*1 аpparently attempt plicable theory inject deliberate to a of the defense to record, however, only support, error due to the evidence tends to into which requested objections and especially de- defense counsel’s the fact when testimony objectionable that much of the fendant.” stricken, did not constitute reversible prior when Title This was O.S. error this case. 11-902, A. amended read: § judgment The and sentence of the trial' punishable “(a) It as is unlawful and therefore, court affirmed. provided paragraph (c) of sec- this any person for who is under tion JOHNSON, BUSSEY, J., J.,P. con- drive, intoxicating liquor influence cur. physical operate, beor in actual control any motor within this state. vehicle punishable “(b) It is unlawful and
provided paragraph (c) of this sec- any person
tion for who is an habitual any
user or under the influence barbiturate, ampheta- drug,
narcotic mine, marihuana, or , under the who is Mary Kay BORN, Plaintiff Error drug degree to a any influence of safely incapable him which renders Oklahoma, The Defendant STATE driving a a motor vehicle to drive in Error. within this state. motor vehicle No. A-13321. any person charged with a fact Appeals Court of Criminal of Oklahoma. has paragraph violation this is or March 1964. lawfully to use such nar- been entitled barbiturate, amphetamine, drug, cotic May 20, Rehearing Denied 1964. marihuana, drug shall not or other Rehearing for Petition Denied Second charge any against constitute a defense Sept. 23, 1964. * * violating paragraph. Certiorari Denied Feb. 1965. (Emphasis ours.) See 85 S.Ot. 718. clearly Under the statute stated
above, prescribed by phy taking drugs
sician, Operating is not defense the Influence Vehicle Under Motor while Liquor. Intoxicating For defend when taking drugs
ant he had been which testified out, pleading him to black he was
caused 11-902, guilty Title sub-sec O.S.A. § is, above, (b),
tion as shown the same punishment.
statute and same
Therefore, have been error could not judge
for the trial to refuse the instruction theory
defining of de- it as defendant’s
fense. carefully repeatedly
This Court has cannot
reviewed the this case. We record enough
find error of law meritorious approve of
warrant reversal. We do not county attorney, questioning
928 *4 trial,
for he shall furnished with a of the witnesses that will be called list chief, prove allegations information, together indictment or Tillman, Hamp- Tillman, Tillman & Fred post with their office addresses.” Heskett, ton, Pawhuska, Bartles- & Heskett ville, plaintiff in error. Manning In 7 Okl.Cr. Gen., (367) A. said: Nesbitt, Atty. P. Charles Jack Gen., Swidensky, Atty. for defendant Asst. prescribe “The law does not the man in error. ner in which the names of witnesses capital case shall the de be furnished NIX, Judge. appear fendant. If it be made to Born, Mary Kay referred hereinafter that such satisfaction of trial court Defendant, charged Information appellant at names were furnished the *5 Washington Murder in with the crime of days least two before case was Oklahoma; County, was tried be- of State trial, -called in which the manner jury guilty of the fore a that found her names becomes were so furnished Manslaughter lesser and included offense Frisbee, Okl. v. 8 immaterial.” State punish- Degree, set her in the First and State, 406, 1091; v. Cr. 127 P. Franklin years (17) ment at Seventeen in the Okla- 178, 183; v. 9 Okl.Cr. 131 P. Goben Penitentiary. homa State 812; State, 220, Pol 20 Okl.Cr. 201 P. perfected appeal State, The defendant her lock v. 26 223 P. Okl.Cr. by prescribed this within the time 210. asserting of er- assignments law numerous appears from the record that appear They they ror. will be discussed compliance with Art. there was sufficient parties hereto. the briefs of the 2, 20 the Constitution of State § fact The first arose from the contention justify judge overruling defend the trial Attorney County that the to endorse moved upon the ant’s Motion for a continuance on the three on the Information witnesses grounds were en that additional witnesses objected and date of trial. Defendant dorsed. judge for a The trial asked continuance. continuance, and overruled the a delay motion for practice not The better is to this, claims, reversible error. defendant was last a until serving list of witnesses minute, hardship
The motion to add additional witnesses
a
on defense
as it works
Attorney
alleged
County
with due
that the
danger
always
counsel
creates the
diligence had
able to discover said
not been
complained
witnesses
reversal. The three
trial,
days
or
witnesses until four
before
of, could,
dis-
diligence, have been
September
reflects
1962. The record
party.
by
early date
either
covered at an
upon
served
attor-
State
defense
present
Two
them were nurses and were
neys, a notice of intent to call additional
to the hos-
when Dr. Born was admitted
witnesses, listing their names and addresses
pro-
pital. They
present
he was
were
when
thereon. The notice
served
They
Mrs. Born
nounced
also took
dead.
