The opinion
DOYLE, Judge
(dissenting on petition for rehearing). The petition for rehearing is in part as follows:
“Section 2760, 22 O.S. 1941 § 176, provides that where the crime is a felony the officer making the arrest must take the defendant to the magistrate issuing the warrant or some other magistrate in the same county.
“Plaintiff in error was arrested on January 11, 1940. Instead of following the Oklahoma statutesi and taking? Lyons before a magistrate, he was taken immediately to the sheriff’s office where he was severely beaten. (C.M. 106,107,108, 349,148)
“Eleven days thereafter he received the severe beating and mistreatment leading to' the first ‘confession’, which beating and treatment were condemned both by the trial judge and by this court. It should be noted that the first ‘confession’ was obtained in the county prosecutor’sl office, in the court house and on the same floor where the court room is located. Lyons was not brought into the court room before a magistrate. He was: carried around the county to different places and then to the penitentiary. Lyons was not returned to the court house to be carried before a magistrate until after he had made the other‘confession’. It is quite obvious that Lyons was taken to the penitentiary for the purpose of attempting to so change the factual situation as to' attempt to bolster another confession. Otherwise he would have been carried before the magistrate before being carried to' McAlester.
“There is no dispute as to' the following, facts: Lyons wag ‘arrested’ by civilians without a warrant. No> warrant appears in the record. Lyons was not formally charged with the crime until his appearance before a magistrate on January 27, 1940. He did not have the advice of
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counsel until February 4, 1940. All of the ‘confessions’ were secured prior-to that time. This is the chrohology:
“Lyons was arrested January 11, 1940 (O.M. 236)
“ ‘Confession’ obtained at Hugo morning of January 23, 1940 (313-314)
“ ‘Confession’ signed 2:00 P. M. same afternoon (C. M. 129)
“ ‘2d. Confession’ obtained at McAlester same night (C.M. 130)
“ ‘3d. Confession’ obtained at McAlester two days, later (O.M. 228)
“Lyons before magistrate without counsel January 27, 1940 (C.M. 140)
“First advice of counsel on February 4, 1940 (C.M. 369)
“Information filed August 29,1949 (C.M. 2)
“Arraignment December 39, 1949 (C.M. 5)
“Trial started January 27,1941 (C.M. 7.)
“The confessions were introduced by county prosecutor Horton who was present during' the time Lyons, was beaten and who in his cross examination at the trial ad-' mitted he was present when Lyons was beaten and who-likewise knew that the other confessions were obtained before Lyons was carried before a magistrate and before he had opportunity to secu’re counsel.
“The trial court also was acquainted with the facts that these confessions were obtained before Lyons was-carried before a magistrate and in violation of the statutes of Oklahoma. This court likewise is acquainted with the facts apparent on the face of the record. The failure of the officials of the State of Oklahoma to, take the necessary corrective steps to protect the fundamental rights of plaintiff in error to elementary due process of law, as prescribed by the statutes of the State of Oklahoma,, is a denial
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of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.
“The United States Supreme Court in two opinions rendered this year have redefined the meaning of due process of law. In the case of McNabb v. United States, [ 318 U.S. 332 , 63 S. Ct. 608, 615 ] 87 L. Ed. [ — ] (decided March 1, 1943), regarding the question concerning the admission of confessions obtained by federal officers, Mr. Justice Frankfurter speaking for the Supreme Court, stated: * * * ‘The circumstances in which the statements admitted in evidence against the petitioners were secured reveal a plain disregard of the duty enjoined by Congress upon federal law officers. Freeman and Bay-mond McNabb were arrested in the middle of the night at their home. Instead of being brought before a United States Commissioner or a judicial officer, as the law requires, in order to determine the sufficiency of the justification for their detention, they were put in a barren cell and kept there for fourteen hours. For two- days they were subjected to unremitting questioning by numerous officers. Benjamin’s confession was secured by detaining him unlawfully and questioning him continuously for five or six hours. The McNIabbs had to submit to all this without the aid of friends or the benefit of counsel. The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment \tas made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices- in willful disobedience of law. Congress has not explicitly forbidden the use of evidence so- procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law.’
“It is further stated:
“Mr. Justice Frankfurter, in the opinion for the Supreme Court, said that the use of these confessions
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violated the due process clause of the Fifth amendment, for the reason that: ‘* * * The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting) officers and before any order of commitment was made. Plainly, a. conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to' stand without making the courts themselves accomplices in willful disobedience of law. * * *’ ([ 318 U.S. 332 , 63 S. Ct. 615 ] 87 L. Ed. [-]•)
“Applying this rule to the admitted facts in the instant case there is a clear duty upon this court to reverse the conviction, as was done in the McNabb case.
