Anderson v. State , 8 Okla. Crim. 90 ( 1912 )

The petition in error sets out 23 grounds upon which it is alleged that the judgment of the trial court should be set aside and a new trial be granted. This was a joint prosecution against appellant, Dan Anderson, and Arbelle Vannoy for the murder of John Vannoy. When the case was called for trial, appellant, Dan Anderson, filed a motion for severance, which was granted by the court. Appellant then demanded that Arbelle Vannoy should be tried first. The demand was refused, and appellant excepted to the ruling of the court. Appellant was placed upon trial and found guilty of murder, and his punishment was assessed at death.

First. Counsel for appellant in their brief say:

"Defendant assigns that the court erred in compelling him to be tried first, after granting a severance, thereby depriving him of the evidence of his codefendant, Arbelle Vannoy.

"Article 5, Constitution of the United States, as amended, among other things, provides that ``no person shall be deprived of life, liberty, or property without due process of law.'

"Article 6, Const. U.S., as amended, among other things, provides that in all criminal prosecutions the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor.

"Article 14, Const. U.S., among other things, provides that ``no state shall deprive any person of life, liberty or property without due process of law; nor deny to any person the equal protection of the laws.'

"Article 2, sec. 7, Const. Oklahoma, provides that ``no person shall be deprived of life, liberty or property, without due process of law,' and in section 20, same article, among other things, provides that ``in all criminal prosecutions the accused shall have compulsory process for obtaining witnesses in his behalf.'"

If counsel for appellant had carefully considered the very able opinion of Judge Doyle, in the case of In re McNaught, 1 Okla. Cr. 528, 99 P. 241, we do not believe that they would have presented this question. In McNaught's case the question was as to whether a prosecution for murder by information constituted due process of law. We there held that it did. While our discussion was confined to the question there presented, yet the principles announced are decisive of the question now presented to us. But, as this matter has come up again, we will take a broader view and see just what due process of law means. That a state cannot deprive a person of life, liberty, or property, without due process of law, goes without the saying. It is not only embodied in the Constitution of the United States and of this state, but it is a fundamental principle of justice, independent of either Constitution. As we understand it, the assumption of counsel for appellant is that the refusal of the trial court to place his codefendant, Arbelle Vannoy, on trial first deprived him of an opportunity of securing her evidence as a witness in his behalf, and thereby amounted to a denial to appellant of due process of law. But counsel for appellant did not attempt to discuss the question as to what constitutes due process of law, or favor us with either argument or authorities in support of the contention that placing appellant upon trial first amounted to a denial of due process of law; but they assumed the proposition in controversy, and substituted assertion for argument and authorities. We would therefore be at liberty to disregard and ignore this proposition altogether, because it is no part of the duty of this court to brief cases, as well as decide them. This court never presumes error in the proceedings of a court of record. Two things must be shown by the appellant before a conviction will be reversed, viz., that error was committed during the trial, and that this error, unless jurisdictional, deprived the appellant of some substantial right, to his material injury. Unless such error is properly presented in the brief, a conviction will be affirmed. See Price v. State,5 Okla. Cr. 147, 113 P. 1061. But, as the extreme penalty of the law has been pronounced against appellant, we feel it to be our duty to thoroughly investigate the record, and to give appellant the benefit of any material error that may have been committed which operated to his injury, whether or not the same was excepted to at the trial, or properly presented in the brief. See Vickers v. United States,1 Okla. Cr. 452, 98 P. 467; Turner et al. v. State,126 P. 452, decided at the present term.

