*1 completion particular act authorized improper conduct and prevention of perform. insti- to property of such trespassing on the area, park recreation tutions or state or it is contended the State’s brief and, take if make arrests and required, Levine was the arrest Officer improper custody persons guilty of proper through under 22 O.S.1971 § (Emphasis trespassing.” or conduct part: states in 206. Section 202 added) private person may arrest “A another: opinion that the It is this Court’s public or “1. For a offense committed campus policeman limited powers of a are attempted presence in his . . . protection grounds, guarding and Section 205 states: buildings, equipment of the institution. private person “A who arrested an- Therefore, power had Levine Officer public other for the commission of of- campus policeman acting as a authority or fense, must, delay, without unnecessary make in the instant case. the arrest magistrate take him or deliver before Next, arrest in must determine we peace (Emphasis to a add- him officer.” any under the instant case was valid ed) theory. record the instant case reveals that the Answers to The record reveals comply that Officer Levine did not with Interrogatories submitted Sheriff Bill the above statutes in order to make a valid depu- Levine was Porter state that Officer citizen’s arrest. property any tized enforce laws (“to It is therefore the order Court immediately University surrounds the that this cause be and re- should reversed Oklahoma”) authority of under 19 O.S. manded with instructions to dismiss and 1971 548 states: § hereby the same is and remanded reversed “Every under-sheriff appointment an with instructions dismiss. sheriff, deputy every or a revocation BRETT, JJ., concur. BUSSEY writing, appointments, of such be in shall sheriff, shall under the hand of the
be filed the office of the clerk of county; but section shall not extend deputized person may who any any any to do sheriff under-sheriff added) particular only.” (Emphasis act GRIST, Appellant, Emma Pearl appoint It is our that an applies ment under this act to situations Appellee. Oklahoma, STATE deputizes person where the sheriff No. A-17804. only upon one or one com act incident pletion act, powers deputy as a of this Appeals of Oklahoma. Court of Criminal case, attempt terminates. In the instant May 21, 1973. general was made to Officer Levine a Rehearing Denied June grant power, continuous en to-wit: “to property force laws on that immediate
ly University surrounds the of Oklahoma.” general
We do not believe a continuance grant 548, supra. such as this falls within §
This is say not to that the under Sheriff 548, supra deputize campus po- cannot § warrants, etc., liceman to service but his powers as a deputy terminates *2 Jr., City, Oklahoma for Cargill,
A.O. appellant. Gen.,
Larry Derryberry, Atty. Michael Gen., L. Cauthron, Atty. Asst. Kenneth Intern, Delashaw, Legal appellee. Jr.,
OPINION
BUSSEY, Judge: Grist, Appellant, Emma Pearl hereinafter defendant, charged, referred tried convicted the District Court of Okla- CRF-71-1908, County, homa Case No. punishment the offense of Murder. Her imprisonment, life fixed at sentence, timely judgment said perfected peal has been to this Court. trial, Captain Longacre At the Chester Bethany Department Police testified p. approximately August that at m. on 10:45 concerning he received a call pro- shooting at North Mueller. He S007 and, ar- directly ceeded to the address on riving, girl standing a little observed “ ‘Sissy porch. yelling, the front She shot, Sissy (Tr. been has been shot.’ 20) He entered house and observed girl lying another little on the bed with lying top Upon her. notic- head, girl’s on the little he blood defendant, happened?”. asked the “What said either “me” or “he”. sand, whereupon The officer “He who?” stated, he, the defendant “Not me. shot her.” defendant asked bad him how he thought girl little he was hurt and responded “didn’t she would think make it.” He observed a revolv- it, you pack your just it, door damned don’t like lying er the floor inside the said, out,’ ‘Alright, get and she clothes and of the bedroom. I can’t stand it arid then there longer,’ Bethany Captain B. Schmidt J. pause, was a and then stated that [he] he arrived Department testified that Police this,’ [him], ‘Alright, stated to listen to approximately p. m. at the 11:05 scene *3 and then said heard what [he] [he] [he] a amount He observed considerable thought 112-113) (Tr. were two shots.” bed, holster leather blood on brown cross-examination, pistol On he testified that lying on floor and a .22-caliber acting his out of