Blake v. State

• Decision Date: 09 September 1932
• Docket Number: A-8348.
• Citation: 14 P.2d 240,54 Okla.Crim. 62
• Parties: BLAKE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

14 P.2d 240

54 Okla.Crim. 62

BLAKE v. STATE.

No. A-8348.

Court of Criminal Appeals of Oklahoma

September 9, 1932

Syllabus by the Court.

1. A wide discretion is allowed a district judge in instructing a grand jury the particular subjects of inquiry or about particular offenses, but it is error to point out by name a particular person as a subject of investigation.

2. A grand juror cannot be questioned for anything he may say, or any vote he may give, in the grand jury relative to a matter legally pending before the grand jury. The challenging of a grand juror and the questioning of his vote upon any matter legally before the grand jury by counsel for the state in open court tends to coerce the grand jury and is prejudicial.

3. The discharge by the court of a member of the grand jury panel on the sole ground of his failure to vote for an indictment on a matter pending before the grand jury is an abuse of discretion.

4. A grand jury had investigated a charge of crime pending before the jury and had voted and had failed to vote an indictment. Counsel for the state in open court in the presence of the jury then charged misconduct against two members of the jury for the sole reason that they did not vote an indictment; the court thereupon excused the two members from the jury for that reason and reimpaneled the jury with two other jurors. Held, such proceedings amount to coercion, and an indictment then voted by the grand jury as reimpaneled on the same charge is invalid and on timely motion should be set aside.

Appeal from District Court, Creek County; Gaylord R. Wilcox, Judge.

Ralph H. Blake was convicted of destroying public records, and he appeals.

Reversed.

Streeter Speakman, W. V. Pryor, and C. B. Rockwood, all of Sapulpa and Owen & Looney, Clara C. Gore, Paul N. Lindsey, and Clyde J. Watts, all of Oklahoma City, for plaintiff in error.

J Berry King, Atty. Gen., Sebe Christian, Co. Atty., of Sapulpa, and James Hepburn, Sp. Counsel, of Okmulgee, for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county of destroying public records and was sentenced to serve a term of one year in the state penitentiary and to pay a fine of $1,000.

The prosecution is under section 1624, Comp. St. 1921. It is alleged defendant destroyed "* * * a record or paper known as 'A Sales Record,' or 'A Tax Sale Record,' or 'List of Delinquent Taxes,' said record being known and identified by all three of the above descriptive names. * * *" A brief statement of the background of this case is: Defendant was county treasurer of Creek county; his office had been investigated by the state examiner and inspector and a report made; a question of official misconduct in the sale or resale of real estate for delinquent taxes had arisen, and the Governor under the provisions of section 6, Comp. St. 1921, named James Hepburn a member of the bar, to appear for the state. A grand jury was called, the special officer named with the county attorney conducted the grand jury examination, which returned the indictment under which this conviction was had.

Several assignments of error are argued but the first is decisive. It is that the court erred in overruling the motion to set aside the indictment. Considering this contention the record discloses that at the time the grand jury was first impaneled the court in his charge several times referred to defendant by name as the object of the jury's investigation. After it was impaneled and had been in session for some time, it appeared before the court, and the special counsel in the presence of the jury in substance informed the court that one member was interrupting the investigation; that the proceedings were getting "too rotten" for him; that the state had offered sufficient evidence to warrant an indictment; the grand jury had voted but failed to indict due to the action of the particular juror. He repeatedly asked the court to examine the clerk under oath and ascertain who voted against the indictment and asked that the juror named be discharged and the grand jury be reimpaneled, in part saying: "If the court please, this morning the prosecuting attorneys presented to the grand jury an indictment, properly prepared. The evidence upon that indictment was-if I am not correct, I want the foreman or any member of the grand jury to correct me-against an individual charging him with a certain crime. The evidence was, two witnesses were sworn and testified that he told them that he committed the crime. A third witness testified in substance that she saw him commit the crime, and begged him not to do it. In addition to that, on that evidence the indictment was presented last night, but the grand jury informed us that they would vote upon it in the morning. They wanted further testimony this morning, and we introduced further testimony. We introduced an affidavit, the original sworn affidavit sworn to by this man, swearing that he had committed this crime. They then voted on that indictment and failed to indict. * * * The State of Oklahoma, at this time, through the special counsel for the state, requests the court to privately examine the clerk and ascertain who voted against the indictment, under the evidence and the sworn affidavit of the party himself. * * * I am asking the court to discharge this gentleman wearing glasses, and to examine the clerk under oath privately, to ascertain who cast the four votes against the indictment. * * *"

The court then asked if any other member of the grand jury was obstructing the proceedings. Special counsel answered that as a whole the jury was honestly and fairly performing its duty. The juror named was then permitted to make a statement, following which the court discharged him and ordered additional jurors drawn. When the additional jurors appeared in court, they were examined as to qualifications and opportunity for challenge given. Special counsel for the state challenged two additional members of the first panel and who were in the array to be reimpaneled, in part saying: "* * * We challenge those two jurors for the reason that they were members of the grand jury and that they voted against returning indictments where there was evidence before the grand jury, the sworn affidavit of the party charged, that he committed the crime. The witnesses have not been challenged. Also two witnesses who testified before the grand jury that he told them, the party being investigated told them that he committed the crime. And, in the face of that evidence, these two gentlemen voted against returning the indictment; and we say it comes under that right to challenge under that last clause your honor read. * * * Now, your honor, if those gentlemen, under their oath, say they did vote to return that indictment, of course, I will withdraw my objection, but they did vote not to return it, in the face of that testimony. * * * We make the challenge on the last ground that your honor read, the objection that we are making might also come in under the other sub-division, on the ground of insanity. * * * I insist upon the challenge of these two gentlemen being sustained. * * *"

The court then asked the two jurors if they desired to make a statement and each stated they did not. The court then sustained the challenge to the two jurors, added three of the names drawn to the former panel, reimpaneled them, and the investigation proceeded. Under this state of the record counsel for defendant insist the indictment was procured by coercion.

The contention made under the first proposition is not to any irregularity in drawing or impaneling the jury, nor to the qualifications of any juror. The rule is that statutes for the drawing or impaneling a grand...