Pitman v. State

parties, probability pro- curing within reasonable

time, and what facts he believes the wit- prove, that he

ness will believes them

to be true.” pretrial did not file such with the

motion for continuance affidavit Rather, required by law. the State first

sought to admit evidence of defendant’s accepted,

guilt. When was not the State

belatedly, orally for continuance moved prerequisite

without the affidavit.

Accordingly, we find Petitioner had been plea,

arraigned, entered a and the court begun non-jury to hear evidence Thus, did jeopardy

trial. attach before the

trial was discontinued due to the absence

of a witness for the and the consti- prohibition against putting

tutional twice jeopardy

an accused in for the same of-

fense bars further trial this Petitioner charges two went to trial on

July unnecessarily inter-

rupted without Petitioner’s consent. Writ

Granted.

BRETT, J., concurs. Error, PITMAN,

Valdhe F. Plaintif Oklahoma, STATE of Defend ant in Error.

No. A-14551. Appeals

Court of Criminal of Oklahoma.

April 28, 1971.

Rehearing May 25, Denied Rehearing Aug.

Second Denied Pitman, F. Okla- Cannon and Valdhe Joe City, plaintiff

homa error. Harris, Atty., R. Curtis P. Dist. James Atty., McKinney, Dist. Asst. County, for defendant in error. under the name of account “O’Neal Bail CARLE, Special Judge. said Bonds”. drawn on account Checks in Er- Plaintiff appeal by the This anis signed by shall be when first honored a ror, called hereinafter party singly, party second in the perjury of the crime conviction countersigned party. first County, where- District Court Oklahoma deposit “3. Of said funds (1) in he received sentence Bonds, account of Bail shall O’Neal 20% Penitentiary, which was year in the State at all left in escrow in said ac- times be suspended. count, or, parties agree, as the shall Defendant was appears placed savings account either City and Attorney practicing in Oklahoma Liberty National Bank and Trust Com- large apparently involved to a extent pany First Bank and or the National charged He with crimes. defending persons against Company, Trust insure losses “Jeep” in O’Neal. employ one E. W. his from bond forfeitures. 1963, 31, July the Defendant and O’Neal On 80%, remaining “4. second Of the following Memorandum entered into the salary party shall and for receive as 40% Agreement: re- compensation, party and first shall 40%, agreed and ceive understood “MEMORANDUM AGREEMENT used are properties on said bonds and are held properties party Agreement, made Memorandum “This of first party. in trust second July day into and entered this 31st Pitman, 1963, herein- between Valdhe F. forfeiture, event bond “5. first party after referred to as in paid shall monies held same be O’Neal, part, hereinafter and E. W. account; savings escrow how- and/or part, party of the second ferred to as ever, if sufficient are avail- monies : WITNESSETH therefor; able, liable party second shall be however, any provided, if at time “Whereas, part is party the Second any exceed amount held forfeitures employee party has been salaried account, checking savings in escrow in and, part, of the first event, future escrow and in then “Whereas, parties en- hereto desire un- percentage shall be increased 40% agreement ter into a new as com- and for un- has been covered and til such deficit pensation party part the second on in held escrow til the sum of be $2500.00 party part. relation to of the first forfeitures, and the all over above “Now, therefore, for and considera- compensated commensu- parties shall agree- tion of promises the mutual with- rately escrow with the increased parties, agreed ments of the it is hereby held. as follows: whereof, parties hereto “In witness party “1. cease Salary second shall day and their hands the have hereunto set upon the execution this agreement; year first set forth. above however, party second shall continue Pitman Valdhe F. /S/ before, working party for first as Pitman Valdhe F. in addition thereto shall make all bonds Part Party of the First represented party for first on clients party, compensation first for the herein- “Witness: after set forth. Ruby Rodgers /S/ Jewell for “2. Fees said bonds shall be at E. W. O’Neal /S/ amount, the rate of of the bond 10% E. W. O’Neal deposited fees cash shall Party of Part” the Second Liberty National Bank and Trust Ours) Company City (Emphasis of Oklahoma and carried Oh, yes, “A Exhibit Paula State’s 88. You married to one The Defendant was 3, anything September don’t want to know about these Wilde, prior to sometime J. you just read Lots 29 and 30 off? lady 1963. This owned Addition to Oklahoma Block Bancroft “The ? Court: Sir August City, Oklahoma. On anything “A You want to know didn’t Quit Claim Defendant alone executed here, judgments about and the these Lots, said covering Deed E. W. O’Neal like? August for record which Deed was filed “The Court: no. County Clerk in the office Now, Okay, “A Exhibit 88. State’s County. of Oklahoma your what question? August E. exe- On W. O’Neal you “The do Court: What know about cuted Case of -vs- a Bond Oklahoma property? Garcia, Freddie in the District No. “A pieces That is one of the prop- surety Court of as for erty, Honor, signed Your that I over to case, scheduled the Defendant in that O’Neal, Mr. any without deed or anything Bond, security for the above de- said rehirn. to do with Defendant, F. scribed Lots. The Valdhe fit, he saw way he saw That Pitman, Attorney for Freddie Garcia. fit. just happens apartment duplex abe Quit September Claim Deed On house and five house on both room of those. by in E. was executed favor of W. O’Neal So, your “The based Court: on knowl- person Wilde, Paula and the same J. edge, did Mr. own that O’Neal at husband, her as Paula Pitman and Valdhe J. the time given that bond was ? Pitman, filed record in F. which Septem- County on Yes, the office of the Clerk “A certainly did.” 25, ber 1963. (Emphasis ours) a Quit executed O’Neal and his wife alleges The testimony State un- covering Claim Deed to the Defendant said derlined by above was false and untrue us the date of property which bears October by known the Defendant to be false However, 12, not filed 1964. this Deed was perjury. untrue.and 15, In January for record until 1965. In his brief Defendant sets forth 4, meantime, 1965, January and on Propositions eleven of Error. Attorney District of Oklahoma One, Proposition Under the Defendant Bond, Strengthen filed an Application to urges that the Trial Court erred in over- Garcia, application State -vs- ruling the Defendant’s Demurrer Fogg, heard before L. William Evidence of the because it was not 2, February on proved testimony given the De- The called as a witness in Defendant was fendant in hearing Application on the Application hearing on and testi- said to Strengthen given Bonds was under oath. part fied in as follows: testimony Pitman apparently cov- Now, “The the next one Court: that I typed ered pages some 42 transcript, have listed the for- there has do with 70, pages through and the state- feiture, there, J; through turn on Mr. 61— upon charge ments which the of perjury Pitman; 61-K, 61-1, 61-M, down to No. was based pages were on found and 50 and that is Block Lot 29 transcript. Attorney said The District Addition, City. Bancroft to Oklahoma offered in transcript, evidence entire you “A Which one want know cross-examination, both direct and redirect about ? Defendant, and recross of the and the De- “The Exhibit No. fendant admission objected Court: it’s on of the past down testimony. those. entire transcribed panel by Presiding Judge tran- tire Reporter who the Court When Court, drawing put on the wit- multi-divisioned testimony was scribed the Attorneys presence en- made outside the of the Defendant stand, the Defendant’s ness drawing stipulations: Attorneys his and from which following tered into the they actually were excluded the Court record. We Spivey: “Mr. Not the whole Presiding Clerk instructions from the now; as to any waive identification now Judge. There no contention offer, they get we’ll what want to were than usual names drawn other they when offer it. selection procedures in such cases. well, you waive iden- “The Very Court: tification— authority cites no Spivey: right. “Mr. That’s position and think that support we Fray case of 46 Okl.Cr. (continuing) “The the tran- Court: —of dispenses with this adequately P. witness, scribed Valdhe question. that case we said: Pitman. Yes, Spivey: “Mr. sir. county has district court of Tulsa “The 3083, Comp.Stat. judges. four Section McKinney: you May “Mr. I ask this: may All or number of them you are stipulating that this occurred time. Section hold court at same Oklahoma, County, State of hundred and Comp.Stat.1921. One District Court? panel selected for the jurors seven Spivey: “Mr. In District Court. and in attendance qualified term were McKinney: “Mr. Judge Fogg? Before composed of upon entire court four Spivey: “Mr. Judge Fogg. Before We judges. Sixty-one of this number were stipulate will to that.” upon that division of attendance judge in appears to us the trial presided that the defendant’s court over serving attorney either stipulating that his client The were this case. others day February, on the the court juries 2nd of in other divisions of before Judge given upon Fogg certain some other testimony. Tes or were in attendance timony jury. given impaneling in a engaged refers a sworn statement divisions sixty-one in legal proceeding. evidence a contended that is not “ im division were jurors assigned to this ‘Testimony’ is a statement made under disqualified properly selected or were legal oath in proceedings or evidence of selection, their of reason of the manner given witness under oath.” Patterson v. 2645, supra, that, under section State, 122 Ohio St. 171 N.E. impaneled to serve persons of names “ ‘Testimony’ only embraces the declara- not drawn jurors in the trial were tions of witnesses made under oath or is If this section entire venire. from the affirmation.” Wyoming Loan and Trust construed, then mandatory and was so Company v. Holliday Company, W. H. of the only could himself Judge one avail Wyo. 386, 24 P. 193. venire, regular and the of a services By stipulating that the Defendant impanel have to judges would other did testify, stipulated the Defendant juries open special venires. See or given evidence was under oath and can State, 428, 183 P. v. 16 Okl.Cr. Johnson not now be complain heard to meaning certainly is not the 926. This State failed to that the county involved. In a of the statute in fact under oath. court is one district where more than

