It is not often that the members of this court are not in entire agreement in their opinion as to the result of cases brought here on appeal. However, I do not find myself in agreement with the conclusions reached by my colleagues in the above case. This is a small case and one that would not under ordinary circumstances demand the writing of a dissenting opinion, but when I am reminded by the record that the defendant is a young boy only 19 years of age at the time of his trial, and that this decision sends him to a felon's cell and takes from him not only his liberty, but, in all probability, his *Page 18 usefulness as a citizen of this state, I cannot but express my view of the record as it appears to me.
The principles of law announced in the opinion and in the syllabus are correct, and I have no fault to find with those principles. It is the application of the facts to those principles of law with which I am not in accord.
Defendant was a boy 19 years of age. On Saturday, the 7th day of May, 1938, he was in the city of Pryor, and some time just after noon Clyde Rush, Jr., who was a codefendant, asked defendant and J. B. Jackson, who was also a codefendant, to take a ride out in the country in Rush's father's car. They agreed to go for the ride. They drove about three and three-quarters miles west of Pryor on Highway No. 20, which is the highway running from Pryor to Claremore, then north three and three-quarter miles, at which point their car got stuck in the mud. This was about 2:15 p. m. While the car was stuck in the mud, P. F. Qualls, Rosa Qualls, his wife, Forrest Qualls, his son, and his son's wife came along the road going to Pryor, saw the car stuck in the mud, and assisted the boys in getting out. The boys followed the Qualls car for about a quarter of a mile to Highway 20, where the boys turned toward the west and the Qualls car proceeded east toward Pryor. There was no conflict in the evidence up to this point. The car in which the boys were riding went west about a mile and three-quarters by the Osage schoolhouse, stopping at a well by the side of the road to secure water for the car. The defendant testified that he left the car at this point and walked toward his home, which was about one and one-half miles west of the cross-roads where the two cars separated; when he reached Highway No. 20 and started south, that lie was picked up by Ralph Panter in a car and went to Pryor and attended a public drawing contest that was held there on that day. The accomplice, *Page 19 Clyde Rush, Jr., testified that the defendant did not leave the car, and that either the defendant or Jackson or himself said, "Let's go back and get the chickens." That the three of them drove to the home of Mr. and Mrs. Qualls, they being the same parties who had assisted them in getting out of the mud hole; and that they stole 16 chickens from the Qualls home, and drove to the edge of Claremore, in Rogers county, which the record shows is about 18 miles from Pryor, Okla. The witness Clyde Rush, Jr., testified that he got out of the car at the Qualls home and put mud all over the license plate. As a reason for this he stated that he had read magazines where this had been done. He further testified that when they crossed the railroad track at the edge of Claremore, defendant Efton Hathcoat said, "One of us had better get out. I'll get out and let you two go on"; and that defendant got out and was going to wait until they got back; that he and Jackson went to the produce company; that he took one of the sacks of chickens; that Jackson took another, and that they left one sack in the car; that just after they had sold the chickens and put them in a coop they were confronted by Undersheriff Wilson and Mr. Qualls, and Clyde Rush, Jr., was arrested and put in jail. J. B. Jackson escaped, and the charge in this case was the outgrowth of this arrest. The accomplice, Clyde Rush, Jr., testified that he had seen defendant one time after that, and that was on the road to Tulsa about a week after he got out of jail, and that the defendant told him if he would take the "rap" he would give him $3,000; that Buster Young was with them and heard the conversation; this witness was not at the trial and did not testify; that he saw defendant one time after that and he told him he was going to skin his head. *Page 20
Mr. and Mrs. P. F. Qualls both testified to the loss of the chickens, the assisting of the boys out of the mud hole, and identified the chickens recovered in Claremore as their chickens, and that they did not give their consent to the taking of them.
Witnesses upon which the state relied to corroborate the evidence of accomplice, Clyde Rush, Jr., were Willard Rose and Earl Lee. Willard Rose testified that on May 7, 1938, about 3 o'clock, he was about a quarter of a mile north of the Qualls farm and that he had a clear view of the Qualls house; that he saw a car drive up to the yard gate from the west; that the car stopped there for quite a while and then left and came back and stopped at the yard gate; he saw one of the parties go to the house; one came from the barn and one stayed in the car. He did not see them going to the chicken house, but saw them coming from there; that each one of the three had a sack in his hand. He could not identify any of the parties and could not swear the defendant was one of them.
