STATE EXECUTIONS NEWS ARTICLES
1957 OK CR 114
321 P.2d 990
Case Number: A-12467
Oklahoma Court of Criminal Appeals
District Court of Tulsa County; Leslie Webb, Judge.
Edward Leon Williams, was convicted of the crime of kidnapping,
death in the electric chair, and he appeals. Affirmed.
A. Ladner, Jr.,
Fred W. Woodson, Jr., Tulsa, Paul Gotcher, Muskogee, for plaintiff in
Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
Plaintiff in error,
Edward Leon Williams, defendant below, was charged by information in
District Court of Tulsa County, Oklahoma, with the admitted crime of
kidnapping, committed on December 17, 1956, against one Tommy Robert
the aforesaid county and state, in violation of 21 O.S. 1951 § 745
Defendant first entered a plea of not guilty, but several days
thereto withdrew the same and entered a plea of guilty before Honorable
W. Webb, Judge of the District Court. On the plea of guilty, the
sentenced to death in the electric chair. Judgment and sentence were
accordingly, from which this appeal has been perfected.
On this appeal, the
defendant seeks relief from said penalty of death upon two propositions
hereinafter set forth. First, he contends the trial court erred in
the county attorney to make a statement in substance detailing the
crime of kidnapping, another offense immediately preceding the
(supplying the motive therefor), and other crimes following the
facts, briefly, in regard to the crime herein alleged are that the
Robert Cooke, a theological student, stopped his car at about 5:30
Sunday, June 17, 1956, at the stop light at the intersection of Third
Cheyenne Streets in Tulsa, Oklahoma. The defendant, who was standing
approached and at pistol point forced his way into the Cooke
directing Cooke to drive south on Highway 64. Thus, the crime of
completed by these acts. Norris v. State, 68 Okl.Cr. 172, 96
Thence, he compelled Cooke to drive to Bixby, Oklahoma, where under the
persuasion of his pistol, the defendant took from Cooke's billfold $5,
which he paid for gas, and forced Cooke to continue on South on Highway
a point approximately three miles east and four miles north of Taft,
in Muskogee County, a point with which he was apparently familiar, the
defendant marched Cooke into the weeds off a dead-end road, with Cooke
not to be tied up, according to Williams' confession, and shot Cooke on
right side of the head behind the right ear, affecting his
The life of Cooke was apparently taken with the cold blooded intent of
eliminating the possibility of positive identification. This might have
resulted had it not been for his subsequent depredations. The accused
stole the decedent's automobile and sought to effect an escape from his
It appears the night
preceding the kidnapping, about 1:00 a.m., the defendant drove into a
Service Station, bought gas, asked how much he owed the attendant,
the automobile he was driving, got a .38 caliber pistol, told the
wanted his money, thus obtained $30 in currency, forced him inside the
for more money, and required him to go into the rest room with the
"You come out and I'll blow your head off." Later, in flight from
pursuing policemen, he wrecked his automobile, but avoided apprehension
crawling through two-hundred feet of culvert, hiding in a wooded area
evening of the kidnapping when he came out and consummated the
It is apparent the
motive behind the kidnapping was to avoid apprehension by the officers
robbery with firearms committed the night before. After kidnapping and
Cooke, and stealing Cooke's automobile, the defendant drove to
Oklahoma, where he committed an armed robbery of his former employer of
Later, he abandoned the Cooke automobile and returned to Talihina where
burglarized a grocery store for food with which to sustain himself in
mountains. Thereafter he was arrested on a bus by a member of the
Patrol at Poteau, Oklahoma, and a short time later confessed the murder
Tommy Cooke, taking the officers to the point in Le Flore County,
where he had disposed of the gun, which the officers recovered and
ballistics experts established was the gun that killed Cooke. All the
occurrences the County Attorney detailed in his statement relative to
motive for the kidnapping. In addition thereto, his F.B.I. record
prior convictions for automobile theft, robbery with firearms, and
was submitted to the trial court. It is thus apparent that this
defendant, though only twenty seven years of age, had long been a
The court proceeded
with great care and caution in this case relative to the defendant's
constitutional and statutory rights, even delaying the pronouncement of
judgment and sentence for forty eight hours after the defendant's plea
guilty, even though the defendant had waived his right thereto and
for the pronouncement of judgment and sentence. Notwithstanding these
the defendant complains the trial court erred in allowing the County
to orally state these foregoing facts by way of aggravation. The
contends that this procedure was in violation of the provisions of 22
§§ 973-975 [22-973] [22-975] inclusive, reading as follows:
973. After a
plea or verdict of guilty in a case where the extent of the punishment
with the court, the court, upon the suggestion of either party that
circumstances which may be properly taken into view, either in
mitigation of the punishment, may in its discretion hear the same
a specified time and upon such notice to the adverse party as it may
circumstances must be presented by the testimony of witnesses examined
court, except that when a witness is so sick or infirm as to be unable
attend, his deposition may be taken by a magistrate of the county out
at a specified time and place, upon such notice to the adverse party as
court may direct.
affidavit or testimony, or representation of any kind, verbal or
be offered to or received by the court or member thereof in aggravation
mitigation of the punishment except as provided in the last two
In this connection,
it has been held that on a plea of guilty in a capital case, it is for
trial court to determine whether the defendant should be punished by
imprisonment or by imposition of the death penalty. In re Watkins, 21
95, 205 P. 191; In re Opinion of the Judges, 18 Okl.Cr. 598, 197 P.
546; In re
Opinion of the Judges, 6 Okl.Cr. 18, 115 P. 1028. Nevertheless, on a
guilty, the provisions of the foregoing statute may be invoked when
made for the taking of evidence on the question of aggravation or
punishment. This request may be made by the state or the defendant.