character or He recovered four wife started lying also on the floor. which, pistol, father three abnormal since the death of her projectiles together with years her ago. thought In- or four submitted to the Bureau of She were State poi- arsenic vestigation He subse- father had been murdered for ballistics tests. son start- quently taken from the administered her mother. She obtained a bullet stealing autopsy talking ed her cattle about brother head of the deceased after prostitute. her became a analysis with the sister She which was submitted for Bap- remained in ward of physical psychiatric other evidence. sixty-six Hospital approximately tist Ray examiner for the Lambert, firearms days after incident. Investigation, Bureau of State Oklahoma examination, he testified opinion Ex- On re-direct testified that his State’s 10, prior that on a occasion she threatened to hibit removed from No. bullet head, gun. kill him and the children with victim’s had been fired from State’s 9, Exhibit Schmidt No. revolver Officer Marshall, pathology consult- Dr. Charles recovered the bedroom. from floor of ant Examiner’s of- with the State Medical fice, autopsy performed she Ramsey testified that testified that he Jayne Susan 8, August his telephone operator on employed as a Denise 1971. Grist single question. ap- opinion, At was a duty evening on the the cause of death weapon proximately p. m., gunshot call a small she received a wound from caliber 10:40 right temple. He re- requested from a who her to call which entered the woman police moved the bullet from the skull and send them 5007 North making gave Captain child and it to Mueller. The voice of the woman Schmidt. call seemed calm. Stevens, Walraven, Mary Beulah Jean Helen and Linda Edlin testified Hawks husband, Grist, .Wayne The defendant’s neighbors friends were or evening testified that on the he They defendant. described the defendant working as an at electronics technician loving, as a mother to the very devoted Baptist Hospital. He went home to eat They children. each testified that the de- hospital at at 7:00 and returned to the changed fendant’s demeanor and character work, proximately returning 8:00. After following the death of her father. telephone approxi- talked to his wife mately three or four was unable times. He mother, Barnes, Ruby to recall the text of the conversations father died in December testified that her than final two. He testified that that she did of 1968. She testified wife something said “about T hear some- husband, had not stolen that her son kill thing,’ this’, something; or ‘Listen to daughters cattle and that her large and there (Tr. Ill) was a noise.” prostitutes. He immediately called back home and his wife testified that he was “Help Help Dr. Leonard Diehl screaming, me. me.” (Tr. He personal family the defendant’s doctor. was declared to be a hostile Grist par- possible considered the defendant an excellent witness. He admitted was average he made ent and that took better than Captain a statement to she Schmidt her, ‘Alright, “I care of her children. stated to effect: God- got this, he was a “if testified that out of Dr. Sam Collins next time she would Hospital. Baptist good” He do psychiatrist staff but don’t figured “I have it morning yet.” out first observed 236-237) Bap- August psychiatric in the ward at Schmidt, psychiatrist Dr. Loraine with gun- Hospital. tist The defendant had Norman, Central Hospital in testi- shot wound in the head. He continued fied that the defendant was admitted to stay during observe and treat hospital the state for observation on Oc- in his hospital. testified that He tober discharged on Decem- schizophrenic the defendant was ber did She not feel there was reality. completely withdrawn any evidence psychosis during the time The defendant had no recollection of the the defendant hospital. was at the In her prior coming events to her into the hos- opinion, the defendant was able to distin- pital felt that at the moment of and he *4 guish right between wrong and able from incident, defendant was insane and to advise help attorney in her de- right wrong. did not his know from In fense. She testified that not able opinion, help the defendant still needed to determine the defendant’s mind state of treatment. He testified that defendant’s at the time of the incident because the de- schizophrenia suddenly mani- could have fendant refused to discuss death of her day killing itself on a fested daughter. testified She that she found no result of the strain her father’s death evidence of the being schizo- problems. family and other and, phrenic opinion, recross-examination, that he