In the consideration of this matter, the first question which presents itself is, What constitutes due process of law? In the case of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629, the Supreme Court of the United States declared that by due process of law was meant "a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial." 2 Kent's Commentaries, p. 10, declares that due process of law means law in its regular course of administration through courts of justice. The Supreme Court of New York, in the case ofTaylor v. Porter, 4 Hill, 140, 40 Am. Dec. 274, declares that by due process of law is meant a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining title of property. Mr. Cooley, in his work on Constitutional Limitations, sec. 356, says that due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. In the case of Murrayv. Hoboken Land Co., 18 How. 272, 15 L.Ed. 372, the Supreme Court of the United States declared that "due process of law" is synonymous with "the law of the land." "The law of the land" necessarily means the law of the state where the offense is committed, and where the trial takes place. The prohibition of the federal Constitution cannot mean that a state must observe the due process of law of some other jurisdiction over which it has no control. It has accordingly been repeatedly declared that the phrase "due process of law," within the provision of the Constitution restraining the depriving of a person of his liberty without due process of law, does not of itself require a trial by jury in states where the usage and statutes are otherwise.Montana v. St. Louis Mining Milling Co., 152 U.S. 160, 171, 14 Sup. Ct. 506, 38 L. Ed. 398; Hurtado v. California, 110 U.S. 516, 4 Sup. Ct. 111, 292, 28 L.Ed. 232; Walker v. Sauvinet, 92 U.S. 90, 93, 23 L.Ed. 678; In re Dowell, 169 Mass. 387, 47 N.E. 1033, 1034, 61 Am. St. Rep. 290; Garnett v. Jennings, 44 S.W. 382, 383, 19 Ky. Law Rep. 1712; State v. Wilson, 121 N.C. 425, 28 S.E. 554, 557; AttorneyGeneral v. Jochim, 99 Mich. 358, 58 N.W. 611, 614, 23 L.R.A. 699, 41 Am. St. Rep. 606; Cummins v. Cummins, 1 Marv. (Del.) 423, 31 A. 816, 819; McInerney v. City of Denver, 17 Colo. 302,29 P. 516, 519; Fant v. Buchanan (Miss.) 17 So. 371.

In the case of Hurtado v. California, 110 U.S. 516, 4 Sup. Ct. 111, 292, 28 L.Ed. 232, Mr. Justice Matthews, speaking for the United States Supreme Court, says:

"It follows that any legal proceeding in force by public authority, whether sanctioned by age and custom, or newly devised, in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice must be held to be due process of law."

In the case of In re Kemmler, 136 U.S. 448, 10 Sup. Ct. 934, 34 L.Ed. 519, Mr. Chief Justice Fuller said:

"Undoubtedly the amendment forbids any arbitrary deprivations of life, liberty, or property, and secures equal protection to all, under like circumstances, in the enjoyment of their rights, and in the administration of criminal justice requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses. But it was not designed to interfere with the power of the state to protect the lives, liberty, and property of its citizens, and to promote their health, peace, moral education, and good order. Barbier v.Connelly, 113 U.S. 27 [5 Sup. Ct. 357, 28 L.Ed. 923]."

In the case of State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S.W. 627, 48 L.R.A. 265, 77 Am. St. Rep. 765, the Supreme Court of Missouri said:

"And if ``due process of law' is to be defined as ``the law of the land,' designed to protect and preserve the rights of the citizen against arbitrary legislation, as well as against arbitrary executive or judicial action, then ``due process of law' is denied when any particular person of a class or of the community is singled out for the imposition of restraint or burdens not imposed upon and to be borne by all of the class, or of the community at large, unless the imposition or restraint be based upon existing distinctions that differentiate the particular individuals of the class to be affected from the body of the community; and this question as to whether the persons thus designated constitute a natural or reasonable class depends upon the validity or invalidity of the legislation the Legislature must determine upon."

An entirely satisfactory definition of "due process of law," which would be applicable to and include all cases alike, cannot be easily stated. In criminal cases in a state court, "due process of law" means a trial in a court of competent jurisdiction before an impartial judge and jury, or before a judge alone, upon an accusation, either by indictment or information, as the state may provide, charging the accused with the violation of some state law, of which accusation the accused must have notice in time to enable him to prepare for trial. This trial must proceed according to the established procedure or rules of practice in such state applicable to all such cases. In other words, a defendant must have his day in court. The admission of evidence for or against the accused must be according to the established rules in such state in all such cases, and the punishment inflicted must be authorized by law.