County upon
Sheriff
Washington
de-
night
in a
same
to the nurses station the
September
Saturday,
fense counsel on
Neal,
Dr.
a
wheel
The other was a
chair.
1962. The case
for trial on Tues-
was set
witness,
with Dr.
played golf
rebuttal
who
day, September 11, 1962.
The
his death.
Born the afternoon before
2, 20,
provides
The
Art.
Constitution
§
attorney’s
county
motion
allegation in the
among
things,
that:
they
not dis-
them because
were
endorse
“ * * *
days
is diffi-
cases,
covered
before trial
capital
at
until four
and in
Nevertheless,
barely
cult to
he was
days
least two
believe.
before the case is called
they
ghastly
gruesome
prescribed
law. There-
ant claims
time
within
purpоse
only
error.
and were introduced
for the
constitute
it did not
fore
inflaming
jury against
the defendant.
court
the trial
also contends
Defendant
a con-
motion for
overruling
her
erred
has held that the intro
This Court
of a mate-
upon the absence
tinuance based
photographs
subsequent
duction
taken
present, she
alleged, if
It was
rial witness.
largely
a homicide
in the discretion of
by the
made
testify
the threats
would
as to
the trial court and unless this discretion is
defendant,
threats
against
deceased
abused,
it will not
cause for reversal.
bodily harm.
great
her
her life or do
take
166;
State,
Mott
P.2d
v.
94 Okl.Cr.
always
person
moody
That he
P.2d
Okl.Cr.
Jackson
presented
counsel
gun.
Defense
carried
851.
being
support
the witness’
telegram in
rule seems to be that
general
The
the serious
as a result of
unable to come
sub
pictures
made
if
of a homicide victim
judge over-
The trial
illness of her father.
ghast
sequent
gruesome
are
to his death
de-
for continuance
ruled the motiоn
they are
ly,
prejudice,
carry danger
exceptions.
fense counsel saved
are relevant
they
unless
inadmissable
Dorthy
was Mrs.
witness involved
The
reasonably
issue and would
some material
telegram
Parsons,
Kansas.
Hart of
jury in the determination
assist the
she couldn’t
states that
from her to counsel
relevancy must
and this
guilt,
defendant’s
illness
due to the
attend court “tomorrow”
danger
would
outweigh the
*6
However,
to be re-
it is
of
father.
her
of
as a basis
for reason
substitute emotion
on the
commenced
membered that the trial
their verdict.
sub-
day
September,
was
11th
of
and
case,
in the
well stated
The rule was
Sep-
day
jury
19th
of
mitted to
on the
the
P.2d
Carter,
312
People
v.
Cal.2d
tember,
reflect
not
1962. The record does
665, 667:
part of the
on the
effort was made
principal
“If the
effect of demonstra-
present at a
witness
defendant to have this
photographs
tive
such
evidence
is
presenting mo-
date than the date of
later
passions
to arouse the
the
аn
shows
tion. A review of the record
against
inflame them
the defendant be-
testimony by
witnesses
other
abundance of
crime,
cause of the
of the
the
horror
testimony
Mrs. Hart’s
to the same effect as
must
course be excluded.
evidence
* * *
testimony
been, therefore, her
would
hand,
On the
the evi-
if
repetitious.
probative
re-
dence has a
value with
consistently held
has
spect
outweighs
This Court
to a fact in issue that
the
is within
prejudice
that motion for continuance
defend-
danger
judge,
ant,
trial
sound discretion of the
admissable even
the evidence is
is
incidently
there
may
will not interfere unless
gruesome
if it
v.
jury.”
Herndon
passions
clear abuse of that discretion.
arouse the
of the
942;
State,
Martin
P.
35 Okl.Cr.
Also,
Cheary,
People
48 Cal.2d
see
v.