testified On did not require hospitalization for treat- give logical explanation for he could not a ment. that, her statement shot her” when she “I proposition The first asserts that daugh- did that she shot not know had trial court instructing erred not jury ter. Manslaughter Degree. in the First a Armstrong, psychiatrist, Dr. Nolan record reflects that the Assistant District testified he examined the defendant and in Attorney requested that a opinion she was under the influence manslaughter instruction wherein the fol- major a a emotional disturbance and schizo- lowing transpired: phrenic process. opinion, In his she was psychotic shoóting at the time of the THE “BY COURT: Does the Defendant completely unaware of what she was want an included offense Instruction? doing. No, your “BY MR. Hon- CARGILL: rebuttal, Brady, agent In Frank with or. Investiga- the Oklahoma Bureau of fully “BY THE The Court un- COURT:- tion, investigated testified the death derstands that it is the burden of defendant’s father in December of 1968. Court to instruct on offense in included He statements from four of the took requested of this or case kind whether children including of the deceased not. fendant. Each of the statements were con- Yes, “BY MR. sir. BOX: sistent with each other to the effect that they “BY thought each THE don’t believe the their mother had COURT: I poisoned manslaughter applies. their statute That will father. exceptions allowed. overruled Gayle McCook testified that she was an Any requested Instructions County inmate of the being held on Jail either side? forgery charge. She was a cellmate with No, your the defendant and had been since March MR. Honor.” “BY CARGILL: state, 1971. She heard the defendant bar, “In the case at defendant admitted Myers In homicide, his theory and chose as this Court stated: ‘temporary insanity.’ It of defense would believed the “Had not have been for the court have error theory case, they have de- would upon manslaughter refused an instruction justifiable homicide termined it to be may not degree. first acquitted the defendant. case complain by reason of the be heard to of man- bar, there were elements charge to court’s failure to reduce the nothing. it or slaughter, was murder degree manslaughter.” first Evidently pre- counsel defense wanted was, they as it because sented proposition contends The second objection offered no to the instructions attorney inflam prosecuting made given in- nor did offer written alleged im matory remarks. first Court structions. This does condone proper during occurred direct ex remark in ‘laying actions of defense counsel of Wayne amination Grist as follows: log’, objecting behind of- [sic] Q. you ever “[By Did tell Mr. Box] fering any raising instructions and the you anything you going me that appeal.” for the first time get your could to wife off? Although improperly proposition moment, “BY MR. CARGILL: Just Court, before we are of please. here, Now is—come counsel- *5 properly that the trial court refused to Honor, (At your lor. the bench) Now Degree Manslaughter the Instruc- First the Defendant for a mistrial be- moves State, Okl.Cr., In tion. Dukes v. 499 P.2d of cause the of Irven Box statement Mr. 471, we stated: highly prejudicial ques- that he asked a reply brief, “In his defendant asserts as tion and to statement this witness. ‘Did proposition ‘Notwithstanding the one: you you tell to going ever me that State, arguments by offered the the anything get do in your the world to plaintiff in error’s mental condition was wife it justifies off?’ We think a mis- charge sufficient to the reduce to First trial in this highly irregular case. It is Degree Manslaughter.’ Defendant cites prejudicial. pertinent authority no in support of this “BY THE for Motion mis- COURT: unable, proposition and we are after objection trial will be overruled. The research, exhaustive authority to find in question to the The will be sustained. support of this assertion. jury is your to admonished do best to contrary, the we “On find in Foster v. forget question the any indicated re- State, Ariz. 268 (1930), P. sponse, if any.” (Tr. 109) tlje following language: The record further reflects the wit- can see no ‘We reason for submitting ness not question did answer the nor did the issue degree of second murder or the request defendant the court to further manslaughter to jury the when the jury. admonish the dealing with simi- conclusively evidence shows defendant proposition State, Okl.Cr., lar in Dorsey v. guilty highest of degree the 487 P.2d we stated: crime or guilty by not at all reason “ of his insanity. There is middle * * * It is readily apparent that the ground in case, such no evidence tend- answered, was not and no evi- ing to the degree lower show of mur- presented dence was jury. to the De- der or manslaughter.’ fense jury counsel informed the that he language “The used by the Arizona would withdraw Motion for Mistrial Court was adopted in this in Dare jury were admonished not to con- Okl.Cr., 378 (1963), court, P.2d 339 any way. sider it in there- page 349. after, objection ques- sustained the object previously did not to held We have tion. The counsel admonishment, only object of nor did defendant must not improper the form the to county request attorney that the court further admonish statements of the argument jury. jury, go to but he must fur- ther and move the court to exclude such re- properly “The trial court sustained jury marks from the and instruct them not objection, admonished to consider purpose, them unless to consider it. The defendant was remarks were of such a character that er- parently ruling satisfied with court’s ror would not cured withdrawal trial, and, time of absent show- the remarks. Harvell v. prejudice, not be allowed should We, therefore, proposi- find complain at this late date.” tion to be without merit. previously We have held that an admoni tion to remarks consider the proposition third asserts that usually counsel cures an error unless trial court permitting erred Of as, is of such a nature after considering Longacre ficer testify as to certain evidence, appears to have determined statements made the defendant with Okl.Cr., Kolke v. verdict. See having out first advised her of her con P.2d 854. opin rights. stitutional are of the We properly ion that the ad statements were complains further Longacre a re missible. Officer received attorney prosecuting statement made port a shooting, proceeded to the scene closing in his argument as follows: on bed girl lying observed a little “BY MR. would like LANNING: lying top with the of her. He . ” argument least start at in this case asked, happened shot “What ? or “Who as to what is in this case. There certain ? baby responded and the defendant questioning is a lot about what readily apparent that she had shot her. It is certain in case; *6 that statement elicited not the the was sixth, 1971, August the North 5007 product interrogation of had custodial nor old, year in Bethany young Mueller six investigation the the focused on defend Grist, sleeping Denise in her bed while State, Okl.Cr., ant. In P.2d Drake v. 437 by was murdered this Defendant. That 461, we stated: un- evidence been unrefuted and ” * clearly * * “The facts of our instant case rebutted. 269) police show that the officers walked The record does not reflect that de the the scene of into the house which was objected fendant to the statement of the general inquiry as the crime made and prosecuting State, attorney. Igo In v. Okl. happened. The defendant what had Cr., 1082, 267 P.2d in the we stated ninth hus- spoke up, said she had shot her paragraph of Syllabus: the Mi- nor band. Under neither Escobedo “A prosecuting attorney right has the inad- randa1 was defendant’s statement it, discuss the evidence he as understands * * * missible. standpoint from the of the defend- ant’s guilt; and an erroneous statement proposition final contends that overruling of the in defend evidence, in trial court erred spir- not conceived a the of verdict fraud, unfairness or ant’s motions for a directed will two trial ground may acquittal. argues that the reversal. He his state opinion motions guilt court should have sustained the to the defendant’s when wit proof qualified also two opinion states that this that she made based legally insane at the the was evidence nesses that she case.” 436, Arizona, Illinois, 86 384 U.S. 378 U.S. Escobedo v. v. State of Miranda 478, 1758, 977; 1602, L.Ed.2d 694. 84 S.Ct. L.Ed.2d S.Ct. Okl.Cr., Smith, re (In character” of the offense
time of the commission
;
proof
P.2d
made no
thereafter
that the State
sane on
that the defendant
whatever
6,
that
opinion
August
are of
1971. We
ques-
prosecution, the
“On murder
(2)
ques-
properly
trial
submitted
of the
insanity
time
at the
tion
sanity
jury.
tion
of defendant’s
crime,
presents
commission of the
proposition in
dealing with a similar
Jones
determina-
question of fact for the sole
591,
stated:
Okl.Cr.,
we
v.
P.2d
jury,
and where there
tion of
urged
single assignment of error
“The
support the find-
tending to
evidence
insufficient
appeal is that the evidence is
appel-
province
is not the
jury for
support
verdict of the
(Tarter
weigh
late court to
the same.”
testimony of the
reason that the
596).’