Let us now apply these principles to the question in hand. Our statutes upon this subject are as follows (Comp. Laws 1909):

"Sec. 6830. When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.

"Sec. 6831. When two or more persons are included in the same indictment, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the state.

"Sec. 6832. When two or more persons are included in the same indictment, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid."

What was the law before these statutes were enacted? Mr. Justice Story, in U.S. v. Marchant, 12 Wheat. 480, 6 L.Ed. 700, answers this question as follows:

"Where two or more persons are jointly charged in the same indictment with a capital offense, they have not a right, by law, to be tried separately, without the consent of the prosecutor; but such separate trial is a matter to be allowed in the discretion of the court."

In the body of the opinion the court examines the alleged right at some length, and concludes that it has "not merely the absence of any authority in favor of the matter of right, but the course of practice." In later cases before the Supreme Court of the United States this decision is followed, and today in the federal courts codefendants have no absolute right of severance; but this matter is addressed to the sound discretion of the court. Of course, the question does not arise as to the order of trial, since there is no right of severance at common law; but this matter, if controlled by the court in its discretion, it naturally follows that the order of trial is within the sound discretion of the court. So extensive is this discretion that in a case where there were three defendants, and in a motion for severance, two of the defendants alleged that (1) the third defendant had been previously acquitted; (2) because the government relied on his acts and declarations made after the killing, and not in their presence or hearing; (3) because he was a material witness in their behalf. Upon this hearing, similar in all respects to the motion in the case at bar, the motion was overruled, and the Supreme Court, in the case of United States v.Ball, 163 U.S. 662, 16 Sup. Ct. 1192, 41 L.Ed. 300, follows the decision of Justice Story, already referred to, in these words:

"But the question whether defendants jointly indicted should be tried together or separately was a question resting in the sound discretion of the court below."

Unless altered by statute, the rule is universal that where separate trials are granted on a joint indictment, as well as where several are separately indicted for the same offense, the prosecution may determine the order in which they shall be tried.Jones v. State, 1 Ga. 610; Patterson v. People, 46 Barb. (N.Y.) 625; State v. Nash, 7 Iowa 347; People v. McIntyre, 1 Parker Cr. R. (N.Y.) 371; Shay v. Commonwealth, 36 Pa. 305; State v. Crank, 2 Bailey (S.C.) 66, 23 Am. Dec. 117.

In State v. Crank, 2 Bailey, 66, 23 Am. Dec. 117, decided in 1831 by the Supreme Court of South Carolina, the following is in the syllabus:

"The state has the right to elect which of two prisoners jointly indicted, severing in their defense, shall be first tried."

In Jones v. State, 1 Ga. 610, decided in 1846, we find the following:

"On an indictment against several defendants, where separate trials are granted, the court will not control the discretion of the district attorney as to which of the defendants shall be first tried."

Following this, in 1852, in People v. McIntyre, 1 Parker Cr. R. (N.Y.) 371, the court said:

"The statute secures to persons jointly indicted for a felony the right of separate trials, but does not give them the right to regulate the time or order of such trials. The public prosecutor controls and directs on these matters, subject to the discretion of the court in cases calling for interference; and such discretion would not be the subject of review on exceptions."

In Allison v. State, 14 Tex. App. 402 [14 Tex.Crim. 402], decided in 1883, the Court of Criminal Appeals, second in ability to none, and noted for its strict enforcement of the technical rights of a defendant, says:

"A defendant has no right to demand that other defendants, separately indicted for the same offense, be first placed upon trial."