In
“Q. And disturbed were my so going to throw so and he said afraid because of what out that house. and what his actions were ? “Q. By your you mean 'so and so’ “A. Yes. portion anatomy, your some Now, time, right. “Q. All at you? do Born, you in the room Mrs. “A. Thats correct. king-size where bed is said “Q. he do as he What did where it has the headboard you? bed? “A. Thats
“A. Thats correct. when— ‘Q. tall was And how Dr. “Q. By way action? Born? ‘A. He got up and came was six foot. That’s when he “A. the bed after me.
around ‘Q. describe, you Now can reason of his or his “Q. training or Go ahead. work all, reason at what condition hands extend- his arms and “A. With his arms and hands were in at that ed. explain that, please, time? Just you. Whаt “Q. toward Extended ma’am. expression did kind of a facial course, ‘A. ofWell he worked with you noticed at that he have that his hands in everyday work. time, Mrs. Born? arms, husky hands, He had large very angry. “A. He was if you that’s what mean. Now, hereto- you have told us “Q. ‘Q. right. Now, All when he came an ortho- that Dr. Born was fore you toward around the bed where us, please, surgeon. Tell donic did he have to go get in order to ma’am, physique what kind of you to where were? had, appearance physical he ‘A. He had to completely come mean, he how tall I and about * * * around the bed. He general characteris- was and his ‘Q. right. All physically. tics Now— I ‘A. (continuing) was six foot tall and what op- “A. He was on the —he posite husky man would call not a real side. husky. but ‘Q. Thats the bed talking we are built, “Q. strongly is that Husky about and we have described as your statement? bed, king-size being the is that right ? my That statement. “A. would right. ‘A. Thats course, And, you know that? ‘Q. part Now from what of the bed “MR. NEPTUNE: Excuse me. did he leave or where was he say didn’t hear her the statement he started around the bed .when incompe- Object said to her. to it as you? toward tent, and ask irrelevant and immaterial put not to that counsel be admonished Well, ‘A. he lying on that down tes- his statements in the record side of bed got at first and he *8 testify. timony, but let the witness up and came around bed. “THE Sustained. COURT: “Q. About what distance would he have to in toj.-sfc' travel order to reach Born, “Q. you Mrs. I’ll have you, please, ma’am? questions way. in Of a certain course, that. tryiaig I’m to do “A. I’m not sure the width of the bed. please. myquestions, answer Just had It is oversized bed. We physique, is what kind of What special order it. you,/that Dr. Born had. asked I any in “Q. you Did or advance move you that I have answered believe anyway him? manner or towards spite objection. That’s of/the grabbed “A. when I That’s right youlhave that? answered —turned — any- there was around to see if Yes, “A. I have. grab. I knew he would thing to Now, “Q. you, please, how tall are something. do He was violent. ma’am? picked up gun That’s when I up. five, and stood eight eighths. “A. I’m and three Well, my ques- picked “Q. please up it answer and crossed it over you my Did advance towards hand.
tion. him in go him or towards “Q. position it, Well in what manner, shape or form from please, ma’am? tip stand Just your position? your show the No, just right pistol “A. I I was hands sir. stood. where the was when standing. only you.
where I was he came towards Now, “Q. you get ‘A. (Demonstrating) then did the little It was out like
pistol, pistol up evi- this. Came here.
dence, right? is that ‘Q. pointed Was it him towards at any time? anything. gotten “A. I would have “A. No point That’s all there was. sir. I did not it towards him. “Q. you get answer is that did Your ‘Q. you your that and had it in Did point hand. ever intend to toward him or use it? “A. Yes. couldn’t, no, ‘A. I sir. purpose you get “Q. For what did ‘Q. Why pistol weapon you saw it not? or there, Born? Mrs. ‘A. Because I my loved him. He was whole life. Well, frightened. “A. I was ‘Q. For myself purpose you what defend if did I saw neces- pistol, sary. However, purely I Mrs. Born? wanted bluff him. protect ‘A. myself To if I had to. think “Q. you gun that’s point Did ever at human nature. But purely to him? bluff.