“It is further stated: ‘This court, in its opinion, points out, on page 7 [138 P. 2d on page 148], that Lyons “the next morning was talcen to the scene of the crime”. All the evidence in the case points to the fact that Lyons! was taken to the scene of the crime on the same morning! as the confession was obtained. On page 15 [138 P. 2d on page 152] of the opinion it is pointed out that “Here the second, confession which was introduced in evidence was made at a time far removed from the first confession, and at a place where the defendant knew that he was secure from violence.” In the first place, the second confession was not obtained at a time “far removed” froml the first confession. The first confession was signed at 2 o’clock in the afternoon. The second confession was obtained, according to Warden Dunn, on the same day at either 8:15 or 9:30 o’clock.’
“It is further stated:
“ ‘As to the “confession” to Cap Duncan, no effort was made to show that the influence of the prior ‘confessions’ had been removed. Lyons was still without counsel, ihad not been before a magistrate and was still in the custody of laAv enforcement officers. To him Cap Duncan likewise was’ a law enforcement officer. The influence of CheatAvood was still present and subsequent to that
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time Ckeatwood came to the penitentiary with other officers from Hugo..
“ ‘It is clear, therefore, that the “confessions’ used were obtained while Lyons was still under the influence of the threats and force used to obtain the first ‘confession’. The use of said “confession®” was a denial of due process of law guaranteed by the Fourteenth amendment to the United States Constitution.’
“It is further urged that the refusal to give requested Instruction No. 2 is reversible error, for the reason:
“This court in its opinion pointed out, on page 43 [138 P. 2d on page 165], that ‘counsel in their brief state, after citing a number of cases to substantiate the proposition that when a confession is made under improper influences that the presumption arises as to the subsequent confessions flowes from the same influence, that: ‘It has also been clearly established that this presumption must be overcome before the subsequent confession can be received in evidence.’ Admitting this as true * * *’ Plaintiff in error requested instruction no. 2 as an accurate statement of the very same proposition as advanced by this court in its opinion. The trial court’s instruction did not mention the presumption at all. Plaintiff’s requested instruction no. 2 was a request for an instruction on this presumption. The opinion of this court, as stated above, justifies completely the reasons for granting plaintiff in error’s instruction no. 2, and failure to do so is reversible error.
“Conclusion
“It is respectfully urged that this court grant a rehearing in this matter, in order that the 'State of Oklahoma may not be guilty of failure to take the necessary corrective steps to prevent the denial of due process of law to plaintiff in error.”
The law of the land guarantees to every person charged with crime, whether guilty or innocent, regardless of race or color, whether of high or low degree, whether
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rich or poor, a fair and impartial trial according to the due and orderly course of tlie law, and it is the duty resting upon the courts to see that the guaranty of such a tidal shall be upheld and sustained.
It is undoubtedly the law that the accused in any criminal action is entitled as a matter of right, to require in the first instance a compliance with the ordinary rules and forms of law that secure to him a fair and legal trial.
Our laws hare been made for observance and not for evasion, and it is the duty of 'trial courts in the administration of the law to see that the accused, whether guilty or innocent, shall have a fair trial according to the due and orderly course of the law, and this duty is. emphasized in a capital case.
It has been well said that the law is not designed to he a SAvift engine of oppression and vengeance, but it was and is designed to. try and convict men only after due hearing and a fair trial.
Under the provisions of the Code of Criminal Procedure, sections 2484, 2485, O.S. 1921, 22 O.S. 3941 §§ 251, 252, “the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every state of the proceedings” and “ ‘he must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose.’ And, under section 2590, [ 22 O.S. 1941 § 464], providing that before arraignment the defendant ‘must, be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.’ Held, that while these rights may be waived by the defendant, they cannot be
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denied by the courts.” Polk v. State, 26 Okla. Cr. 283 , 224 P. 194 .
Tbe state attempts to safeguard tbe life and liberty of citizens, and as one of tbe steps in that direction secures to them, if prosecuted for crime, tbe constitutional right to be beard by counsel, which includes the right of accused to consult with counsel at every stage of tbe proceedings, whether imprisoned or admitted to bail. Mullen v. State, 28 Okla. Cr. 218 , 230 P. 285 .
