Carr v. State
| Citation | 84 P.2d 42,65 Okla.Crim. 201 |
| Decision Date | 03 November 1938 |
| Docket Number | A-9452. |
| Parties | CARR v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Every person charged with crime is entitled to a fair and impartial trial in conformity to the law of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen shall be upheld and sustained.
2. A trial jury will be presumed in the absence of a showing to the contrary, to have been legally and properly constituted of qualified persons.
3. It is the duty of a trial judge to assure himself that each member of the jury is unbiased, and that no one of them is disqualified.
4. It is the duty of the defendant to question the jurors on their voir dire as to their qualifications, and if he fails to do so, he waives any objection on that point, even though the disqualification is unknown to him until after the rendition of the verdict. The granting of a new trial, in such case, is a matter of judicial discretion.
5. A constitutional or statutory right or privilege may be waived by the accused.
6. Where irregularities occur in the selecting, summoning and impaneling of a jury, it is incumbent upon the defendant, or his counsel, to interpose his objection at the proper time and it is waived if it is raised for the first time after verdict, unless it is clearly shown that his substantial rights have been prejudiced.
7. A known cause of challenge is waived by withholding it, and raising it as an objection after verdict, since such a practice is incompatible with the good faith and fair dealing which should characterize the administration of justice.
8. A known ground of disqualification of a juror, before or during the progress of the trial, is waived by withholding it, or refusing to raise the objection until after verdict.
9. The incompetency of a juror is ground for a new trial when discovered after verdict, where he falsely qualifies on his voir dire, when he is incompetent on ground necessarily within his knowledge.
10. The right of defendant to object that a juror was disqualified because he is a deputy sheriff, contrary to his statement on his voir dire, is ground for a new trial, where the fact of his being a deputy sheriff was unknown to defendant or his counsel until after verdict.
Appeal from District Court, Custer County; W. P. Keen, Judge.
Herbert Carr was convicted of driving an automobile on a highway while intoxicated, and he appeals.
Reversed and remanded with directions.
Milton Keen, of Clinton, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
On information charging that Herbert Carr did drive an automobile on a public highway, in Custer county, while under the influence of intoxicating liquor, he was tried, found guilty, and, in accordance with the verdict of the jury, was sentenced to pay a fine of One Hundred Dollars and to imprisonment in the state penitentiary for a term of six months. From the judgment he appeals.
Among other assignments of error, it is alleged that the court erred in overruling the defendant's motion for a new trial. This motion was based principally on the ground of the disqualification of one of the jurors, by reason of the fact that he was a deputy sheriff.
In support of the motion for new trial, the defendant, Herbert Carr, filed his affidavit as follows:
"That one of the jurors in the trial of this cause to-wit: Grover Leonard, is now, and was on the 6th day of April, 1936, the day of said trial, and has been for more than 20 years, a duly appointed and commissioned and legally acting deputy sheriff, and was thereby disqualified from serving as a juror in the trial of this action; that immediately prior to the trial of this cause the Court thoroughly examined said Grover Leonard along with the other jurors, upon those subjects touching qualifications, and said Grover Leonard then and there concealed his said disqualification; that this defendant caused said Grover Leonard, along with the other jurors, to be examined generally as to competency, but said Grover Leonard did not disclose the fact that he was and had been a deputy sheriff; that neither this defendant nor defendant's attorney, Milton Keen, had any knowledge whatsoever of the fact that said Grover Leonard was a deputy sheriff; that this defendant and his said attorney did not learn of the disqualification of Juror, Grover Leonard until the day after said jury rendered its verdict of guilty as to this defendant; defendant further states to the Court as a grounds for a new trial that said Grover Leonard was also duly appointed and commissioned deputy sheriff by G. G. Simpson, the present sheriff of Custer County and other deputy sheriffs of Custer County were witnesses for the state in the trial of this action; that the juror Grover Leonard voted 'guilty' on the first ballot taken by said jury, and said Grover Leonard continued to vote 'guilty' on all ballots taken by said jury, thus prejudicing defendant's constitutional, statutory and substantial rights."
The proceedings had upon the motion for a new trial are set forth in the record by the following stipulation:
Grover Leonard, the juror in question, testified under oath in substance that he had been commissioned as a deputy sheriff by Garnett G. Simpson, the Sheriff of Custer County, Oklahoma, early in 1933. That he had been a deputy sheriff in said county for more than twenty years. That in 1933, Garnett G. Simpson had administered an oath to him, and given him a written commission as such deputy sheriff. That he was one of the jurors in the trial of this cause on the 6th day of April, 1936, that before said trial commenced, he heard the Honorable W. P. Keen, Judge of the said District Court, and the presiding judge of said trial, read from the Oklahoma Statutes about the disqualification of all deputy sheriffs. That he, Grover Leonard, did not make known to anybody the fact that he was a deputy sheriff. That during all the twenty years he had been a deputy sheriff, he had kept the matter as much a secret as possible, because he believed that he could do better work as an officer if the public did not know of his authority. That he did not want it known at this time. That on the day of the said trial, he was a deputy sheriff; and that the next day he tore up his written commission. That the sheriff, Simpson, had never at any time asked him to surrender his said commission, and had never discussed with him the advisability of a cancellation of said commission. That on the trial of this cause, the said Sheriff Simpson, and several of his deputies, were called as witnesses for the State. That when the jury retired for deliberation, this witness advised the other jurors to vote for a conviction; that on the first ballot taken by said jury, this witness voted 'guilty'; and continued to vote in that manner, and continued to advise the other jurors to vote 'guilty', until on the last ballot, all twelve jurors voted 'guilty'. That the day after the said trial, and after the verdict had been brought into court, Milton Keen, who was attorney for the defendant, Herbert Carr, approached this witness and asked if witness was not a deputy sheriff; that this witness then admitted to Milton Keen that he was a deputy sheriff, but requested Milton Keen to not mention it. Then he told Milton Keen that he had his commission in his pocket during the trial.
Herbert Carr, the defendant, testified under oath in substance, that at the time of his trial, he was not acquainted with the juror, Grover Leonard, had never heard of him, nor his name, and did not know that Grover Leonard was a deputy sheriff. That this witness did not learn that Grover Leonard was a deputy sheriff until the day after the trial, that is, the 7th day of April, 1936, when so told by his attorney, Milton Keen.
Milton Keen, the attorney for the Defendant, testified under oath...
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