Brink v. Territory Oklahoma

• Decision Date: 07 September 1895
• Citation: 1895 OK 64,41 P. 614,3 Okla. 588
• Parties: FRANK BRINK v. TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1895 OK 64

41 P. 614

3 Okla. 588

FRANK BRINK v. TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: September 7, 1895

Error from the District Court of Logan County.

The appellant, Frank Brink, was convicted of murder in the district court of Logan county and sentenced to imprisonment for life, and brings the case here on appeal. The facts are stated in the opinion. Affirmed.

Syllabus

¶0 1. RECORD--Jury Sworn. Where the journal entry of judgment, approved by counsel for defendant, shows "that upon issue joined the jury duly empaneled and sworn to try the cause had returned into open court in the presence of said defendant a verdict of guilty against said defendant," and the verdict of the jury signed by the foreman and returned into court states that upon their oaths they find the defendant guilty of murder. Held, That this is ground amply sufficient for this court to find that the record shows affirmatively that the jury was sworn according to law.

2. MOTION FOR NEW TRIAL. Where the motion for a new trial alleges error on the part of the court in overruling a motion for a new trial, based upon alleged misconduct of the county attorney and jury, but the record contains no affidavits or evidence of any character as to the truthfulness of the allegations of said motion, said assignment of error will not be considered by this court on appeal.

3. ADMONITION TO JURY--Failure--Presumption. If the court has failed to admonish the jury upon adjournments as required by law, a motion for a new trial on that ground should allege such failure, and the motion for a new trial should be supported by competent evidence showing that fact. It is proper, if the court deems it so, to permit the jury to separate upon admonishing them as required by law, but unless the record shows affirmatively by proof or otherwise, that the court permitted the jury to separate without the admonition, it must be presumed that the court performed its duty properly by admonishing them. (Redman v. Territory followed.)

Buckner & Son, for appellant.

C. A. Galbraith, Attorney General, Huston & Huston, for the territory.

SCOTT, J.:

¶1 This is a criminal prosecution in the district court of Logan county by the Territory of Oklahoma against Frank Brink and Fred Palmer. Brink was convicted of the crime of murder, and sentenced by the court to imprisonment for life, and he brings the case to this court on appeal.

¶2 We shall take up the assignments of error necessary to a determination of the questions involved as follows:

¶3 I. It is contended that the jury was not sworn to try the cause as the law requires. We think this objection and assignment of error is disposed of by the record. In the journal entry of judgment it is stated, "that upon issue joined, the jury, duly empaneled and sworn to try the cause, had returned into open court, in the presence of said defendant, a verdict of guilty against said defendant." This journal entry was approved by counsel for defendant before the same was filed. In the verdict of the jury, signed by the foreman and returned into court, they state that upon their oaths they find the defendant guilty of murder. This is ground amply sufficient for this court to find that the jury were sworn according to law, and hence there is no reason for reversal in this...