*1 261 higher that a degree case of care usually than that persons exercised or- dinary prudence only about their affairs of
ordinary importance required. See
O.S.1961, 3 for “great definition § care.” plaintiff’s petition alleged, in alia,
ter “the defendant failed to that de use
gree of care and caution which an ordinari
ly prudent person would have exercised un
der the same or similar circumstances.”
We hold that pleading such did limit
degree only care to “ordinary that of care” defined (as O.S.1961, 3, su §
pra). „
We hold that the trial court not com-
mit refusing give reversible error in
requested in giving, instructions and in-
stead, upon imposing instructions or, City duty “great care”,
“great degree safety of care” invitees,
business including plaintiff.
Judgment affirmed.
(cid:127) IRWIN, J., DAVISON, V. C. WIL-
LIAMS, HODGES, and McINERY, JJ.,
concur.
JACKSON, J.,C. and BLACKBIRD and
BERRY, JJ., dissent. TILFORD, Error,
Freddie Lee Plaintiff
v. Oklahoma,
The STATE of Defend- ant Error.
No. A-14041. Appeals of
Court of Criminal Oklahoma.
May 31, 1967. Rehearing Feb. On Rehearing 18, 1968. March
Second Denied *3 Wise, Oyler Clay (Mac)
Malcome & City, plaintiff error. Atty. Gen., Blankenship, G. L. T. Charles Ownes, Atty. Gen., Asst.
in error.
BUSSEY, Judge.
Freddie Lee Alphonzo Melvin Lewis and Donald Lee charged conjointly in the District Court County, of Oklahoma with the crime of granted Murder. A severance was 1966, thereafter day February, 18th Alphonzo Melvin Lewis was tried a- jury, punishment convicted and fixed his at death in the electric Freddie Lee chair. Tilford, hereinafter referred to as the De- fendant, jury, guilty tried found fixing pun- linking Evidence adduced the trial judgment and sentence (cid:127)3md chair was the defendant in the electric with the commission death ishment day homicide, 23rd against follows: him on rendered appeal has March, timely A Levi Bret Gritts at around this Court. 1965, midnight 26, got perfected out on December in the front of his car and walked door of that on undisputed discloses the Fina service station located December, day evening 26th corner and Bartell northwest of 23rd Road men midnight, three approximately *4 immediately County in and ob- Oklahoma Bartell vicinity 23rd the and to drove Negro identified (later served two males alight County, two men Road Oklahoma Pendleton) near the Tilford and door as entered a service the car and ed' from and attendant across the the service station McDonald, and by operated Luther station Negroes the had a mustache. room. One of During the course proceeded rob him. thing The next he was recover- remembered entered robbery Bret Gritts one Levi of:the trying ing consciousness in the and restroom unconscious rendered premises and was telephone the police. He discovered by one of the rob by a blow administered were that his wristwatch and billfold miss- premises A was on bers: shot fired ing. appre- later Officer Don Robertson He and Mr. McDonald was wounded. time n hended the at which defendant accompany two then was’ forced to n wearing this was same wristwatch. parked where their automobile men Jerry Delaney that he testified was front seat placed was on the he he owner of the station and identified Fina sped away. shots car Several car and the pistol the .32 calibre Beretta as automatic body McDonald fired of Mr. were into by one owned and used for McDonald and North at the of 36th and intersection protection pistol at the was station. This scene) Mr. (a few from the Bartell blocks later found in the car that defendant by his the car McDonald was removed of, by got Kenneth out Officer Jacobson. pavement assailants and left wounded on Grady that he a Coffman testified was taken later and where he was discovered City in that police and officer of Midwest a result hospital expired as where morning capacity early in the of December gunshot wounds. 