It has been held not
to be improper to employ this method of procedure in the absence of a
therefor. In re Watkins, supra; State v. Arnold, 39 Idaho 589, 229 P.
two things are clear under the provisions of § 973. First, pursuing
of procedure is a matter of the trial court's sound discretion. Second,
is further contingent upon the request of either the state or the
We have never been
called upon to directly pass upon this question. Under the Criminal
Illinois, S.H.A. ch. 38, § 732 [38-732], it is provided:
where the court possesses any discretion as to the extent of the
shall be the duty of the court to examine witnesses as to the
mitigation of the offense."
wording of this
statute would appear to be more mandatory than that of the Oklahoma
question. Even so, in Illinois it has been held that the foregoing
of said statute are waived by the failure of the parties to the action
invoke its use by request. People v. Crooks, 326 Ill. 266, 157 N.E.
v. Throop, 359 Ill. 354, 194 N.E. 553; People v. Clark, 387 Ill. 468,
785; People v. Evans, 379 Ill. 430, 74 N.E.2d 708; People v. Thompson,
114, 75 N.E.2d 345, certiorari denied 332 U.S. 856, 68 S. Ct. 384, 92
425, and 337 U.S. 943, 69 S. Ct. 1497, 93 L. Ed. 1747; People v.
Ill. 336, 75 N.E.2d 861, certiorari denied 333 U.S. 882, 68 S. Ct. 908,
It is contended that
under the provisions of § 975 it is the mandatory duty of the court to
witnesses. But, in construing §§ 974 and 975 in light of the provisions
973, we are of the opinion that both the provisions of § 974 and § 975
contingent upon the request for evidence under the provisions of § 973,
is within the trial court's discretion to pursue some other reasonable
When the parties fail to make a request for the privilege thereof, the
waived and some other method of supplying the court with the necessary
information for the pronouncement of judgment and sentence may be
instead. 24 C.J.S. Criminal Law § 1983, note 33, p. 1206; People v.
267 Ill. 45, 107 N.E. 871, 872; People v. Withey, 387 Ill. 418, 56
certiorari denied 323 U.S. 800, 65 S. Ct. 552, 89 L. Ed. 638; People v.
391 Ill. 15, 62 N.E.2d 807, certiorari denied 326 U.S. 792, 66 S. Ct.
477, 90 L.
Ed. 481; People v. Farris, 392 Ill. 267, 64 N.E.2d 456, certiorari
U.S. 811, 66 S. Ct. 973, 90 L. Ed. 1036; People v. Curth, 398 Ill. 322,
N.E.2d 755; People v. Fleming, 406
Ill. 389, 94
People v. Hall, 407
Ill. 137, 94
certiorari denied 340 U.S. 937, 71 S. Ct. 483, 95 L. Ed. 676; People v.
174 Misc. 31, 18 N.Y.S.2d 844; People v. Van Orden, 174 Misc. 65, 19
In regard to § 973,
in Herren v. State, 74 Okl.Cr. 432, 127
this court said:
statute the extent of the inquiry, when the accused comes on for
of sentence, is a matter addressed to the sound discretion of the trial
this record, at no
time did the defendant attempt to invoke the provisions of this
statute. He did
not at any time request the taking of evidence in mitigation or offer
slightest statement by way of mitigation. He only asked for mercy,
did not show his victim. We are therefore of the opinion that the
first contention under both the law and the facts cannot be sustained.
Therefore, the trial court neither erred nor abused his discretion in
the County Attorney's oral statement before pronouncing judgment and
Particularly is this true when the defendant, after the statement had
into the record, upon the trial court's interrogation, admitted:
at that time on Wednesday, there was a statement of facts made by the
relative to this case and the sequence of events and the facts
sequence of events and the facts surrounding the commission of this
you have any correction to make in reference to the statement of
the State, in that regard?
you at this time admit that they were true and that you committed the
set forth by the State, that is correct, is it?
right. Do you have anything further to say on behalf of this defendant?
is apparent that
the defendant not only waived the provisions of 21 O.S. 1951 §§ 973
974, 975, but he at no time intended to invoke said provisions for
since apparently he had no such evidence to offer. In the absence of a
mitigation in a capital case, the extreme penalty may be imposed.
Cal. 2d 417,
41 P.2d 165.
Finally, it is
urged, "The extent of the punishment is excessive and disproportionate
the crime of kidnapping, and the death penalty was actually punishment
murder committed in Muskogee County, Oklahoma, as part of the same
for which the defendant had been previously convicted and sentenced."
is further urged the crime of kidnapping merged into the crime of
Neither of these contentions can be sustained, for the law defines
kidnapping as two separate and distinct offenses. Therefore, there
would not be
such thing as merger of these separate offenses. Furthermore, Oklahoma
recognize such doctrine. Burns v. State, 72 Okl.Cr. 432, 117
McCreary v. Venable, 86 Okl.Cr. 169, 190
State v. Stout, 90 Okl.Cr. 35, 210
It is further urged these crimes arise out of the same transaction; but
fact will not result in a merger of these separate and distinct
v. Moore, 326 Mo. 1199, 33 S.W.2d 905. Although certain consequences
from certain prohibited acts, but are not necessarily the result of
prohibited acts, each of said acts may be prosecuted and punished as
and distinct offenses, when so defined by statute. In such case, the
imposed would not constitute double punishment. State v. Empey, 65 Utah
239 P. 25, 44 A.L.R. 558. In 24 C.J.S. Criminal Law § 1990, note 10, p.
the rule is stated:
several offenses, although each is part of the same transaction, * * *
imposition of separate punishments on conviction of each offense is not
punishment, * * *."
v. Cox, 8
Cir., 143 F.2d 900; Tesciona v. Hunter, 10 Cir., 151 F.2d 589; Carroll
Sanford, 5 Cir., 167 F.2d 878; Murray v. United States, 9 Cir., 217
Commonwealth ex rel. Withers v. Ashe, 350 Pa. 493, 39 A.2d 610. Hence,
punishment herein imposed for kidnapping is not objectionable on the
that it constitutes double punishment. The statutes of Oklahoma provide
death penalty for three crimes other than murder, 21 O.S. 1951 § 701
These three crimes are robbery with firearms, 21 O.S. 1951 § 801
in the first degree, 21 O.S. 1951 §§ 1114 [21-1114], 1115; and
O.S. 1951 § 745 [21-745], all of which constitute separate and distinct
The legislature, in fixing the penalties for these crimes, apparently
them of heinous character because they always present a potentiality of
for the victim. The maximum penalty fixed by the legislature for these
a legislative belief that they were regarded as of equal gravity. From
County Attorney's statement to the court, it appears that in addition
crimes of kidnapping and murder, within the space of three days
committed the crime of robbery with firearms three times.
