Williams v. State

• Decision Date: 04 December 1957
• Docket Number: No. A-12467,A-12467
• Citation: 321 P.2d 990
• Parties: Edward Leon WILLIAMS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 990

321 P.2d 990

Edward Leon WILLIAMS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12467.

Criminal Court of Appeals of Oklahoma.

Dec. 4, 1957.

Rehearing Denied Feb. 5, 1958.

Second Petition for Rehearing Denied Feb. 26, 1958.

Syllabus by the Court

1. Two things are clear under the provisions of 22 O.S.1951 §§ 973, 974, and 975 in regard to taking of evidence in aggravation or mitigation of punishment. First, pursuing this method of procedure is a matter of the trial court's sound discretion, and second, its use is contingent upon the request of either the state or the defendant.

2. Under the provisions of 22 O.S.1951 §§ 973, 974, and 975, when the parties fail to make a request for the privilege thereof the same is waived and some other method of supplying the court with the necessary information for the pronouncement of judgment and sentence may be substituted instead.

3. Where there are several offenses, although each is part of the same transaction, the imposition of separate punishment on conviction of each offense is not double punishment.

4. Where the court has a discretion as to the character or the amount of punishment, it may be guided in the exercise of such discretion by accused's past record, by the motives actuating the crime, or by the fact that accused previously has been convicted of a similar or other offenses.

5. The legislature left the matter of imposition of penalty in a case of kidnapping, 21 O.S.1951 § 745, where the plea is guilty, to the trial court and his sound discretion to be measured by the motive, the act, and its consequences.

6. The legislature did not intend that the courts of the State of Oklahoma should temporize with kidnappers.

7. The indulgence of mercy is within the power of the Pardon and Parole Board and the Governor.

Appeal from the District Court of Tulsa County; Leslie Webb, Judge.

Plaintiff in error, Edward Leon Williams, was convicted of the crime of kidnapping, sentenced to death in the electric chair, and he appeals. Affirmed.

John A. Ladner, Jr., Fred W. Woodson, Jr., Tulsa, Paul Gotcher, Muskogee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, Edward Leon Williams, defendant below, was charged by information on December 17, 1956, in the District Court of Tulsa County, Oklahoma, with the admitted crime of kidnapping, committed on June 17, 1956, against one Tommy Robert Cooke in the aforesaid county and state, in violation of 21 O.S.1951 § 745. Defendant first entered a plea of not guilty, but several days subsequent thereto withdrew the same and entered a plea of guilty before Honorable Leslie W. Webb, Judge of the District Court. On the plea of guilty, the defendant was sentenced to death in the electric chair. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

On this appeal, the defendant seeks relief from said penalty of death upon two propositions hereinafter set forth. First, he contends the trial court erred in permitting the county attorney to make a statement in substance detailing the defendant's crime of kidnapping, another offense immediately preceding the kidnapping (supplying the motive therefor), and other crimes following the kidnapping. The facts, briefly, in regard to the crime herein alleged are that the victim, 'Tommy Robert Cooke, a theological student, stopped his car at about 5:30 p. m., Sunday, June 17, 1956, at the stop light at the intersection of Third and Cheyenne Streets in Tulsa, Oklahoma. The defendant, who was standing nearby, approached and at pistol point forced his way into the Cooke automobile, directing Cooke to drive south on Highway 64. Thus, the crime of kidnapping was completed by these acts. Norris v. State, 68 Okl.Cr. 172, 96 P.2d 540. Thence, he compelled Cooke to drive to Bixby, Oklahoma, where under the persuasion of his pistol, the defendant took from Cooke's billford $5, with which he paid for gas, and forced Cooke to continue on South on Highway 64. At a point approximately three miles east and four miles north of Taft, Oklahoma, in Muskogee County, a point with which he was apparently familiar, the defendant marched Cooke into the weeds off a dead-end road, with Cooke pleading not to be tied up, according to Williams' confession, and shot Cooke on the right side of the head behind the right ear, affecting his instantaneous death. The life of Cooke was apparently taken with the cold blooded intent of eliminating the possibility of positive identification. This might have resulted had it not been for his subsequent depredations. The accused then stole the decedent's automobile and sought to effect an escape from his crime.

