Graves v. Territory

• Decision Date: 15 February 1906
• Parties: GRAVES v. TERRITORY.
• Court: Oklahoma Supreme Court

86 P. 521

16 Okla. 538, 1906 OK 20

GRAVES v. TERRITORY.

Supreme Court of Oklahoma

February 15, 1906

Rehearing Denied June 12, 1906.

Syllabus by the Court.

Where in a motion for a new trial in a criminal cause, charging misconduct of the jury in permitting a bailiff of the court to be present during its deliberations and taking part therein, it is clearly shown that, while the bailiff was in the jury room two or three times during the deliberations of the jury, but took no part in such deliberations and used no language or performed any act intended to influence them, or which might tend to influence them, and it is shown by the testimony of the jurors that the presence of the bailiff did not in any way influence them in finding their verdict, the wrongful presence of the bailiff in the jury room held to be immaterial error.

[Ed Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2277.]

Error from District Court, Washita County; before Justice James K Beauchamp.

Theo. Graves was convicted of manslaughter, and brings error. Affirmed.

Hainer J., dissenting.

Rutherford Brett and Jones, Lucky & Brown, for plaintiff in error.

P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

GILLETTE J.

The plaintiff in error, Theo. Graves, was indicted on the 16th of September, 1903, by the grand jury of Washita county, for the murder of one W. T. Samply on the 25th of June, 1903, and, on being arraigned before the district court of said county, entered his plea of not guilty to the charge contained in such indictment. The cause was tried at September, 1903, term of said court, and on such trial the jury disagreed. At the October term, 1904, the cause again came on for trial, and upon such trial the jury returned a verdict finding him guilty of manslaughter in the first degree. A motion for a new trial was duly presented to and overruled by the court, and the defendant sentenced to 10 years in the state prison. From this order and judgment the case comes to this court upon error.

The sole question presented upon this appeal is the misconduct of the jury upon the trial of said cause, and the consequent error of the court in overruling the motion for a new trial based thereon. The testimony of 10 of the jurors who tried the case, and of the bailiff attending them, was taken upon the hearing of the motion for a new trial, and from this testimony the following facts may be said to be reasonably established: (1) The bailiff attending the jury entered the jury room on several occasions during the deliberations of the jury. (2) The bailiff did not participate in the deliberations of the jury as to either the guilt or innocence of the defendant, or the verdict which should be returned by the jury. (3) In answer to a question from some juryman the bailiff did say: "Well, you have the five points [meaning the five different forms of verdict given the jury by the court] to select from." (4) The bailiff did not take part in the discussion of the case, and did not suggest any form of verdict that should be returned, nor was anything said by the bailiff to the jury or to any member of the jury which did or tended to influence them in arriving at a verdict, or fixing the degree of punishment.

Upon this state of facts, did the court below err in refusing a new trial upon the ground of misconduct of the jury? We think this question must be answered in the negative. We are aware that this question has been many times before the courts, and extreme views have been presented upon both sides of the question, and it is extremely difficult to extract any general rule therefrom, further than that while the presence of the officer in charge of a jury is generally, and, it might be said, universally, held to be misconduct and therefore disapproved, yet the general and later trend of authority is to the effect that such presence, ipso facto, is not ground for a new trial, unless it appears that the officer participated in the proceedings of the jury, or in some manner and to some extent influenced the minds of the jury either as to the guilt or innocence of the defendant, or as to the form of the verdict they should return. In the case of People v. Knapp, 42 Mich. 267, 3 N.W. 927, 36 Am. Rep. 438, the most rigid rule is laid down by Chief Justice Cooley, delivering the opinion of the court, wherein the court says: "It was held in Cole v. Swan, 4 G. Greene (Iowa) 32, that officers having a jury in charge, while they are deliberating on their verdict, should never speak to them except to ask if they have agreed, and that if an officer violated this rule, any verdict afterwards returned, whether the conversation did or did not have any influence in producing the verdict, should be set aside the moment the fact comes to the knowledge of the court. We have said enough already to show that it is not conversation alone that is mischievous; the mere presence of the officer within the hearing of the jury is quite often as much so. In one case what he would say might influence the verdict; in another, what his presence might restrain jurors from saying might accomplish the same result." This decision was rendered in 1879, and so far as we know has been followed and adopted in but one case, that of Gandy v. State (Neb.) 40 N.W. 302; the decision in that case being a divided court, the Chief Justice dissenting.

The case of State v. Brown, 22 Kan. 222, is quoted and relied upon by plaintiff in error, but in that case it appears beyond all dispute that the officer participated in the deliberations of the jury by reading the instructions over to the jury. On his examination he testified that he read them correctly,...