In none of these
crimes, as revealed by a search of capital cases, is the possibility of
to the victim so certain as in the crime of kidnapping. For example,
resulted to each of the following victims of kidnapping: Charles A.
Jr., 1932; Charles Fletcher Mattson, 1936; Charles Sherman Ross, 1937;
David Levine, 1938; James Bailey Cash, Jr., 1938; Robert C. Greenlease,
1953; and Wilma Frances Allen, 1955; and others.
The reason for killing
the victim is obvious. It is to destroy the means of the kidnapper's
identification. Hence, it was reasonable for the trial judge, in
defendant's intent at the time of the kidnapping in the case at bar, to
consider that the defendant, Williams, not only intended to deprive
of his liberty and property, but to take his life as the means of
the defendant's identification. Moreover, it was for the trial court to
consider that thereafter it was the defendant's intent to steal Cooke's
automobile as a means of avoiding apprehension for the violations he
already committed, and also to use it as an instrument of escape for
crimes he intended to commit in his one man crime wave. Yet, it is
is nothing particularly vicious in the single act of kidnapping.
We might agree that
contention possesses merit when the kidnapping is viewed as an isolated
But, the courts are not required to insulate themselves to facts
manifesting intent, and the ultimate consequences of criminal acts.
cold law, righteous justice, nor plain logic requires such an approach
problem of imposing punishment in any case. To the contrary, justice
consideration of all the factors leading up to, at the time of the
of the act, and even acts occurring subsequent thereto, in determining
in many cases. When so measured, the instant act of kidnapping presents
heinous picture. Tommy Cooke was marked for death immediately upon
asserting dominion over him. The defendant's dastardly intent was
when he lost little time in compelling his victim to drive to an
dead-end road where, in a cold and calculating manner, he immediately
him. These are all matters within the trial court's discretion and
consideration in determining the penalty to be imposed.
In People v.
Popescue, 345 Ill. 142, 177 N.E. 739, 744, 77 A.L.R. 1199 at pages
it is said:
is as much
for the protection of the accused as it is for the people that, after
question of guilt has been admitted by a plea or reached by verdict,
should know something of the life, family, occupation, and record of
about to be sentenced. One of the most natural and common inquiries is
the guilty person has ever been previously convicted of the same or
offense. Courts are usually more lenient in pronouncing sentence upon
offenders. If the judge in making this inquiry has learned of some
crime which the defendant admits he has committed, can it for that
said that the sentence imposed upon the guilty person was due to
should be set aside? Surely a provision of the law which often results
and leniency toward a first offender cannot be the cause of error in
where the trial judge, in making this inquiry, finds that the defendant
committed other crimes of similar character. Such a construction would
that hardened criminals and so-called `repeaters' could hide behind
records, and that a judge, before pronouncing sentence upon them, would
powerless to inquire into their past records.
decisions of other jurisdictions it has been held that, where the court
discretion in fixing the punishment, it may consider the moral
character of the
accused, and such other evidence as it may deem necessary, as a guide
determining the punishment to be imposed (16 Corpus Juris, § 3065, p.
State v. Wilson, 121 N.C. 650, 28 S.E. 416; State v. Wise, 32 Or. 280,
800, 801; State v. Burton, 27 Wash. 528, 67 P. 1097, 1099; State v.
S.C. 139, 60 S.E. 434, 14 Ann.Cas. 968) and in considering evidence in
aggravation or mitigation of the offense the court may consider many
`not admissible on the issue of guilt or innocence' (Toomer v. State,
285, 76 A. 118)."
the same effect is
Powell v. State, 94 Okl.Cr. 1, 229 P.2d 230, where it is said:
has a discretion as to the character or the amount of punishment, it
guided in the exercise of such discretion by accused's past record, by
motives actuating the crime, or by the fact that accused previously has
convicted of a similar or other offenses."
the body of the
opinion citing 24 C.J.S. Criminal Law § 1980, p. 1195, it is further
generally requires consideration of more than the particular acts by
crime was committed, and that there be taken into account the
the offense together with the character and propensities of the
We can reconcile
the logic of this contention only by entering the isolation booth of
ignorance as to all the facts of this case and by approaching the
with an attitude which neither law nor justice require. The legislature
no limitations in the statute, 21 O.S. 1951 § 745 [21-745], the
of which reads as follows:
who, without lawful authority, forcibly seizes and confines another, or
inveigles or kidnaps another, for the purpose of extorting any money,
or thing of value or advantage from the person so seized, confined,
or kidnaped, or from any other person, * * * shall be guilty of a
upon conviction shall suffer death or imprisonment in the penitentiary,
less than ten years."
defendant's contention would compel us to read into the statute
the legislature did not include. In truth, the legislature left the
imposition of the penalty in a case of kidnapping, where the plea is
the trial court and his sound discretion to be measured by the motive,
and its consequences. The reason for the lack of limiting provisions in
are apparent. It was passed shortly after the Lindberg Law, 18 U.S.C.A.