The impanel jury Defendant’s a Proposition may Second sitting, judge the trial deals regular with the fact that jury venire as part which tried from such of the cause was chosen group from a division over which assigned of to the is thirty-six (36) jurors of the statute purpose drawn from the en- The presides. terminated; hand-picked jury by pro- arbi cused when such case prevent a is vided,

trarily portion opinion the venire if selecting a of is of the impanel jury jury a the ex from which to business of a term of court may days, of the venire. (6) clusion of other members concluded within six require or he may jury, juror, claimed that this was done or to re- It is not a attempted jury to be done in this instance. main said until termination of service, right by entering of an accused in the selection an to that ef- order jury upon journal, of incom fect of a is one of exclusion the court’s and this biased, District, jurors, provision petent, prejudiced shall apply or Su- particular per perior, County any not the inclusion of Common Pleas excusing sons. of members of the Courts.” panel regular panel dividing of This Section has been amended since the court, for the convenience of the where wording trial of case but the above sitting, judge more than one is with in effect at the time. in the sound discretion of the court. The The Defendant that “term contends will not be exercise of such discretion July January Court” means the disturbed, an abuse is shown. unless jury terms Court and not the two week Mathews Okl.Cr. term held in He October of 1967. further P. 112.” contends that would hold addi Court procedure We find that the used in the tional in jury sessions November and De County District Court cember of and the Court was there empaneling jurors is not an abuse dis- holding jury fore not warranted deprive cretion and did not the Defendant days jury (6) additional because the six process due of law. go business Court could over term of Proposition, In his third until either December November or states that the Trial erred in Court over- view, jury dockets. could be Under this Panel, ruling Quash Jury his Motion to only held December session over for the reason that the Order the Pre- jury July (1) if than one term more siding Judge of the District Court of Okla- during held that term Court. docket was homa ordering jurors certain to re- very possib agree could To with this view port jury back for a third service week ly hamper justice the administration of was in procedural violation of fundamental many as metropolitan areas where as our due process. jury term (6) dockets six be limit (5) are held. dockets would Five jury panel The selected for the jury ses- weeks, (1) docket to to and one (2) ed two tried, sion at which the Defendant was three weeks. (3) ported 2, 1967, duty for on October normally would have terminated their serv- is argument find that We IS, ice on October 1967. The Trial Court of Court” term “term merit. The without ordered that jury be held over for an means in the above context as used days extra (6) complete jury six to petit a for which particular jury session business of the term of Court and the De- January and juror is called and not fendant’s case was set for trial and tried O.S.1961, up by formerly July terms set on October 1967. de question has been identical The § Okl.Cr., 443 P.2d cided in Satchell v. Okla.Stat. Sec. in part reads held as follows: that case we follows: In “ * * * panel can found- challenge to the juror “A No shall be to allowed departure from only term, serve more than on material two at ed weeks respect prescribed unless at law the end of forms period, such he on the jury or upon a panel drawing and return engaged in the consideration to the sheriff a case intentional omission may which event he be ex- jurors September 3, (filed September 25, or more of summon one 1963) the defendant has Deed from (Pit- Paula drawn from Wilde Jo prejudice.” man) material and Mr. suffered Valdhe F. Pitman to E. O’Neal; W. find In this case we that the Defendant materially prejudiced nor is the October Deed was not from O’Neal and wife, Pitman, alone; jury to holding over of a for an additional days, though six even the same Dis- (6) January Application Strength- to (2)

