Bickerstaff v. State

• Decision Date: 16 October 1968
• Docket Number: No. A--14386,A--14386
• Citation: 446 P.2d 73
• Parties: Melba Vanessa BICKERSTAFF, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 73

446 P.2d 73

Melba Vanessa BICKERSTAFF, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14386.

Court of Criminal Appeals of Oklahoma.

Oct. 16, 1968.

Syllabus by the Court

1. No petit jurors shall be allowed to serve more than two weeks at one term, unless at the end of such period, he is upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated; provided, that if the judge is of the opinion that the jury business of a term of court may be concluded within six (6) days, he may require a petit jury, or a petit juror, to remain until the termination of said jury service, by entering an order to that effect upon the court's journal, and this provision shall apply to the District, Superior, Common Pleas and County Court. 38 O.S. § 21.

2. The term of service of the jurors is by this statute fixed at two weeks, and, if at the end of that time the court is to continue in session longer, a new jury must be summoned, unless the court is of the opinion that the jury business may be concluded within six days, and enters an order upon the journal of the court requiring the jurors present to remain until the termination of the business. The words 'No juror shall be allowed to serve more than two weeks at one term,' are qualifications, and mandatory. This section also provides that a jury engaged in the consideration of a case shall serve to the conclusion of the case upon which he is sitting. We are of the opinion that jurors who have served two weeks consecutively under the provision of this statute are disqualified to serve further at that term of court, except upon an order of the court holding them over six days longer, when he is of the opinion that the jury business can be completed within that time, and except in cases where the jury, or juror, is engaged in considering a case on trial.

3. On the trial of defendant for conveying into jail certain tools to aid the escape of a prisoner, the state introduced as a witness another prisoner who also escaped. HELD, that the witness, even if he used the tools in effecting the escape of himself and co-prisoners, was not an accomplice or Particeps criminis in the offense of conveying the tools into the jail; and, therefore, his testimony, though uncorroborated was not subject to the statutory disparagement of accomplice testimony.

4. In the light of the entire record, whether objected to or not, and when considered in connection with some of the closing argument of the Assistant Prosecutor which was objected to, the conduct of the Assistant District Attorney in both his examination of defense witnesses and in his argument to the jury, was calculated to prejudice the jury against the defendant and to cause them to impose a greater sentence than ordinarily would have been imposed. Under these circumstances and in the interest of justice, the Court of Criminal Appeals will modify the judgment and sentence imposed.

An appeal from the District Court of Oklahoma County; Carmon C. Harris, Judge.

Melba Vanessa Bickerstaff was convicted of the crime of Carrying Into Prison Things to Aid Escape, was sentenced to serve five years in the State Penitentiary, and appeals. Modified and affirmed.

Oyler & Wise, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Melba Vanessa Bickerstaff, hereinafter referred to as defendant, was charged, tried, and convicted of the crime of Carrying into Prison Things to Aid Escape, in the District Court of Oklahoma County, was sentenced to serve five years in the State Penitentiary, and from said judgment and sentence, a timely appeal has been filed.

From the record and briefs it appears that the criminal jury docket for January, 1967, of Oklahoma County, began on Monday, January 9, 1967, with cases regularly set through Wednesday, January 18, 1967. Defendant's case was set for trial on the first day of the docket being Monday, January 9, 1967, with counsel for both sides announcing ready for trial. Defendant's case did not go to trial due to unavailability of courtrooms and was continued to Tuesday, January 10th by the court. Said case likewise did not go to trial and was continued on a day-to-day basis to Wednesday, January 11th, then Monday, January 16th, Tuesday, January 17th, and Wednesday, January 18th, which was the last day of the published docket. On the 17th day of January, 1967, however, the trial court entered the following Order:

'Now on this 17th day of January, 1967, it appearing to the Court that the present Jury Panel now serving in the trial of cases for the January, 1967 Session of the above entitled Court, will complete two weeks of jury service prior to the end of jury business, and the Court is of the opinion that the jury business of this jury session which commenced on the 9th day of January, may be concluded within 6 days after the termination of the two weeks' jury service of said jurors:

It is therefore, by the Presiding Judge, (the other Judges concurring) ORDERED that pursuant to the provisions of Title 38, Sec. 21, O.S.1961, the present panel of jurors is directed to appear for jury service in this Court during the next week, commencing, Monday, the 23rd day of January, 1967, and continuing until said Court discharges the jury panel.

/s/ Harold C. Theus

Presiding Judge.'

Thereafter the defendant filed a Motion to Quash the Jury Panel alleging in substance that because 40 members of said panel had been excused from the third week's jury duty, she had been prejudiced thereby and was unable to get a fair and impartial trial from the remaining members of the jury panel who were 'volunteers.'

Thereafter, the court made the following ruling (28 CM):

'THE COURT: The motion to call the names of all of the jurors summoned and the motion to quash are considered untimely presented. This Jury has been here for 2 weeks and has been trying criminal cases for 2 weeks and all of the cases presented here this morning and the other motions have heretofore been called for trial one or more times, having been regularly set before Judge Boston Smith.

All Jurors who are here are those that have participated in the last 2 weeks on the regular Jury Panel and they are here pursuant to the order of the Court with the exception of those who have by the Court been excused.

The mechanics of being excused in some instances has been accomplished by the use and assistance of the Court's Bailiff, but strictly under order of the Court.'

The court made the following ruling concerning defendant's motion to quash the jury panel at pages 25--26 of the Casemade:

'Let the record show that the manner in which the Jury Panel was returned for service this week is stated substantially the correct manner in the motion to quash presented by Mr. Oyler and Mr. Pitman. Therefore, nothing being left in controversy, the motion to quash will be overruled and exceptions allowed.'

During the voir dire examination of the prospective jurors a number of the jurors were questioned by both counsel for the State and for the defense and after a number of the jurors had been passed by both sides for cause, the defendant again renewed her objection to the panel for the reason...