Ford v. State

• Decision Date: 17 September 1958
• Docket Number: No. A-12580,A-12580
• Citation: 330 P.2d 214
• Parties: Wesley J. FORD, 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 214

330 P.2d 214

Wesley J. FORD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12580.

Criminal Court of Appeals of Oklahoma.

Sept. 17, 1958.

Syllabus by the Court.

1. It is the duty of the courts to enforce the strict observance of the provisions of the Constitution and statutes designed to preserve inviolate the trial by jury and the purity of jury trial.

2. On proof of a violation of the provisions of the Code of Criminal Procedure, 22 O.S.1951 § 857, by permitting the jury to separate after the case has been finally submitted to them, the defendant is entitled to the presumption that such a separation has been prejudicial to him and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant.

3. Where the trial judge communicates with the jury, in violation of 22 O.S.1951 § 894, outside of the courtroom in the absence of defendant or his counsel, such conduct is presumed to be prejudicial to the defendant and the burden is upon the state to show that the defendant was not prejudiced by reason of such misconduct.

Appeal from the District Court of Carter County; W. J. Monroe, Judge.

Plaintiff in error, Wesley J. Ford, was convicted of the crime of manslaughter in the first degree, sentenced to serve a term of four years in the state penitentiary, and he appeals. Reversed and remanded for a new trial.

Wilson Wallace, Alvin C. Bruce, Ardmore, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, Wesley J. Ford, defendant below, was charged by information in the District Court of Carter County, Oklahoma, with the crime of murder, allegedly committed on November 18, 1955. Two trials have been had on the charge, the first resulting in a mistrial. Several continuances were had in the matter because of the ill health of the accused. On the second trial, the jury returned its verdict on September 14, 1957, finding the defendant guilty of manslaughter in the first degree and fixing his punishment at four years in the penitentiary. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

The defendant raises two propositions herein. First, he contends the court erred in permitting the jury to separate after the case had been submitted to them for deliberation, and after they had retired to the jury room to consider their verdict. Second, he contends the court erred in talking with the jury, or members thereof, after the jury had retired to the jury room to deliberate, and out of the presence of counsel for either the plaintiff or the defendant and outside of the courtroom.

On the first proposition, the record conclusively shows that the jury was permitted to separate during their deliberations. They were using the County Court Room in their deliberations and the male members were permitted to proceed unaccompanied across a public corridor into the District Court Room and thence west into the District Judge's chambers to the rest room. Members of the public were in both the corridor and in the courtroom. On one occasion, the county attorney was in the judge's chambers making a telephone call. The record discloses he was there in the presence of the jury members for five or ten minutes. The female members were permitted to leave the jury room, or County Court Room, cross the public corridor, enter the District Court Room and go east to the Court Reporter's office and a rest room, all subject to contact with the public. The record shows they were not accompanied by a bailiff on these trips. The state offered no evidence to controvert the foregoing facts.

This situation is governed by 22 O.S.1951 § 857, which reads 'After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor to do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.'

The case of Sealy v. State, 59 Okl.Cr. 104, 56 P.2d 903, holds:

'It is the duty of the courts to enforce a strict observance of the provisions of the Constitution and statutes designed to preserve inviolate the trial by jury, and the purity of jury trials.

'On proof of a violation of the provisions of the Code of Criminal Procedure (section 3081, O.S.1931) (22 O.S.1951 § 857) by permitting the jury to separate after the case has been finally submitted to them, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant.'

The earliest case on this question in Oklahoma is Bilton v. Territory, 1 Okl.Cr. 566, 99 P. 163, wherein this Court said in syllabus 1:

'* * * this section (22 O.S.1951 § 857) imperatively requires that upon the final submission of the case to the jury, they cannot be permitted to separate, and if permitted to separate, such separation vitiates the verdict, notwithstanding no affirmative evidence of prejudice is offered.' (Emphasis supplied.)

This Court has many times held that separation of the jury under such conditions as are herewith presented is reversible error. Selstrom v. State, 7 Okl.Cr. 345, 123 P. 557; Goins v. State, 9 Okl.Cr. 35, 130 P. 513; Crow v. State, 39 Okl.Cr. 145, 263 P. 677; Wilcox v. State, 69 Okl.Cr. 1, 99 P.2d 531; Dutton v. State, 75 Okl.Cr. 375, 131 P.2d 777; Lowrey v. State, 87 Okl.Cr. 313, 197 P.2d 637; Green v. State, Okl.Cr., 319 P.2d 321.

The defendant's second contention is based upon the proposition that the bailiff called the judge to the jury room door, where the judge had a conversation with the jury foreman relative to a matter of procedure, also in violation of 22 O.S.1951 § 857, supra. He contends this conduct further violated the provisions of 22 O.S.1951 § 894, reading:

'After the jury have retired...