27, 1965, he at 23rd Street checked a car Douglas and Oklahoma Boulevard in robbery scene Taken from the where . sitting inside in and found the defendant Beretta auto- occurred calibre was .32 was the driver’s seat. The defendant asked belonging pistol matic and a wrist watch get during this time out of the car and deceased, belonging wrist watch car, by Linn Yarbor- another driven Mr. Gritts, cash in the and Levi males, Negro up ough, two drove with description amount of A $106.12. and later determined be Lewis travel- automobile in which robbers were passengers. Upon checking Yarbor- early ing given police and day, the officers ough’s automobile the next 27, 1965, an auto- morning of December the floor on pistol a .22 calibre found matching description mobile was dis- seat, front later passenger’s side by police covered Kenneth officers Jacob- weapon. identified to be the death Grady Doug- Coffman at 23rd and son that he was County. Boulevard in Fred- Kent Iiarrison testified Oklahoma las City police Tilford, herein, police an officer with the Oklahoma Lee die 26, 1965, he department and December occupant time of its of said at the vehicle intersection thereafter, north of the discovery went to block shortly Road to invest-' together Lewis, and North Bartell who of 36th with Pendleton the road. the side of by igate lying a man ón driven arrived at the scene in a car lying at that McDonald Yarborough, He found Luther placed !Linn under arrest. were ap- location and determined that had was ordered into car where he ! sat on parently . been shot about four times. After passenger side of front seat. De- victim, a brief conversation with fendant on the left sat side rear seat, other cars look right alerted radio to witness sat rear ' mustache, Negro males, for three one with side Lewis drove. Two shots Ford, driving possibly light a 1960 over fired inside the car from side where orange either later sitting. Shortly brown or color. He the defendant was there- ' appeared after, testified they pulled that he noticed what McDonald out of car to be blood on the hands the defendant and then to a cafe Pastures. drove Green police at the night they the There station on the had and he was some drinks shooting. ordered defendant to take his handker- wipe go chief and outside wet Singleterry Robert that he was of the car. the blood of the front seat out employed laboratory crime City Later back to Oklahoma started City police department and gas somewhere on 23rd and ran out of picked up physical certain evidence at *5 get and were able a He Lewis Street. the scene of the and crime also made a service station for man to them to drive diagram and photographs took of such gas, their car defendant while remained scene. He also searched the car returned, a they to wait for them. When got defendant out of and in the found police number around of officers were glove compartment four live .22 calibre police car. The and took arrested all three shells, and underneath the floor mat police them to the station. spent shells, along found three .22 calibre crystal. Defendant, with a watch Lee Freddie elected not to put any- take the stand nor to on Brown, Keith an officer with Okla- witnesses.' City police department, homa testified that he and argues Officer Booker searched The defendant propositions the three four subjects and person found on Pendleton’s of error for which he seeks a new trial. bloody Argued and wet handkerchief and propositions under the several are appeared assignments observed what be blood objections stains error to which no part lower pants. interposed, exceptions taken, were defendant’s nor and they will opinion, not be dealt with in this The state chemists testified that the blood although carefully the Court has ex- analyzed blood, and found be human error, amined assignments they these “O,” type and Doctor W. Tom Johnson are not of such fundamental character as type testified that McDonald’s blood was justify a reversal or modification of negative. “O” shall, judgment imposed. and We sentence Lee Donald Pendleton testified that he therefore,, consider defendant’s first charged was the person previously proposition and the assignments of error along with Lewis and defendant for objections thereunder to which were inter- McDonald, the murder of Luther posed exceptions ruling taken he was with and the Lewis defendant on court. night morning December 26th Proposition Number One is “CONDUCT December He further THE OF COURT WHICH they they parked the car PREJUDICED which DEFENDANT’S RIGHT ATO FAIR riding near 23rd Fina station at AND IMPARTIAL TRIAL.” and Bartell and that defendant he and inside, Shortly proposition, went Under inside. after went the first counsel for pistol. a shot fired defendant from a the defendant sets out from the case amade shortly He from station ran there- number of in which he instances believes rulings brought after the defendant there was error court’s station attendant, McDonald, objections. points He to the car. McDonald further out the have .a justice, and to see that both sides the court asked in which