Earl Lee testified that he lived five miles northwest of Pryor and a mile and a quarter southeast of the Qualls home. On the 7th day of May, 1938, he saw a blue Ford V-8 car with three boys in it going north of Pryor, all three riding in the front seat; that he later saw it going south and saw it going north and then west at his house; saw it at the same place later coming from the west and turned out with three persons in the car. He testified on cross-examination that he did not know the defendant Efton Hathcoat, and could not identify him as one of the persons he saw in the car.
The above is the only material evidence offered by the state.
The defendant denied having participated in the larceny of the chickens, and, as above stated, testified that *Page 21 he left the boys and walked toward his home and afterwards went to Pryor to the public drawing; that before he left them at the well, Clyde Rush, Jr., said: "The Qualls are going to town and let's go back and get his chickens;" that he told Rush he was not in the chicken business, and had enough trouble and asked Rush to take him home; that he said it was too muddy to take him home; that he walked back east about 100 yards and turned south toward his home, which was about a mile from there; that he did not get home, but went back to Pryor with a man by the name of Ralph Panter. Defendant testified that he had subpoenaed the witness Ralph Panter, but had not seen him; that when he left Pryor on Saturday evening, May 7, 1938, he did not hear about the chickens being stolen until Monday night; that his father told him that he had heard that he had been charged with the stealing of them; that he went to Mazie in Mayes county to the home of an uncle until his dad could find out for sure if he had been charged with the stealing of the chickens; that he returned to his home on Wednesday night, and on Thursday morning, about 9 o'clock, he went to the sheriff's office and gave himself up and made bond for his appearance before the district court.
The defendant offered as a witness in his behalf John R. Keel, a disinterested witness, who testified he was 70 years of age, and on May 7, 1938, he lived a mile north of the old Osage schoolhouse, which was very close to the well where defendant claimed to have left the car to go home; that on that afternoon, about 3 o'clock, he was traveling with a young lady by the name of Miss Spoon; that he does not know where she is at this time, but that her folks moved to Oxford, Kan.; that he knew the defendant Efton Hathcoat, and that he saw him on the south side of the road about half way between the well and the *Page 22 schoolhouse walking east; that he was alone; that he saw a car at the well; that it was on the wrong side of the road and he had to wait for it to get out of the way; that the car headed west and had two parties in it whom he did not know; that defendant was not in the car; that Mr. Hathcoat and Efton were his neighbors and that they all worshipped at the Osage schoolhouse, and that Efton was a neighbor of Miss Spoon. The evidence was in complete accord with the evidence of defendant. It was in direct conflict with the evidence of the witness Clyde Rush, Jr.
C. C. Boren testified that he was well acquainted with the defendant Efton Hathcoat and his father; that he lived in the same neighborhood with them; that he attended a drawing at Pryor Saturday afternoon, May 7, 1938; that he positively identified the date, because he heard that evening that Mr. Qualls had some chickens stolen. He testified that he saw the defendant on the streets of Pryor about 3 o'clock Saturday evening on the corner near the American National Bank; saw him on two different occasions a few minutes apart; that he saw him with his father; that he was not related to defendant and had no interest in the case.
Guy Pitts, who lived in the same neighborhood and knew the defendant and his family for 15 years, testified that he was in Pryor on the day of the drawing, and after it was over about 3:30 he went down town and saw defendant on the streets of Pryor.
Edgar Whitmire, who lived five miles south of Pryor, testified he saw defendant there about 3:30 on Saturday, May 7, 1938.
P. H. Hathcoat testified that he was the father of the defendant; that he was in Pryor on the afternoon of Saturday, May 7, 1940; and he saw his son, the defendant, on *Page 23 the streets of Pryor a little after 3 o'clock, and while witness was talking with Mr. Whitmire and Mr. Boren.
I am familiar with the rule that we have so often pronounced, that the verdict of a jury will not be set aside where there is any evidence in the record to sustain it; also the rule that where there is no evidence to sustain it, we will not hesitate to set the verdict aside. I also recognize the rule that where a conviction is to be considered upon the evidence of an accomplice, the court will carefully examine the evidence to see that the same is properly corroborated as required by the law of this state. And more especially should this be true where a defendant takes the witness stand and denies the statement of the accomplice, and not only denies it, but produces evidence of disinterested witnesses to corroborate his evidence and to refute the evidence given by the accomplice.
