Williams v. State, A-13121

• Decision Date: 20 June 1962
• Docket Number: No. A-13121,A-13121
• Parties: Henry WILLIAMS, Jr., 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 85

373 P.2d 85

Henry WILLIAMS, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13121.

Court of Criminal Appeals of Oklahoma.

June 20, 1962.

Rehearing Denied July 18, 1962.

Syllabus by the Court.

1. Errors to which no exceptions were taken will not be considered on appeal unless they are jurisdictional or fundamental in character.

2. It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error.

3. The asking of an improper question by the county attorney is not always reversible error, and especially where the trial court promptly sustains an objection thereto, and advises the jury not to consider the same.

4. Error without prejudice is not reversible.

5. Where improper rebuttal testimony is not prejudicial per se, that is, where such testimony is not based on the opinion of a witness, or does not impute the commission of crimes not connected with the offense for which the accused stood trial, or does not otherwise place the character of the accused in issue, it will be reviewed in light of the whole record before the court to determine whether or not the cause should be reversed, and if it appears that the defendant was not prejudiced by the improper rebuttal testimony, the judgment of the trial court will not be disturbed.

6. Improper argument by the county attorney in his closing argument on the ground that it was prejudicial, can not be considered where the record before the court is silent as to the contention, and fails to contain the alleged objectionable matter.

7. The rule is well settled that, ordinarily, a party may not complain of an error which he himself has invited, or which he has waived, either expressly or impliedly. This rule clearly applies to a case where one party resorts to incompetent evidence without objections, and where the opposite party replies with evidence of the same character. In such case, both are at fault and neither can complain in this court of the admission or exclusion of the evidence by the court below.

8. Reversible error may be committed by improper cross examination which imputes the commission of other crimes to the accused or which constitutes an attack on his character, when it has not been put in issue.

9. Conflicting issues of fact are for the sole determination of the jury; the conviction will not be disturbed on appeal because of sharp conflict in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.

Appeal from the District Court of Oklahoma County; Glen O. Morris, Judge.

Henry Williams, Jr. was convicted of the crime of Robbery with Firearms, and appeals. Affirmed.

Don Anderson, Public Defender, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Ass't. Att'y. Gen., for defendant in error.

BUSSEY, Judge.

This is an appeal from the District Court of Oklahoma County, Oklahoma, perfected by Henry Williams, Jr., defendant below, from a judgment and sentence rendered in case No. 26889 on the 11th day of April, 1961, wherein the defendant was charged, tried and found guilty of the offense of armed robbery and his punishment fixed by the jury at nine years in the State Penitentiary.

A review of the casemade discloses the following, uncontroverted facts.

On the evening of January 14, 1961, Henry Lester Mannan, a driver for an Oklahoma City taxicab company, picked up a passenger in his taxicab on Sixth Street, just east of Walnut Street, in Oklahoma City and drove the passenger to various places for approximately one hour, after which the passenger requested that Mr. Mannan stop, drew a gun on him, and robbed him of approximately $21.00, thereafter fleeing the scene of the robbery on foot and successfully affecting his escape.

Mr. Mannan testified that on January 23, 1961, he identified the defendant in a line-up at the Oklahoma City Police Station as the person who robbed him.

Upon the trial of the defendant, the witness, Mannan, while on the witness stand, once again positively identified the defendant as the person who robbed him during the evening of January 14, 1961.

Officers Don R. Schimmels and Andrew J. Clovis of the Oklahoma City Police Department testified, without objection being interposed, that on the evening of January 23, 1961, while investigating an armed robbery, they took defendant into custody. Police Officer J. W. (Jack) Smith testified, without objection being made, that later that day (January 23, 1961), the defendant was placed in a line-up at the Oklahoma City Police Department, and that Mr. Mannan identified the defendant.

Following the examination in chief, the state introduced into evidence, without objection from the defendant, a toy cap pistol which Officer Schimmels observed the defendant to remove from his person and place on the floorboard of the police car after his arrest on the night of January 23, 1961.

At the conclusion of the state's testimony, the defendant was called to the stand and testified on direct examination that he was not acquainted with Mr. Mannan, that he did not rob him on the night of January 14, 1961, and that the first time he had ever seen Mr. Mannan was when the latter identified him in the police line-up conducted at the Oklahoma City Police Headquarters on the evening of January 23, 1961.