“A. Never. ‘Q. right. All happened. Then what What “Q. Born, did Dr. you Born do Mrs. arе familiar with with ref- you? erence firearms, pistols, weapons. (cid:127) No,
“A. ‘A. Well thats when he started to sir. scuffle. “Q. you pistol your Did ever fire a ‘Q. did that? ex- How he do You life? plain it to us. No, “A. I have not. Well, just grabbed my ‘A. he hand you weapon Did ever have that around, all around we scuffled your anything hand to know like that. about its mechanism or how 'Q. strong grip grip Was his or a discharge would what grip weak ? discharge would have to do to it? strong ‘A. Dr. Born man. was a No, “A. I did not. ‘Q. grip grip strong Was his *9 “Q. that you occasion? holding gun? How were the position you In what were when Yes, 'A. it was. Dr. Born came around to where Now, jury ‘Q. tell the court and you were? ma’am, happened, please, what standing up. “A. I was you the best can. “Q. pistol, please, And where was the Well, gun, A. we scuffled over the ma’am, you gotten? that had My or going scuffled. hands were pistol “A. The was over here in all around and that’s when the gun this (indicating) discharged. hand I had accidentally “Q. pictures you whether or not that the were of such grue- Do know not . trig- yоu your finger ghastly some or had the nature as inflame the jury danger the
ger trigger? the prejudice or near was not great enough probative the overcome know, “A. I do not sir. value. “Q. you whether Dr. Do know or not Therefore, judge trial did not abuse finger, or Born’s thumb or some his discretion in admitting photographs. portion anatomy got you trigger guard while were Defendant next contends that it pistol gripping there? was error for the trial court allow the “A. I do not know it because was introduction of the result alcoholic definitely just struggle. hospital blood shortly test taken at after the homicide. Defendant contends “Q. any you Do have idea on earth the test was taken her without consent and happened how it to be or fired sup therefore record If the inadmissable. why fired ? it was ported contention, defendant would "A. No do not. T. certainly argument, have merit to but her “Q. you anything Did to do have con- support does record not this assertion. sciously unconsciously or with Born, The record reflects that Mrs. n pistol that ? firing of defendant, had refused to Dr. let Johnson No, sir, “A. I couldn’t. test, agreed take the but Mrs. Hannum that Hannum, could take blood for the test. Mrs. “Q. you Did intend to fire it? ever time, registered was a nurse and at. No, “A: sir.” hospital. administrator of the She testi Throughout testimony she defendant’s fied as follows: have contended she did not intention “Q. you you as Would near can firing taking the her hus- the shot or life of recall, Ma’am, please tell the court gun accidentally was dis- band. That the what said was charged sure in a scuffle she was not defendant, Mary Mrs. pressed trigger gun that who Born? fired the shot.- “A. I asked Mrs. she Born if would hand, On it the other State’s allow me to some draw blood that defendant contention inferences her arm from for a test be sent the life of husband while he was took her state, reason and the that lying re- on the bed. That he offered no they wanted it to draw was to struggle. That engaged no sistence get an And I alcohol content. murder her actions therefore constituted her told I must have her justifiable than rather homicide. permission and she did not obvious, therefore, done, way to have one wound, reference to where bullet or another. body trav direction it entered “Q. All, right. And did she answer became a material issue. Powder eled you ? were as an indication of marks material “A. Yes. gun fired. distance from which the pro definitely pictures some answer, And what was her regard. They were value in this bative please ? bloody; gruesome, ghastly, but
neither said, 'yes’ “A. her left She and stuck *10 reproduction what depicted an actual arm out. purported reproduce they and to tended you aspect “Q. right. did jury very All Then assist the in a material what do? opinion is of the trial. The Court 934 Defendant cites no Oklahoma case the nurses handed me a
“A. One of
may
zephrinin sponge
point,
holding
but several
be found
syringe and a
these,
adversely
her
8
blood.
contention. One of
and I drew 5 to
cc’s of
p And out of which—
State, Okl.Cr.,
708,
v.
327 P.2d
Jordan
states:
The left arm.
may
by testimony
“The state
show
Q.
right.
All
What did
do
a
witnesses
conversation between
then, Mrs. Hannum?
party,
a defendant and another
and it
may prove
by
made
both
statements
do,
vial,
put
“A.