trict to hold additional Court was two vs—Garcia; en Bond in State — term, during a material jury dockets that January filing of record of departure prescribed from the forms Pitman, Deed from O’Neal dated Oc- law. 12,1964; tober Proposition In Four Defendant’s February 1965, Hearing Applica- Brief, the Defendant contends Strengthen tion to Bond before necessary criminal State did not Fogg. intent or mens He that testimo rea. states Defendant, lawyer, could have ny a fact which is not but believed true simply been mistaken as to the intent or testifying per true the one is not Agreement the effect of the Memorandum However, jury. This no doubt it true. signed when he testified that he had over would be difficult to reconcile the obvious property any Deed “without O’Neal Agreement the Memorandum be intent of anything prop- Title to the or return.” O’Neal, dated tween the Defendant and erty in the Defendant when he at- was not 31,1963, July it states that: wherein tempted It deed it to O’Neal. “ ** * understood and in the Defendant or O’Neal when O’Neal agreed properties said used on the terms of made Garcia’s bond. Under party properties bonds are the of First Agreement property the Memorandum Party.” and are held trust Second fit, O’Neals, as he saw “to do with was not defendant’s With to the follow- fact, point In anyway he fit.” saw ing effect: Pitman reconveyed property O’Neal you “The Strengthen Court: What do know about Application to Bond before the property ?” filed. in the case was Garcia “A pieces proper- That is one of facts we hold this set Under Honor, ty, signed Your that I Mr. over to Proposition Four is Defendant’s anything O’Neal without Deed without basis. return. was his to with as do Proposition the Defendant com- Five fit, anyway he just saw fit. That saw a fair not afforded plains that he was happens duplex apartment to be house by the Con- required trial as speedy and five room house on both of those.” On of the State of Oklahoma. stitution sequence events be re- should Attorney of 1965, the District July point: at this membered filed three Informations 31, July 1963, Agreement Memorandum Defendant, two for Suborna- against the between Defendant and O’Neal: present perjury Perjury and the tion of 1963, 21, August Deed from Per- charge. One Subornation by point title (at himself to O’Neal jury May jury charges tried to in Paula was vested 18, 1966, J. again on October and ; Wilde, wife) Pitman’s then juries. hung in trials resulted and both 26, 18, 27,

August August (filed 1963) tried on October present The case was by made indicate that Bond O’Neal Freddie Gar- does not The record cia, the case be Attorney prop- any Defendant’s wherein demand there was erty question was scheduled. date. tried at an earlier

724 provides Art. Sec. 6 In the Okl.Const. case of v. District Johnson County, Okl.Cr., Muskogee P.

