*1
it,
assignment
in good conscience
plaintiff
entitled
part
in error of a
equity
who
is considered in
the bene-
as
lease
by
merely
secured
Frost
con-
veyed
ficial owner.”
to Mr.
responsi-
Luton the identical
bilities to the
portion
landowner
toas
per
But
are
because these trusts
of the lease as those which remained with
parol
mitted
an ex
to be established
Frost.
frauds,
ception
courts
statute
The obligation of
property
Frost
are
on
imposing
cautious in
this burden
owner created no
duty
corresponding
legal
reluctant
Mr.
always
title and “have
been
Luton in the
agreement.
absence of an
clear,
except
un
If
to decree such
on
a trust
this were
situation,
the true
equivocal
and the trial
decisive evidence.” Jones
court’s conclusion
989,
indicated that
Jones,
228,
it was not
991.
194 Okl.
148 P.2d
one,
convinced of
contrary
fiduciary
standard,
no
requisite
Measured
we do
relationship
inequitable
exists,
result
judgment
not believe that
the court’s
without regard
problem
to the
re-
of a
against
weight
this action is
clear
lationship
plaintiff
between the
Anderson, Okl.,
in error
the evidence. Forshee v.
and these
through
defendants in error
especially
error, chief, strongest in his case in Judgment is affirmed. requisite evidence relation negating the The Court acknowledges the aid of the ship upon parties between these which such Supreme Court prepara- Commissionin the trust could founded. opinion. tion After a tentative testimony It is true that the opinion of Mr. Luton Commission, was written support the establishment of a con- assigned cause was to a of this Justice leases, structive trust on these for the in- Court. Thereafter, report upon and con- acquisition by tentional defendants conference, sideration in the foregoing leases, error of these new rather than drill adopted by the court. lease, under existing in view knowl- potential edge obligation of an
by them to Mr. Luton which could have performed, unjust. would be most testimony Frost,
But the Mr. at the who longer
time no had in these interest
leases, only requisite support fails positively negates conclusions but them. Petition Jack WININEGER for Writ of According to him agreement there was no Error Coram Nobis. plaintiff with the in error to drill the lease. No. A-12684. appears testimony And it also from Frost’s Appeals Mr. Luton drilling was unaware Criminal Court of Oklahoma. clause in Frost’s lease with the landowners Nov. 1958. they apparently agreed the time at Rehearing On Petition for Jan. 1959. of their transaction. Be that as it terms Rehearing On Second Petition for may, agreement there unless was an be- March point, plain- two of them this tween the on duty can raise tiff in error to him which justify the creation of a trust testimony lease. From
second Frost’s appear nego- that he and Luton were length,
tiating at from which arm’s no re-
lationship could arise between them other agreement,
than as created their and the *3 indirectly;
effect
directly
it either
(c)
explained
would have
to the best
of his knowledge
ability
guns
car,
explanation
would have been
in his
jury;
favor
(d)
with the
conjoint
coincidental as to how his
de-
Durant,
petitioner.
Braly,
O.
James
fendants
together;
and himself got
(e)
H.
Williamson,
Gen.,
Atty.
Sam
Q.Mac
permitted
nobis,
that if he
were
Gen.,
respond-
Atty.
Lattimore,
Asst.
he would account
for his acts and his
ent.
*4
crime,
involvement
in
among
and
things
deny
he
be
would
would
he told Mr.
Judge.
BRETT, Presiding
only
he
(It
Hicks
used one shell.
should be
original
borne in mind that
in
record
original proceeding
an
This is
shows he
gun
borrowed the shot
nobis
writ of
stituted for
killed
together
Haddock
with four shells
petitioner
Winineger.
by
The
brought
Jack
Hicks,
loaded with No. 4 shot from Mr.
con
complains
he was convicted of
that
explained,
as he
go
hunting,
duck
and
and
joint
Morgan Haddock
of one
murder
m.,
that at
night
a.
killing,
2:00
imprison
term life
to serve a
sentenced
shortly thereafter,
or
gun
he returned the
penitentiary. From said
ment in the state
and three
at which time
shells
the fore-
appealed
this
petitioner
conviction
going
allegedly
statement was
made. He
disposed of
appeal was
Court and said
not
does
go
hunting.)
he did
duck
13, 1953, and
assert
May
by affirmance on
herein
petition
In his
says
he
he cannot account
on
1953. Wini
denied
rehearing
June
shell;
(f)
fourth
that
Hiram
P.2d
State,
Okl.Cr.