I
the blood
a
as we
(which
the defendant
are in the nature
police
myself
and the
officer and
against
interest)
admission
his
went down the stairs to the labo-
by
defendant,
party
and
the other
ratory
got
which
and
a container
say
jury
but it is for the
all
from
have,
procedure,
the routine
we
the conversation whether or
not
packed
mailing
it for
and I
by
statement made
the defendant
ad-
slip
gave
signed
it to him.
against
mission
interest.”
my
with her name and
name and
case,
zephrinin sponge
supra,
very
that I used the
had a
simi-
Jordan
lar set
charged
on it.
of facts.
was
with
Jordan
”
testimony
* * *
murder and
was admitted where
right.
All
.
shortly
alleged
he had said
after the
homi-
appears
sample
that
the blood
was
cide:
why
“I don’t know
I killed Bill and
voluntarily
given
being
after
advised the
Lillian,
sorry”.
I am
purpose for
taken. The tes-
which was
statеment,
timony
sample
was
the blood
con-
like the
in the
This
one
case,
by weight
instant
tained 0.17
Defendant
constituted declaration
alcohol.
from
upon
gen-
may
drawn,
guilt
lists no authorities and
an inference of
relies
objection
incompetent,
against
eral
admission
was
interest and as such
inmaterial;
original
irrelevant and
and that
are admissable as
evi
direct
730,
test was taken without defendant’s consent.
dence. 22A
Criminal Law §
C.J.S.
1025,
6;
page
Note
22A
Criminal
opinion
testimony
C.J.S.
We are of the
that the
730,
page
Law
Note 7. It has been
§
rendered the result of the test admissable.
held in
Strong
so
In
v.
defendant had
Jurisdiction.
If
refused to let them then
State,
1091, 1092,
46
287 P.
Okl.Cr.
test, testimony
take the
with reference to
ruling
same
is found. Also see Overton
the refusal would have been inadmissable.
363;
State,
v.
Okl.Cr.
P.2d
case,
refuse,
In the instant
she did not
but
Territory
Oklahoma,
Loudenback v.
refused to let Dr. Johnson take it because
1030;
Okl.
91 P.
evidently
he was
good
friend of the de-
Jackson
Okl.Cr.
Manslaughter. The
charged
Information
Also, see,
State,
Smith v.
83 Okl.Cr.
Murder. The
by
verdict
jury
rendered
523;
177 P.2d
State,
Wilson v.
94 Okl.Cr.
is as follqws:
189,
937
ing
physically
to
show the
of the
after
body.
the
bullet
it entered his
course of the
speculation,
bullet.
think the re-
matter
This is a
with
quest
proper.
is not
opinion
counsel
which
reference to
the
of one
good
man is as
as that of another.
Nep-
“MR. TILLMAN: Unless Mr.
entirely proper
physician
was
for the
tune intends
remain here
it
to
with
location,
fully
to describe
the
charac-
so we can refer to it I
it
don’t think
ter,
wound,
range
of the
but it
proper.
would be
permit
was
physicians
error to
the
to
NEPTUNE:
I’ll
“MR.
be here.
go
give
opinion
further and
their
as
position
to the
of the
the
arm of
de-
“THE COURT: Do
want
in-
to
ceased at the time
the
fatal wound.”
troduce him as evidence? I think the
оbjection defense well taken.
the
is
rule, however,
The
applicable
is not
case,
the instant
as the doctor at no time
well,
Very
“MR. NEPTUNE:
sir.
attempted
express
opinion
his
as to what
“THE COURT:
I think
Doctor
position
the deceased was in
time his
at the
explained
sufficiently
has
body
satis-
bullet,
merely
received
but
ex-
factorily
jury by
plained
to the
the use of the
path
which the bullet followed
charts.”
through
body
and therefore the testi-
mony did not constitute error.
Defendant
his contention of error
bases
upon
Okl.Cr.,
State,
the case of McKee v.
by
The next
argued
contention
error
243,
372 P.2d
where it was said:
counsel involves the admission of evidence
by the
as to the
a
State
results of
dermol
“Pathologist’s testimony
position
as to
nitrate
The
test.
State
offered
results
of deceased at
time bullets entered
of said
in an
test
effort to refute defend-
body
admitted,
improperly
was
but ad-
theory
attempted
ant’s
of the case. The test
mission was harmless where defеnd-
to show that the deceased’s hands contained
killing,
ant admitted
and there was no
no nitrates. Defendant contends that
op-
testimony
issue on which the
could
gun
discharged
was
in a scuffle wherein
against
erate
her.”
gun.
deceased’s hands were
The the-
Also,
Fine,
311,
v.
