*1 presence ants, made outside them, and error such
others, implicating by the court’s instruction is not cured should be considered that the confession guilt determining the confessor’s only in as to others.” and not considered State, Okl.Cr., 330 P.2d Phillips Also see States, v. United and Bruton supra. that the defense reveals
The record upon finding out that counsel for Hubbard going introduce attorney district by the co-defendants the confessions asked a sev moved for a mistrial mo We believe this erance his client. tion been sustained should have Hubbard should as to defendant severance granted. have been forth, For heretofore set the reasons judgments and sentences rendered Allen, Mosley Lee Ronnie Lee Clark and judgment Jr., are The affirmed. and sen- against Conway tence rendered Hub- Jmill accordingly bard is reversed and remanded for a new trial. BRETT, JJ„
BUSSEY and concur. STEWART, Appellant, Jack Oral Oklahoma, Appellee. The STATE of No. A-17178. Appeals Court of Criminal of Oklahoma. May 2, 1973.
Larry Gen., Derryberry, Atty. Michael Cauthron, Atty. Gen., F. Al- Asst. Charles Intern, den, III, appellee. Legal
OPINION
BUSSEY, Judge: Stewart, Appellant, Oral was con- Jack District of Tulsa Coun- victed Court Oklahoma, CRF-70-1162, for ty, Case No. Firearms, Robbery the offense of Felony, and After Former Conviction of one to serve not less than was sentenced thirty-three and not (133) years hundred ninety-nine (399) more than three hundred years penitentiary. confinement appeal conviction, said his From perfected. has Court been tes- At the Lealon Johnston James approxi- tified that on at June car, mately p. he m. met a which 10:15 road, on traveling wrong side on Deputy way from as a his home work He Muskogee, Oklahoma. Sheriff stopped and Frank Chase said car found testified driving the automobile. Johnston turning looking after the car and into men, car, occupants his back on the four his car, removed jumped and Johnston plastic stag grips. pistol, which had John- as identified the defendant ston According jumped men four who front got Johnston, the defendant and Frank Chase car seat of Johnston’s pistol got backseat Johnston’s he then stated that was in hand. Johnston to Tulsa and gunpoint drive forced prior money just that he offered some testi- further entering Tulsa. Johnston he de- was taken to what fied he house,” be- as the “first scribed According longed to Chase. inside the house Johnston, he was taken and both defendant and beaten kicked house, eye- and Chase. At Johnston’s hands glasses removed and were Johnston’s his his back with were handcuffed behind Again defendant own handcuffs. beating began Johnston. Johnston placed Rapp, Howard, Rapp stated that the handcuffs were Keith Gas- W. & him- Tulsa, he freed appellant. tight on his hands and that kill, slapper stopped his who from testified he self removed County Osage in a de- both defendant vehicle in while the pocket swung hit Ac- driving fendant was 1970. Subsequently, and Chase. Johnston Rawlinson, Deputy cording to defendant was object in the head. hit with hard rights. then taken vised of his Rawlinson stated testified Johnston eye Again, defendant had laceration over “second house.” Johnston *3 and stories gave and that five or six by forced defendant Chase. defendant inside minutes, transpired previous had was about what on the After about five Johnston night that morning. railroad and on out the house to some taken of and kicked tracks where Officer, Secrist, Johnston Earl Tulsa Police a again. Chase left scene beaten Frank interrogated he the defendant stated that had a Defendant for moment. morning Johnston’s m. the of about 11:00 a. on June depu- put in the gun. gun the Defendant seem the not defendant did back, deputy’s back ty’s reached the intoxicated and that the defendant was billfold, deputy’s pocket and removed the rights his to remain of vised Defendant re- dollar. which contained one silent, appointed an a court attorney, to to and re- from the billfold moved dollar necessary, anything if attorney and that pocket. placed the into billfold might say Johnston’s would be defendant used along this, and with returned After Chase him in court. The defendant’s statements deputy his defendant, placed the paralleled testimony of substantially again scene and left the own car. Chase day, Earlier the same Officer Johnston. deputy out to defendant drove Officer had a conversation Secrist by country deputy was beaten where standing regard defendant to defendant finally left the defendant. Secrist, lineup. in a According to a notifi- deputy grass in a field thrown lying rights standing cation as of a to when he felt on stated that defendant, lineup given including Johnston to Duty’s safe, it to Ed house. he walked had a to an fact that defendant a According Johnston, billfold he found to lineup. attorney present noti- for the This in his belonging Chase automo- to Frank defendant, read defend- fication was but in- after the approximately bile two weeks However, ant sign refused to a waiver. cident occurred. agree defendant did to stand in the Secrist, approxi- According Duty at defendant Mr. Ed testified that Deputy and a blow on his at this mately on bruised had head 3:00 a. m. June early morning lineup handcuffed and defendant to his house came Johnston Duty, he not alert as later when and as he was on bleeding. According John- gave cut from the handcuffs his statement. ston’s hands were of from loss deputy and the was weak Larry Johnson, of Detective the Tulsa blood. Department, Police testified that he went Harmon, Tulsa Roger a Police Officer Frank on the residence of June Officer, duty on that he was on 29, 1970, Upon testified along with other officers. 27, 1970, 4:00 m. approximately a. house, slightly the door was arrival at Duty’s dispatched to and that he was ajar for Chase to sur- yelled and Johnson Upon Duty resi- arrival at house. reply, receiving himself. render Not dence, he with handcuffs found officers entered other Johnston Johnson “stomped” the deputy and down observed large premises. observed a Officer Johnson bleeding deputy’s profusely. to the Due eyeglasses, pool dried subse- blood and condition, it best take thought Harmon Deputy quently returned to Johnston. ambulance, he to meet the stag pistol grips, horn a crescent Pieces of Johnston did. wrench, receipt belonging Rawlinson, by also investi-
The Chase were observed State next called Claude Department, gating an officer of the Tulsa Police officers. juror and an officer the court. Since testify in own did not defendant
The
participated
in the misconduct
three wit-
did call
behalf,
defense
but the
Deputy
the context
the conversation is within
called
The defense
nesses.
