Beatty v. State
| Decision Date | 06 February 1911 |
| Citation | 113 P. 237,5 Okla.Crim. 105,1911 OK CR 44 |
| Parties | BEATTY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Matters occurring in open court during the progress of a trial cannot be incorporated in the case-made by affidavits, but must be placed in the case-made by recitals certified to by the judge who presided at the trial of the cause.
(a) Where a trial judge had excused jurors who were members of the regular panel, in the absence of a showing that this amounted to an abuse of discretion on the part of the trial judge, we will presume that such jurors were properly excused.
(b) Where a member of the regular panel is absent from the courtroom when his name is called, while the jury is being impaneled, it is proper for the trial judge to send for said juror and have him brought into court to be examined touching his qualifications to sit as a juror in the cause before the court.
(c) After a jury has been selected, it is too late to challenge the array and panel.
(d) Where the record shows that defendant challenged the array and panel of the jury, but does not state the ground upon which the challenge was made, the challenge will not be considered by this court.
(e) There is no presumption against the regularity of the proceedings in a court of record. Such proceedings are presumed to be regular, unless the contrary is affirmatively made to appear.
Where the court failed to instruct upon the presumption of innocence, but did instruct the jury fully upon reasonable doubt, and where the defendant did not request any instruction on the presumption of innocence or save an exception to the action of the court in neglecting to charge on this presumption, a conviction will not be reversed because the court omitted to give said instruction.
Appeal from Logan County Court; J. C. Strang, Judge.
Tom Beatty was convicted of violating the prohibition law, and he appeals. Affirmed.
Walter Warren and Will H. Chappell, for appellant.
Smith C. Matson, Asst. Atty. Gen., for the State.
First. Appended to the motion for a new trial we find a lengthy affidavit, which attempts to set forth proceedings which it is claimed were had in the county court when the jury in this case was impaneled. Parties cannot make up a case-made in this manner. Any matter transpiring in open court of which the trial judge had knowledge can only be incorporated in the case-made by statements which are duly certified to by the presiding judge. See Colon Cochran v. State, 4 Okl Cr. 379, 390, 111 P. 974, 978.
Second. We find properly incorporated in the case-made the following statement: "Thereupon, said defendant on request of his counsel is allowed by the court to make a copy of the jury list spread before the court, and the names of the persons on said jury list are called by the court, and take their places in the jury box and are examined on their voir dire and thereupon, the prosecution and defense exercise their peremptory challenges, and the defendant, having one peremptory challenge left, excuses one Sam Evans, whereupon the court forthwith calls into the jury box one E. H. Furrow who, not being present in the courtroom, is sent for by the court, to which the defendant objects, and asks that the names of the two remaining jurors upon the jury list be called, upon which said defendant is by the court informed that the two other jurors, members of the regular panel, have been excused from further service before the court, to all of which said defendant excepts." It is not claimed or shown that the court abused its discretion in excusing the two jurors who were members of the regular panel above referred to, and, in the absence of a showing to this effect we must presume that these parties were properly excused by the trial court. E. H. Furrow being a member of the regular panel, and being absent from the courtroom, it was entirely proper for the court to send after said Furrow and place him in the jury box. When the said E. H. Furrow was brought into court, the record recites that the following took place ...
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