After a careful reading of all the evidence of this record, and especially the evidence of the accomplice, Clyde Rush, Jr., one is impressed with the necessity of his testimony being corroborated. At the very outset he testifies that the other defendants were the ones who suggested to him the stealing of the chickens, and that he secure his father's car for that purpose. He testifies that they were going out to "Qualls' Place," yet he afterwards testified he did not know where Qualls lived. He could not tell which of the three, at the well, suggested that they go to the Qualls home for the purpose of stealing the chickens. He further testified that he sat in the car when the chickens were being stolen and that the other two defendants brought the three sacks to the car. This is in direct conflict with the evidence of the state witness Willard Rose, who testified that each of the three had a sack of chickens. He also testified that at his own suggestion he procured mud and placed the same upon the license plate of the *Page 24 car, and this was an original thought with him. It is passing strange that the defendant who was the instigator of the crime, according to his testimony, should be the one who left the car at Claremore and left it to the other two to go to the produce house and sell the chickens. This evidence does not just ring true. The defendant was never seen in Claremore; he was not present at the produce house when the chickens were delivered, and he produces five disinterested witnesses who corroborate the evidence which he gave, and the same is uncontradicted.
The statement of the accomplice, Clyde Rush, Jr., that defendant offered him $3,000 to take the "rap" is almost unbelievable. The evidence of the witness John R. Keel, a disinterested witness, completely corroborates the evidence of defendant. Evidence of the four witnesses who saw the defendant on the streets of Pryor between 3 and 3:30 o'clock on Saturday, May 7, 1938, and at the very time that the chickens were being stolen and taken to Claremore, according to the evidence of Clyde Rush, Jr., the accomplice, absolutely refutes this testimony.
I am at a loss to see how a jury could have carefully weighed all the evidence produced in this case and, under the instruction of the court requiring them to be convinced beyond a reasonable doubt of defendant's guilt, brought in a verdict of guilty against this defendant. I am not suggesting that defendant was not guilty of this crime. I am only speaking of the evidence as it appears in the record.
The corroboration relied upon by the state, as stated above, are the witnesses Willard Rose and Earl Lee. Their evidence has heretofore been stated. Neither of them was able to identify the defendant as being the party they saw. Each of them said they saw three persons. One at the time the chickens were being stolen, and at a distance of a *Page 25 quarter of a mile, the other immediately after the chickens were stolen and in close proximity to where they were stolen. This is a circumstance that corroborates the testimony of the accomplice, Clyde Rush, Jr., but under the law and the evidence taken as a whole, is this sufficient corroboration to uphold this judgment and sentence against this defendant? I do not think so.
It is provided by section 3071, Okla. Stats. 1931, 22 Okla. St. Ann. § 742, as follows:
"A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."
This statute has been constructed so often by this court that it will not be necessary to cite all of the cases. The case of Kennedy v. State, 65 Okla. Cr. 77, 83 P.2d 198, 200, in quoting from the case of Rogers v. State, 57 Okla. Cr. 294,48 P.2d 344, one of the leading cases, announced these general rules with reference to what was necessary for the corroboration of an accomplice's testimony:
" 'There must be some evidence, which of itself, and without aid from the accomplice's testimony, tends to connect the defendant with the offense committed.
" 'It is not sufficient corroboration to prove that the crime was committed in the manner described by the accomplice, but his testimony must be corroborated as to the particular defendant.
" 'It is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators. *Page 26
" 'The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt. 1 Enc. of Ev., pp. 104, 105, 106, and 108, and cases cited.' Peck v. State, 50 Okla. Cr. 213,297 P. 323; Stevenson v. State, 50 Okla. Cr. 295, 297 P. 328; Hicks v. State, 18 Okla. Cr. 718, 196 P. 144; State v. Roy Wilks,17 Okla. Cr. 247, 187 P. 813; Weaver v. State, 58 Okla. Cr. 360,53 P.2d 696."
The Kennedy Case is one very similar to the case at bar, and in our opinion the facts in that case were stronger than in the instant case, and it was reversed because the evidence was insufficient to corroborate the accomplice.
In the instant case, when the testimony of the accomplice is eliminated, you have only the testimony that the defendant was seen in company with the accomplice prior to the time the chickens were stolen, and the testimony of a witness that at a quarter of a mile distance he saw three parties at the Qualls home. He did not know who they were, and at no time identified the defendant as one of these parties. Another witness testified he saw three parties in a Ford car driving by his home, which was near the Qualls home, about the time the accomplice said the chickens were stolen. There was no identification of the defendant by this witness. He did not know any of the parties. This evidence at the very best could only create a suspicion against the defendant. Some of the cases that have discussed this question are here cited. Madden v. State, 26 Okla. Cr. 251, 223 P. 716; Hamilton v. State,53 Okla. Cr. 281, 10 P.2d 734; Rogers v. State, 57 Okla. Cr. 294,48 P.2d 344. In the case of Hankins v. State, 62 Okla. Cr. 252,71 P.2d 119, 121, the court says:
"It is not sufficient corroboration to prove the crime was committed in the manner described by the accomplices. Their testimony must be corroborated as to the particular defendant, and it is not sufficient for this purpose merely *Page 27 to connect the defendant with the accomplices, or other persons participating in the crime, but the evidence must tend to connect him with the crime itself, and not simply with its perpetrators, and corroborating evidence may be sufficient although of itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt."