It appears the night preceding the kidnapping, about 1:00 a. m., the defendant drove into a Hudson Service Station, bought gas, asked how much he owed the attendant, reached into the automobile he was driving, got a .38 caliber pistol, told the attendant he wanted his money, thus obtained $30 in currency, forced him inside the station for more money, and required him to go into the rest room with the admonition, 'You come out and I'll blow your head off.' Later, in flight from pursuing policemen, he wrecked his automobile, but avoided apprehension by crawling through two-hundred feet of culvert, hiding in a wooded area until the evening of the kidnapping when he came out and consummated the abduction of Cooke.

It is apparent the motive behind the kidnapping was to avoid apprehension by the officers for the robbery with firearms committed the night before. After kidnapping and killing Cooke, and stealing Cooke's automobile, the defendant drove to Talihina, Oklahoma, where he committed an armed robbery of his former employer of $1,000. Later, he abandoned the Cooke automobile and returned to Talihina where he burglarized a grocery store for food with which to sustain himself in the mountains. Thereafter he was arrested on a bus by a member of the Highway Patrol at Poteau, Oklahoma, and a short time later confessed the murder of Tommy Cooke, taking the officers to the point in Le Flore County, Oklahoma, where he had disposed of the gun, which the officers recovered and which ballistics experts established was the gun that killed Cooke. All the foregoing occurrences the County Attorney detailed in his statement relative to the motive for the kidnapping. In addition thereto, his F. B. I. record detailing prior convictions for automobile theft, robbery with firearms, and other crimes was submitted to the trial court. It is thus apparent that this unfortunate defendant, though only twenty seven years of age, had long been a devotee to crime.

The court proceeded with great care and caution in this case relative to the defendant's constitutional and statutory rights, even delaying the pronouncement of judgment and sentence for forty eight hours after the defendant's plea of guilty, even though the defendant had waived his right thereto and stood ready for the pronouncement of judgment and sentence. Notwithstanding these facts, the defendant complains the trial court erred in allowing the County Attorney to orally state these foregoing facts by way of aggravation. The defendant contends that this procedure was in violation of the provisions of 22 O.S.1951 §§ 973-975 inclusive, reading as follows:

' § 973. After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.

' § 974. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the court may direct.

' § 975. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court or member thereof in aggravation or mitigation of the punishment except as provided in the last two sections.'

In this connection, it has been held that on a plea of guilty in a capital case, it is for the trial court to determine whether the defendant should be punished by life imprisonment or by imposition of the death penalty. In re Watkins, 21 Okl.Cr. 95, 205 P. 191; In re Opinion of the Judges, 18 Okl.Cr. 598, 197 P. 546; In re Opinion of the Judges, 6 Okl.Cr. 18, 115 P. 1028. Nevertheless, on a plea of guilty, the provisions of the foregoing statute may be invoked when request is made for the taking of evidence on the question of aggravation or mitigation of punishment. This request may be made by the state or the defendant.

It has been held not to be improper to employ this method of procedure in the absence of a request therefor. In re Watkins, supra; State v. Arnold, 39 Idaho 589, 229 P. 748. But, two things are clear under the provisions of § 973. First, pursuing this method of procedure is a matter of the trial court's sound discretion. Second, its use is further contingent upon the request of either the state or the defendant.

We have never been called upon to directly pass upon this question. Under the Criminal Code of Illinois, S.H.A. ch. 38, § 732, it is provided:

'In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation or mitigation of the offense.'

The wording of this statute would appear to be more mandatory than that of the Oklahoma statute in question. Even so, in Illinois it has been held that the foregoing...