follows: 2d we held: justice “The shall Courts of of this State open every person, speedy repeatedly “We have held under 22 Okl. remedy every wrong certain afforded for person on bail and St.Ann. § every injury person, proper- and for custody by charge not in virtue of a ty, reputation; right justice him, or pending affirmatively against must sale, de- shall be administered without show that he demanded a trial and re- nial, delay prejudice.” sisted the of the case from continuance term, term de- but when he not has provides Sec. of the same article manded the trial and continu- resisted part as follows: ances, he is not to a dismissal entitled prosecutions “In all criminal ac- Harris, al., charge. Ogden, et See right speedy cused shall have the to a Judge, District P. Okl.Cr. public impartial jury trial 316; Brooks v. District Court Okla- county the crime shall have in which County, homa 408 P.2d 562.” ** *” been committed: only indication the record provides Sec. in full as Okl.Stat. complained that the Defendant de follows: lay in the trial is an Amended Motion to which Dismiss was not filed until October defendant, public “If a prosecuted for a 11, 1967. This is sufficient under the offense, not post- whose trial has not been above cases. poned upon application, brought is to trial next at the term court complained The Defendant that the Court indictment or information is prejudicial committed fundamental and er- filed, triable after it the court must witness, ror in permitting the Curtis P. dismissed, prosecution order the to be Harris, Attorney, District of Oklahoma good contrary unless cause to the be County, testify against the Defendant shown.” having duly without been first sworn as witness; when Mr. Harris stand took the Statutory provision leg above following made the comment: islative construction of the Oklahoma Con requirements speedy stitutional of a trial. Harris, you “The Court: Mr. are a mem- This has many Statute been construed Bar, my policy ber and it’s Hig times this Court. In Brummitt v. lawyers testify to swear who in this gins, Judge, 80 157 P.2d Okl.Cr. expect testify I them Court. on their this Court held as follows: oath as members of the Bar and I con- sider that higher to be a oath than the “It has been held that where the defend witness; you’ll oath of a therefore presumption ant is on bail is that may excused sworn. You delay was caused or with the take the stand.” consent of the defendant and the record affirmatively must show that he demand objection procedure to this No ed a trial or resisted the continuance was made the Defendant at the time However, of the case. if defend and it is now raised for the first time. bail, ant is not on the law makes the Attorney and The Defendant is also an prosecution demand for him and the has The follow- testified in his own behalf. showing the burden of that the trial was upon the Defend- ing exchange was had delayed for some lawful cause. State assuming the stand: ant’s Bayless, ex rel. Davis v. 38 Okl.Cr. 606; State, Pitman, you 259 P. Francis v. are a 26 Okl. “The Court: Mr. 785; State, Bar, going Cr. 221 P. am to Bowes v. 7 member of the and I privilege Okl.Cr. of tes- you P. 580.” accord same tifying without as wit- sworn The Proposition Defendant’s request you ness Eight unless to be sworn.” states that the Court erred in fail ing to sustain the Defendant’s Sir, Demurrer No, “Mr. Pitman: I am a member to the evidence since the State only offered Bar, of the and I realize those duties.” an unsworn statement prove perjury to If anybody complain in- could in this falsity of a statement under oath can stance it be would the State because it not proved be by an unsworn statement testimony places seems that the Judge of the Defendant support and in thereof Attorneys higher plane on a than other cites State, Shoemaker v. 29 Okl.Cr. lawyer. mortals and Defendant is a 233 P. In that case the Defendant jury prejudiced preju- If the was it was was accused of perjury having testified in by diced in of this Defendant this favor Preliminary Hearing per that a certain fact. son had killed another while later at the Regardless, Keeney said in we trial of the person, accused refused she two Okl.Cr. 6 P.2d Section identify the defendant killer. as the syllabus: proved State contradictory her testimony “The be- right to have a witness sworn prove but failed to which testimony was may a de- testifying by fore be waived correctly false. We held in that case that fendant and is a defend- waived where the general rule proof is that of contra having knowledge ant the witness dictory by statements under an oath ac sworn, objection has no not been makes cused is per not sufficient to convict of until after verdict.” jury. oath, Oath nullifies and it in cumbent prove falsity on the State to approval This case has been cited with of a prosecution statement on which the Appeals United Court States based; falsity may such case the in Beausoliel v. District of Columbia proved by be witness, evidence of States, App.D.C. 111, F.2d United may circumstantial evidence. It not 292 (1939). proved be additional unsworn state We hold that the Defendant has waived ments of accused. by not objection irregularity this have us Defendant would objecting at the time trial. Agreement treat above the Memorandum Proposition As Seven of Defendant’s state referred additional unsworn Brief, alleges proof he made no reject ment the Defendant. We that the state- Defendant testified part contention. This is extrinsic alleged ment in the as false. Information required in case evidence the Shoemaker assump- apparently This is based on the independent proof falsity and is tion that the failed to State testimony that made be the Defendant testify fact No. did in Case Fogg. evi fore Additional extrinsic 28808, in the District Court of Oklahoma Deed back to dence is the from O’Neal February 1965. The October, Pitman in produced transcript hearing of such Nine, al- the Defendant Proposition As Attorney stipulated and the Defendant’s gave testimony before leges that Reporter rec- did make the is- Judge Fogg was material ord identification and also waived hearing. in the sues involved testimony Defendant. transcribed the testi cannot now will recalled that The Defendant Strengthen of his hearing complain mony given heard to record prop iden accurately case and the in the earlier the Bond Garcia formerly erty waived in the Bond tified when such identification scheduled was at the belonged Pitman’s wife at the trial. any upon the Pitman’s that are hearing time of name. witness matters directly thereby that no in the record becomes ma- showing There is material Fogg perjury.’ had knew that the terial itself and constitutes by the reconveyed to been the State, “To the same effect is v. White 12, 1964, did he know Deed of October nor On this 48 Okl.Cr. 369. P. un- Deed had recorded the not been Guasti, point People also see 110 Cal. v. Strengthen Application to til after App.2d 243 P.2d 59.” hear- made, had been but before Bond testimony that the feel Defendant’s We Propo- deciding In a such ing was held. hearing. inwas fact material to this required assume that it is that we sition Proposition complains in The Defendant have would knowledge of facts these failing the Trial erred in Ten that Court Judge’s ruling. changed the jury purpose to instruct as to the State, This Court said in Miles v. Okl. offenses introduction of other State’s Cr., : 268 P.2d 290 ques- This committed the Defendant. People Pustau, Cal.App.2d “In v. in the tion raised for the time is first 103 P.2d California Brief, included Defendant’s not said: in Motion for new trial. materiality ‘The test of is met when first witness Defendant’s testimony it can be could said that the attorney, awas fellow testified that who properly the tribunal have influenced always he had the Defendant found before which the case was repu trustworthy that his honest heard, upon the involved.’ issues community in the truth and tation perti- testimony “The false herein course, This, puts veracity good. though it did nent to the main not issue good the Defendant’s at issue character directly In bear on main issue. Cole- and the can the char cross-examine State, 252, 118 P. man v. 6 Okl.Cr. present acter witness or witnesses its said on point this court of materiali- to refute character witnesses’ testi own ty: State, Okl.Cr., mony. Moore v. P.2d ‘(a) perjury, In it Defendant, order to constitute cross-examining necessary the matter sworn brought the State out the fact immediately directly and to should be driving Defendant had been convicted of material, it but it if is sufficient intoxicating under the influence while matter at issue so connected with the liquors, and had been divorced legitimate tendency a as to have adultery. grounds It is better and safer disprove prove or fact some good character practice where evidence of prob- weight or giving is material introduced of the Defendant has been ability testimony detracting to or jury same. See instruct as to the fact. of a witness such material Territory, 1 99 P. v. Okl.Cr. Morris However, we held in P. assigned upon Perjury may ‘(b) 235, 136 P.2d 76 Okl.Cr. Vester affecting statements the credita- false follows: 205 as testimony bility of a witness whose For material to the main issue. complains court did “Defendant perjury sustaining charge for facts question jury upon instruct head, opinion. under see A number wit- good character. de- good character Upon perjury, testified as to ‘(c) trial for nesses materiality the testi- defendant gree of the the defendant. If presented is of no upon giving or had mony quested which it is based effect, made it would importance. Any false statement instruction to this written give from or the same. proper detracts been a witness which have written weight and such adds force is not revealed that

