Allen v. State

• Decision Date: 14 June 1917
• Docket Number: A-2702.
• Citation: 165 P. 745,13 Okla.Crim. 533,1917 OK CR 127
• Parties: ALLEN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

165 P. 745

13 Okla.Crim. 533, 1917 OK CR 127

ALLEN v. STATE.

No. A-2702.

Court of Criminal Appeals of Oklahoma

June 14, 1917

Syllabus by the Court.

Where during the trial of a homicide case, the jury having retired to deliberate on their verdict, the judge was incapacitated from further proceeding with the trial on account of sickness, and by agreement of the parties he designated an attorney of the court to receive the verdict of the jury:

Held, that the reception of the verdict in a criminal case is a judicial act, which cannot be delegated and a verdict so received is a nullity, and that no judgment of conviction could be lawfully pronounced upon such verdict.

Held, further, that the discharge of the jury under such circumstances must be deemed to have been with the consent of the defendant.

Where a jury impaneled and sworn in a criminal case is prevented from returning a verdict by reason of illness of the presiding judge, incapacitating him from attending to the duties of the trial, the case may be again tried.

A judgment of conviction based on an illegal verdict will not operate as an acquittal, either before or after reversal on appeal, and a new trial in such a case after reversal of such judgment, on defendant's appeal, is no infringement of the clause of the Constitution which declares that, "Nor shall any person be twice put in jeopardy of life or liberty for the same offense." Const. art. 2, § 21.

Additional Syllabus by Editorial Staff.

The word "accident," as used in Rev. Laws 1910, § 5916, providing that where a jury is discharged or prevented from giving a verdict by reason of an accident the cause may be retried, means an event happening unexpectedly and without fault; an undesigned and unforeseen occurrence of an afflictive or unfortunate character; a casualty or mishap.

Appeal from District Court, Payne County; A. H. Huston, Judge.

Minnie Allen was convicted of manslaughter in the first degree, and she appeals. Reversed.

J. M. Springer and Robert A. Lowry, both of Stillwater, for plaintiff in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

DOYLE P.J.

The plaintiff in error, Minnie Allen, was tried in the district court of Payne county upon an information jointly charging her and George W. Carpenter with the murder of one Tom Oglesby, alleged to have been committed in the said county on the 18th day of May, 1915. Upon her separate trial she was found guilty of manslaughter in the first degree, and her punishment fixed at eight years' imprisonment in the penitentiary. From the judgment rendered in pursuance of the verdict she appeals.

It appears from the record that on the 15th day of October, 1915, the cause was submitted to the jury, and they retired in charge of a bailiff to consider of their verdict, and the court thereupon recessed; that Judge Huston, presiding judge, became seriously ill that evening, and in view of such illness it was agreed between the county attorney of Payne county and the attorneys for plaintiff in error that in the event it became necessary for Judge Huston to return to his home in Guthrie before the jury had returned a verdict, that Robert A. Lowry, an attorney at the bar of Payne county, should act as special judge for the purpose of receiving the verdict of the jury; that Judge Huston left Stillwater on the morning of the 16th day of October before said jury had returned their verdict; that about an hour later the jury came into the courtroom in charge of their bailiff, and in accordance with the aforesaid agreement, Robert A. Lowry convened court and inquired of the jury if they had agreed upon a verdict. The jury answered they had. Robert A. Lowry received their verdict and delivered the same to the court clerk. After the verdict was read and the jury polled, Robert A. Lowry ordered the clerk to record the same and have the record show that all proceedings had and done by Robert A. Lowry in said case were in effect had and done by the district judge, present in his own proper person. On October 19th Judge Huston returned to Stillwater, opened court, and overruled plaintiff's motion to require the court clerk to correct the record in the case to show the facts. See Allen v. Huston, Judge, 165 P. 742. On the same day motions for new trial and in arrest of judgment were overruled, and in pursuance of said verdict the judgment appealed from was rendered.

It is contended by the plaintiff in error that upon the record the trial court lost jurisdiction during the trial by reason of the fact that the trial judge absented himself from the place where court was being held while the jury was deliberating upon their verdict, and that the plaintiff in error waived none of her rights by reason of said agreement, and that she was entitled to be discharged upon her motion in arrest of judgment. The Attorney General has filed a confession of error and motion to remand the cause that it may be again tried.

Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. In many cases this court has held that it is the duty of the presiding judge at criminal trials to be present during each and every stage of the proceedings before him, and when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction will be reversed. Stites v. State, 9 Okl. Cr. 596, 132 P. 822; Wright v. State, 7 Okl. Cr. 280, 123 P. 434; Cochran v. State, 4 Okl. Cr. 380, 111 P. 974. It is a fundamental principle of law that judicial power cannot be delegated, and a verdict of conviction to be of any validity must be delivered in open court.

Under the following provisions of our Procedure Criminal the presence of the presiding judge during the entire course of the trial is essential, and the receiving of the verdict is a judicial act which cannot be delegated.

"After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court." Section 5906, Rev. Laws.

"After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called." Section 5913.

"If, after the retirement of the jury, one of them becomes so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept together for deliberation, the jury may be discharged." Section 5914.

"Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree." Section 5915.

"In all cases where a jury are discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment or information, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct." Section 5916.

"While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for any purpose connected with the cause submitted to them until verdict is rendered or the jury discharged." Section 5917.

"When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered," and "if the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it." Sections 5925 and 5926.

"When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation." Section 5928.

Under these provisions, after the retirement of the jury to deliberate and until a verdict is rendered, or the jury discharged in due course of the law, it is the duty of the presiding judge to be where he can respond to any call for the exercise of his judicial authority, and thus give protection and security to all parties interested or concerned in the result of the trial, and such judge cannot delegate these judicial functions to another, even with the consent of the parties. It is well settled that in prosecutions for felonies the continual presence of the judge during the entire course of the trial is indispensable, and that whether objection be or be not...