in 1935. It was intended as a strong deterrent against such
unlike the Federal act, it did not impose such requirements as bodily
death as a condition for the imposition of the death penalty. Clearly,
legislature did not intend that the courts of the State of Oklahoma
temporize with kidnappers. Neither did it intend that court should
with habitual criminals. The statutes provide for enhanced punishment
offenders. It is a fact that many of our most heinous crimes are
It is our sworn
duty to uphold the law as written by the legislature. It is also our
to sustain the trial courts in the absence of error or abuse of
of which we find in this record. We are concerned, herein only with
law. Mercy, which this defendant did not extend to his victim, is
power of the Pardon and Parole Board and the Governor. Art. 6, Sec. 10,
This is not the
first capital case in which the death penalty has been imposed on a
guilty. Ellis v. State, 54 Okl.Cr. 295, 19
robbery with firearms; Martin v. State, 54 Okl.Cr. 336, 20
murder; In re Opinion of Judges, 54 Okl.Cr. 200, 16 P.2d 891, murder;
State, 55 Okl.Cr. 7, 23
murder; and other cases.
We are therefore of
the opinion that the penalty herein imposed, when considered under all
circumstances, is not disproportionate, and we are further of the
the trial court not considered the murder of the victim as an
indication of the
intent of the kidnapper, he would have been derelict in his duty and
to society. The judgment and sentence is affirmed.
The original time
for execution of judgment and sentence, herein, having expired due to
pendency of this appeal, it is considered, ordered, and adjudged that
judgment and sentence of the District Court of Tulsa County, Oklahoma,
out by the electrocution of this defendant on January 6, 1958.
The Bill of Rights
of our county provides in certain and concise language that no person
subject for the same offense to be twice put in jeopardy of life or
sacred provision of our Constitution has been religiously adherred to
ratification and adoption. One grain of dust chipped from this stalwart
in our structure of laws would retard the progress of our jurisprudence
conception. In preserving these fundamental rights of our country, we
never permit that to be done indirectly which cannot be done directly.
Was the defendant
sentenced to death in this case for the crime of murder, to which he
previously been convicted and sentenced to life, or was he sentenced to
for the crime of kidnapping? If the latter is true, the verdict should
disturbed. If the former is true, the verdict should never stand. The
deliberation devoted to this question have been of a strenuous and
nature. The paramount struggle has not been whether the defendant by
of a sordid record has forfeited his right to live. That which has
concerned your writer is whether we have toyed with the Bill of Rights
precious to all mankind. Have we, by permitting an individual to be
carved in order to obtain a desired result, flaunted the Constitution
land? There is grave doubt in my mind. The defendant in this case was
with three separate and distinct crimes, arising out of the same
kidnapping, armed robbery, and murder. He accosted the deceased at an
intersection in the city of Tulsa, got in the deceased's car and by aid
pistol forced his victim to drive into Muskogee County. This
act of kidnapping. During the course of travel, he took from the
with which to buy gas. Thus the crime of armed robbery. The transaction
with the defendant killing his prisoner, consummating the crime of
defendant was apprehended and charged with murder. The case was set for
and while the jury was in the process of being selected, the defendant
his plea of not guilty. Upon a plea of guilty, the Honorable E.G.
District Judge, with long experience and learned in the law, sentenced
defendant to serve the rest of his natural life in the state
McAlester. No doubt Judge Carroll took into consideration the hazards
trial, relying for conviction almost exclusively upon a confession of
defendant, which would have been admissible only if voluntarily given.
doubt gave the trial court much concern as was indicated in his remarks
passing sentence. He said:
* * This
matter weighs heavily upon the shoulders of this Court. I want to do
thing. I may be criticized for what I'm about to do, but it developed
today that to continue with a jury trial I mean that it would be a
orderly process; and I recall only recently that in a motion filed by
suppress certain evidence that certain things, certain evidence has
come to the
attention of the Court which might have some mitigating circumstances
confession alleged. There's some testimony on the part of the defendant
obtain that confession that you were probably slapped and beaten and
kicked to bring you to the submission into submission and to sign this
confession. During that motion I recall that there were some two
One was never brought into court. It was destroyed, and what was in
confession this Court will never know, but the other confession was
into court, and I read it, and I remember that you stated that it was
after you were bodily beaten."
No doubt these
statements were true as they were not challenged by the state. If they
true, the confession would not have been admissible and the state would
been tremendously handicapped in obtaining a conviction as the
the sole surviving witness to the crime. However, this court is not
charged to review the merits of this matter. The defendant had pleaded
to the crime of murder and received his punishment of life in the state
penitentiary. Had the defendant received death, no doubt the present
not be before this court and the crimes incident to the murder would
passed into oblivion and long since forgotten. Evidently other persons
satisfied with this result and they chose to carve again. The defendant
brought back to Tulsa County where he was charged with armed robbery
he was sentenced to 50 years in prison upon a plea of guilty; charged
kidnapping, pled guilty and received death in the electric chair; the
results being obtained upon the third attempt.
A careful study of
the proceedings in their entirety inevitably raises the question was
given the death penalty because he forced the deceased to drive into
county at pistol point or was the death sentence imposed because he
the heinous crime of murder to which he had already been convicted and
sentenced to serve the balance of his life in prison. The trial judge,
passing sentence upon the defendant for the crime of kidnapping,
indicated in his remarks that the crime of murder was deeply embedded
mind and no doubt used to justify the extreme penalty. He said:
* * The court
has been very deliberate in the matter of this case, has given it hours
consideration, and investigation; investigation of your record,
of the facts which have been alleged, which have been stated, and which
were part of this crime which you have committed in Tulsa County, which
resulted in the murder of the victim, Reverend Cook, to which you have
guilty and been sentenced in Muskogee County, and which the court takes
consideration, that murder as being a part and parcel of the crime
here, as a continuing thing. It is the Court's opinion that there has
been in the history of Tulsa County, a more brutal, vicious crime
this crime to which you have pled guilty here. The fact that you have
guilty to the crime of murder in Muskogee County and received a life
there, is not a particularly or material consequence in the matter of
passing sentence in this case."