727 only Defendant cites request was made. instructions must be settled after the in Territory, concluded, Morris 1 Okl. troduction the v. of evidence is case and 774, 617, 760, In if 101 P. 111. counsel P. Cr. 99 for accused desire additional instruction, requested they instruction that case a written must reduce such in presented. The same was denied struction to request was and writing opin they given, In the be and case was affirmed. and the a conviction will not Furman, ion, the be Presiding reversed where there is a failure to court of the char make such request, said: ‘The evidence unless the Criminal defendant, both for and acter of the Court of Appeals opinion is of the in him, jury. They light against before the the of the entire record and in pre correctly the that, were instructed structions of failure to in because sumption upon the question of innocence and doctrine struct some material law, applicable of reasonable doubt were deprived has been accused a sub right.’ State, all of in the case. stantial the evidence Lee v. 67 Okl.Cr. 283, 5; State, 94 P.2d Green v. 70 Okl. for It would have been better the court 228, 795; State, Cr. 105 P.2d Pulliam v. upon given an instruction char- to have 18, 426; 61 yet Okl.Cr. 65 P.2d not re acter, expressed by embodying the views ported; State, 272, Short v. 74 Okl.Cr. the of the United Supreme Court States 227; State, 125 P.2d Adams v. Okl. States, (White in v. United case White’s 167,70 Cr. P.2d 821. 365), S.Ct. L.Ed. 164 U.S. approved. case, and In quoted hereinbefore “In the instant the court instructed cases, error might jury upon question some be reversible the reasonable instruction; doubt, give an upon to fail to such and presumption of in- nocence, laws requires facts, our us construe statute and under the as above jus- liberally stated, in the furtherance of and opinion we are of the that it was tice, reversing a con- us not error give forbids for court to fail to upon technical error an ex- viction an good instruction as to the character ception defendant, not affect substan- that does the same when requested the defendant. this case rights tial by counsel for defendant.” intelligent we do believe that case, In this not feel that the we do fail- who, found, with jury could honest give point ure to an instruction on this oaths, and the tes- due for their regard is reversible error. law, ever timony and the could come Proposition The Defendant’s last de- than that the conclusion other closing that during states the trial and ar of murder. Under guilty fendant was guments, prejudicial state State made statute, quoted, and after above substantially ments which affected the De record, we the entire consideration of right fendant’s a fair trial. in hold that this case are constrained not committed error was reversible Casemade, have entire in- We read the jury instruct the the court to failure of cluding arguments counsel closing character.’ upon question of agree and do not with Defendant’s conten- fact, argument tion. As matter in Stat “In the annotation points at closing of defense the case was Annotated, Section Title utes propriety. beyond somewhat the bounds quoting case note only one time Although this case tried P. Lumpkin 5 Okl.Cr. lawyer jury stated to 5 of Defendant’s subdivision ‘Under it is said: had tried jury that they ti were third section, of this section 856 they never convict- give this case required only to tle, judge is the minute He stated that ed him. also matters law charge such he would jury the Defendant convicted information of necessary for thinks the rest of verdict, for automatically disbarred rendering their jury in spite Error, Pitman, of law. In Plaintiff practice Valdhe F. his life from De- found the jury convicted the District Court of of these statements Ok- lahoma guilty. October fendant Perjury. crime of He was tried De- Dismiss the separate a Motion to In jury guilty, a which returned a verdict of the doctrines of col- raises to issue fendant (1) and punishment assessed his at one in estoppel judicata and res lateral year under direction and control of the question in the fact support argues Department Judg- of Corrections. was decided O’Neal this case imposed ment No- and sentence was on Okl.Cr., that case E. W. P.2d 1967, 2, suspended by vember and was District in the convicted O’Neal was error, judge. trial Plaintiff hereinafter falsely County perjury of Oklahoma defendant, ap- perfected referred to as this own- oath he was the swearing under peal. 3, Springs Artesian Second er of Block City, briefly State of Okla- The facts related Defend- to Oklahoma are: Addition attorney this ant affirmed is an who entered written Court at first a homa. This rehearing Agreement” establishing on withdrew “Memorandum conviction one, opin- “Jeep” bail promulgated the business E. original opinion and bond with W. paragraph O’Neal. In the fourth of the ion the above citation. found at agreement following appears: statement may it be true that While * “* *, in being involved to it parties need not be understood same estoppel agreed properties of collateral used on said the doctrine voke question party the fact surely required properties bonds are the of first false case his In the and are held in trust same. O’Neal [defendant] alleged made party have been second statement was [O’Neal].” on made on justification a bond in a Jan agreement, de- In the fulfillment of the 1964, 8, the above described uary wherein pieces real fendant transferred several case, the this scheduled. In property was however, O’Neal; first property to towas alleged false statement defendant’s 30, quit-claim describing deed Lots dif entirely owned the effect that O’Neal 1, Block Bancroft Addition to Oklahoma to do with that it was his ferent land and 1963, Oklahoma, City, August dated nothing with return. as wished O’Neal, nothing conveyed for the rea- litigated question in this case was fact title to sons that vested therefore, we, re case and in the O’Neal Wilde, in Paula at that time Paula J. J. argument. ject this Pitman, defendant’s wife. Judgment affirmed. August signed O’Neal as On surety Freddie Thousand Garcia’s One MILLER, Judge, Special concurs. ($1,000.00) Dollar bail bond and listed security. Property September Bancroft as BRETT, J.,P. dissents. later, days seven defendant quit-claim jointly deed executed wife BRETT, Presiding Judge (dissents). conveying Property, Bancroft same Presiding Judge As this Court for That deed was tract O’Neal. appeal, opportunity express September quit- I take this 1963. Another corded my appreciation Property thanks and for the assist- deed to the Bancroft claim Carle, produced by ance of the the prosecution Honorable R. dated Octo- John Miller, bring- prope'rty conveying Honorable B. ber James ing this matter to a to defendant. The date this conclusion. Notwith- back O’Neal standing, respectfully I must dissent to defendant was deed was delivered their de- majority opinion concerning ap- asserted this to be other than shown just peal. fendant, to him being delivered prior oath, to its This deed trary recorded. to such states material 15,1965. January recorded false, matter which he knows to be guilty perjury.” January On the District Attor- produced The State seven witnesses to ney for Oklahoma filed over one charge. Reigan Mr. W. H. Applications Strengthen hundred Bail Deputy Court Clerk identified various Bonds, among which was the bond items which had been filed in the Court Freddie listing Prop- Garcia the Bancroft Clerk’s Aubrey Crisp, Office. Mr. a Cer- erty security. applica- The number of Reporter, tified Court was called to iden- tions filed was pros- so numerous that the tify transcript of evidence which he duplicated ecutor applica- a format for his recorded at the hearing strengthen to bail tions and filled in pertinent informa- February on bonds out of which for application. February tion each On this charge stipulated arose. The defense 2, 1965, a hearing was had on some of reporter the witness was the court applications those before the late reported who hearing; that the tran- Fogg. Unexpectedly William L. defend- script copy was a and true correct ant upon by was called prosecutor to —iden- tified as State’s Exhibit No. &—and over testify concerning the Garcia bond and the objections, pages defendant’s and Property. Bancroft were admitted into evidence. It was that charge premised upon This the an- portion testimony alleged of defendant’s gave reply swers defendant to certain upon charge premised. which this was questions Judge, asked the Honorable Harris, The third witness was Mr. Curtis as follows: Prosecutor, the Chief who became a wit- you COURT: “What do know about the identify ness copy original Ap- of the property? Referring to the Bancroft plication Bonds, Strengthen because the Property. original filed in the Court Clerk’s Office located; however, could not before pieces WITNESS: “That is of the ended, original trial Honor, was Mr. property, signed located. Your that I related, appli- Harris that he dictated the O’Neal, any over to Mr. without deed cation; “way filed it and over a hundred” anything or return. It was his others; hearing and that he conducted the fit, property any- to do with as he saw Judge Fogg. had before way Assistant fit, just happens saw to be Prosecutor asked Mr. Harris: “And in house, duplex apartment room five bonds, strengthening the connection with house both of these.” on importance, any, ques- if what did those “So, your upon COURT: based knowl- pages tions that were 49 and asked edge, did proper- Mr. O’Neal own hearing do tak- have to with that was ty at the time given?” that bond was ing place?” “To Harris answered: Mr. “Yes, he bonds certainly WITNESS: did.” determine if the listed on the person owned signed and the who the bond charged was with the offense if property, determine a bond perjury O.S.1961, under 21 which § sufficient, person signed was and the who reads as follows: bonds, bond, and the whether or not “Every person who having taken oath an they qualifications sign were—met the testify, declare, that he depose will or objections to a bond.” Defendant’s such certify truly any competent before tri- tes- the answer was sustained. witness bunal, officer, person, any of the present that he at tified further cases in may by which such an oath O’Neal’s trial1 and heard law administered, wilfully and con- given by at that trial. defendant State, Okl.Cr., (1970). O’Neal P.2d Ruby false. The Rodgers Mrs. demurrer overruled Jewell defendant set forth his for the fourth witness. had been defend- defense She jury. Defendant’s should have secretary ant’s the Memo- demurrer and witnessed sustained, been as I Agreement (State’s Exhibit No. view record. randum executed; 10) when it was and she stated case, the defendant rested his When Notary she was the for the execu- Public prosecutor time was called a second quit-claim signed tion deed to O’Neal testify. qualified expert He was deed defendant and his wife. That examination, asked in title and was admitted as Exhibit 12. The State’s No. Assistant Prosecutor: Dep- fifth Bryan Beatty, witness was Mr. titles, your examination of “Now Office, uty County Clerk in the Clerk’s Exhibit if such as State’s instrument who identified Exhibits Nos. State’s introduced No. which has been copies true evidence, record in had been filed of quit-claim file in deeds on county particular person against a Clerk’s He also identified the Office. case, in this naming persons, as those photostatic warranty copy of the deed O’Neal, Pitman, and E. W. Valdhe F. conveyed Property the Bancroft rec- appeared and this instrument had Wilde, Paula Exhibit He testi- No. 14. J. that the purpose stated ord wherein its Agreement fied that the also Memorandum that were properties on the bonds used record, could not be filed of the because are held by be made O’Neal to Mr. signatures acknowledged by a had not been F. by for Valdhe in trust Mr. O’Neal Notary Public. Pitman, examining a you if had been Dowdy, Manager Harvey Mr. Assistant lines, along those piece property Department Liberty the at Bookkeeping as far the title you approved would have National Bank He was the sixth witness. (Em- by O’Neal.” owned W.E. identified the for bank account established phasis added) the bail bond and certain instru business The witness answered: passed through which his bank. ments “I would not.” last Mary O’Leary, witness the in answer on state then went He Reporter for Mills. District Clarence not en question that O’Neal the next transcript She identified the defend Property the list the Bancroft titled to testimony given ant’s at E. O’ W. “JeeP” failed though defendant Even bond. Neal’s trial on October introduced funda of such question, it is object to the as Exhibit ob No. over defendant’s a false nature, upon being premised mental jections. The Ex then introduced State jury, the basis, to mislead intended through hibits numbered 15 were The State’s complaint now is not waived. other bail bonds on which had listed O’Neal agreement testified that witness own Property security. the Bancroft These recorded, signa because could not exhibits were admitted over defendant’s acknowledged. See: were not tures objections. O.S.1961, 26.2 § Defendant demurred to the evidence as- serting that the had failed to State I. charge the material elements of the con- information; this case was when January tained in the and that On That intent, asserted: prove any corrupt failed defendant reargued, perjury were or of the crime that the statements of defendant were elements held the they proved; that this Court knowledge made with the were and recording mortgage chapter; deed, with this “No or other instrument affecting estate, not so executed instrument shall be such real received acknowledged for effective not be shall for record or unless recorded executed R.L.1910, acknowledged any purpose.” compliance § in substantial requires charge perjury proof of two false; ant’s statement was nor cir- were alleged witnesses statement cumstances sufficient to corroborate one by true, supported or with witness witness had such testimony been offered. prosecutor sufficient circumstantial evidence. To The testified purpose cited, support contention he for filing Cameron applications to strengthen State, Okl.Cr., (1961), 365 P.2d bonds was: To if determine following: wherein this Court said the listed on the bonds was owned person signed who it; if determine neces- concerning “The rule evidence sufficient; bond was and whether or not perjury sary to a conviction for sustain signer of the bonds qualifica- met those Evi- is stated in Wharton’s Criminal tions. Ed., dence, n. 12th Vol. § thusly: II. generally held that to sustain ‘It is perjury there must be conviction Referring to the Property, Bancroft witnesses, testimony of two the questions raised prosecutor, I is cor- testimony of one witness which find that require- O’Neal did meet those ** roborated other circumstances. ments to list the property on bail bonds. per- corroborating evidence ‘The Notwithstanding the fact the first clear, posi- jury prosecutions must be quit-claim conveyed nothing deed that, tive, strong, in connection so O’Neal, quit-claim deed executed de- who the evidence of the witness with wife, fendant and his days after seven directly, it