In the following cases: Saied v. State, 65 Okla. Cr. 124,83 P.2d 605; Scott v. State, 65 Okla. Cr. 47, 82 P.2d 684; Teague v. State, 64 Okla. Cr. 369, 81 P.2d 331; Rice v. State,60 Okla. Cr. 398, 64 P.2d 1240; Brewer v. State, 63 Okla. Cr. 389,75 P.2d 901; and Wilson v. State, 66 Okla. Cr. 322,92 P.2d 625, this court has held that the evidence was sufficient to corroborate the accomplice. It will be noted that in most of those cases the defendant had been identified positively by the witnesses who corroborated the accomplice. In the instant case there is no such testimony. The evidence in those cases was much stronger than in this case. The testimony fails to exclude every other reasonable hypothesis than that of the guilt of the defendant. The corroborating circumstances amount to nothing more than a suspicion of the defendant's guilt. As stated in the case of Rogers v. State, supra [57 Okla. Cr. 294,48 P.2d 347]:
"The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty."
The statement in the original opinion that one of the witnesses who testified for defendant said "that he saw the defendant at the drawing, around 2 o'clock," is hardly correct. This was the witness Guy Pitts. He at first testified that he saw the defendant down where the drawing *Page 28 was; that it usually started about 2 or 2:15 o'clock and was possibly over in 45 minutes. He was then asked:
"Q. Did you see him at the drawing? A. No, sir. Q. I didn't think you said that. Now, when did you see him with reference to the closing of the drawing? A. Well, I judge somewhere along 3:30. Q. In Pryor? A. Yes, sir. Q. You know that it was Efton Hathcoat? A. Yes, sir. Q. When did you go home? A. It was about four or 4:30. Q. Did you see him more than once, or just the one time? A. Three or four times. He was standing just a little further down the street."
There can be no question of the testimony of the witnesses produced by the defendant. They placed the defendant in the city of Pryor, 18 miles distance from Claremore, at the very time it would have been necessary for him to be in Claremore, according to the evidence of the accomplice Clyde Rush, Jr. There was a slight variance as to the time they saw him, but it was not such a variance as would have permitted him to have been with the accomplice at the time he stole the chickens and took them to Claremore and sold them, and was arrested with a part of them in his possession.
The majority opinion further states:
"The defendant's own admissions, however, contradict part of this testimony, as he could not have been at the places where he admits being and also in the town of Pryor at the same time."
This is not as I read the record. The defendant testifies that he was picked up by Ralph Panter, whom he names, and then he was asked:
"Q. When you got to Pryor about what time was it? A. Well, it was about 3 o'clock."
The evidence showed it was only four miles from the Osage schoolhouse to Pryor, and would have only taken him a few minutes to get there. *Page 29
A disinterested witness, John R. Keel, an old man past 70 years of age, testified that he saw the defendant walking in the road, just as defendant testified, and "it wasn't very far from 3 o'clock."
Witness C. C. Boren testified he saw the defendant in Pryor, and he judged "it was around three o'clock in the afternoon," and it was after the drawing.
Guy Pitts testified as above stated.
Edgar Whitmire testified to seeing the defendant at Pryor around 3 or 3:30 o'clock.
P. H. Hathcoat, who is the father of the defendant, testified that he saw the defendant in Pryor, and in his judgment it was around 3 o'clock; that it was after the drawing.
Deputy-Sheriff Wilson for the state testified that it was 3 o'clock when he was at Claremore and arrested the accomplice, Clyde Rush, Jr., at the produce house with the stolen chickens in his possession. If Deputy-Sheriff Wilson's testimony is true, then it was a physical impossibility for the defendant to be at Pryor, 18 miles away, at the very time the accomplice at Claremore with the stolen chickens.
There can be but one conclusion drawn in this case, and that is, if the testimony of the defendant and the independent witnesses John R. Keel, C. C. Boren, Guy Pitts, Edgar Whitmire, and defendant's father, P. H. Hathcoat, was true, then the testimony of the accomplice, Clyde Rush, Jr., was untrue. Can it then be said that the corroboration of the accomplice in this case was sufficient? I cannot come to that conclusion.