It is made
exceedingly clear by the temper of these remarks that the crime of
the predominating basis for the infliction of the death penalty. In
the atrociousness of the crime, surely the trial judge had reference to
and not kidnapping. The trial court, according to his remarks, gave
deliberation and investigation of the record showing facts resulting in
which was a part of the crime before the court. The court stated:
* * there has
never been in the history of Tulsa County a more brutal, vicious crime
this crime to which you have pled guilty here." (Emphasis ours.)
It is quite obvious
that the trial judge did not have reference to the kidnapping, which in
was not brutal or vicious, but to the murder committed in Muskogee
which we agree, as being brutal in its conception and vicious in its
I am inclined to agree with defendant's counsel in their contention
extent of punishment in the case at bar was received only as a result
murder committed in Muskogee County and that murder constituted the
factor in the minds of the county attorney and trial court.
If the deceased had
been taken to Muskogee by the defendant and released without harm, we
that the death penalty would have been excessive. The majority opinion
justifying the death penalty calls attention to the potential gravity
crime of kidnapping by referring to such cases as Lindbergh,
and others generally known to the average citizen. In each of these
victim was killed for which the defendant was given the extreme
penalty. It is
well to point out that these defendants were tried but one time,
time and sentenced one time, though their crime was identical in nature
the case at bar. This is the first death case before this court as a
kidnapping. Since statehood six cases have been decided by our court
defendants were charged with kidnapping. These cases are cited as
with the sentence imposed upon each defendant: Norris v. State, 68
6 P.2d 540, 30 years; Shimley v. State, 87 Okl.Cr. 179, 196
3 years; Flowers v. State, 95 Okl.Cr. 27, 238
20 years; Williams v. State, 96 Okl.Cr. 362, 255
20 years; Phillips v. State, Okl.Cr. 267 P.2d 167, 20 years; and
State, Okl.Cr. 289 P.2d 152, 5 years.
In most of these
cases a gun was used, violence and brutality was shown. The greatest
imposed was 30 years, Norris v. State, supra. The average was 16 years.
majority of these cases numerous charges could have been filed as a
the same transaction, but each defendant was tried one time, convicted
and sentenced one time. We must, therefore, conclude that the death
herein imposed constitutes punishment a second time for murder. This
true, it is a flagrant violation of the fundamental concepts of our law
person shall be twice put in jeopardy nor given double punishment for
Our court has
formerly held in the case of Rupert v. State, 9 Okl.Cr. 226, 131 P.
744, 45 L.R.A., N.S., 60, in an opinion of the able jurist, Judge Doyle:
shall be twice put in jeopardy for the same offense is a universally
principle of the common law, and this principle has been embodied in
federal Constitution and in all state Constitutions, and it is
the Constitution of the state of Oklahoma by express provision * * *."
think this provision
of the Bill of Rights, and the principles therein declared, is broad
mean that no person can be twice lawfully punished for the same
one follows from the other, and this constitutional provision is
intended to protect the accused from a double punishment as much as to
him from two trials."
In the case: Ex
parte Lange, 18 Wall. 163, 85
U.S. 163, 21 L. Ed. 872, uses this
language in supporting this proposition:
anything settled in the jurisprudence of England and America, it is
that no man
can be twice lawfully punished for the same offense. And though there
nice questions in the application of this rule to cases in which the
charged was such as to come within the definition of more than one
offense, or to bring the party within the jurisdiction of more than one
there has never been any doubt of its entire and complete protection of
party when a second punishment is proposed in the same court, on the
facts, for the same statutory offense. * * *"
* * we shall
see ample reason for holding that the principle intended to be assorted
constitutional provision must be applied to all cases where a second
is attempted to be inflicted for the same offense by a judicial
avail is the constitutional protection against more than one trial if
be any number of sentences pronounced on the same verdict? What is it
having once been tried and found guilty, he can never be tried again
offense? Manifestly it is not the danger or jeopardy of being a second
found guilty. It is the punishment that would legally follow the second
conviction which is the real danger guarded against by the
if, after judgment has been rendered on the conviction, and the
that judgment executed on the criminal he can be again sentenced on
conviction to another and different punishment, or to endure the same
punishment a second time, is the constitutional restriction of any
value? It is
not its intent and its spirit in such a case as much violated as if a
had been had, and on a second conviction a second punishment inflicted?
argument seems to us irresistible, and we do not doubt that the
was designed as much to prevent the criminal from being twice punished
same offense as from being twice tried for it. * * *"
is no more
sacred duty of a court than, in a case properly before it, to maintain
unimpaired those securities for the personal rights of the individual
have received for ages the sanction of the jurist and the statesman;
such cases no narrow or illiberal construction should be given to the
the fundamental law which they are embodied. * *"
It can be
ascertained by research that all jurisdictions have been most zealous
adhering to the Bill of Rights in the preservation of prohibitions
double jeopardy directly or indirectly. Our court has on numerous
clung steadfastly to the doctrine. It was said in Love v. State, 41
291, 272 P. 1035, 1037:
this court have uniformly held that as used in the constitutional
above quoted providing that no person shall be twice put in jeopardy
same offense, * * * so nomine, but the same criminal act, transaction,
omission. Also, that where the state elects through its authorized
prosecute an accused for an offense in one of its phases or aspects and
his trial the accused is convicted or acquitted by a jury, the state
afterwards prosecute the same criminal act or transaction under color
another name. Estep v. State, 11 Okl.Cr. 103, 143 P. 64; Jackson v.
Okl.Cr. 523, 148 P. 1058; Barton v. State, 26 Okl.Cr. 150, 222 P. 1019;
Hourigan v. State [38 Okl.Cr. 11], 258 P. 1057; Courtney v. State [41
30], 269 P. 1059; Fox v. State, 50 Ark. 528, 8 S.W. 836; In re Nielson, 131
U.S. 176, 9 S. Ct. 672, 33 L. Ed.