It is true that the Legislature of Texas did subsequently enact a statute granting this right, thus sustaining our position that this matter, when not controlled by statute, is in the discretion of the court. In Texas and in Arkansas the statutes permit defendants jointly indicted, who have taken a severance, to select the defendant who will be tried first. This would be due process of law in Texas and in Arkansas; but we have no such statute in Oklahoma. Therefore the Texas and Arkansas rule is not applicable here. Under our statute, where two or more defendants are jointly indicted and a severance is taken, or where they are separately indicted, it is in the discretion of the court as to which shall be tried first. We therefore hold that the refusal of the court to place Arbelle Vannoy on trial first did not deprive appellant of due process of law, and that such ruling is not subject to review in this court.

It was earnestly insisted in oral argument that, as the sixth amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall have compulsory process for obtaining his witnesses, and as the same provision is found in the Constitution of this state, the court should have compelled the trial of Arbelle Vannoy first, in order that appellant might secure her testimony on his trial. So far as the sixth amendment to the Constitution of the United States is concerned, it was never intended to limit or control prosecutions of the state governments in respect to their own people, but to operate on the national government alone. This was decided more than half a century ago, and that decision has been steadily adhered to since. See Barron v. Baltimore, 7 Pet. 243, 247, 8 L.Ed. 672; Livingston v. Moore, 7 Pet. 469, 552, 8 L.Ed. 751; Foxv. Ohio, 5 How. 410, 434, 12 L.Ed. 213; Smith v. Maryland, 18 How. 71, 76, 15 L.Ed. 269; Withers v. Buckley, 20 How. 84, 91, 15 L.Ed. 816; Pervear v. Commonwealth, 5 Wall. 475, 479, 18 L.Ed. 608; Justices v. Murray, 9 Wall. 274, 278, 19 L.Ed. 658;Edwards v. Elliott, 21 Wall. 532, 557, 22 L.Ed. 487; Walker v.Sauvinet, 92 U.S. 90, 23 L.Ed. 678; United States v. Cruikshank,92 U.S. 542, 552, 23 L.Ed. 588; Pearson v. Yewdall, 95 U.S. 294, 296, 24 L.Ed. 436; Davidson v. New Orleans, 96 U.S. 97, 101, 24 L.Ed. 616; Kelly v. Pittsburg, 104 U.S. 78, 26 L.Ed. 658;Presser v. Illinois, 116 U.S. 252, 265, 6 Sup. Ct. 580, 29 L.Ed. 615.

So far as the provision contained in our Constitution is concerned, a different question is presented. The constitutional provision is that "in all criminal prosecutions the accused shall have compulsory process for obtaining witnesses in his behalf." This only extends to the accused the right to have compulsory process for his witnesses. It has nothing to do with the competency of such witnesses when presented, and in no manner binds the state to assist in removing any disability on the part of the witnesses for a defendant. If the position assumed by counsel for appellant is correct, it would be within the power of persons to be tried for crime to empty our jails and penitentiary by having prisoners confined therein summoned as witnesses for the defense, and this could be done by "due process of law." Admit their premises, and this conclusion would be inevitable. If the contention of counsel for appellant is true, then this appellant should not have been tried until after the case against Arbelle Vannoy had been tried and finally disposed of, which might have resulted in an indefinite continuance of the case against appellant. Suppose that two or more defendants are jointly indicted, each of whom demands a severance and requests that the other be tried first, if the contention of counsel for appellant is true, then neither of such defendants could ever be tried, because each would have the right to have his case continued until the competency of his codefendant as a witness in his behalf had been established. Without disrespect to counsel for appellant, there is absolutely nothing in their contention. It simply shows to what desperate extremities lawyers are sometimes reduced in attempting to save and protect guilty men. It also shows how necessary it is for courts to go to the bottom of all questions presented. If lawyers would seriously consider the questions they present and examine the authorities upon which they rely, and would brief them carefully before their cases are submitted, they would relieve this court of a vast amount of unnecessary labor and greatly aid the court in disposing of the business before it. We do not object to doing the work, and always take great pleasure in the investigation of any legal question submitted to us for decision; but, owing to the crowded condition of our docket and the further fact that we are already worked to the limit of human endurance in deciding questions properly briefed, we feel that justice to the state requires that our time should not be taken up in investigating questions which have not been properly briefed. We are therefore forced to give scant attention to questions which have not been properly briefed, unless the error is manifest and fundamental, or unless the case is one of first magnitude.