testifies will convince bail posted, the Garcia bond corrected beyond a reasonable doubt. jury deficiency, by operation Title of law. beyond go corroboration must O.S.1961, ‘The setting 17 is the Statute § particulars. indifferent slight and after-acquired forth provisions the title al- show must tend to the statements applicable, which the became under circum- falsely Cor- been sworn. leged to have stances involved herein.3 required the false is for roboration pro- ordinary those Under circumstances whole, not for testimony a as ; deeds may apply quit-claim to visions the If every constituent element of it. however, the under these circumstances is falsity of the defendant’s statement e., the applicable, when rule is made i. doubt, proved beyond a reasonable of convey is on the face intent to clear ground to sustain there is sufficient re- deed; expects to the grantee the when ” conviction.’ instru- conveyance; when the ceive convey to Court, sufficient words ment contains As I review the record before this Stewart, F. 231 Callahan title.4 See: v. None defendant’s contention is well taken. 115, 121, (D.C.Okl.1964) Supp. of that the defend- the witnesses testified deed, generally if a rights held that now 3. reads: of a is That statute “All implica- necessary expressly grantor prem- mortgagor or the either or in and to grantor to tion, intended the that the shows described in instrument and exist- ises expected grantee to accruing, convey, ing subsequently that the at the time or kind, particular acquire, estate of the the mort- shall accrue to benefit of doctrine, the gagee grantee, is a foundation the deed his or be covered conveyed covenants mortgage deed, if it contains no technical as even Legislatures have may Several whatever. be.” case the statutory doc- the statement made effect to the Titles, (2d 1957) broader terms trine still Vol. Ed. Patton On convey purports that, to 216, p. a deed whenever 512 states: § “ owns, * * grantor * greater than the estate a any At common law the doctrine grant- after-acquired conveyances such only applied interest which con- to deed warranty. Now, or, extent of that to the covenant of tained a convey, may purports the benefit to any inures however, to covenants title fact, grantee. stat- of such necessary effect produce estoppel. In Dunkin, quit-claim supra, exe- All of the deeds were stated that Court because, “Manley Legal cuted on Form No. conviction reversed was showing AF” words “There no that testimony which contain sufficient title, e., “quit- i. defendant in this case was before he conveyance transfer sworn to ” * * * claim, convey.” gave testimony in An grant, bargain, sell and the case. examination record before this Court validity Consequently, I find absolutely reflects that there is no show- Property pledged Bancroft ing whatsoever that defendant ad- sufficient; and it was bond was Garcia oath, prior giving ministered an to his testi- of the hear- at the time likewise sufficient mony. upon the The burden is State applications ing prosecutor’s on the prove all the It is elements of the crime. quit- strengthen bail, notwithstanding the presume not sufficient that whatever defendant, deed claim from O’Neal required done, Phil- was done. See: IS, January recorded on which was lips Okl.Cr., State, (1971). v. P.2d 1386 Miller, by Judge when brought out It was Court, Also, States, in Smith F.2d v. United reargued before this matter was Federal Property (C.A. 1966), 5th Cir. under a Bancroft pledge essentially Statute as purpose same the Okla- in furtherance of therefore, Statute, homa agreement; United States memorandum Appeals error, estopped held it to be when from subse- reversible would be defendant prosecution prop- prove failed to that an against the quently denying lien witness, by oath was to the erty foreclosure administered the result of bond one authorized to administer such oath. judgment. transcript