Okl.Cr., 359 P.2d
v.
mental
relating to the
fense witnesses
testimony
apparent that
readily
“It is
defendant, was unrefuted
condition of the
a rea-
of defense witnesses did not raise
placed
reliance is
the State. Great
jurors
sonable
in the minds of
doubt
defense,
testimony
upon the
counsel for
testi-
in that
that
concluded
was, in
whose
of Dr. S'hadid
Shadid,
mony
observa-
of Dr.
based on
substance,
was unable
that the defendant
subsequent
tions made
to the commis-
wrong at the
distinguish right
from
crime, may
sion
have established
the offense.
time of the commission of
Schizophrenic
Paranoid
condition
differ from the instant
facts
“While the
examination,
the time of the
but
case,
principal
that the
law
we believe
conclusion
did not
the defendant
expressed
this issue was
determinative of
right
wrong
know
from
at the time
v.
in Dare
committed,
homicide was
not credible
where,
body
opinion,
in the
we
disregarded.
and should be
stated:
“In the instant case there was evidence
urged
‘It is next
evidence
could conclude
support
insufficient to
the verdict
sane,
normally
but had
defendant was
support
and in
of this con-
episodic
insanity.
remissions of
In Cox
tention,
argues
the defendant
that when
stated,
Page, Okl.Cr.,
431 P.2d
we
testimony
of Doctors
Smith
Charles
referring
to evidence
occasional
Behrman [footnote omitted]
Jim
insanity, that:
(psychiatrist on the staff of Griffin
‘Sanity being
normal and
usual
*7
Hospital,
Memorial
in-
Norman) was
mankind,
pre-
condition of
the law
troduced
behalf of defendant a
person
every
sane;
sumes that
is
the
sanity
reasonable doubt as to the
of the
prosecution may
in a
State
criminal
accused was raised and it became in-
rely upon
presumption
such
without
cumbent for the state to introduce ex-
proof relative thereto.’
pert testimony establishing the defend- We thus conclude that
the trial court
sanity beyond
ant’s
a
doubt.
reasonable
properly
insanity
submitted the issue of
to
presumes
‘This
jury
assertion
that the
jury
proper
the
under the
instructions. The
was bound to
opin-
credence
judgment and sentence is affirmed.
ions of Doctors Smith and Behrman.
BLISS,
J.,
P.
concurs.
This presumption is not the law of this
BRETT, J., dissents.
jurisdiction, for we have held:
BRETT, Judge (dissenting):
(1)
testimony
experts
“The
of
is not
respectfully
decision.
dissent to this
I
conclusive on the issue of mental ca-
O.S.1971, 1162,provides:
Title
pacity since the law makes no distinc-
§
tion in weighing
between ex-
an indictment or information
evidence
“When
pert
trial,
testimony
the
called for
evidence of other
conviction
up
record,
if
brought
judgment,
As
questions
I view
two
defendant
presented
sanity of the
by
as to the
the
testimony:
a doubt arise
defendant’s
jury
must
a
“Was
defendant,
court
order
at
the
insane
the
the
time
impaneled
jurors
the
summon- homicide
secondly,
to be
occurred?” And
“Was
term,
the
for the
or who
at
ed
returned
insane
time of
by
of
trial?”
may
question
be summoned
direction
The first
properly
was
court,
inquire
presented
to
jury
fact.”
to the trial
by the court’s
instructions, but
question
the second
section,
1163, provides:
following
The
§
properly
not
resolved. The first question
pronounc-
“The trial of
cause or the
presented
in defendant’s motion for
be,
may
judgment,
case
new trial
presented
and is now
in this
suspended
question
be
must
until the
of
peal.
verdict,
Notwithstanding
jury’s
insanity
by
of
is determined
the verdict
and as stated
judge,
trial
the State
jury.”
presented
testimony
to overcome the
testimony
Defendant offered the
of two
testimony of the
psychiatrists
two
that de-
reputable psychiatrists, both of whom testi-
fendant was insane at the time of the
fied that
believed defendant was insane
homicide.
