Volume 2 , Issue 5

Old Opera House Murder, Appeal - No. A-1618

The Appeal, 20 July 1912
(filed with W. H. L. Campbell, Clerk,
In the Criminal Court of Appeals State of Oklahoma) for N. L. Miller - Plaintiff in Error vs. The State of Oklahoma, Defendant in Error.

Brief of Defendant in Error

Charles West, Attorney General, Smith C. Matson, Assistant Attorney General, Jos. L. Hull, Special Assistant Attorney General -- Propositions

1. That rule which prevents experts from giving their opinion of what did cause the death instead of what might have caused it, is based upon a legal quibble, and is not in harmony with the spirit of our laws, and is not in force in this State.

Such rule is "as remote from the practical ends of a rational system of present day trials as the howl of the Athabasca wolves from the clang of the St. Louis street cars." Wigmore.

2. In a homicide case, evidence of ellicit relations between defendant and deceased prior to the homicide is admissible, if it sheds any light upon the issue involved.

Statement of the Case

The appellant, N. L. Miller, was convicted of the murder of one Mabel Oakes, in Alva, Woods County, Oklahoma. The evidence of the State, while circumstantial showed that he, a married man, living with his wife, had for several months prior to the killing, maintained illicit relations with deceased. She became pregnant. While the relations between defendant and his wife had been strained and a divorce had been talked of, they had become reconciled shortly before the homicide of this girl.

The body of deceased was found in a back room adjoining defendant's office, about two or three o'clock in the afternoon. He had been there about 12:00 and about 1:00 o'clock. He called to the girl's father, who was passing, and who was the first person, besides defendant to see the body. The body was lying upon the floor, the feet together, hands upon her breast - or just below her breasts. A scarf was wound very tightly about her neck - so tightly that a deep impression was made by it, and the neck bulged above and below it. The face was livid. The chest in an ecclymotic condition. Her tongue was out slightly between her teeth. The lips slightly protruding. The eyelids were half closed, the eyes bulged a little.

Several physicians who examined the body testified that death was caused by strangulation. The stomach was taken out, and examined by Dr. Edwin DeBarr, who found traces of strychnine and morphine, but not enough to cause death. - Showing that she had probably been drugged before being strangled.

Defendant claimed that he knew nothing of the cause of the homicide, but that deceased had been in his office about noon, feeling badly. he left her there, and found the body upon his return. She had been subject ot fainting spells. The jury found defendant guilty of murder, and sentenced him to life imprisonment.

1. Experts may testify as to what did cause the death of deceased in murder trial, when properly qualified.

The defendant objected to the evidence given by certain physicians in this case, as to their opinion of what cased the death of deceased. We will state the facts of the case sufficiently to make clear this assignment of error.

The body of deceased was found in a back room adjoining defendant's offices. A scarf was wrapped tightly about her neck - so tightly as to leave an impression thereof when removed. The neck bulged out about it. There was a bit of bloody froth about the mouth, the lips slightly protruding, and the tongue partly between the teeth. Her eyes bulged slightly, the lids being about half closed. Her face was livid; the chest and back in an ecclymotic condition. She lay upon her back, her feet together, with her hands upon breast, just below her breasts.

The theory of the State was that she was strangled to death; that of the defendant, that she had either strangled herself or had fallen in a fainting spell - to which they claimed she was subject, and had thus died, either by reason of the fact that she had involuntarily strangled herself by having the scarf wrapped too tight about her or otherwise.

Furthermore, in order to show that there had been a plan to kill deceased and to explain the absense of any scuffle, the State introduced the evidence of Dr. DeBarr, a chemist who had made a post-mortem examination of the stomach of deceased, and who testified that he found traces of morphine and strychnine there, but not in sufficient quantities to produce death.

The physicians, whose testimony is objected to, examined the body of deceased just as it was found. They made a thorough examination thereof, and stated in their evidence just what the condition of it was.

A question similar to the following was then asked each of them:

"Taking your experience as a physician your knowledge of strangulation, your knowledge of the condition of that body, the ecclymotic condition, and in fact the entire condition of the body, taking everything into consideration, are you able to state what produced death in this case?"

Upon the affirmative answer being received, the question was then asked:

"What produced death in this instance?"
"Strangulation."

The question was then asked, if from his knowledge as a physician, if he could state from the condition of the body, if deceased could have strangled herself to death. Upon answering yes, witness was then allowed to state that in his opinion that would have been impossible. The condition of defendant with reference to this evidence, is that since the cause of the death was for the jury to determine, an opinion of an expert to the effect that strangulation was the cause, instead of saying it might have been the cause was erroneously received.

It is true that a line of decisions following a doctrine enunciated by the Supreme Court of Missouri, which held that when the cause of death is contested, experts should be asked what in their opinion might have been the cause, and not what did cause the death. To us, these decisions seem to be based on a most absurd ground. Because the question is one for the jury to answer finally, the expert is not permitted to say what in his opinion did cause it, but what might have caused it. Does it not seem foolish, when any intelligent jury knows from the fact of which party calls the expert, and his general testimony favorable to that party, what in his opinion did cause the death, that he is not permitted to say that it did, but only that it might have done so?

