. That the defendant was a son of a prosperous farmer of the Guymon community, who had resided there several years. That the day the offense is alleged to have occurred was election day, and the defendant Thoreson and Hall had been drinking too much because of the election spirit that prevailed in the community that night.

The evidence further shows the morning after the alleged offense occurred, when the officers started to look for the defendant, that they were unable to find him. That he was arrested several days later in California and returned to Texas County to face the charges growing out of these occurrences heretofore related.

Hall was charged jointly with this defendant, but entered his plea of guilty and was given a suspended sentence of five years in the State Penitentiary. Hall testified for the State that he got in such a drunken condition that he lost his memory at the Wheat Belt Café and did not remember a thing that happened until about six o'clock the next morning.

The defendant did not take the stand. The testimony offered in his behalf was explanatory of his action in going to California, which was offered to refute the contention of the State that the defendant was fleeing to escape arrest because of this alleged offense.

The defendant assigns as error:

1. Error of the court in permitting the county attorney, George M. Frittz, who as private attorney represented the codefendant Hall, to prosecute this action against the defendant Thoreson.

2. Error of the court in submitting an instruction to the jury on the crime of assault.

3. Misconduct of the county attorney in referring to the fact that the defendant did not testify in his closing argument to the jury.

In support of the first assignment, the defendant took the testimony of the county attorney who swore that he had known the defendant by sight for three or four years; that he was employed to defend Harry Hall, the codefendant, subsequent to his arrest on this charge. That he appeared at the preliminary hearing of Hall and examined the witnesses who testified in that hearing, who were substantially the same witnesses who testified for the prosecution in the trial of Thoreson. That Hall subsequent to being bound over to the district court entered his plea of guilty. That he never at any time during his employment by Hall discussed the connection of R. B. Thoreson with the case and did not talk to Thoreson about the case at any time. That Hall told him that his mind was a complete blank that evening and no mention of Thoreson was made in any way. That he talked to the witnesses after he took his oath as county attorney concerning the defendant Thoreson so as to prepare for the trial of Thoreson.

This court has held in Steeley v. State, 17 Okl.Cr. 252, 187 P. 821, and in Hall v. State, 24 Okl.Cr. 197, 217 P. 229, that an attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith. It is the duty of the court to see that a person on trial is not deprived of any of his statutory or constitutional rights. The members of the legal profession should have at all times the fullest confidence of their clients. If anything is done to abuse this confidence, the legal profession will suffer by the loss of the confidence of the people; and if the evidence in any case discloses that the prosecuting attorney might be possessed of some privileged information by reason of former services rendered by him, then it is the duty of the court to disqualify the prosecuting attorney.

In the case of Lewis v. State, 39 Okl.Cr. 119, 263 P. 473, 474, we laid down the following rule: "Where two or more defendants are jointly charged and a severance is taken, counsel appearing for one defendant is not by such fact alone precluded from aiding in the prosecution of another defendant."

As was stated in the body of the opinion of that case: "We do not perceive why the mere fact of employment of an attorney by a defendant jointly charged operates as a disqualification against his appearing against a codefendant."

Since under our code a codefendant may testify against the defendant on trial, an attorney cannot be said to be representing conflicting interests when he appears for a codefendant and later appears as prosecutor. The question of the disqualification of a county attorney depends upon the facts in each particular case, and unless a showing is made that the prosecutor has secured information from the defendant because of the confidential relationship which he had...