Defendant admitted having the toy cap pistol in his possession and identified it as belonging to his two year old nephew.

He testified concerning the details of his arrest and detention and stated that during the month of January, and prior to the evening of his arrest, he was working out of Manpower Incorporated, an Oklahoma City employment concern.

It is the defendant's contention that prejudicial and reversible error was committed when the following questions were propounded and the following rulings made during cross examination of him.

'Q. Where did you say you worked that day?

'A. I worked out of Manpower.

'Q. Where?

'A. Manpower.

'Q. Where is that?

'A. On Hudson Street.

'Q. Whereabouts on Hudson?

'A. Between Fourth and Fifth, on Hudson.

'Q. What kind of place is that?

'A. This is a corporation, when you don't have steady employment, they will give you a job each and every day until you get a permanent job.

'Q. And you worked out there that day?

'A. I worked out of there that day.

'Q. What did you do?

'A. I worked for Leonhardt Lumber Company.

'Q. What were you doing?

'A. Helping unload box cars.

'Q. How did they pay you?

'A. They paid $1.20 an hour.

'Q. How did they pay it?

'A. In check.

'Q. Did you get a check that day?

'A. I did.

'Q. Where did you cash it?

'A. I cashed it at Jones Brothers Store.

'Q. How much was it?

'A. I made $8.10, I believe it was.

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'Q. Where were you on the 7th day of January, 1961?

'A. I can't recall.

'Q. Do you have any idea?

'THE COURT: is that previous to this charge?

'MR. ANDERSON: I want to object to that, if your honor please.

'THE COURT: It will be sustained.

'MR. MOUNGER: It is for the purpose of testing his memory, Your Honor.

'THE COURT: It will be sustained.

'Q. That is January 7th, you say?

'A. Yes.

'Q. That would be on Saturday? Is that correct? I happened to be with my girl friend.

'Mr. Anderson: The court has sustained the objection and you don't have to answer.

'THE COURT: All right, let's proceed. Go ahead.

'Q. You say you were with your girl friend?

'Mr. Anderson: I object to this question that relates to a time prior to the commission of the offense with which this man is charged.

'THE COURT: Sustained.

'Q. What is your girl friend's name?

'A. Mardine Lyon.

'Q. Where does she live?

'A. She lives at 1727 Northeast 3rd.

'Q. Where is she now?

'A. At work.

'Q. Where does she work?

'A. At the White Swan Laundry.

'Q. The White Swan Laundry?

'A. Correct.

'Q. Is she going to be a witness here for you today?

'Mr. Anderson: Now, if the Court please, none of these questions counsel is asking could be testing this witness's recollection.

'THE COURT: Make your objection. I didn't hear it.

'MR. Anderson: Object to it as being incompetent, irrelevant and immaterial.

'THE COURT: The objection will be sustained.

'Q. Well, you have talked with the officers about this, haven't you?

'A. Which officers?

'Q. Any officers?

'A. How do you mean?

'Q. Well, you got arrested on the 23rd, didn't you?

'A. That is right.

'Q. And they took you down to the Oklahoma City Police Station, isn't that right?

'A. Yes, it is.

'Q. Now, you talked to the officers, didn't you?

'A. I talked to several of them down there.

'Q. All right, what did you tell them?

'A. The same thing that I am telling you.

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'Q. I believe you testified several people were down there. Is that right?

'A. Sir?

'Q. I believe you testified several people were down there. Is that right?

'A. Down where?

'Q. At the police station.

'A. Sure.

'Q. Do you remember Mr. Dale Burton McMullen being down there?

'A. McMullen?

'Q. Yes.

'A. I wouldn't know him by name.

'Q. You don't know that he was down there and told where you were on the 7th do you?

'Mr. Anderson: I object to that question as being incompetent, irrelevant and immaterial.

'THE COURT: The objection will be sustained, and Ladies and Gentlemen of the Jury, you are instructed not to consider the question as being prejudicial to this defendant.

'Mr. Anderson: And I ask the Court to admonish counsel not to keep going back to that.

'THE COURT: Yes don't go back prior to the 14th of January, if you want to follow the rules of evidence on it.

'Q. That is all.'

The next witness called to testify for the state was Charles E. Gray, manager of the Industrial Division of Manpower, Inc., and in rebuttal of the defendant's testimony, the following testimony was given and the following rulings made:

'Q. State your name to the court and jury.

'A. Charles E....