In Howington v. State, 30 Okla. Cr. 243 , 235 P. 931, 933 , we said:
“The uniform bolding of tbe courts is that, in capital cases, a plea of guilty can only be entered after tbe defendant has been fully advised by tbe court of bis rights and the consequences of bis plea, and, where it appears on appeal from a judgment of conviction that tbe defendant has been denied a right guaranteed by tbe Constitution, such showing requires a reversal, unless tbe record clearly shows that the right was waived, or that no injury could have resulted to tbe accused by reason of such denial.
“A denial of a constitutional right to a person prosecuted for a crime is prima facie prejudicial. * * *
“In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. A fair and impartial administration of justice is one of the most sacred! rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of the law.”
In Ex parte Barnett, 67 Okla. Cr. 300 , 94 P. 2d 18, 19 , this court held:
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“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Held further: “Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or 'by appeal unavailable.” Citing Powell v. Alabama, 287 U.S. 45 , 53 S. Ct. 55 , 77 L. Ed. 158 , 84 A. L. R. 527.
Also quoting from the opinion delivered by Mr. Justice Black for the Supreme Court, of the United State®, in the case of Johnson v. Zerbst, 304 U.S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 1461 .
In Miller v. State, 13 Okla. Cr. 176 , 163 P. 131 , L.R.A. 1917D, 383 , it is said:.
“When a prisoner is compelled by duress to make self-disserving statements, such statements cannot be put in evidence against Mm.”
“To render statements made by a prisoner admissible,, they must be entirely free and voluntary; that is, must not be abstracted by any sort of threats or violence, nor obtained by any direct or implied promises. It is not important to determine whether they amount to a confession of guilt, or merely declarations of fact tending to show guilt.”
The record shows defendant’s requested instruction No. 2 reads:
“Gentlemen: You are instructed that if you find that at the time the confession was obtained at McAlester, that the defendant was still suffering from the treatment that he had received in the county attorney’s office or elsewhere by the officers that had him in custody or was
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induced to sign the confession by reason of fear as a result of the conduct of the officers that had him in custody and that by reason thereof said confession was not a free and voluntary confession, you are not to consider the confession, or any of the evidence therein contained.
“Asked for by the defendant and refused, exception allowed.
“Geo. R. Childers, Judge.”
Endorsed :
“Filed in Open Court
“Choctaw Countv, Okla.
“Jan. 30, 1941
“Haskell Floyd, Court Clerk.”
The well established rule is that, if a confession has once been obtained through illegal influence, it must be clearly shown that such influence has been removed before a subsequent confession can be received in evidence.
The rule is stated in 20 Am. Jur. Evidence, sec. 487, as follows:
“Once a confession made under improper influences is obtained, the presumption arises that a subsequent confession of the same crime flows from the same influences, even though made to a different person than the one to whom the first was made. However, a confession otherwise voluntary_is not affected by the fact that a previous one ivas obtained by improper influence if it is shown that these influences are not operating when the later confession, is made. In other words, the presumption that a subsequent confession of the same crime flows from the same improper influences which induced a prior confession is not a. conclusive one and may be overcome by proof that the influences present at the prior confession did not operate on the subsequent confession. The evidence to rebut the presumption that the subsequent confession, like the original confession, is involuntary must be presented by the prosecution and must be given at the time the subsequent confession is offered in evidence, provided
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tbe court is then cognizant that the accused has made a prior involuntary confession. The evidence to rebut the presumption must be clear and convincing, however. If the facts regarding the securing of an involuntary confession are not known to the court when the later confession is admitted, the evidence must be presented whenever the court becomes cognizant of the former confession, in which event it is for the jury to decide whether the subsequent confession was the result of influence which made the prior one involuntary.”
A defendant in a criminal prosecution is entitled to a legal trial, conducted in accordance with the rules of
law;
and the question of his guilt or innocence should be determined upon legal evidence.
Upon a careful review of the record, the authorities cited in the petition for rehearing, and under all of the decisions of this court, so far as I can recall, I do not believe that the plaintiff in error has been tried and convicted in accordance with law, and did not have that fair and impartial trial which the law guarantees to one charged with crime.
For the reasons, indicated in my opinion, the petition for rehearing should be allowed, the judgment of conviction! reversed, and the cause remanded to the trial court with direction to grant a new trial.
I therefore enter my dissent from the affirmance of the judgment appealed from.