2
see State
90 Mont.
ory of the
gun,
being
nitrate test is that a
1016;
277,
P.2d
Edge v.
39 Okl.Cr.
discharged, throws
a chemical called ni-
off
In the Brooke Has he you Attorney to the testimony as as Gen- abduced to Assistant fense counsel not and it was eral the State ? inaccuracy the test of Oklahoma capаble of reason was for the admissable “A. No. the many This contention fallacies. you any “Q. Has he em- disclosed to supported by the evi Brooke case was ployment by person is he or no us, there In the case before dence. a volunteer in this case ? counsel apprise trial to such offered evidence unreliability paraffin judge question “MR. CONNOR: we This test incompetent, object to as would being irrelevant and It has no immaterial. writer, however, inclined is This bearing at on the facts to be decided Supreme agree to with Colorado particular time. paraffin reached test has not in that “THE Sustained. COURT: reliability place it to degree tests, fingerprint blood category same excep- us an “MR. TILLMAN: Give tests, heart of very at the etc. It struck ruling. tion Court’s proper objection if Mrs. and defense Born’s “THE Allowed. COURT: made, ex been had it should have been all, “MR. TILLMAN: that’s believe cluded. your please. if Honor by argued contention error The next аny- you “THE Do COURT: and contains much merit defense counsel present? to further thing A concern. given has this writer much special appeared ill this case prosecutor Nothing except I “MR. TILLMAN: con- actively participated in trial. He Motion, your file this if Hon- desire to inquiry made the ducted much of Neptune, requires please, which or Mr. beginning argument. closing Connor, he whom not disclose Mr. prefaced trial with an announcement represents by em- he is whom attorney request- county that he had ployed. given to (Copy Motion Neptune him in the ed to assist Mr. Robert Attorney.) County prosecution. requested Defense counsel right. Are “THE All COURT: special prosecutor his em- reveal that Motion? filing refusal, ployer. Upon his defense coun- Yes, MR. TILLMAN: sir.” county attorney sel take the asked Motion, follows:) (Defendant’s open figures, filed in the words and court OKLAHOMA, “IN THE DISTRICT COURT OF WASHINGTON COUNTY, Oklahoma, “The State of
Plaintiff,
vs. No.
Mary Kay Born,
Defendant,
“MOTION Mary Kay Born, respectfully moves the defendant, now the “Comes counsel for require Neptunе to court court Robert H. disclose employed, styled represents case, whom the above whom he defendant Attorney, Assistant Gen- County Attorney not he is an Assistant whether or person per- by any is authorized eral or whether he of the State Oklahoma appear of Oklahoma in *16 having authority sons do to for State to so capacity appears in behalf styled he for and above and cause and what numered person represented of duly counsel of of Oklahoma which State Attorney. County require “Wherefore, considered, prays premises defendant the court they, prevent arenot cause event made disclosures and in the and above in the trial this case. Neptune appearing H. from of Robert said AND & HESKETT “HESKETT & TILLMAN TILLMAN By ” Tillman Fred denying each and defense filed an answer The was overruled and Motion petition every allegation and exception. of counsel saved appointment an- requesting the of rec- to dictate into Defendant failed other administrator. Neptune’s proof Mr. showing an offer ord of for appeal, On and interest the case. 1962, July, guardian the said b. On time, presents this Court the first he NEPTUNE, litem, H. ad ROBERT of records copy certified from the court response guardians filed a motion County. show Washington records regarding KAY BORN of MARY represented pre- Neptune had that Mr. accounts, stating joint bank “ in a divorce wife the deceased * * * vious of are therein that some de- the death of the action. That after de- the heirs of the held trust for ceased, filed probate of his estate was K. MARY ceased than Neptune County and Mr. Washington BORN, be- subject her however to appointed litem for Guardian ad charge of ing upon the convicted Thereafter, the deceased. three children of S. HAROLD causing the death of were filed following instruments BORN, made allegations are Neptune action taken Mr. as Guardian in case 3674 in the District No. litem, attorney: ad County, Washington Court of Oklahoma, guardian ad MARY KAY said in which June, a. On 18 NEPTUNE, murder; litem, charged H. BORN is ROBERT
