Williams v. State

NIX, Judge

(dissenting).

The Bill of Rights of our country provides in certain and concise language that no person shall be subj ect for the same offense to be twice put in jeopardy of life or limb. This sacred provision of our Constitution has been religiously adherred to since its ratification and adoption. One grain of dust chipped from this stalwart stone in our structure of laws would retard the progress of our jurisprudence beyond conception. In preserving these fundamental rights of our country, we must never permit that to be done indirectly which cannot be done directly.

Was the defendant sentenced to death in this case for the crime of murder, to which he had previously been convicted and sentenced to life, or was he sentenced to death for the crime of kidnapping? If the latter is true, the verdict should not be disturbed. If the former is true, the verdict should never stand. The hours of deliberation devoted to this question have been of a strenuous and trying nature. The paramount struggle has not been whether the defendant by creation of a sordid record has forfeited his right to live. That which has deeply concerned your writer is whether we have toyed with the Bill of Rights so precious to all mankind. Have we, by permitting an individual to be thrice carved in order to obtain a desired result, flaunted the Constitution of our land? There is grave doubt in my mind. The defendant in this case was charged with three separate and distinct crimes, arising out of the same transaction — kidnapping, armed robbery, and murder. He accosted the deceased at an intersection in the city of Tulsa, got in the deceased’s car and by aid of a pistol forced his victim to drive into Muskogee County. This consummated the act of kidnapping. During the course of travel, he took from the deceased $5 with which to buy gas. Thus the crime of armed robbery. The transaction ended with the defendant killing his prisoner, consummating the crime of murder. The defendant was apprehended and charged with murder. The case was set for trial and while the jury was in the process of being selected, the defendant withdrew his plea of not guilty. Upon a plea of guilty, the Honorable E. G. Carroll, a District Judge, with long experience and learned in the law, sentenced the defendant to serve the rest of his natural life in the state penitentiary at McAlester. No doubt Judge Carroll took into consideration the hazards of a trial, relying for conviction almost exclusively upon a confession of the defendant, which would have been admissible only if voluntarily given. This no doubt gave the trial court much concern as was indicated in his remarks while passing sentence. He said:

“ * * * This matter weighs heavily upon the shoulders of this Court. I want to do the right thing. I may be criticized for what I’m about to do, but it developed here today that to continue with a jury trial — I mean that it would be a long, if orderly process; and I recall only recently that in a motion filed by you to suppress certain evidence that certain things, certain evidence has come to the attention of the Court which might have some mitigating circumstances in the penalty.

“There was a confession alleged. There’s some testimony on the part of the defendant that to obtain that confession that you were probably slapped and beaten and probably kicked to bring you to the submission — into submission and to sign this certain confession. During that motion I recall that there were some two confessions. One was never brought into court. It was destroyed, and what was in that *999 confession this Court will never know, but the other confession was brought into court, and I read it, and I remember that you stated that it was obtained after you were bodily beaten.”

No doubt these statements were true as they were not challenged by the state. If they were true, the confession would not have been admissible and the state would have been tremendously handicapped in obtaining a conviction as the defendant was the sole surviving witness to the crime. However, this court is not herein charged to review the merits of this matter. The defendant had pleaded guilty to the crime of murder and received his punishment of life in the state penitentiary. Had the defendant received death, no doubt the present case would not be before this court and the crimes incident to the murder would have passed into oblivion and long since forgotten. Evidently other persons were not satisfied with this result and they chose to carve again. The defendant was brought back to Tulsa County where he was charged with armed robbery for which he was sentenced to SO years in prison upon a plea of guilty; charged with kidnapping, pled guilty and received death in the electric chair; the desired results being obtained upon the third attempt.

A careful study of the proceedings in their entirety inevitably raises the question was defendant given the death penalty because he forced the deceased to drive into another county at pistol point or was the death sentence imposed because he committed the heinous crime of murder to which he had already been convicted and sentenced to serve the balance of his life in prison. The trial judge, in passing sentence upon the defendant for the crime of kidnapping, strongly indicated in his remarks that the crime of murder was deeply embedded in his mind and no doubt used to justify the extreme penalty. He said:

“ * * * The court has been very deliberate in the matter of this case, has given it hours of consideration, and investigation; investigation of your record, investigation of the facts which have been alleged, which have been stated, and which you admit were part of this crime which you have committed in Tulsa County, which resulted in the murder of the victim, Reverend Cook, to which you have pled guilty and been sentenced in Muskogee County, and which the court takes into consideration, that murder as being a part and parcel of the crime which is here, as a continuing thing. It is the Courfs opinion that there has never been in the history of Tulsa County, a more brutal, vicioiis crime committed, this crime to which you have pled guilty here. The fact that you have pled guilty to the crime of murder in Muskogee County and received a life sentence there, is not a particularly or material consequence in the matter of the Court passing sentence in this case.”

It is made exceedingly clear by the temper of these remarks that the crime of murder was the predominating basis for the infliction of the death penalty. In alluding to the atrociousness of the crime, surely the trial judge had reference to murder and not kidnapping. The trial court, according to his remarks, gave hours of deliberation and investigation of the record showing facts resulting in murder, which was a part of the crime before the court. The court stated:

“ * * * there has never been in the history of Tulsa County a more brutal, vicious crime committed, this crime to zvhich you have pled guilty here.” (Emphasis ours.)

It is quite obvious that the trial judge did not have reference to the kidnapping, which in itself was not brutal or vicious, but to the murder committed in Muskogee County, with which we agree, as being brutal in its conception and vicious in its execution. I am inclined to agree with defendant’s counsel in their contention that the extent of punishment in the case at *1000 bar was received only as a result of the murder committed in Muskogee County and that murder constituted the prevailing factor in the minds of the county attorney and trial court.

