Goins v. State

• Decision Date: 13 March 1913
• Citation: 130 P. 513,9 Okla.Crim. 35,1913 OK CR 69
• Parties: GOINS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

130 P. 513

9 Okla.Crim. 35, 1913 OK CR 69

GOINS v. STATE.

Court of Criminal Appeals of Oklahoma

March 13, 1913

Syllabus by the Court.

On proof of a violation of the provisions of Procedure Criminal (section 6858, Comp. Laws 1909), by permitting the jury to separate after the case is finally submitted, 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.

Where the bailiff in charge of a jury, after the case has been finally submitted, permits a juror to leave the jury room and go out upon the streets, and such juror's conduct during his absence is unexplained, the trial court should sustain the motion for a new trial.

Appeal from Payne County Court; P. D. Mitchell, Judge.

J. W Goins was convicted of violating the prohibitory law. Judgment for plaintiff, and defendant appeals. Reversed.

See also, 6 Okl. Cr. 704, 119 P. 1130.

J. M Springer, of Stillwater, for plaintiff in error.

Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C.J. Davenport, of Oklahoma City, for the State.

DOYLE J.

Plaintiff in error was convicted of having possession of intoxicating liquors with intent to sell the same, and was sentenced, in accordance with the verdict, to serve a term of 30 days in the county jail and pay a fine of $50.

The judgment and sentence was entered on July 24, 1911. To reverse the judgment, an appeal was perfected by filing in this court, on November 4th, a petition in error with case-made.

Of the numerous assignments of error relied on for a reversal of the judgment, it is only necessary to consider the one: "That the jury were allowed to separate, without leave of court, after they had retired to and during the time they were deliberating upon their verdict, and before said verdict had been agreed upon by the jury." In the motion for new trial, this was assigned as one of the grounds, and was supported by two affidavits, to the effect that one of the jurors, O. P. Furman, was permitted to leave the jury room, and went out on the streets of Stillwater and bought bananas, which he brought back to the rest of the jury. This occurred about half past 10 o'clock at night. This fact is not disputed by the state, and no explanation is offered. We are of the opinion that the motion for a new trial should have been allowed.

Section 6858, Procedure Criminal, provides: "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, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit any person to speak to or communicate with them, nor 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." This statute has been construed in the following cases: Bilton v Territory, 1 Okl. Cr. 566, 99 P. 163; Armstrong v. State, 2 Okl. Cr. 567, 103 P. 658, 24 L. R. A. (N. S.) 776; Ridley v. State, 5 Okl....