Why not let him state what in his opinion did cause it? The jury are not bound to believe it. They are to say whether they will accept the opinions of the State's experts or those of defendant's, or neither. We do not believe that such a rule is in consonance with the enlightened views often expressed by this court upon the proper rules for the admission of testimony; Such a quibble can in no way protect defendant's rights, can in no way aid in arriving at the truth of the controversy, which is the true aim of all rules of practice.

We are supported in our view of this rule by no less authority than Mr. Wigmore, In vol. V of his treatise, on page 193, in note 1 to Sec: 1976, he cites several of the authorities supporting this obsurd rule with comments thereon. We write his views, as expressed in these comments:

"Ill: 1904, Illinois C. R. Co. v Smith 208 Ill. 608, 70 N.E. 628, (to a physician whether the twisting of the plaintiff's foot had been caused by an even or uneven surface, held improper chiefly on the ground that it asked what "did cause", not what "might have caused," this is a good example of that legal quibbling which creates for the law of trials a disrespect in the minds of compentent physicians.)"

"1905 Taylor v Grand Ave. R. Co. 185 Mo. 239, 84 S. W. 873 (whether certain injuries "might, could or would result in paralysis," allowed, but not whether, in the particular patient as examined by the physician, the injuries were the cause of paralysis, this quibble is justified by the following refined distinction; "To the trained legal mind there is a very essential difference between permitting an expert to give an opinion and permitting him to draw a conclusion;" to which it may be said that if, "the trained legal mind signifies one which has been infected by the rabies of such quibbling, then the community now urgently needs a Parteur process which shall stay the ravages of such an affliction in the profession.)"

"1905 glagow v Metropolitan St.R. co. 191 Mo. 347, 89 S. W. 915 (corporal injury; "it was competent for the learned witnesses to state what cause or causes might produce such a result - - - - but it was incompetent for them to say that in this case the plaintiff's condition was in their opinion the result of the alleged fall," and then a long critique on the tweedledum and tweedledee of this distinction; it is singular that learned judges become so absorbed in the wild fancies of the Opinion rule that their common sense is buried for the purposes of justice; such doctrines are as remote from the practical ends of a rational system of present day trials as the howl of the Athabasca wolves from the clang of the St. louis Street cars.)"

"1906 Martin v. Des Moines E.L. Co. - Ia. - 106 N.W. 359 (death of an employee in an electric light plant; the defendant claimed that heart desease caused death; a question to an expert whether the defendant "received an electrical shock before he fell" was held improper; this ruling reaches an extreme of artificial aridity of law; such decisions show the need of a spiritual irrigation - law, for re-distributing the fountains of justice."

In Vol. III. of his treatice on Evidence at Sec. 1929, Mr. Wigmore discussing generally the Opinion Rule, says:

"The Opinion rule day by day exhibits its unpractical subtlety and its useless refinement of logic. Under this rule we accomplish little by enforcing it and we should do no harm if we dispensed with it. We accomplish little because, from the side on which the witness appears and from the form of the question, his answer, i.e. his opinion, may oft on be inferred. We should do no harm, because, even when the final opinion or influence is admitted, the influence amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if describe, on cross examination - add to this that under the present illiberal application of the rule, and the practice as to new trials, a single erroneous ruling upon the single trifling answer of one witness out of a dozen or more in a trial occupying a day, may overturn the whole result, and cause a double expense of time, money and effort; and we perceive the absurdly unjust effects of the rule - Add, finally the utter impossibility of a consistent application of the rule, and the consequent uncertainty of the law, and we understand how much more it makes for injustice rather than justice. It has done more than any one rule of procedure to reduce out litigation towards a state of legalized gambling."

But even were this unjust rule enforced in this State, it would not be applicable to the case at bar. Here no evidence was introduced by the defense to show that deceased came to her death otherwise than by strangulation by some third person. No experts were produced by defendant to give opinions that she might have met her death by other means. The evidence of the State in that respect was practically un-contradicted. We submit that under the evidence in this case, the real issue was, did defendant cause the death of deceased or did some one else? Illnois has followed the technical rule we have above discussed. But that court has said it does not apply in cases where the cause of death is not an issue.

"Where there is a conflict in the evidence as to whether the plaintiff was injured in the manner claimed, it is not competent for witnesses to give their opinion on that subject but where there is no dispute as to the manner of the injury and the question is as to whether certain physical conditions were caused by the injury complained of and the determination of the question involves a special skill or trade or a knowledge of science that does not come within the experience of laymen possessing the education or knowledge common to those moving in the ordinary occupation of life, then persons possessing the special knowledge, skill and science may give their opinions on the subject." Chicago v didier - Ill. 81 N.E. 698.

The rule for which we contend which would admit evidence of experts as to the cause of the death, is supported by ample authority.