following instance trial, may interrogate pur- impartial fair and question for clarification doing refrain so must poses: allowing or words his action from “BY MR. WISE: opinion to the his indicate Officer, you appeared Q. stated that or guilt or innocence of the you to blood? be credibility witness. A. Yes. right, judge 5. A trial has you Q. indicate to That would discretion, of his ask exercise jury perhaps you are me and to questions will tend to witness such certain; you certain, sir? are judge truth, long as the elicit and so If I were I would A. No sir. certain conduct, not, questions his does say so. matters to the indicate views as all. MR. I believe that’s issue, WISE: be heard to will not a defendant by him complain any question asked Robertson, this THE COURT: Officer reasonably to elicit which is calculated hands, substance defendant’s the truth.” appear to be the same substance pants ? was on his are of We please— If questions MR. WISE: the trial court Court remarks and order, Judge— quite in question, be here in seem to by the propounded question had off the (Whereupon a discussion was *6 part to judge trial was an effort on record.) (cid:127) clarify testimony relating the sub to please, comes If MR. the court WISE: defend of the on the hands stance observed ' a mis- and moves for now defendant , ant, jury. benefit for the upon particular in case based is: Two Proposition Number Defendant’s Honer, Judge question asked His ATTOR- THE COUNTY “CONDUCT OF county Parr, R. for reason that Jack 'RE- NEY MAKING PREJUDICIAL attorney that question, ask THE MARKS AND INTERJECTING mind might it not have called to INTO DEFENDANT’S CHARACTER question jury; that would such THE TRIAL THE DEFEND- WITPIOUT testifying could that the witness indicate THE STAND ANT HAVING TAKEN clearly opinion appeared an state that WHICH DEFENSE IN HIS OWN could when in substance he be to RIGHTS DEFENDANT’S PREJUDICED question that would not know and such TRIAL.” A FAIR AND IMPARTIAL TO jury doubt create minds position refers to regard of the defendant as to defendant In this Attorney County particular argument we feel closing case and jury “there is not prejudicial that a highly mistrial when advised is so these disputing time. be directed at this should one iota of evidence and that (CM 377), in this case” witnesses will THE for mistrial COURT: Motion not a “there is word of be overruled. disputed” (CM 378). put on that is state Exception.” MR. WISE: repeatedly held Court has This State, Stanley v. In the case of forbidding on the comment statute 122, 738, 230 P.2d this Court 94 Okl.Cr. testify in his own to failure of the accused held: argument of prevent fair behalf does not State, Okl.Cr.App., testimony. be Buie v. not,required to “4. A trial court . 368 P.2d umpire, the interest 663 . mere but .a
267 you, going lie to couldn’t State, Okl.Cr.App., 346 P.2d to still tes , Denney v. In tify wouldn’t, 359, Court, through the he and he speaking to could Powell, put stated: but I wouldn’t him on because I don’t Honorable Judge point, want him this when the State prohibiting “The statute com- all, made a case has not form of tes- ment on failure of defendnat try go stand and tify comprehensive in the extreme and explain explain away something or Appeals will not the Court Criminal my opinion, nothing In knows about. provisions as enlarge nor extend its so gentlemen, good judg it’s not ladies prevent the evi- a fair discussion of ment, and he didn’t that he wasn’t know dence, though even the defendant did not stand, thought going on the tie he was testify her and called no witnesses in ” * * * going stand. f deemed behalf. This statute will not be go prohibiting extent of com- We are of the upon reasonably ment be inferences Attorney remarks did not drawn from a failure to controvert constitute a comment failure by proper proof State’s evidence other behalf, testify defendant to in his own might given by than that which be might be assuming that such remarks so personally.” defendant j construed, the precluded assigning this as error remarks Generally, prose remarks of the response arguments were made in of de cuting attorney, might including such or fense counsel invited and were improper, would be otherwise are not by such remarks. grounds invited, for reversal where are proposition Defendant’s third “ER is: provoked, or occasioned coun accused’s OF, ROR IN ALLOWING TESTIMONY reply sel are to or retaliation for his AN WITNESS, INCOMPETENT DON-* Cherry acts or In the case statements. ALD LEE PENDELTON, OVER THE State, 37, v. Okl.Cr. P. it is AND EXCEPTION OF OBJECTION stated: DEFENSE COUNSEL.” Counsel for de *7 “It is not reversible error for counsel