94i NEPTUNE, response filed a are the wards heirs such prayed that guardian litem which ad guardian.” answering directing make an order the court guardian said July, (cid:127)c. On possession the administrator to take NEPTUNE, litem, H. ad ROBERT estate, together of the real with the ap- response guardian filed a personal property of the said es- family allowance plication for family tate and to terminate the family application for guardian’s widow, MARY allowance of the therein, allowance, stating “ K. BORN. * * * applicant MARY BORN, has That case 5652 in the No. said No. KAY Case County Washington in the Dis- Coun- trial Court of over been bound County, ty, Oklahoma, Washington pend- is still State trict Court ing charge murder and that the record nowhere on the Oklahoma discloses that the said H. HAROLD S. ROBERT the deceased minors; removed, BORN, geen said NEPTUNE has dis- father of litiga- charged resigned. in such has pending the verdict make no tion the Court should January, That day 3. on the 21st family al- applicant allowing order filed in there was the District lowance; her con- that in event Washington Court in and for Coun- viction, thereto.” is not entitled she ty, Oklahoma, an action for State money judgment by H. JANIS guardi- August, the said tí. On BORN and NORMAN FRELING litem, H. NEP- an ad ROBERT *17 FRELING, Trustees, and DORIS TUNE, appeal a notice of filed against NATHAN G. GRAHAM. County the Dis- from the Court to Administrator of Estate of County, Washington trict Court BORN, deceased, HAROLD S. No. the order of Oklahoma from “ that, 18849, * * according * and fix- County Court which * * * records said case and the Dis- ed an allowance Appearance trict Court Docket No. MARY K. said BORN.” 112, page 57 at ROBERT H. NEP- n e. On October, 1962, guard- the said TUNE, law, attorney at Bar- litem, NEP- ian H. ad ROBERT tlesville, Oklahoma, is to be shown TUNE, petition to terminate filed only attorney the sole and of record stated, allowance, and widow’s plaintiffs against for the said 19, 1962, September “That on said estate and that said case is K. BORN was con- said MARY pending still in said District Court.” manslaughter degree victed of first of the An court record causеd the death examination having quite it by BORN. submitted defense counsel makes said deceased HAROLD S. 1962, 27, profound September apparent Neptune That that Mr. had on Washington of the obtaining District Court of interest in a conviction by County MARY defendant. His stood to benefit sentenced the said clients being K. a term of of deceased’s to serve sole beneficiaries BORN peni- years in If defendant seventeen in the state estate case of a conviction. * * * WHEREFORE, exonerated, in- tentiary have had been she would share, petitioner prays make a conviction herited a wife’s whereas participat- precluded her terminating an the allowances would have from order ing effective in the estate. for MARY K. BORN 19, September 1962.” is silent as The Oklahoma Statute November, 1962, permitted to attorney the said whether an will be f. On 20 litem, a criminal prosecution guardian participate H. ad ROBERT prosecu- in a action “[I]s, is interested civil aimed at the exclusion where he case facts, expects represent tion of criminals counsel who arising of the same out However, interests, private sup- financially by a conviction. who cannot be gain passed posed impartial.” many jurisdictions have to be special Many question. states 107, People, In Meister v. 31 Mich. any attorney with a prohibiting statutes Legislature it is said must be assumed the special participating interest from opposed regard it unsafe and to evenhanded subj ect prosecution. A case that covers justice possible be made “to it should is thoroughly listing other authorities pecuniary those a direct in- allow who have Jensen, Iowa that of State prisoner terest in to take an ac- convicting 832, L.R.A.1917C, Supreme Ct. of N.W. trial”; part Legislature tive that the pre- statute Iowa has a Iowa. State of improper must have “to allow considered special prosecutor in- with a civil cluding a prosecuting the course of the officer to be They said: terest. exposed to influence interests or passions prosecutors”. private it is suffi- “Under Code § disqualify attorney from cient to an It is to observed these be cases prosecution assisting the state were decided in having Statutes States case if the facts in a of a crime civil attorneys pecuniary in- precluding awith attorney interested in which such prosecution. participating terest from with the facts are somewhat interwoven strongly Legislative history However the in the criminal stated to involved