*1
m
by
resulting
produced
be-
or
from mental dis-
plaintiff
denied
recovery was
where
anguish
turbances,
vica-
although unaccompanied by any
the
of a
cause
was
trepida-
experience witnessing
impact
rious
the
In
physical
or concession.
such a
—
watching him
upon
party
of a third
case,
right
tion
dependent
the
to recourse
is
plain-
beverage
a
which
drink contaminated
the nature of the results other than the
purchased.
had
tiff
(citations
nature
the tortious conduct.”
omitted) Accord,
Campbell Soup
Obieli
language
swpra,
The
in Keiffler,
(10th Cir.1980).
Co.,
where con- and JJ., ENDER, KAUGER, upon is in accord plaintiff. This WILSON acted cur. which Keiffler, supra, the rule with statement) (in that re implies a OPALA, J., concurs result. suffering
covery may for mental be had physical suffer where it connected with SUMMERS, JJ., dissent. HODGES and oldest) (and sense listed ing. The first thus in Web for the word “connected” found Dictionary Third New International
ster’s together (1966)p. or linked is: “Joined A similar defini connected series <a >”. Dictionary, 4th is found in Black’s Law assigning Reading the rule and Edition. ordinary meaning to and usual therein, requires used the rule words FARLEY, Appellant, Roger D. require only connection and not mental an physical injury precede Here, direct guish. necessary, as Oklahoma, Appellee. is estab the two causal connection between Dr. by expert testimony of lished Upon on the merits. Brown the trial Appeals of Oklahoma. Court of Criminal proof, plaintiff may recover proper anguish by physi it is caused mental where March suffering recover for and also cal Withdrawing Opinion Order anguish suf physical which inflicts mental Thus, plaintiff’s fering. here the fact that injury induced the emotion physical finding foreign substance
al shock recovery to her drink is not fatal her —the pain anguish connected mental and suffering injury as re physical and Keiffler, quired since This Belt v. supra. result is illustrated Co., Ry. 195 F.2d Francisco Louis-San St. (10th Cir.1952): majority of “... [T]he bodily injuries compensate courts
tion and ordered the sentences to run con- currently. prosecutor
At trial specifically re- to appellant’s ferred failure to come upon learning forward there awas warrant out for his arrest. The appellant objected trial, at appeal and on asserts that such comments constituted reversible er- ror. The State relies on Jenkins v. Ander- son, 447 U.S. 100 S.Ct. (1980), L.Ed.2d 86 proposition questions proper. were It is true that the Jenkins court found no impropriety constitutional prosecu- use prearrest tion’s of the defendant’s si- impeachment lence for purposes. How- ever, that Court noted: today “Our any decision does not force impeachment state court to allow prearrest the use of silence. Each remains free to formu- evidentiary defining late rules the situa- tions which silence is viewed as more probative than prejudicial. We merely prearrest conclude that the use of silence impeach credibility defendant’s
not violate the Constitution. 240-41,
Id. at 100 S.Ct. There'are pri- circumstances under which may or silence be viewed as inconsistent testimony may and hence be used to testimony of a witness. Un- Briggs, John Thomas Briggs Briggs, & circumstances, however, der other silence Pawhuska, appellant. may highly ambiguous be so that it lacks probative Turpén, Atty. Gen., Michael C. sufficient value to bear on Mary F. Williams, credibility of the appellee. question witness. The
before Court is whether the silence was probative prejudicial more than or vice versa. BRETT, Judge: variety One can conceive of a of situa- Roger Farley, appellant, D. was tried and tions suspect where an innocent would not Osage Court, convicted in County District offer himself or story police. his CRF-81-1897, Case No. of Robbery by example, suspect For may believe that Force or Fear Battery and Assault and he has committed no crime and therefore Deadly Weapon. with a jury pun- set explain has police. no call to himself (5) years’ ishment at five imprisonment for Or, may story he fear disbelief his robbery (30) thirty conviction and days’ police. retaliation He feel that imprisonment county plus in the jail a fine point guilt, since the circumstances to his for the $100 assault conviction. The he needs to try prove remain free to judge suspended (3) trial years three innocence. The failure an accused to appellant’s sentence on robbery voluntarily convic- turn himself ORDERED, IT IS THEREFORE that the to have ambiguous too sufficient simply prejudicial record shall reflect value overcome probative officially and a withdrawn implications. 31,1986, filed on March second prearrest conclude that evidence We original opinion. entered in lieu of the probability does not increase silence Judge concurrence *3 Ed Parks testimony is false. a defendant’s that 31, of March 1986. such is irrelevant under Therefore evidence O.S.1981, Accordingly, inquiry 2401. 12 OUR AND THE § WITNESS HANDS why a prosecution as to defendant by the day THIS COURT 2nd SEAL OF this in make a statement not turn himself March, did Reversible error improper. PARKS, P.J. ED when the trial case at bar occurred BRETT, J. TOM objec- the defense failed to sustain
judge questions relating prearrest silence. and REMAND-
The case REVERSED ED for new trial.
PARKS, Judge, Presiding specially con- curring: I concur with both the reached LAMORA, Appellant, Paul Austin and the rationale Judge Brett this case agree that, in underlying the I same. circumstances, 12 O.S. absence Oklahoma, Appellee. 2401, 1981, grounds on precludes, 2403 §§ relevance, pre- of a defendant’s the use testimony. his trial trial silence Appeals of Oklahoma. Court Criminal note separately only to that I write Appeals York reached this 4, New Court of scholarly analy- conclusion same People Conyers, issue in
sis of the 741, N.E.2d 438 N.Y.S.2d N.Y.2d (1981). WITHDRAWING OPINION ORDER 6, 1985
OF MAY 6, 1985, an May this Court entered On in the above UNPUBLISHED Thereafter, appeal. styled and numbered 21, 1985, Attorney May General rehearing. On petition the basis rehearing original petition and on March opinion was withdrawn opinion was filed. published a second Through inadvertance order. not withdrawn THEREFORE, clarify in order to NOW record, finds an order Court showing original should be entered opinion was withdrawn.