Henderson v. State

• Decision Date: 25 June 1952
• Docket Number: No. A-11472,A-11472
• Citation: 95 Okla.Crim. 342,246 P.2d 393
• Parties: HENDERSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 393

246 P.2d 393

95 Okla.Crim. 342

HENDERSON v. STATE.

No. A-11472.

Criminal Court of Appeals of Oklahoma.

June 25, 1952.

Syllabus by the Court.

1. Where, during the trial of a homicide case, the jury being in the act of retiring to deliberate on their verdict, the judge makes known that he is incapacitated from further proceeding with the trial on account of sickness, and by agreement of the parties he designates another district judge from the district where case is being tried to receive the verdict of the jury, Held: that the reception of the verdict in a criminal case is a judicial act, which cannot be delegated, and a verdict so received is a nullity. Held, further, that when the trial judge delegated his authority to another judge to receive the verdict he lost control of the court and its action thereafter was a nullity, and the court was effectively dissolved for all purposes.

2. Whether or not the defendant had suffered jeopardy and was entitled to a discharge, under circumstances as above, would depend on the existence at the time the court lost control of the proceedings, of one of the grounds enumerated in the statutory provisions covering the subject. Tit. 22 O.S.1951 §§ 895, 896, 887.

3. Where a plea of former jeopardy has been filed, and it does not involve a disputed question of fact, but merely presents a question of law, such plea should not be submitted to the jury, but the court should pass upon the question of law presented, and either sustain the plea for discharge of the defendant, or overrule it and place the defendant on trial.

4. To entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice.

5. Where this court is required to ascertain the intention of the Legislature in the enactment of a statute, we may look to each part of the statute, to other statutes upon the same or relative subjects, to the evils and mischief to be remedied, and to the natural or absurd consequences of any particular interpretation.

6. Where the Legislature enacted a new and entire Act governing selection of jury panels, Tit. 38 O.S.1951 §§ 18 to 32, known as the Jury Wheel Act, to supplant prior provisions, §§ 1-10 as amended, 11, as amended, and 12 to 17 of Tit. 38 O.S.1941 and the new act although effective ninety days after May 27, 1949, where such law by its own terms could not come into operation by the production of a jury panel for the court for the actual trial of cases until the January, 1950, court term, Held: That the law existing at the time of the enactment of the new Act would remain in full force and effect until such new Act by its provisions could produce its first jury panel and being for the January, 1950, court term.

7. An application for continuance on ground of want of time to prepare for trial of criminal prosecution is addressed to the sound discretion of trial court, and ruling of trial court will not be disturbed on appeal unless an abuse of discretion is shown.

8. Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts.

9. The function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis, in evidence, on which jury can reasonably conclude that accused is guilty as charged.

10. Where the court orders witnesses to be sworn and excluded from the court room during the taking of testimony, and a witness wilfully violates such rule, it is within the discretion of the court to allow or exclude the testimony of such witness.

11. Where record is replete with side remarks and bickering between counsel for the State and counsel for the defendant which indicates all of the attorneys, as officers of the court, were about equally guilty of misconduct not conducive to a proper administration of justice, this court will carefully examine the record to see whether such conduct might have prejudiced the jury against the accused and thus deprived him of his right to a fair and impartial trial.

12. Defendant in criminal prosecution has duty to ascertain, by proper examination on voir dire, the competency of jurors, and, if he fails to do so, he waives his challenge, notwithstanding that disqualification is unknown to him until after rendition of verdict.

13. Granting a new trial in criminal prosecution for disqualification of juror, which was unknown to defendant until after rendition of verdict, is matter of judicial discretion.

14. In a prosecution for murder, the defendant was not entitled to a new trial where a juror is issued an honorary special deputy sheriff's commission (not shown to have been approved by the board of county commissioners, and commonly known as a 'courtesy card'), and served on the jury without revealing that fact and that fact was not discovered by defendant or his attorneys until after the verdict, since neither the sheriff nor his deputies were witnesses in the trial of said case (other than to establish facts surrounding issuance of courtesy cards), and the facts show that the jury would have been justified in returning a verdict assessing much greater punishment.

15. As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case.

Garrett & Garrett, L. W. Wiley, Muskogee, for plaintiff in error.

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

POWELL, Judge.

The plaintiff in error, Hosea Henderson, hereinafter referred to as defendant, was charged by information filed in the District Court of Muskogee County with the crime of murder by the fatal shooting on October 10, 1949, of Nip Lockridge. The defendant was tried before a jury on the 28th and 29th of November, 1949. The jury did not agree and was discharged, but the case was reset and retried on December 28, 1949. The second jury by its verdict found the defendant guilty of manslaughter in the first degree, and fixed his punishment at four years in the penitentiary. Appeal has been duly perfected to this court, a petition in error together with case-made containing some 729 pages being filed herein on July 2, 1950, and having been prepared at the expense of the State, and brief filed on December 2, 1950, after extensions granted. Thereafter, the Attorney General sought to have the appeal dismissed by reason of the defendant having failed to include a copy of the judgment rendered by the court, citing the recent case of McMichael v. State, Okl.Cr., 228 P.2d 203, and long line of cases listed therein; and on the ground that vital evidence of the only eyewitness to the shooting besides the defendant, consisting of some three pages, had been included in the copy of the case-made served on the county attorney, but omitted from the original filed in this court.

After response by counsel for defendant and oral argument before this court on June 20, 1951, an order was entered permitting appellant to file a supplemental case-made to contain the omitted judgment and the omitted evidence. The court reporter had carelessly omitted the evidence in question, and assumed the blame, and the attorneys had not discovered this error at the time of filing. The judgment had not been filed. The additional record was filed herein on June 25, 1951, and while the Attorney General had indicated that the record would be studied with view of confessing error and seeking retrial with object of obtaining a greater punishment of the defendant for the crime charged, if the record would justify such course, on December 4, 1951, he filed his brief.

We have carefully studied the evidence and briefs. Counsel for defendant have filed an exhaustive brief. Some twenty-six specifications of error are set forth, though but twelve specifications are argued, and two of such specifications are repetitious. We shall treat the specifications argued.

Counsel are always to be commended for vigorous effort in behalf of a client, but the record here is replete with technical objections. We recommend an examination of the comments of Judge Furman made in the early case of Ostendorf v. State, 8 Okl.Cr. 360, 128 P. 143; and of Judge Baker in Byars v. Territory, 1 Okl.Cr. 677, 699, 100 P. 261, 103 P. 532. That advice heeded, would save attorneys effort wasted, and the taxpayers much money.

From a study of the evidence of the eyewitness, particularly the evidence in the supplemental case-made, and the evidence as a whole, counsel won a signal victory before the jury, but another jury on a new trial, in view of the evidence, might assess the death penalty, or at least a long period of confinement. Under such circumstances it would appear that the defendant should have been happy with the verdict of the jury and fearful of the possible consequences of a new trial.

Defendant is a Negro farmer living near Boynton, and the deceased was a Negro garage owner, and school bus route franchise owner, who lived in Boynton. Both seem to have been considered substantial citizens in their communities.

While counsel's first specification of error is thought-provoking, the principles involved seem to have been fully treated by this court in previous decisions and contrary to the result now sought, and in the very cases cited by counsel. The first proposition raised is: 'That the court erred to the prejudice of the plaintiff in error in overruling his demurrer to the information on the ground of former jeopardy.'

Counsel argue that by reason of the fact that at the previous trial where Judge O. H. P....