In that defendant’s case the in- in the District Court was III. troduced to that he had testified stated, falsely. court with reference brief, defendant asserts In his reporter’s prefatory statement prove that defendant failed to citing duly the witness sworn: oath one authorized administered an so, prosecutor’s statement, 'Petitioner, on the hearing do at the “The bare Joe Smith, sworn, this contention applications. support duly To having been testified * * *,’ pur- S3 Okl.Cr. he cites Dunkin does not follows even re- Court (1932), port prior this transcription P.2d wherein be a 912 to ex cited : but is rather a proceedings, mere by parte, the unsworn conclusion to es- important things "One of the porter appellant that had been sworn.” being tried a defendant is where tablished (Emphasis added) not was perjury is that an oath charge on a testimony giv- administered, Court, false and the not In the this record before oath, under prefatory en the defendant statement reporter’s even the of- by some Instead, testimony the administered alleged oath was is included. the authority to having being administer ficer is reference offered without R.L.1910, 491; O.S.1961, ad- oath.” that the made whatsoever witness § [21 oath, or admonished ministered an even § 2211] after-acquired grantee utes, cerned, expected receive, is con- far as title estate so to an deeds, purport- particular tois read into all such cir- a character—under convey title, ing grantor cumstances, fee full covenants to a and those claim- they therefore, effectively warranty. Usually, ing es- of bring will under him conveyancesby quit-claim after-acquired topped deedwith- to an title assert though operation rule, this in the the estate embraced the extent of always conveyance aif is the case. be the case as would * ** apply if the But the does had been rule that effect formal covenant to upon deed face evidence bears its inserted.” convey, grantor intended to testimony accepted tial element that his the crime perjury— is, attorney. prosecutor oath as an his acctised took an oath re- testimony, quired alleged offers the with- merely law." attempting ele- out the essential Had the defendant in the instant case stipulation pro- ment crime. criminal, been a appeal confirmed this transcript vided that the was recorded would have been single reversed on that Aubrey Crisp, Reporter, the Court Mr. proposition, Appeals as the Court of did nothing but refers to the administration States, Smith v. supra. United is oath. of an belief, this writer’s that a member of “testimony” in Bar receive, The definition of recited Association is entitled to at least, majority opinion equal equal pro- taken from Patterson consideration and v. Ohio St. 171 N.E. tection of the law as that afforded pertained testimony given at (1930), confirmed criminal. hearing. page 26 of the Jury

Grand On

report following appears: IV. transcript “The of Patterson’s reason, If for no other is conviction that he as a showed was ‘called witness’ subject to reversal because of the denial grand jury, ‘duly before the * sworn’. right ” of defendant’s fair- to fundamental ** (Emphasis added) law, guaranteed by process ness due However, nowhere in the record before this multiple played by the the result of role anything there even show prosecutor in defendant’s Had Mr. trial. sworn, proof defendant duly let alone prosecutor in his single Harris been the of the same. office, ex- might there be some reasonable “testimony” The definition action, planation such is not for his majority opinion Wyoming taken from at Considering also that he had case. Loan and Company Trust H. Holli W. trial his first assist- during side the entire Company, Wyo. day (1890), 24 P. 193 ant, capable competent and who is a most provided concerning in a civil case prosecutor. Consequently, as I view money action to recover certain sum of trial, required necessary; or it was not appeal presented question 1890. The circumstances; proper that it nor was pertaining overruling a motion trial as testify and conduct the defendant’s for new trial. The definition of the word was done. “testimony” distinguish was offered it charging the information After he filed word “evidence”. While per- prosecutor perjury, the the offense correct, definition is sufficient following: formed proof required constitute in a charge of as a witness “in chief” 1. He testified perjury. prosecution. the for In a criminal trial all the of elements witness” a “rebuttal 2. He became proved. the offense must be In this case witness, expert as an qualified was charged testimony, the information false of a basis testifying on the oath; given consequently proof under proposition. hypothetical of the oath is an element the offense of the witnesses all interrogated He proved beyond should be a reasonable Harvey Mr. two, himself doubt, and to conjecture, should not be left Dowdy. States, or belief. In Smith v. United for argument closing the made 4. He supra, Appeals the of stated with Court sub- State, the case when the per- proof charge reference to of the of jury. the mitted jury: 46 P.2d State, 370 Okl.Cr. v. In Clark below, upon the “The error manifest circum- stated; “that this Court (1962), record, essen- was the failure 734 extraordinary