In Wisconsin, a case very similar to this, was decided favorably to our contention. There the question was whether the death of defendant's wife was caused by violence applied by some person, or whether it was the result of her debauch with reference to the testimony of experts, the court said

"They had attended one or both of the post-mortem examinations, and they based their opinion upon the condition and condition of the internal organs, their congestion appearance, the convulsed state of the muscular system, etc. They testified as to facts within their personal knowledge; also, probably to matters denied from professional study and experience - We suppose they could give their opinion as to the cause of the death of the deceased."
Boyle v State (Wis) 21 N.W. 291. 

and see: Simon v State (Ala.) 18 So. 731
Everett v State 62 Ca.71
State v Knight 43 Maine 130
State v Smith 32 Maine 370
State v Glass 5 Or. 79
Shelton v State 34 Tex.666

In the last cited case, it is said:

"Indeed, there are many cases, as in this, where there was no one present at the death but deceased, unless it was defendant, and where it might be wholly impossib le to porve the cause and manner of the death, excepting through the aid of science; when with the aid of scientific experience of medical men, the whole facts might become as manifest as though rehearsed by an eye witness."

II. In a homicide case, evidence of the relations between defendant and deceased is admissible, even though it shows adulterous intercourse if it throws any light upon the issues.

Objection is made because the court admitted evidence of defendant's intimacy with deceased prior to the homicide, the contention being that evidence of such adulterous intercourse was incompetent and prejudicial. It is well settled that in homicide cases the relations existing between the parties prior to the killing is admissible, even though it shows criminal intercourse.

State v Crafton (Ia) 56 N.W. 259
People v Young (Cal) 36 Pac. 770
Com. v Costley 118 Mass. 1;
Mobley v State (Fla) 26 So. 732.

It was the theory of the State in the case at bar that defendant, often having seduced deceased, and when she became pregnant, killed her, for the purpose presumably of getting her out of the way; he, being a married man, with a family. The evidence was clearly admissible.

III. We think none of the other errors assigned merit serious consideration.

The objection that the arguments of Moman Pruett (sic), Esq. of counsel for the prosecution, was an unfair comment upon the evidence, even if properly preserved for review - which we deny - is not supported by the record. It is complained that he called the jury's attention to the absence of one Snoddy, to whom defendant claimed he had delivered certain letters received by Mabel Oakes, and turned over to him, thus accounting for his failure to produce them. Snoddy had been his counsel. As a matter of fact, the record of defendant's testimony shows Snoddy to have been the one who was defendant's counsel and to whom the letters were given (see record p.539 and p.542). How there could be any fraud or deception in commenting upon his failure to appear and produce the letters, we fail to see. With reference to this assignment of error, we call the court's attention to the fact that nowhere, except in counsel's brief, does it appear that the trial court refused to call the stenographer to take down the objections to Mr. Pruett's (sic) argument.

Equally without merit is the contention that there was error in refusing requested instructions.

Requested Instruction "A" was fully covered by Instruction No. 2 (p. 674). Requested Instruction "D" was covered fully by Instruction No. 7 (p. 679) No. 9 (p. 681) and No. 10 (p. 682).

Requested Instruction "G" was properly refused in this case. We quote the objectionable part of it:

"Expert testimony is the opinion of such a witness, based upon the facts in the case as shown by the evidence, but it does not even tend to prove any fact upon which it is based and before you can give any weight whatever to expert testimony, you must first find from the evidence that the facts upon which it is based are true, and that all the facts relating to the physical condition and drugs or medicine are covered by the expert in the facts upon which he bases his opinion."

By referring to the evidence of the experts who testified in this case, it will be seen that their opinions were not based upon hypothetical statements of facts, but upon their own examination of the body, and their own knowledge of the conditions surrounding it, to all of which they had testified as witnesses. Hence the instruction was not applicable to the evidence and was properly refused. The subject of expert testimony was fully and fairly covered by Instruction No. 11 (683) given by the Court. The same objection applies to requested Instruction No. "H".

Instruction No. "T" was properly refused. The court was careful to instruct that before defendant could be convicted the jury must believe beyond a reasonable doubt that "Mabel Oakes is dead, and that she was strangled to death by the defendant winding a scarf about her neck with the premeditated design to effect her death." Instruction No. 12 (p 687).

Instruction No. 8, on circumstantial evidence (p 680) is copied verbatim from a case in the Supreme Court of Nebraska, in which it was approved as a fair and correct statement of the law.

Smith b. State (Neb) 85 N.W. 52

Instruction No. 1(p. 673) defining when homicide is murder, was not objectionable. The Vaughn case, upon which appellant relies, is not the law of this State.

"When an indictment or information charges a defendant with murder under the first subdivision of the statute, (Snyder's comp. Laws of Okla. 1909, Sec. 2268) a conviction can be had if warranted by the evidence, under and by virtue of the other subdivision of the statute."

Homes v State 6 Okla. Cr. 541 119 Pac. 430.

There is no error in this record. The crime of which defendant was guilty was a horrible one. We think he was fortunate in escaping with life imprisonment. The jury's verdict should be allowed to stand.

Respectfully submitted,
Charles West, Attorney General
Smith C. Matson, Ass't. Attorney General.
Jos. L. Hull, Special Asst. Attorney General
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