upon indicates that said Statutes were based action.” right person charged the Constitutional of a prosecuted by They further said: with a crime to be a fair impartial prosecutor. an act- “[Disqualifying attorney from prosecutor ing as assistant if he has Though the of this Statutes State involving interest a civil action question, upon maintain silence is intended bar at- same issues leave it to the conscience of members of the prosecu- torney public serving as from Bar, upon by it is frowned this Court. *18 in tor who has an interest a civil action Legis will called the attention of the be to make tend to make him will other states lature and a similar to Statute impartial less and less free from bias re- preventing enacted its should be forever requires prose- regular than the law the occurrence. < cutor to be.” thorough A review of the record Also, Williams, see, 2 Commonwealth v. part prejudice does not the of the reveal on State, 582; (Mass.) Cush. Rounds v. 57 special prosecutor sufficient to constitute 45, 865, 866; People Wis. 14 v. N.W. feel, however, error. that reversible We 1009; 592, 1008, Schick, Mich. 75 42 N.W. judge should have allowed defend trial 241; Etter, 175, People v. 72 Mich. 40 N.W. special prosecutors interest. prove ant to Rue, 235; State v. 72 Minn. 75 N.W. 483; Ward, 153, A. and v. 61 Vt. 17 State feel that a re-trial of We likewise People, v. 11 P. Roberts Colo. 17 637. conviction, in but case would result Flege in Neb. was said v. discussed errors because оf the last two 276, 278, L.R.A.,N.S., 1106: N.W. herein, compelled think that we are appointment partisan ends of “that meet the modification would better special prosecutor in- was not in the Justice. impartial terest the fair and trial therefore, opinion this Court It is guaranteed the Constitution.” trial judgment that the and sentence Hurst, People In 41 Mich. from the case of court should modified Seventeen be years years in (17) (12) 1 N.W. holds that the mischief to Twelve Penitentiary chemicals, plumber’s finishing (4) and otherwise metal sup- Oklahoma State affirmed; plies, (5) jewelry, it is so ordered. costume (6) tobacco, (7) juice, (8) smoke, urine, tobacco (9) tobacco
JOHNSON, J„P. concurs. firecrackers, (10) cosmetics, (11) (12) bleaching agents, and (13) gunpowder. BUSSEY, J., part. in concurs case, In the instant the results of the body Paraffin Test on the of the deceased BUSSEY, Judge (concurring part). in were admitted to establish the absence of While am accord the conclu- with nitrate on the hands and arms of the de- NIX, my collegue, Judge sion of learned only ceased. The absence of nitrate not Judgment that the rendered Sentence tends to establish that the deceased’s hands compelled herein should affirmed. I am be and arms were not near the firearm when respectfully portion disagree with that discharged, it was inflicting the wound from opinion admissibilty relating of his succumbed, which he it further tends to the results of Dermal Nitrate negate presence on the hands and arms Test, opinion (Paraffin) that am of of; fertilizer, photographic chemicals, metal Test, the results Nitrate of the Dermal chemicals, plumber’s supplies, finishing cos- presence determining the or absence of tobacco, jewelry, tume juice, tobacco to- nitrate or nitrate derivatives has attained smoke, urine, saliva, firecrackers, bacco cos- degree reliability that as to render its bleaching agents. metics and referring results admissible evidence. In interposed In view оf the defense to this test in F.B.I. Law Enforcement case, Bulletin, 1935; instant the results of the test October it is stated: “ probative when considered * value with * tjje * At outset Jt should be all of the other facts circumstances understood that when test is used trial, undoubtedly adduced aided positive place, and a reaction takes jury in their deliberation. is, specks of a blue are found in color paraffin, only conclusion that opinion In conclusion I am of the can be drawn is that some nitrate was the results of the Dermal Nitrate Test are present on the hand.” purpose admissible evidence for In arriving presence at this conclusion I am not determining the or absence deposits may derivatives, unmindful and that nitrate nitrate or nitrate present any per- proper on the hands consider the results or arms for the recently son who has into therefrom come contact and inferences to be drawn substances; (1) they permitted are following the same manner as fertilizer, chemicals, photographic (2) (3) evidence. consider other circumstancial