occurred,
at the time the offense
and that
purpose
statute, O.S.1971,
§
she was insane at the
of
time
trial. That
1163,is to assure that a convicted defendant
testimony
by any
was not overcome
evi-
might
—who
of
insane
the time
trial—
except
dence offered
shall not be
sentenced
Peni-
State
testimony of the
Psychiatrist
who
tentiary
question
sanity
until the
present
testified she believed defendant was not
is properly
Notwithstanding
resolved.
psychotic.
testimony
This
a
only created
fact that
motion for
present
doubt as to defendant’s
condition
present sanity
termination
of sanity.
transcript
testimony
re-
specifically
counsel,
pressed by defense
veals,
commencing
page
that de-
motion was filed and it is contained in the
motions,
fense counsel entered numerous
in-
record.
I
its
believe merits were borne out
cluding that of defendant’s condition of san-
Therefore,
defense witnesses.
be-
ity.
motions,
ruling on the
the trial
lieve the judgment and sentence should not
stated,
judge
part:
imposed,
have been
until
determined
question
sanity
“The
is one for the
sanity
condition of defendant’s
at the
jury. Then in the event she were found
time
stood trial.
guilty by
insanity,
reason of
whether
In Rice v.
Okl.Cr.
or not
dangerous
she is
jury ques-
is a
provided
912 (1945), this
Court
the sec-
Perhaps upon
tion.
jury’s
determina-
paragraph
syllabus:
ond
tion in
regard,
the Court would or
insanity arises,
“When
would not
order
sent to a mental hos-
duty
is the
trial
immedi-
pital. In
words,
I were to direct
ately suspend
proceedings
all
and sub-
juncture
verdict at this
frankly
present insanity
mit the issue of
the court might
do,
be inclined
would
*8
separate
pur-
jury impaneled for that
be
based
failure, per-
State’s
pose only.”
prove
haps, to
her
competent
sanity by
evidence;
demurring
Attorney
to the evi-
cites
v.
General
Jones
verdict,
asking
dence and
for
directed
(1971),
This seq., Court stated in Berwick v. 1080 et. and she should § 5, 604, 609, 10, hearing (1951): evidentiary be for an Okl.Cr. ordered back sanity condition of at the time into her the accused was insane at “[I]f trial, also consider which would no doubt time of the commission of the crime he present. her defend- condition Because having would not be treated as the ca funds, already ant has exhausted pacity crime, to commit the if he was appeal granted expense, also insane at the time of the trial he I is entitled believe defendant to have ability would not as having treated be appointed post counsel conviction trial, to make a rational defense and his relief, pay and that the State should also as we have seen from the authorities private for the services same two mentioned, heretofore necessity would of psychiatrists who examined her and testi- person again deferred until said Otherwise, hearing fied at her trial. one, rational. The is a issue fundamental will present complete a full and deter- present where arises as doubt presented. mination into the issues to be sanity of the defendant the court must jury impaneled inquire order a Therefore, respectfully I dissent to herein, majority the fact. Counsel decision foregoing could for the question. dissent, not waive this reasons; This court stated I so and while I Signs 340, held in urge v. 35 Okl.Cr. further consideration of his defend- 938, 250 P. holding ant’s been conviction.
approved
v.
Okl.
[73
Johnson
370,
Cr.
determination of defendant’s condition of
sanity at the trial; time of 'her and in the event she found to' incompe- have been BRADSHAW, Appellant, Thomas E. tent time, at that then judgment conviction aside; should be vacated and set Oklahoma, Appellee. The STATE of and, when regains sanity, No. A-17952. put should then be to trial at a time when Appeals Court of Criminal of Oklahoma. she is able to assist defense counsel in her May 23, 1973. defense. As Corrected June
However, insofar as majority cision affirms this conviction, defense coun-
sel is admonished to consider the United Supreme
States Court’s decision in David States, X. Fontaine v. United 411 U.S. *9 S.Ct. 36 L.Ed.2d (1973), petitioner wherein granted an evidenti- ary hearing validity guilty of his plea, premised part upon his contention