stances must be for the tion will unite the character of counsel prosecutor competent to become a wit- and witness in same the case.” extraordinary I ness.” fail to find those body In opinion following of that circumstances in this case. is found: language Supreme “The States, In 32 F.2d Robinson United Minnesota in Taylor, Ferraro v. 197 (C.A. 1929), 66 A.L.R. 8th Cir. 468 apposite: Minn. 265 829 is N.W. United Appeals States Court of stated part: practice attorneys ‘The furnish- ing lips their and on their from own “ ** * practice acting [T]he controlling own oath the

prosecutor ap- and witness is not to be for their client is one not to con- be in, proved, indulged and should not be * * * by judicial doned silence except extraordinary under most circum- good deservedly high name and stances.” * ** standing of the bar re- quires practice stopped, State, In Adams v. 202 30 So.2d Miss. nothing corruption short of can actual (1947), prosecutor disqualified 593 ” surely profession.’ more discredit the ex testifying. v. State Jenkins Sweat, rel. 242 Miss. 136 580 So.2d appeal before reargued When (1962), prosecutor was not considered Court, prosecutor if he was asked qualified testify. also: Bennett v. See considered defendant’s the re- trial met Commonwealth, Ky. 28 S.W.2d quirements of fundamental fairness set (1930); and Frank v. 150 Neb. Court, Supreme forth the United States prac- (1949). N.W.2d 816 especially insofar as he testified twice and improper tice is held in the ABA prosecutor continued to serve as chief Responsibility, Code Professional throughout prosecutor trial. The an- Association, Oklahoma Bar Canons swered that he did consider those Ethics,5 as in Bar as well the Oklahoma quirements added, were met and that he did Advisory Opinions Association Numbers not know that it would be him necessary for Bar 114. In the Oklahoma Associa- But, testify. to be witness and counsel Advisory Opinion tion of9 October No. produced copy for defendant of the In- syllabus recites: case, formation filed in this showed prosecutor was endorsed on the unprofessional “It constitutes conduct Information as the witnesses for attorney county for a or his assistant State. testify in a as a witness for the state they appear

criminal case wherein Consequently, considering that almost state, except counsel for as to mere- years passed two since Garcia ly formal matters.” signed and the circumstances Bond was testi- which existed at the time defendant Also, in the Bar Association Judge Fogg, fied before I believe Mr. Pit- Advisory Opinion September No. testify possessed man no more intent 25, 1936, paragraph second Fogg, prose- falsely before than the syllabus states: testify falsely cutor intended to on Janu- having just “No Judges member of bar ary before the three conception posi- proper of his true and this Court. Special [adopted 6,

5. Bar American Association Com- ABA Canons 1958]. Oct. adopted on Ethical mittee Evaluation of Stand- the Ethics of Professional ards, Responsibility, Supreme Code of Professional Court on 5-9, p. 59; Controlling Creating “Ethical Consideration” EC the Ok- “Rules “Disciplinary Rule,” 5-102, Association,” DR Jan. [eff. O.B.J. lahoma Bar “Canons, Ethics,” Professional 1970]. O.S.1961, 1, App. 3, 19, p. Canon Ch. States, to ed title and the had transferred Constitution listing prop- State of purpose proper of the Oklahoma. The adminis- for the O’Neal of justice appellate O’Neal suf- tration bonds and demands that erties on bail to the Bancroft review treat ficiently questions, with title fundamental when vested prejudice title Property have transferred clear is to caused defendant. party, least this to' that to an innocent third defendant receive is entitled to quit-claim deed trial. because was silent new agreement.6 concerning memorandum respect I my judges of views fellow Property

Whether the Bancroft or matter, compelled but also feel I sale, in disposed could have been my state appeal view Ap- of this in detail. which could instance the trustee have pellate review is not so much concerned trust, proceeds tained the sale in with the guilt innocence of the one con- or agreement provide, ques- does not and that victed, as it is with whether not the de- Court; nonetheless, tion is not before this fendant’s rights pro- constitutional were pos- agreement terms O’Neal tected; and whether or not he received a trustee; power sessed he the full of a fair trial according process to due of law. possessed full title the Bancroft I would reverse and remand this convic- Property, though as even trustee. tion, for the reasons stated. And lastly, I believe the manner in which prosecution used defendant’s earlier divorce, granted

uncontested grounds adultery because convictions,

wife’s religious was “unfair-

ly” done. Defendant cut-off explain

court he tried when the divorce Likewise, action. defendant should have BLOCK, Petitioner, Jessie been permitted explain the circumstances of a misdemeanor conviction for drunk Ray PAGE, Warden, H. Oklahoma State college driving, sustained when he was a Penitentiary, Respondent. student, permitted do was not No. A-15861. so. Both allegedly matters were entered Appeals Criminal of Oklahoma. purpose challenging into for the defend- June People ant’s moral v. Mat- character. thews, A.D.2d 305 N.Y.S.2d Div., S.Ct.App.Div. 1st York New

Court recited: it is as much

“We reiterate prosecutor

function of the as it is of

court to assure a fair trial to a defend- guilt

ant. ‘Even cases of clearest * * * duty at- of the district

torney refrain ad- from over-zealous Slover,

vocacy. (People v. 232 N.Y. 633, 634.)’.” 133 N.E. record,

As I of these view all viola-

tions precluded of fundamental fairness receiving trial defendant fair law, process

in accordance with due

guaranteed by Unit- Constitution O.S.1961, § 175.7. §

6. See: 60

Case Details

Case Name: Pitman v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 28, 1971

Citation: 487 P.2d 716

Docket Number: A-14551

Court Abbreviation: Okla. Crim. App.