Second. Counsel for appellant did not attempt, in their brief or oral argument, to present their second assignment of error. It has therefore been abandoned. But, as this is a capital case, we have examined the record, and find that the second assignment of error is without merit. It will therefore not be discussed.

In their brief counsel group their third, fourth, and fifth assignments of error together and say:

"We think the court erred in permitting the witness Dave Scott to testify, over objection of defendant, to conversations between the defendant and the witness and Arbelle Vannoy at the jail in Coweta, Okla., several hours after the killing, and while the defendant was in jail, under arrest, and charged with the killing, had not been warned, and was under duress."

This would have been a good objection in Texas, where counsel for appellant live; but it is not good in Oklahoma. The fact that appellant was under arrest and in jail, and had not been warned, is utterly immaterial where it appears that the conversation was voluntary on his part, and was otherwise competent. The evidence was material as tending to show a motive on the part of the appellant to kill the deceased. Arbelle Vannoy was the wife of the deceased. The record conclusively established the fact that illicit relations had existed between appellant and said Arbelle Vannoy, and the theory of the state was that the homicide in this case grew out of and was the result of such illicit relations existing between appellant and said Arbelle Vannoy. From the days of King David and Uriah, there has been no more prolific cause of murder than illicit love.

The sixth assignment of error is utterly without merit, and need not be discussed.

The seventh, eighth, and ninth assignments of error have been abandoned, and are without merit.

Third. The tenth assignment of error is that the court erred in not compelling appellant's codefendant, Arbelle Vannoy, to testify in his behalf. When this witness was placed upon the stand by appellant, she declined to testify, upon the ground that she was also indicted for the offense for which the appellant was then upon trial. The record discloses the following touching this matter:

"Whereupon Mr. J.S. Dickey, counsel for the codefendant, Arbelle Vannoy, objected to the court compelling the codefendant, Arbelle Vannoy, testifying in the case, as she was charged jointly with the defendant for the crime of murder of her husband, the deceased, as her testimony might prejudice her defense when she was tried upon the charge. Whereupon the court ordered the defendant Arbelle Vannoy to be sworn as a witness in the case and to take the stand. Whereupon Arbelle Vannoy was duly sworn according to law, and testified as follows, to-wit:

"Direct Examination of Arbelle Vannoy.

"By Oxford: Q. What is your name?

"By the Court: Q: Are you the Arbelle Vannoy that is charged in this same information of the murder of John Vannoy? A. Yes, sir.

"Judge de Graffenried: The court desires to instruct you that you cannot be compelled by the defendant to testify to any facts in connection with this killing which would incriminate, or tend to incriminate, you of the murder of John Vannoy. In case you should be asked a question, the answer to which would incriminate, or tend to incriminate, you of the murder of John Vannoy, you have a good constitutional right to refuse to answer that question."

Appellant's counsel then asked said witness a number of questions, all of which she declined to answer, upon the ground that it would incriminate her, and appellant excepted to the action of the court in declining to force said witness to answer such questions. Did the court err in this ruling? This matter is discussed very fully by a great many authorities, and we may well begin with Wigmore, vol. 4, section 2270, under the heading "Who may Claim the Privilege — Party, Witness, Counsel — Effect of Erroneous Compulsion:

"The privilege is that of the person under examination, and, like all other privileges, is intended for his protection only; consequently it does not concern a right of the party calling him."

In Burr's Trial, Robertson's Report, 1, p. 243, Marshall, C.J., said:

"When a question is propounded, it belongs to the court to consider and decide whether any direct answer can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge of what his answer be. The courts cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judge would strip him of the privilege which law allows and he claims."

This word from the authority of Wigmore, quoting Chief Justice Marshall, who decided the case referred to in 1807, is without doubt a settlement of the question.