It is further stated in the majority opinion:
"If the defendant had not been in such close proximity to the Qualls family at the time the car was stuck in the *Page 30 mud hole so that they could positively identify him, he could have denied all of the statements made by the accomplice, Rush, and would have had alibi testimony to have kept him in Pryor during all of the time of the occurrences as related by the accomplice."
I find nothing in the record to justify this statement. It seems that, instead of giving this 19-year-old school boy the benefit of the presumption of innocence with which the law shields him, every inference and doubt is resolved against him. If I were indulging in presumptions in this case, it would be that the witness Willard Rose, who was permitted to sit in the courtroom during the trial of this case, did not see three parties at the Qualls house at the time the chickens were stolen, and that the witness Earl Lee probably saw the three boys in the car when they were together passing his house, and just presumed, after hearing the case tried, that there were three of them when they passed the last time.
The cases cited in the majority opinion to sustain the judgment and sentence are: Moody v. State, 13 Okla. Cr. 327,164 P. 676; Underwood v. State, 36 Okla. Cr. 21, 251. P. 507; Haas v. State, 37 Okla. Cr. 335, 257 P. 1115; Key v. State,38 Okla. Cr. 169, 259 P. 659.
In the Moody Case the law is correctly stated with reference to the corroboration of accomplices, but an examination of the facts reveals a very different line of corroboration than in the case at bar. It is unnecessary to prolong this opinion by stating the facts. The defendant was charged with murder, and given a life sentence. The facts were much stronger than in the case at bar, and much of the corroboration was declarations made by the defendant himself.
In the Underwood Case the court found the witness was not an accomplice, and therefore it was not necessary that he be corroborated. *Page 31
In the Haas Case the facts were somewhat similar to the facts here, but in that case the defendant was positively identified by two witnesses. Here no one positively identified the defendant.
In the Key Case it was reversed because the evidence was insufficient to corroborate the accomplice. The principles of law announced in the syllabus are correct, as are the principles announced in the majority opinion, but the court, speaking through Judge Edwards, found that the facts were insufficient to corroborate the accomplice. The court said that there is slight corroboration, but not sufficient to uphold the judgment and sentence. That is exactly what I find in this case.
In the case of Hamilton v. State, 53 Okla. Cr. 281,10 P.2d 734, 735, the court, after reviewing the evidence, says:
"This testimony creates a strong suspicion, because it shows opportunity for defendant to have aided or abetted or to have profited from the proceeds of the crime. The circumstances proven are too remote. The testimony is insufficient corroboration under the requirement of the statute and many decisions of this court. Kirk v. State, 10 Okla. Cr. 281,135 P. 1156; Wever v. State, 22 Okla. Cr. 414, 211 P. 1062; Livingston v. State, 29 Okla. Cr. 247, 233 P. 235; Underhill, Crim. Ev. (3d Ed.) p. 161, § 130."
As stated in the case of Kirk v. State, 10 Okla. Cr. 281,135 P. 1156, 1157:
"He could have named any other man in Washita county as an associate in this crime, and yet be corroborated as to this circumstance."
This is exactly the facts in the case at bar. The accomplice here could have named any man in Mayes county, saying that he picked him up before the chickens were stolen, and if he had an absolute defense and alibi that he *Page 32 was not in Mayes county, yet the jury could have convicted him and, under the majority decision, the fact that three parties were seen at the time the chickens were stolen would be sufficient corroboration to find him guilty, regardless of his innocence, and this court would be powerless to give him relief. This argument, to my mind, is unanswerable as applied to the facts in the case at bar.
The trial court, at the time of passing upon the demurrer to the evidence in this case, said: "It is pretty close, but I will overrule the demurrer." At another stage of the trial, the court below said: "The law doesn't put much faith in an accomplice's testimony."
No doubt a new trial would have probably been granted, but trial courts are sometimes slow to grant new trials which necessitate a retrial of the case at the expense of the county, and especially when the case can be appealed to a higher court which can give relief.
I am of the opinion this case should be reversed and that the county attorney should interview the witnesses Ralph Panter and Miss Edna Spoon. If their evidence corroborates the evidence of the defendant and the witness John R. Keel, the case should be dismissed. If not, it should be retried. Also the witness Buster Young should be contacted as to whether he would corroborate the testimony of the accomplice, Clyde Rush, Jr., as to defendant's offer of $3,000 if he would take the "rap." The evidence of these three disinterested witnesses would either make or break this case. In my opinion justice to this young defendant demands this, and therefore I dissent to the opinion of the majority of the court rendered in this case. *Page 33