257
neger
v.
Robinson,
conjoint defendant, had
properly
this
told
lodged in
petition is
him,
Haddock;”
“I killed
(g)
lips
that
having
appealed
his
Court,
been
the conviction
being
attorneys
sealed to the truth
his
v.
in
Court. Hurt
this
affirmed
convicted;
at the trial caused him
be
State, Okl.Cr.,
P.2d 169.
(In
connection,
this
he does not allege
alleges,
petitioner
petition,
In his
fraud,
intimidation,
coercion,
or duress.
such
substance,
was conducted in
his trial
anything,
If
alleges
judg-
he
mistake
process
him
deprive
due
manner as
ment.)
(h)
jurors
that
named
four
his
remedy.
only
is his
coram nobis
law and
petition
so,
testify,
permitted
would
if
to do
may
petition
in the
allegations
many
testified,
if the
it might
defendant had
that
First,
as follows:
al-
he
summarized
trial;
changed
have
(i)
the result
present
he now desires to
leges the facts
witness,
named,
that
there is a
not
who
by the defendant
time
were known
at the
moving
could establish the
cause of Had-
they
suppressed
trial,
were
but
testimony
dock’s death and his
will
re-
not
testify
him
refusal
let
in the
counsel’s
motely connect
the defendant with the
Second,
permitted
if
had been
he
case.
therefor;
or
(j)
crime
that
cause
was
trial,
testimony
testify
at
asserted
he
get
he had stated
Had-
judgment.
prevented
The sub-
have
dock,
deny
which he would
if he
given
were
in this regard
contentions
are:
stance of his
opportunity;
(k)
another
that he did tell
complete
(a)
he had
alibi
untruths to Sheriff Barker about where the
answering a
call of nature
effect he
gun would be found before he took the
away at the
distance
some
time the shot
Sheriff
Hicks’ home
to Mr.
where the gun
Haddock;
which killed
fired
Officer
night
had
returned the
the killing;
permitted
(b)
testify,
he
(1) that
had
Robinson
he
been to-
a party
he was not
plans
establish
most of the afternoon and
gether
that also
death
effect
officer’s
and he would
deny
Richardson was with him
Freddie
categorically
killed
Officer
will
Had-
dock,
he did not
petitioner’s allegations
and assert
desire it
confirm the
or
regard;
(m)
spoken
that he had
to Mack
“Writ of error coram nobis will
White about
duck
going
hunting and White
reach only
cognizable
matters not
on
regard;
will corroborate him this
trial,
motion for new
or in arrest of
Robinson,
explain
he,
(n) that he can
how
judgment,
appeal.”
Sargent,
conjoint
defend-
the other
State,
Hendricks v.
Okl.Cr.,
297 P.2d
ant,
shortly
to be in the car
before
came
577; Hurt
State, supra.
petition
This
killing.
does not
allegations
contain
that he was
Attorney
foregoing
prevented
To the
by duress, force or other suffi-
interposed a
to dismiss
General has
motion
cient cause from making said facts known
allegations
the effect
contained there-
the trial
Eckert,
court.