John-
partici-
knowledge
McCombs,
of the state and
ston,
who was
Cecil
incident,
show
non-
Van
should
called
its
alleged
Bill
pant
County,
prejudicial
Okla-
effect.”
Zant,
Muskogee
Sheriff
from the
elicited
testimony
The
homa.
instant
the State’s
de-
witnesses manifested
principal witness testified that the conver
money
facts
fense consisted
sation did not relate to facts or circum
and Chase
by
offered
he
stances of the case and that
did
accepted by Deputy Johnston,
John-
person
spoke
know that the
with was
“first house”
at the
fight
ston started
juror.
testimony put
The
de
concocted the
Deputy
Johnston
*4
prejudice
was not
show
fense
sufficient to
($1.00)
story
of one dollar
robbery
of the
to the defendant.
do not think that
We
money of-
of
acceptance
cover his
the
to
exception
the
case
announced
the Fields
by
féred
defendant and Chase.
Hence,
is applicable
the case
bar.
we
to
that be
first contends
opinion
proposition
are
is
of
Defendant
or
of a conversation
communication
cause
without merit.
principal witness and
between the State’s
proposition
Defendant’s next
asserts
during the course
the foreman of the jury
in admitting
that the trial court erred
evi
trial,
grant
erred in
of
the trial court
not
of
crimes
to the
dence
other
unrelated
In the
ing
for mistrial.
defendant’s motion
charged.
specifically as
crime
Defendant
State, Okl.Cr., 397 P.2d
Hayes v.
of
case
improperly
serts that evidence was
admit
524,
paragraph of the
first
we stated
ted
at
burglary
which tended to show a
or
Syllabus:
tempted burglary by defendant and a com
juror
a
“A casual conversation between
panion,
improperly
ad
evidence was
relating
not
for the state
and witness
sodomy
pointed
mitted which
out that oral
prej-
generally not
on trial is
case
attempted upon
complaining
wit
error,
awith
though
udicial
conversation
ness,
physical
of
and that certain
evidence
is
persons
the case
party
about
or other
In
improperly
other
admitted.
crimes
the verdict.”
ground
setting
aside
Okl.Cr.,
State,
of
v.
476
case Moulton
further
body
Hayes
we
In
of the
we
P.2d 366
stated:
stated:
general rule in
“The
this state is
authority
is
by
“It
conceded
abundant
upon
put
is
trial for
when
defendant
final
and numerous decisions that after
convicted,
is to
if at
one offense he
be
separation
jury
or
submission
of
all, by
evidence which shows that he
in-
any
subjecting
action
them to outside
guilty
that offense alone and the ad-
the de-
presumed
prejudice
fluence is
crimes,
mission of evidence of other
ei-
is upon
fendant
burden
prior
subsequent to the
ther
or
offense
prove
final sub-
otherwise. Before
for which
is on
is inadmissible.
trial
upon
are clear
mission
courts
However,
separate
evidence of
and simi-
separation
burden of
matter of
—that
offenses is
when it is ma-
lar
admissible
show
proof is
defendant
motive,
proper
(1)
terial and
to show
prejudice
a fair trial.”
or denial of
intent,
ac-
(2)
absence of mistake or
(3)
exception
In
to the
arguing that an
cident,
identity
person charged
(4)
exists,
Fields
cites
v.
Hayes case
defendant
with the commission
the crime
we
P.2d
wherein
364
723
is put
which an accused
stated:
plan embracing the
common scheme or
that should
two or more crimes so related to each
not think that
“We do
proof
between a
other that
of one tends
establish
rule when the misconduct was
State,
Epperson
v.
required
Swenson,
See
Okl.
favor as
other.
under Ashe v.
Cr.,
1017;
State,
P.2d
Parks v.
Okl. 397
U.S.
90 S.Ct.
1075. Modified and affirmed. lastly contends, prop- in three BRETT, Judge : (dissents) ositions, punishment that the in the case excessive, respectfully erred to this deci- the trial court I must dissent improp- a mistrial granting based the same reasons stated sion for dur- er comments and conduct of the (1973). State P.2d 171