The Supreme Court
of Kansas discussed this matter at great length in the case of State v.
Colgate, 31 Kan. 511, 3 P. 346, 348, 352. The following language was
prosecutor may associate the criminal act with all its consequences,
carve therefrom the highest crime that can be carved from such act and
consequences, and then prosecute the wrongdoer for such crime. If he
however, he may carve out a smaller degree of crime, and prosecute for
only. But he should be allowed to carve but once. * * * But we do not
that the prosecutor should be allowed to multiply prosecutions
dividing up the consequences of a single wrongful act, and founding a
prosecution upon each of such consequences."
these various jurisdictions are based upon our constitutional barrier
double jeopardy. It had its inception centuries ago. The ground work
in the Magna Charta 742 years ago. It became a stone pillar in our
jurisprudence upon ratification of the Bill of Rights in 1791. Our
that time have devotedly preserved its strength. It has been heroism to
defending its sacred value. If it were relaxed to take the life of one
individual, contrary to its concepts, the damage would be done to
to the victim. The defendant in this case has created for himself a
record that could neither merit nor expect mercy from this court, and
destiny will not be affected by the remarks of your writer.
opinion has affirmed the conviction and the execution date is set. This
has not been expressed out of any compunction for the defendant, but
out of my
concern for the inherent rights of all people as laid down in the
of our land.
After oral argument,
it is felt that the matters urged on petition for rehearing have been
treated in the majority opinion of this court, and the same is adhered
the matters urged in the petition for rehearing are overruled and
The time originally
appointed for the execution of the defendant, Edward Leon Williams,
passed pending this appeal;
It is ordered,
adjudged and decreed that the judgment and sentence of the district
Tulsa County, Oklahoma, be carried out by the electrocution of the
Edward Leon Williams, by the Warden of the Oklahoma State Penitentiary,
McAlester, Oklahoma, on Tuesday, the 11th day of March, 1958.
The petition for
re-consideration of the opinion promulgated herein on December 4, 1957
rehearing and filed in this court on December 18, 1957 was so forceful
oral argument by John A. Ladner, Jr., Esq. (who did not represent
the trial court), so arresting, that we have reconsidered the opinion
complained of. The record has been read and re-read, and all briefs
the authorities studied. I have particularly restudied the opinion in
the petition for re-hearing.
It should be made
clear that when the district court of Tulsa County convened on January
there were two charges pending against the defendant, case No. 16910,
charge of robbery with firearms, and where the maximum penalty was
death (21 O.S.
1951 § 801 [21-801]); and case No. 16911, kidnapping, where likewise
maximum penalty was death.
The record discloses
that a sentence of fifty years was imposed in the first case, and in
punishment was imposed at death in the electric chair. The appeal is
As demonstrated by
Judge Brett in his opinion, the confession of the offense charged
accused to the same punishment as if he were tried and found guilty by
verdict of a jury. In other words, the extent of the punishment, within
limits of the statute (21 O.S. 1951 § 745 [21-745] subd. A), was within
discretion of the trial judge.
Our duty from the
record before us is to determine whether or not the trial judge may
his discretion in the matter of the assessment of the extreme penalty.
A single and extreme
illustration for clarity would be that if defendant had in his attempt
escape sought to get the kidnapped person to drive him to a local point
had refused, and defendant at gun point had taken the car and at some
convenient place had forced victim out of the car without injury, and
the car to get, say to the airport or railway station in effecting an
the infliction of the death penalty in such a case, I think all
minds would agree, would be an abuse of discretion.
In the within case
where the trial court could not become aware of the facts and
the within case, except what he may, in spite of himself, have heard
casts and gleaned from headlines in the press, matters he is presumed
The question here
immediately forced, is whether or not the court erred by failure to
State to produce testimony in support of the purported facts in the
that the State had not been called on to prove by reason of the
the defendant, but which alleged facts were recounted to support the
recommendation that the county attorney in conclusion made as to the
punishment to be assessed.
The statement of the
county attorney prior to sentencing by the court has been detailed in
Brett's opinion. This statement was to cover both the armed robbery
the kidnapping charge. The court first considered the armed robbery
advised by both counsel for the defendant and defendant himself that
accused wanted to withdraw the former plea of "not guilty" and enter
a plea of "guilty". The court was careful to question defendant as to
whether he had been induced by any promise of leniency to change his
advised defendant that he might receive a death sentence, and defendant
that he understood that. Defendant wanted to waive the two days
sentencing and have the sentence entered immediately. The court asked
county attorney if he had any statement or record he wished to make,
answered to the effect that he would like for his statement to cover
cases armed robbery and kidnapping. The court then announced that
would pass sentence in case No. 16910, that he would take a plea in
16911. No objection was interposed to this procedure, so the court
the defendant that the county attorney and defendant's counsel had
court that in case No. 16911, the kidnapping case where defendant had
previously entered a plea of "not guilty", that he wished to withdraw
such plea and enter a plea of "guilty". The court asked defendant if
that was correct, and he answered, "Yes, sir", and the following then
you understand the nature of this charge, do you?
understand, that it is a charge that is punishable with the extreme
life imprisonment, or death in the electric chair?
light of that knowledge and information and understanding, are you
this plea freely and voluntarily upon your part?
there been any representations made to you by counsel, or by anyone
else, as to
the sentence which you might you might expect from the court in this
was told I could expect the maximum.
death in the electric chair?
light of that representation made to you by your counsel, you wish to
your plea of not guilty and enter a plea of guilty to the charge?
your plea of guilty, charged with the crime of kidnapping as set forth
information in case number 16911, the court finds you guilty of the
offense of kidnapping as set forth in the information. Do you have any
you wish to make, or any legal reason to assign, why the court should
and impose sentence upon you, in accordance with your plea of guilty as
Court: As I
told you in the other case, you have the right to have your sentence
for at least two days, by the court, before formal sentence is entered
your plea. You may waive that, however, and upon your request, the
impose sentence immediately. What is your request?