quotes page fendant after page of the tes for the state to comment on the failure of timony of the witness Pendleton in an at testify, a defendant to where defendant’s tempt discrepancies to show little therein, counsel himself first comments on the attempt and in a further to show that he fact that the defendant did take not did not remember things. certain After stand.” pointing out bits testimony, these precisely This is here, happened what for urges that the witness legally was in- appearing 386, page casemade at competent testify. to for counsel following made the In the case of Watkins v. Wat argument jury: to kins, 589, 206 434, Okl. 245 P.2d the Su n Mr. “ ** testify. Tilford did not preme Court held: my That choosing, his, was if “When court finds that at timé' guilty testified and he is he will lie person produced as a such you my sa.ve skin. Mr. Tilford t.o person mind, fully of sound under- guilty his innocence. If I was I would lie obligations stood the oath, of an you my save skin. Mr. Tilford capable giving correct accounts of testify could nothing whatsoever about issue, person matters such is not an only thing this crime. that he could incompetent witness previously because possibly have leaving said was about adjudged had incompetent.” been car, the they picked up fact that him and afterwards, he was in the car but as State, Further in the case of Beard v. 37 itself, 62, crime if guilty he’s 354, Court, he’s 256 Okl.Cr. P. this speaking 268 forth’,' Edwards, . the reasons above set
through! Judge For all of the Honorable n , - appealed from’ judgment . and sentence stated: is affirmed. objected a witness “When is by originally for the ground incompetent appointed ex- The date he or she Lee Til- intelligence, it is the of the defendant Freddie reason ecution of want pending appeal, it province having passed this to determine of the trial court ford ordered, adjudged decreed competency, decision witness’ and its judgment sentence of .will not there is a clear Court be reversed unless County be District Court 'of Oklahoma abuse discretion.” de- by the of the carried out electrocution State, Okl.Cr.App., See also Miller v. Lee Tilford the Warden fendant Freddie P. 403. McAlester, Penitentiary State of the discrepancies As the minor 7, Oklahoma, Friday, July testimony, in "the witness’ this Court stated State, Okl.Cr.App., in NIX, BRETT, J., the case of Hatfield concur. J., v. P. 2, 972, Syllabus P.2d the follow in No. ing: OPINION MEMORANDUM ON REHEARING conflicting,
“Where the evidence credibility weight BUSSEY, Judge. jury, and Crim- is for the witnesses 31, 1967, May Court affirmed On , Appeals will not substitute inal Court of error, plaintiff conviction jury where judgment its for that defendant, where- referred to as hereinafter reasonably tending to there is evidence offense he had convicted by the support reached the conclusions trial, of his At the conclusion of Murder. 'jury.” punishment at death assessed testimony of From an examination of the electric chair. we are Thereafter, submitted matter was dis- did not abuse that the trial court Re-hearing, reconsideration on Petition competency of determining the cretion in reviewing In of this Court. under rules said witness. the Petition for allegations contained Court, day Re-hearing, on the 27th a consideration This leads us. Evidentiary Hear- July, ordered an assignment and last fourth of defendant’s conducted, pertinent parts of ing be error, being: “CUMULATIVE being as follows: said Order WHICH, CONSIDER WHEN ERRORS *8 “WHEREAS, has in Error Plaintiff TOGETHER, DE THE ED, DENIED Rehearing in the filed Petition AND IMPAR FAIR OF A FENDANT cause, styled alleging numbered and above carefully ex have" We TIAL TRIAL.” following the trial court made that entirety and after its record amined jury: presence statement in the of that conclude must careful examination COURT: ‘THE or combination single error there is no has that court require a reversal the record Let show sufficient errors observe the imposed. opportunity had sentence modification impartial examination under direct both a fair and witness accorded defendant was extensive, repetitious highly The un- peers. and under his jury of trial before is im- court and the convinc cross-examination and clear evidence is controverted that witness wantonly the fact pressed with unmercifully and ing sane, quite shot, only obviously not but to kill intention with the deceased straight- are competent. His answers city on streets him arid him left in all material forward, he is coherent to die.