In
Okl.Cr.,
re
for re-
in are insufficient to state a cause
other Since all the essential facts §§ related 41; petition O.S.1951 9. herein were § available to the testify work titioner did not it trial, reasonable or with petitioner at himself and available, advantage material of both such diligence have could Sargent. pleads re- He he was denied that for present a case situation does repeatedly right testify although he nobis. coram lief writ of error prevented from so sought do, and was itself shows so case record of the trial doing by interests petition- reason of adverse process accorded that due was (cid:127) method Sargent Steger sus- that dismiss motion er. The state’s coercion employed dis- amounted to the use of accordingly petition tained and his failure alleges or force. He also that relief missed, permission to seek testify of his through negligence coram nobis of error writ trial court ig- State, supra; solely by his own but was reason of. Hendricks is denied. igno- norance, his and had it not been for State, supra. Hurt v. rance, for the removal he would have asked attorney said then demanded NIX, JJ., concur. POWELL right to be heard from new counsel Rehearing. Petition On if he the witness stand. He asserts had have testified in the trial BRETT, Judge. says he brought acquittal. He about writ of This acting Steger does not believe the said Court’s denied nobis was faith, maliciously, good but but absolute there- matter November prejudice great it resulted to his petition- re-hearing on on for after came He Mr. denial of fair asserts trial. *6 had was argument and oral er’s motion Mathers, counsel, would corrobo- his other 17, 1958. After the December thereon on testimony rate his relative to his failure the argument oral heard the testify, Steger and Mr. indicated that has petitioner grant- advanced, was the theories pe- in the a sworn attached to statement supple- file twenty days which ed testify concerning ready the tition he is with petition support same the mental and upon in foregoing allegations called when Thereafter, supplemental the affidavits. court so do. with affidavits petition together was filed Further, petition alleges that the wid- the attached. Garnett, will, Grady Sargent, ow of Fern substance, alleged that petition, in Said testify hearing petition, at a this that attorney, prevented by his petitioner was husband, Grady Sargent, her death- made a testifying in own L. Steger, from W. the kill- bed declaration that at time of repre- Steger also behalf for reason ing, petitioner at was not the scene co-defendant, Grady Sargent; sented his crime; petitioner nothing had that attorney severance for obtained a that said Haddock; Morgan do with murder first; petitioner that was tried them and he, Sargent, that was the scene of the at permit him to Steger would not Mr. that killing occurred; that crime when the petitioner im- further testify his trial lest at he, paid Sargent, another man to kill $500 Sargent (Steger) stated he had plicate in- further asserts that this Haddock. He petitioner Sargent; that was look out to Mrs. formation was not made known by Sargent be careful he should warned petitioner petitioner until Garnett after for the reason he the authorities what told convicted, was tried and but remained wife, sup- going was Sargent, Fern Grady within the locked conscience alibi, testimony Sargent’s with port sworn shortly Sargent until Pe- before his death. with her when the home crime he was that urges that titioner this information was committed. was Steger, likewise not known Mr. attorney alleges petitioner that He said could not have available further presentation jury him state was without suf- at to> informed time him, trial; pe- and if to convict that this pre- ficient evidence evidence had been jury State, not have been the court.” Okl.Cr., sented to the he would Hurt v. connection, says he it P.2d In convicted. because withheld Mrs. Garnett has been petition On the first for re condition; that extremely of her nervous hearing by petitioner, we were without her reluctance to evidence disclose the the aid argument and brief of the state warning her fam- enhanced severe concerning the admissibility of alleged so; ily af- not to do that Mrs. Garnett’s Grady Sargent. deathbed statement of upon own alleges finally fidavit that her We held that the deathbed statement of pres- encouragement volition and of her Grady Sargent, petitioner’s co-defendant, good ent husband in conscience she was as against admissible a statement in compelled Grady Sargent’s tell of decla- terest and we ordered hearing on the ration; that fore- her affidavit in the petition proceed in the trial court. going petition. regards is attached to the Thereafter, petition on the state’s for re petitioner testimony her asserts that hearing, argument oral and memorandum would establish that Hiram Robinson brief, error, hence, we find we were that killed Haddock and that would free him part of the is stricken for rea from he involvement now sons hereinafter set forth. It has been alleges convicted. Petitioner stands called to our attention that this Court has Grady Sargent’s