In the case of State v. Edwards, 2 Nott McC. 13, 10 Am. Dec. 557, a South Carolina case, we find:

"It is for the witness and not the court to judge whether his answer to a question will tend to criminate him. If it will form one link in the chain of testimony against him, he is not bound to answer; and the court should so instruct him as to enable him to decide understandingly."

In 1890, Mr. Justice Mitchell, in the case of State v.Thaden, 43 Minn. 253, 45 N.W. 447, said:

"After consideration of the question and an examination of the authorities, our conclusion is that the best practical rule is that laid down in some of the English cases and adopted and followed by Chief Justice Cockburn in Reg. v. Boyes. To this we would add that, when such reasonable apprehension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. This, we think, is substantially what Chief Justice Marshall meant by his statement of the rule in the Burr trial."

Wigmore, in volume 4, section 2271, approves this in the following words:

"The summing up of Mr. Justice Mitchell leaves nothing to be added, and ought to remain the last word on the development of the rule."

It is undoubtedly the better practice for the court to warn the witness as to the constitutional right not to incriminate.

In Davis v. State, 122 Ga. 564, 50 S.E. 376, we find the following:

"The better practice is not only to notify a witness that he will not be compelled to testify to anything that will criminate him, but also, when a particular question is asked, to warn him that the answer to such question might have that effect; and especially is this true where the witness belongs to an ignorant class."

This case exactly fits the case at bar. A negro woman, ignorant in all things, is warned by the court that she has a constitutional right to refuse to answer questions that might criminate her.

Again, in Mayo v. Mayo, 119 Mass. 290, the court says:

"It is within the discretion of the court and the usual practice to advise a witness that he is not bound to criminate himself, where it appears necessary to protect the rights of the witness."

The action of the trial court in not compelling Arbelle Vannoy to answer the questions asked her was strictly within the law.

Fourth. There are a number of assignments of error with reference to the refusal of the trial court to give requested instructions, and also with reference to instructions given, all of which we have examined carefully and we have read all of the instructions of the court. All of the questions presented have been previously passed upon by this court in other cases; and therefore it would be a useless consumption of time to discuss them again. The question of the sufficiency of instructions must always be determined by the facts of each case. An instruction might be erroneous as applied to a given state of facts, and the same instruction might be sufficient under a different state of facts. Looking at the instructions in this case from this standpoint, we think that they are substantially correct, and we do not see how appellant could have possibly been injured by the instructions of the court. The jury evidently came to the conclusion that the appellant was criminally intimate with the wife of the deceased, and that this was the sole cause of the homicide in this case. In this opinion we concur. Deceased was unarmed at the time of the homicide, and his sole offense consisted in his endeavor to induce his wife to return home and discharge her duties as the mother of their children. For doing this, appellant assumed to constitute himself judge, jury, and executioner, and without giving deceased an opportunity to defend himself, he placed him on trial, sentenced him to death, and executed him on the spot, and by so doing appellant forfeited his life to society. Appellant has been tried before an able and impartial judge. He was represented by counsel of his own choice. He had every opportunity afforded him by law to make his defense. The jury appear to have been entirely fair. We think the verdict at which they arrived is the only one which could have been rendered by an intelligent and honest jury. We find no material error in the case.

We were requested by counsel for appellant to modify the judgment, in the event of an affirmance, and reduce the punishment to imprisonment for life. Section 6955, Comp. Laws 1909, gives us the power to do this, yet are think that it would be an abuse of power if we in any manner interfered with the verdict in this case. The judgment of the lower court is therefore affirmed.

The time originally provided for the execution of appellant having expired, it is ordered that the judge of the district court of Wagoner county execute a warrant in due form of law, attested by the clerk of said court and under the seal of said court, to be delivered to the sheriff of said county, commanding said sheriff to execute appellant, Dan Anderson, between sunrise and sunset on Friday, October 18, 1912, in accordance with law and the judgment of said court heretofore rendered.

ARMSTRONG and DOYLE, JJ., concur.