If the deceased had been taken to Muskogee by the defendant and released without harm, we can agree that the death penalty would have been excessive. The majority opinion in justifying the death penalty calls attention to the potential gravity of the crime of kidnapping by referring to such cases as Lindbergh, Greenlease, Ross, and others generally known to the average citizen. In each of these cases the victim was killed for which the defendant was given the extreme penalty. It is well to point out that these defendants were tried but one time, convicted one time and sentenced one time, though their crime was identical in nature with the case at bar. This is the first death case before this court as a result of kidnapping. Since statehood six cases have been decided by our court where defendants were charged with kidnapping. These cases are cited as follows along with the sentence imposed upon each defendant: Norris v. State, 68 Okl.Cr. 172 , 6 P.2d 540 , 30 years; Shimley v. State, 87 Okl.Cr. 179 , 196 P.2d 526 , 3 years; Flowers v. State, 95 Okl.Cr. 27 , 238 P.2d 841 , 20 years; Williams v. State, 96 Okl. Cr. 362, 255 P.2d 532 , 20 years; Phillips v. State, Okl.Cr. 267 P.2d 167 , 20 years; and Ratcliff v. State, Okl.Cr. 289 P.2d 152 , 5 years.

In most of these cases a gun was used, violence and brutality was shown. The greatest sentence imposed was 30 years, Norris v. State, supra. The average was 16 years. In the majority of these cases numerous charges could have been filed as a result of the same transaction, but each defendant was tried one time, convicted one time and sentenced one time. We must, therefore, conclude that the death penalty herein imposed constitutes punishment a second time for murder. This being true, it is a flagrant violation of the fundamental concepts of our law that no person shall be twice put in jeopardy nor given double punishment for the same offense.

Our court has formerly held in the case of Rupert v. State, 9 Okl.Cr. 226 , 131 P. 713, 714, 744 , 45 L.R.A.,N.S., 60, in an opinion of the able jurist, Judge Doyle:

“That no person shall be twice put in jeopardy for the same offense is a universally accepted principle of the common law, and this principle has been embodied in the federal Constitution and in all state Constitutions, and it is incorporated in the Constitution of the state of Oklahoma by express provision * *

“We think this provision of the Bill of Rights, and the principles therein declared, is broad enough to mean that no person can be twice lawfully punished for the same offense. The one follows from the other, and this constitutional provision is designed and intended to protect the accused from a double punishment as much as to protect him from two trials.”

In the case: Ex parte Lange, 18 Wall. 163 , 85 U.S. 163 , 21 L.Ed. 872 , uses this language in supporting this proposition:

“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. * * *"

“ * * * we shall see ample reason for holding that the principle intended to be assorted by the constitutional provision must be applied to all cases where a second punishment *1001 is attempted to be inflicted for the same offense by a judicial sentence.

“For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? What is it that, having once been tried and found guilty, he can never be tried again for that offense?

Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? It is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction a second punishment inflicted? The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it. * * * ”

“There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law which they are embodied. * * ”

It can be ascertained by research that all jurisdictions have been most zealous in adhering to the Bill of Rights in the preservation of prohibitions against double jeopardy directly or indirectly. Our court has on numerous occasions clung steadfastly to the doctrine. It was said in Love v. State, 41 Okl.Cr. 291 , 272 P. 1035 , 1037:

“The decisions of this court have uniformly held that as used in the constitutional provision above quoted providing that no person shall be twice put in jeopardy for the same offense, * * * so nomine, but the same criminal act, transaction, or omission. Also, that where the state elects through its authorized officers to prosecute an accused for an offense in one of its phases or aspects and upon his trial the accused is convicted or acquitted by a jury, the state cannot afterwards prosecute the same criminal act or transaction under color of another name. Estep v. State, 11 Okl.Cr. 103 , 143 P. 64 ; Jackson v. State, 11 Okl.Cr. 523 , 148 P. 1058 ; Barton v. State, 26 Okl.Cr. 150 , 222 P. 1019 ; Hourigan v. State [ 38 Okl.Cr. 11 ], 258 P. 1057 ; Courtney v. State [ 41 Okl.Cr. 30 ], 269 P. 1059 ; Fox v. State, 50 Ark. 528 , 8 S.W. 836 ; In re Nielson, 131 U.S. 176 , 9 S.Ct. 672 , 33 L.Ed. 118 .”

The Supreme Court of Kansas discussed this matter at great length in the case of State v. Colgate, 31 Kan. 511 , 3 P. 346 , 348, 352. The following language was used therein:

“Of course, the prosecutor may associate the criminal act with all its consequences, and then carve therefrom the highest crime that can be carved from such act and its consequences, and then prosecute the wrongdoer for such crime. If he chooses, however, he may carve out a smaller degree of crime, and prosecute for that only. But he should be allowed to carve but once. * * * But we do not think that the prosecutor should be allowed to multiply prosecutions indefinitely, by dividing up the consequences of a single wrongful act, and founding a separate prosecution upon each of such consequences.”

*1002 The utterances of these various jurisdictions are based upon our constitutional barrier against double jeopardy. It had its inception centuries ago. The ground work was laid in the Magna Charta 742 years ago. It became a stone pillar in our system of jurisprudence upon ratification of the Bill of Rights in 1791. Our courts since that time have devotedly preserved its strength. It has been heroism to die in defending its sacred value. If it were relaxed to take the life of one individual, contrary to its concepts, the damage would be done to mankind, not to the victim. The defendant in this case has created for himself a sordid record that could neither merit nor expect mercy from this court, and his destiny will not be affected by the remarks of your writer.

The majority opinion has affirmed the conviction and the execution date is set. This opinion has not been expressed out of any compunction for the defendant, but out of my concern for the inherent rights of all people as laid down in the constitution of our land.