269“ respects appearance Mary Harris, and his de- and Mrs. jurors, O. one display the meanor on the stand utmost and the defense, first > witness for difficulty assurance. He has had no testified that she did hear not com- plained past in detailing events under the most conversation. The defense at- grueling and there- torney cross-examination then her asked if she did state fore, Wise, your Mr. motion for mis- “she had and every heard remembered court will he overruled word of conversation” in a discussion any beyond before, that the had with her day convinced doubt to which she replied that only competent witness is not opinion this was an she had basically formed. but has testified to the truth She further testified that she words, objections heard this case. some few but one Your will be no sentence. overruled.’ She stated that because of the circumstances fact that the attorney defense made WHEREAS, necessary AND objections many approach asked to a. determination be proper- of this issue to bench, she reached the ly a hearing considered this Court that discussing competency he conducted in the District Court of n actually but that she testimony at which did not hear conversation. Judge the trial and counsel for de- fendant and counsel for the State be The next defense witness was Willie given opportunity present an testi- Jacobs, juror an alternate who stated:- mony issue. “Yes, part, I did hear. I couldn’t hear you mean, know what I the exact words IT THE IS THEREFORE ORDER OF said, that he all them.” Pie further the Presiding Judge THIS COURT that that the Judge’s stated tone voice was of the Seventh District direct Judicial just normal, about not an hearing outburst be conducted testimony not a soft His tone. further raised, issue so transcribe the evidence revealed that Judge he was closer presented thereon, copy and transmit a Reporter and the Court than other said record within reason- Court juror Judge and he hear Parr state able time. competent witness Pendleton was » n nn testify. Shortly thereafter the trial Thereafter, September Sep- 6th and ended was excused as an alemate 11th, 1967, proceedings -tember were had juror and did not enter the room when cause, said same were transcribed deliberating. they were .and filed with Court on October Rohrer, Harley The next witness was S. juror, the other alternate who testified Evidentiary Hearing In the first words, heard some had Parr, Judge witness was R. who was Jack long exactly say that he could not so n theTrial original Judge proceeding. impression what he had heard. It was He testified to the fact that the conversa- testi- Judge ruled that Pendleton’s complained tion defendant was held too, mony He, competent. was closer bench, Judge’s .at the in low monotones and Reporter than Judge to the Court *9 opinion, jurors not have in his the could jurors, the and he testi- any regular the conversations. Curtis P. "heard Mr. part although he a that heard fied Harris, County Attorney then who tried the statement, whispered Judge a Parr’s was case, essentially original the testified the conversation. by testimony given Judge as that Mary juror next was Louise Parr, The witness felt that none of the too although the Schott, that any who testified have heard remarks made jurors could whispered, complained of conversation was Court that time. by or the Mr. Wise testimony Pendleton. give the it, the parts did not hear but she did us, However, the record before we do it her attention. partici- any jurors the not that who find juror Francis was W. The next witness pated heard this remark in the deliberation complained of the that Holt who testified by for were influenced it. or Counsel tones; in subdued conversation was every opportunity to given defense were state- make some the Court he did hear produce complained evidence that ; thought he heard what ments jurors by remarks heard who competency of reference to was in verdict, they failed participated but the witness. burden, although meet we are confi- Wise, Clay The next witness was they diligence in at- dent that exercised trial, testified attorney at the who defense tempting It evidence. to secure such spoke in a subdued voice Judge alleged significant the time the that at juror, if he opinion that a it was his specific ob- remarks were made that no to, really hear statement wanted could only jection but was taken to remarks standing in Court; that he was of the Moreover, ruling court. we Reporter and could the Court front of specific assignment observe that “hearing and that his hear the conversation for error was not set forth in the Motion bad, very bad.” was until New Trial and that was- not Mary was The next witness called Jo petition great emphasis rehearing for Nelson, reporter Pub- a placed alleged irregularity. on this that she lishing Company, testified who must, therefore, We conclude Judge’s standing very close assignment supported by of error is not Judge’s con- bench and that she heard the and for hold the record this reason versation, spoke Judge and that the louder it does not form either a basis for a modi- whisper, than tone. a a normal judgment fication reversal of Lee The last witness was Freddie called by jury. sentence rendered defendant, who testified presume will not either This Court Judge’s heard conversation. right waiver of constitutional from a For the record Mr. then testified Wise record, presume silent or will it error and Oyler that he had tried to contact and Mr. upon it is error asserting incumbent one all reach jurors, of the but were unable to appeal support alleged assignment them; however, four he did want by preserved properly of error every record show that had made in the record. jurors. effort all to contact fully Having assign- dealt the other with question before us original opinion, ments of error in our we enough determination is whether judgment are of the that the to, judge’s statement above referred be, appealed should sentence by jurors was heard so as to create hereby, It is the same is AFFIRMED. prejudice against the defendant. There judg- further order of this Court that the question jurors is no but that if ment and of the District Court sentence judge’s heard the statement that “the court be carried out of Oklahoma beyond convinced doubt that Lee electrocution of defendant Freddie only competent witness is not Tilford Peni- Warden of State basically but has the truth McAlester, Oklahoma, tentiary on Fri- this case” this remark would constitute day, April error, clearly for it a comment reversible weight credibility given to be BRETT, J., concurs.