That you impose sentence now.
this time, without further delay?
you have any statement you wish to make, as counsel for this defendant?
would rather reserve them if the court please.
well. Now, Mr. Simms, as representing the State, you say you have some
you wish to make?
your Honor please, the position of the State will be explained to you
County Attorney, Mr. Edmondson.
If the court please, I think that your Honor should be fully advised of
facts in this case, before any recommendations should be made at all,
as to the
punishment, inasmuch as before your Honor appears only the informations
charging each of these crimes, and the pleas of guilty which the
made. Therefore, we have typed up a brief statement of the facts
both of these crimes and the actions of this defendant and the facts
circumstances that would be admissible in court on the trial of either
cases, and rather than read the entire thing, I will make reference to
then submit it to your Honor for reading it in detail, if that is the
would prefer that you just read it.
All right, sir.
its entirety, then we will have it before the court without further
The county attorney
then proceeded to make his statements, and when he had finished
facts in the armed robbery case he continued to tell about the
followed defendant's efforts to escape from the scene of the robbery.
counsel for the defendant, then interposed an objection to any
the county attorney as to the phases that followed the armed robbery.
advised counsel that he was considering the statement as covering both
and counsel answered, "All right", but did except to the overruling
of his objection.
The county attorney
then completed the events happening from the moment of the kidnapping
ministerial student was ejected from his car into the weeds with hands
and shot to death. The following then transpired:
would like again to interpose an objection here, that the defendant has
guilty to two charges, one the armed robbery and one the kidnapping.
statements being made by the county attorney relate to another charge,
been passed upon in another jurisdiction.
I will consider it as the statement of the county attorney of course
and as a
continuing thing in the matter, which I think is proper to advise the
all the facts surrounding the two crimes. Of course, as far as the
case is concerned, it might not at all be competent, but from the
standpoint, it is, of course, a continuing thing, as long as he had the
in his charge and under his control, I think all the facts pertinent to
incident are competent to the court and the court should know, so I
Counsel objected to
the county attorney mentioning other crimes of defendant and the judge
suggested to counsel that he would just give him an exception to the
statement. When the county attorney completed his statement counsel for
defendant asked for and was granted a recess. After the recess, counsel
defendant asked for a limited number of minutes to make a statement for
defendant, but the court advised counsel to take all the time he wanted.
Much of counsel's
statement was devoted to the thought that the State was seeking
revenge and he presented a thesis against capital punishment. In the
his statement, counsel for defendant said:
the offense in Muskogee, in which he was charged with the crime of
there pleaded guilty, I should like to introduce the closing statements
judge of that court in passing sentence upon the defendant, after he
his plea of guilty and introduced the full context of it into the
The State offered
no objection, and a transcript of the proceedings before the district
Muskogee County, where defendant had been charged with the murder that
culmination of the kidnapping in question, was received in evidence. It
argument that in that the record from Muskogee County disclosed that
district court there had assessed only a life sentence for the murder
the culmination of the kidnapping, that the district court of Tulsa
would not be justified in imposing a greater penalty.
The district court
of Muskogee County did not hear any evidence nor statements in
mitigation of the charge of murder where defendant had entered a plea
guilty, so presumably he knew nothing of the facts of the charge. The
his statement based his assessing the minimum penalty for murder of
imprisonment on his thought that the Criminal Court of Appeals had
affirmed the death penalty where an accused had thrown himself on the
the court and entered a plea of guilty. Judge Brett in his opinion has
number of cases where this court has approved sentences where the death
was assessed on a plea of guilty. Other cases could have been cited.
The court further
reasoned that there might be reversible error in the record if a
confession were offered and received in evidence; and that defense
claimed that some jurors had not left the court room that morning
was handcuffed, and that they may have seen him handcuffed.
Of course whether
or not there might be error in the record, after record made, would be
appellate court to determine and such probable questions should have
bearing on the determination of the amount of punishment to be imposed
for the confessed
The district court
of Tulsa County no doubt pondered these things in resolving the
the action of the district court of Muskogee County should limit him in
sentence he might impose, and he refused to pass sentence immediately
the case over for two days to February 1, 1957 at 9:30 a.m., at which
Mr. Williams, you have heretofore appeared before this court, withdrew
plea of not guilty to the charge of robbery with firearms, as set out
information, and entered your plea of guilty. You were advised of your
in the matter. The court heard arguments in reference to the case,
facts were presented by the county attorney's office, the matter of
sentencing was passed until this time at this hour, after the court
guilty as charged in the information of the charge upon your plea of
Now an intervention of time has come about since you entered your plea,
that time, the court asked you if you had any statement to make or any
cause why the court should not pass sentence upon you, and you said you
none. The court in taking up the matter at this time, I will give you
opportunity to make any statement, if you have a statement you wish to
show any legal cause why the Court at this time should not pass
you, in accordance with your plea of guilty.
Well, one thing in the statement of facts, according
understand this is only with the robbery with firearms charge, I am
Yes, sir. What I was going to say, according to the way Mr. Edmondson
statement of facts, why I had been convicted before, oh, the way he
times of armed robbery. Now, actually I only had one previous felony
that was in
Indiana, and you served a term for that?
Weren't you convicted of a charge in the Federal Court?
Yes sir, but that was a Federal Juvenile Under the Federal Juvenile
did serve a term and did escape from the reformatory, did you not?
No, sir, I don't know as you could call it as an escape. I was working
trusty up near Inglewood, and I just walked off.
that correction of the statement of facts, do you have anything else
wish to state at this time?
is your age?
The court next
proceeded to pronounce judgment in case No. 16910; and then in case No.