the facts of deathbed con- long been aptly committed to the rule stat fession, Garnett, revealed Mrs. State, ed Newton v. 61 Okl.Cr. Odom, be corroborated Rev. Ferrill P.2d 127: Methodist Minister Caddo at the time of confession, a wit- if he were called as respect “The rule admissi- ness. af- Attached is the bility dying goes declarations petitioner fidavit supporting the al- than further to make such declaration legations petition. admissible where the death of the de- subject ceased is the of the trial and the Finally, prays that writ of he circumstances of the death are the sub- granted may nobis be *7 ject of the declaration.” by heard the trial in foregoing the regards, testimony and other be Mulkey State, witnesses’ 75, 532; v. 5 Okl.Cr. 113 P. support petition heard and the State, 325, Orme v. 63 Okl.Cr. 75 P.2d supplemental petition 482; thereto. State, 159, v. Graham 80 Okl.Cr. 157 758; Commonwealth, P.2d Waller v. 178 apparent It is from the fore 294, 808; People Tilley, Va. 16 S.E.2d v. going that sought the evidence ob be 398, 328; Mays 406 94 Ill. N.E.2d v. Com by tained coram nobis Steger from Mr. and monwealth, 678, 257; Ky. 200 255 S.E. Mathers, petitioner’s attorneys Mr. the at Doris, 136, 44, v. 51 State Or. 94 P. trial, time of not establish ulti L.R.A.,N.S., 660. This evidence would not fact petitioner’s mate guilt relative to the admissible since the declaration was not Rather, or by innocence. allegation of concerning decedent, death of the the an part adverse interest on the of Mr. Sargent. Nor would it be admissible aas Steger, states in he he effect was denied the contrary to the statement declarant’s in- counsel, aid question of a fact, not of but terest, since, as was said in Newton v. process. of due ques The worth of such State, supra, exception applies not to consider, tion we do not since writ the of in which the declaration would sub- cases error coram is nobis ject available^to liability, attack the to a criminal declarant validity the judgment of jurisdic the pecuniary must be of but interest a tional grounds. It has repeatedly held character be admissible. The chief that the writ of error exclusion, however, coram grounds nobis is limited for are that to errors of fact “unknown declaration, made, at the reported time of is made the trial party to the seeking oath, relief and without the sanction an with of no re- opinion. for in his part Judge the declarant tations listed Brett of
sponsibility on the opportunity However, like- falsification, adopted the rule therein is without error or the wise the and texts’ court, parties target many to observe decisions jury, or for the witness, consistently assailed temperament of authorities who have demeanor and ac- inception. rule and test since its his motives and to search cross-examination, veracity by curacy and The highly the au- evident discord of safeguards important most being these thorities in the subject on this is reflected testifies witness truth where case, be- resulting instant in three decisions knowledge. More- person own and of his ing an effort handed down the court in the extra- over, in court he who swears equitable analysis the di- reach an (especially so does judicial declaration jurisdictions. versified other decisions of dead) free from is where the declarant The decision first denied the writ of present contradiction embarrassment nobis and The argument. for oral recalled prose- danger successful little with Upon granted second- decision the writ. fore- perjury. Relaxation cution state, rehearing request at prob- multiply the going safeguards would writ denied. The second decision up- reliance ability unsafe and the upon granting the writ relied justice. in a court on such evidence strong dis- Holmes which Justice State, supra. Newton v. sent concurred Lurton Justice apply to testi- principles The same Donnelly Hughes in the v. United case of Odom. mony of Ferrill Rev. 449, States, 248, 228 U.S. 33 S.Ct. elementary that the de- 820. L.Ed. it is "While may show in a criminal case fendant rehearing On the second person committed another upon adopted writ was denied the rule par- had no charged, that he crime State, Newton 61 Okl.Cr. 71 P.2d * * *, guilt such ticipation it adopted Newton case be shown person must of a third rule a crimi- in substance. That on trial of competent evidence.” case, nal or con- evidence of admission principle State, supra. This is Newton v. perpetrated stranger fession of to evi- equal force applies with so sound the offense substantial is not admissible as petition for support aof offered in dence exculpate tending evidence the accused. proposed error coram nobis. writ of exception recognizes gen- It also to the an Rev. Mrs. both Garnett evidence of eral rule as follows: authorities foregoing Odom under “ exceptions ‘One of the rule *8 rehearing clearly second On inadmissible. excluding permits it is that which the nobis writ of for reception, under certain circumstances peti- of accordingly on the basis denied is purposes, for limited declara- of legal state additional to tioner’s failure parties, contrary tion third made to of grounds relief. interest; their own but it is almost universally held that this be on must POWELL, J., concurs. P. pecuniary character; interest aof declaration, alleged the fact that the NIX, J., dissents. extrajudicially have been made thus subject probably would the declarant NIX, (dissenting). Judge- liability, criminal is to a held not to be question admissibility of as exception constitute it sufficient an dying declaration confession and a deathbed ” against hearsay rule evidence.’ jurisprudence ages of been through has subject. ma- highly Discussing Hughes controversial this matter a Justice opinion generous opinion, supra, is not without au- said U.S. jority [228 thority as indicated ci- S.Ct. is numerous 461]: Dick, of since criticizes say “The confession this in his same had Joe deceased, the mur treatise on that he committed evidence: plaintiff in error der for which the “It plain is enough that limita- this tried, coupled point with circumstances tion, fairly besides modern being a very ing truth, have a its novelty judicial invention, is incon- anyone strong tendency make out sistent with language origi- the broad justice side of believe nally employed in stating reason I Donnelly crime. did commit the principle present exception say this, course, supposi on the principle up- well as with the settled proved tion that it should be on which received.” confessions are made, really confession and that consequences only practical “The connecting ground there was no shock- unreasoning this limitation are Donnelly with Dick. The of evi rules for, its justice; ing the sense of dence in the main ex are based on requires, application, commonest it sense, perience, logic, less and common trial, rejection of a con- a criminal hampered by parts history than some .authenticated, fession, well however no substantive law. There is person or fled or insane deceased against decision the ad this court (and jurisdiction from the therefore missibility confession; of such quite has avowed unavailable) who English separation cases since culprit. The true himself to us; the two bind countries do not rejecting in- absurdity wrong of exception hearsay to the rule in the is discriminately all such evidence against is case of declarations interest patent.” known; so well no other statement is says: He further against much a confession interest as murder; far calculated more late re- “It is therefore not too declarations, dying convince steps, than trace our and to discard hang in to a man. doctrine, would be let re- which would barbarous States, (Mattox v. United 146 U.S. vindi- fuse to let an innocent accused 917); when by producing 36 L.Ed. S.Ct. himself even cate many with so perfectly accused authenticated writ- we surround the tribunal a confession, very to me gal- which seem ten on the safeguards, some made excessive, ought him give lows, by culprit beyond I think we true now proved, that, fact if justice. of a Those who the benefit reach of weight.” such commonly (in 1899) righteous have self watched with proceedings indignation the course of great for the deference writer has Your Dreyfus’ trial re- Captain should expressed in the logic well so had occurred that if that trial member reasoning The cultured Holmes. Justice Courts, spectacle in our own permits Holmes invoked Justice we, fol- less shameful have the truth get at even evidence to rules of *9 supposed precedents, lowing our own It unsealing the tomb. is of the extent what the French had refused to admit justice the sense of and it shocking to never for a moment hesitated to upon to know what civilized well would be confession admit —the authenticated of judicial could our officers base justification Major Esterhazy, avow- the absconded which would forbid guilty rule evidence an author of ing of himself a charged, and now known treason there exonerating himself ren- from accused beyond doubt have the real a to confession inadmissible a of the ac- dering traitor.” culprit because death had ensued there- tual Wigmore, recognized Professor who particularly after. disagrees writer Your with majority fallacy opinion 4 general severely Syllabus rule and No. as 454 be exception being against rule confined a statement meas- interest should to the I upon ured must be cast against pecuniary
to statements interest. detriment as to exception liberty, life, the rule freedom feel and unrestricted cannot that the which one entitled. significance statements would otherwise be would lend (See Evidence, against Wigmore II, exclude Vol. pecuniary interest and § history pecuniary origi- against How for a rule penal interest. of statements permit nating crime records could as evidence it one involved be said that receipt charged to those importance money.) with possibly could attach more to his monetary his than he assets rule majority as liberty doubt pursuit happiness. No or pecuniary nature that interest controversial upon desire hearsay rule founded expanded it should not encouraged be or prevent it impunity, fol- perjury with your and writer did not want it become lows circum- that the which so limitation I rule be law in Oklahoma. feel the rule exception general scribes unjust, barbarous, impractical, inappli- interest, against which admits declaration However, by cable in criminal virtue cases. as to which are exclude all admissions majority opinion, is law now the against ‘penal’ interest, tantamount to is in our state. that, who makes a man declaration while pro- pecuniary or against an'admission his presumed to
prietory tell interest will be truth, yet presumed be liar is he penal in- against
when his statement is his that, say going It far afield to terest. is property on such mankind holds
whereas detri-
high regard that a statement will
ment and interest therein of his title a statement be taken as true SHULER, Error, James Earl Plaintiff liberty deprive him could forever false, say that the aver- be is that would Oklahoma, STATE Defendant Error. liberty, life age individual thinks so little No. A-12662. falsely slander soul pur- precious for heritage condemn this Appeals Criminal Court of of Oklahoma. who exonerating another pose of March 1959. greater solicitude has no same token Rehearing April 1, Denied es- liberty, or soul and this own life of com- unjustifiable light in the pecially individual, instead knowledge that the
mon property regard higher having of' will, liberty, when ac-
than for life crime, his entire material
cused exhaust liberty, life and vindica-
wealth to secure L.R.A.,N.S., for annota-
tion. See and discussion.
tion in a rule practicality of such a civil readily because understood could case subject property be the
money *10 application such a rule But suit. degree case would a criminal justice. point toward reasoning equitable yardstick with which case the a criminal
In