16911, State versus Edward Leon Williams, here charged with the crime
offense of kidnapping as set forth in the information. Upon arraignment
this charge, appearing before the district court, you entered a plea of
guilty. The case was thereafter set upon the trial jury docket of this
At a date prior to the setting of this case, you appeared in this
the district court, and before this court, and expressed your desire to
withdraw your plea of not guilty and enter a plea of guilty to the
kidnapping as set forth in the information. You were represented by
all times, and advised of all your legal and constitutional rights.
was given you and your counsel at that time, which was on Wednesday of
week, to make any statement that you cared to make, showing legal cause
judgment should not be pronounced and your punishment fixed by the
Statements and arguments were made here in open court and made by the
by your counsel in reference to the case, and in reference to the
In this case, as in the other case upon which judgment has been passed
court this morning, the court cognizant of the importance of the
the seriousness of the charges, although you stated to the court that
voluntarily making your pleas, without any influence being brought to
you, or any promise of any results of the pleas, and stating you were
of the facts, and had been informed that you might expect the extreme
in each and both of these cases, and that you were voluntarily making
of guilty to the charge. The court at that time passed the matter for
sentencing until this morning to give all parties an opportunity for
deliberating upon the matter. You come here at this time for formal
under the judgment of the court which was entered on Wednesday, finding
guilty of the crime and offense of kidnapping as set forth in the
anything further to state at this time, or any legal cause to show to
court, why the court should not fix and assess your punishment upon
of guilty to the charge of kidnapping as set forth in the information?
at that time on Wednesday, there was a statement of facts made by the
relative to this case, and the sequence of events and the facts
sequence of events and the facts surrounding the commission of this
you have any correction to make in reference to the statement of
the State, in that regard?
facts were true?
you at this time admit that they were true and that you committed the
set forth by the State, that is correct, is it?
right. Do you have anything further to say on behalf of this defendant?
It is vital to note
(1) that counsel for the defendant did not object to the procedure
the court in his determination of the sentences to be imposed in the
before him where the defendant had entered pleas of guilty; (2) that
objections interposed by counsel for the defendant to the matters
recounted by the county attorney to the court, and which he stated in
was an outline of facts that would be admissible in evidence on trial,
objections in the armed robbery charge of a consideration of any of the
involving the kidnapping case, and then in the kidnapping case to a
of what happened in Muskogee County at the termination of the
court ruled in favor of defendant's objection as to the armed robbery
but ruled that he had a right in fixing punishment in the kidnapping
consider all the facts from the beginning to the end of the kidnapping,
would include the fact of murder to which the defendant had previously
guilty; (3) after the county attorney completed his statement of the
facts counsel for the defendant made a lengthy statement and did not
with any purported fact, but sought to show that the district court of
County for the death of the kidnapped victim, had assessed only the
penalty of life imprisonment, and wanted the court to consider the
assigned by the judge, and there was received in evidence the record
time of imposition of sentence in Muskogee County, which has been
outlined. After defense counsel's statement the court adjourned until
1, 1957 at 9:30 a.m. for pronouncing sentence in the two cases.
On reconvening on
February 1, 1957, the court asked defendant if he had any corrections
made in the statements made by Mr. Edmondson, county attorney, and he
that he had previously served only one felony charge; that his other
were committed when he was a minor and that he was prosecuted under the
Juvenile Delinquency Act. The court accepted the corrections. The court
repeatedly asked the defendant as to the correctness of the statement
the county attorney as to the purported facts, and defendant in effect
the county attorney's statement was a truthful statement of the
events and facts surrounding the commission of the crime. This was
to a stipulation.
circumstances recounted, I agree that it was not necessary for the
State to put
on evidence in proof. The crime was admitted, and the circumstances
the commission thereof were admitted, so to call witnesses and offer
would be just taking up the time of the court to prove something where
The crimes of
kidnapping, 21 O.S. 1951 § 745 [21-745], and of murder 21 O.S. 1951 §§
[21-701], 707, are separate offenses, with jurisdiction in two separate
The action of the district court of Muskogee County, acting first, did
the district court of Tulsa County. Where the maximum sentence in each
was the same, but where the first court had failed to assess such
was the duty of the district court of Tulsa County to consider the
of the defendant, the probabilities of rehabilitation, and all the
circumstances surrounding the kidnapping. The court had to satisfy his
and conscience as to the penalty to be assessed, and the court was
interested in the question of whether the kidnapping victim was ever
and if so, if he was unharmed. The record showed that he was marched
hands bound and shot and abandoned, thus his soul liberated to his
his body to the earth.
It is concluded
that the extent of the punishment within the limits of the statute, was
the discretion of the trial judge, and no abuse of such discretion is
I discover no violation of due process.
The record does not
justify further consideration of the question of double jeopardy than
treated by Judge Brett. Such question was not raised in the trial of
Subject to the
thoughts expressed and with all respect to the dissent by Judge NIX, I
reiterate my concurrence in the opinion promulgated by Judge BRETT.
Harrison v. State,
95 Okl.Cr. 123, 240 P.2d 459; Herren v. State, 74 Okl.Cr. 432, 127 P.2d
People v. Riley, 376 Ill. 364, 33 N.E.2d 872, 134 A.L.R. 1261.
Supreme Court Upheld 8 to 1 Death
Sentence imposed on Edward
6. Upheld, 8 to 1, a
death sentence imposed on Edward Leon
Williams in Oklahoma for a kidnaping which ended in a murder. Williams
contended he twice had been placed in jeopardy of his life and twice
for the same offense.
Williams pleaded guilty
in Muskegon County Court to murder
and was sentenced to death in the electric chair.
Justice Whittaker said
that the sentence of death for
kidnaping was within the range of punishments authorized and did not
petitioner any constitutional right.
Seattle Daily Times, Seattle, Washington, Tuesday, February 24, 1959,