Herren v. State

• Decision Date: 21 October 1942
• Docket Number: A-10166.
• Citation: 130 P.2d 325,75 Okla.Crim. 251
• Parties: HERREN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

130 P.2d 325

75 Okla.Crim. 251

HERREN v. STATE.

No. A-10166.

Court of Criminal Appeals of Oklahoma

October 21, 1942

Syllabus by the Court.

1. The punishment for conviction of the crime of burglary in the second degree, after a former conviction of a felony, is any term in the penitentiary not less than ten years. Section 1817, O.S.1931, 21 O.S.1941 § 51.

2. If after the jury has retired to deliberate on their verdict it becomes necessary for the court to communicate with them or to give them additional instructions, they must require their officer to conduct them into open court, and such information required must be given in the presence of, or after notice to the county attorney and the defendant and his counsel, or after they have been called.

3. Where trial court, at 1:15 A.M., in absence of defendant and his counsel, calls jury to courtroom and there informs them that he is "in doubt as to the punishment which should be given the defendant; that is, with reference to whether ten years would be the maximum or ten years the minimum," and further assured the jury that if they would leave the matter of punishment to him he would "give it proper consideration and allow the attorneys an opportunity to argue that out," and further, in said proceedings, discussed the case with said jury at length answering questions which were propounded to him, such conduct is grossly improper and constitutes reversible error.

4. Where defendant raises an issue in his brief which is abundantly supported by citation of legal authority, and counsel for state in answer brief ignores contention, this court assumes that counsel for state is unable to present argument or authority to sustain the proceeding about which complaint is made.

5. Where error complained of is so manifestly improper that it is apparent that the case will have to be reversed, it is the duty of Attorney General to file confession of error as quickly as the matter is called to his attention so that case may be reversed and remanded for a new trial without the resultant delay caused by allowing the case to come up for consideration in its numerical order.

6. The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.

7. As an exception to the general rule, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows or tends to show guilty knowledge or intent in the commission of the offense.

8. When the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or intent, the proof must clearly come within the exception to the general rule and where they are distinct and unrelated offenses, or remote as to time, an objection by the defendant to the proof should be sustained.

9. It is error for the court to instruct the jury, in regards to the admission of certain alleged other offenses committed by defendant, that "such evidence has been admitted and is to be considered by you only for the purpose of throwing light upon the question of the guilt or innocence of the defendant of the specific charge contained in the information."

Appeal from District Court, Murray County; Ben T. Williams, Judge.

Earl Herren was convicted of second-degree burglary after conviction of another felony, and he appeals.

Reversed and remanded with instructions.

Holmes H. Colbert, of Sulphur, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Judge.

Earl Herren was charged in the District Court of Murray County with the crime of burglary in the second degree, after a former conviction of a felony, was tried, convicted, the punishment left to the court, who thereupon sentenced the defendant to ten years and six months in the State Penitentiary, from which judgment and sentence an appeal has been taken.

We shall first consider two of the assignments of error presented by counsel for defendant which refer to the same occurrence and which properly should be discussed together. These two assignments are:

"Error of the court in giving further instructions to the jury after they had begun deliberation of their verdict in the absence of the defendant and his counsel.

Error of the court in suggesting to the jury the nature of the verdict to be rendered by them and of advising the jury as to law and evidence after the case was submitted to the jury for their deliberation and after they had been unable to agree upon the verdict, all in the absence of the defendant and his counsel."

The record discloses that the trial court kept the jury deliberating for several hours after the cause had been submitted to them. The record reveals that at 1:15 A.M., after the jury had been deliberating several hours and after counsel for defendant had left the courtroom and defendant was in bed in the county jail at the courthouse, the trial court had the jury brought to the district courtroom, and, in the absence of defendant and his counsel, the following proceedings were had:

"By the Court: Gentlemen, have you arrived at a verdict in this case?

By Members of the Jury: No, sir.

By the Court: Let me ask you if it would help any if you would go get a cup of coffee?

By the Jury: No sir.

By the Court: The defendant is not here, but his attorney waived his presence and the defendant himself has gone to bed, hasn't he?

By the Sheriff: Yes sir.

By the Court: The Court might say this, for the jury's benefit, that under the laws of this state, that if the jury likes, it may find the defendant either guilty or not guilty in accordance with the Court's instructions, and if you should find the defendant guilty and prefer to do it, the punishment can be left to the Court in this case. In that connection, I might say this: That there is some doubt in the Court's mind about the matter of the time that the defendant would draw in this case. That is, with reference to whether 10 years would be the maximum or 10 years the minimum. As you Gentlemen know, I instructed you first one way and at the instance and after argument of the Attorney General it was changed, but we have been arguing about it ever since the jury has been out.

By One of the Jurors: You ain't the only ones that has argued.

By the Court: I would like to ask this, that if the Court would assure you that the matter would be given proper consideration and the attorneys have an opportunity to argue that out, and you were permitted in the event of a conviction to leave the punishment to the Court, if that would assist you in arriving at a verdict in the case?

By One of the Jurors: I believe it would.

By the Court: Would that help you?

By Another Juror: I believe it would.

By the Court: How do you other members of the jury feel about it?

Another Juror: I feel that it would. By the Court: Do all the rest of you feel that it would help you in arriving at a verdict in the case?

By Two of the Jurors: I think it would.--I am quite sure it would.

By Another Juror: Yes sir.

By the Court: Do you think it would help, you Gentlemen? (indicating)

By One of the Jurors: I am pretty sure it would.

By the Court: How do you folks feel about it?

By Other Jurors: I am pretty sure about it.

By the Court: How about you? (indicating)

By One of the Jurors: I don't know.

By the Foreman of the Jury: Would we be allowed to ask a question about these instructions?

By the Court: Yes sir.

By Mr. Day, a Member of the Jury: About the evidence that we have, about what kind of evidence that the jury could render a verdict on?

By the Court: Well, yes. I don't understand you?

By Mr. Day: What I mean is, could we ask a question as to whether that we can render a verdict--whether this verdict can be rendered on just circumstantial evidence that links all of this together, or would we have to have proof that he had actually been caught with this stuff or that he had been seen with it?

By the Court: I don't have the instructions, but the Court instructed you with reference to circumstantial evidence that the circumstances and each one of them must be consistent with one another and inconsistent with any hypothesis that he wasn't guilty. This is a circumstantial evidence case.

By Mr. Day: That is the way I understood it.

By the Court: Nobody testified that they saw the defendant get the stuff in question, so it is necessarily a circumstantial case. The Court would not be allowed to comment on the evidence, you understand that, even if the defendant were here, and we want to preserve his rights the same as if he were here.

By One of the Jurors: Would it be possible if we could agree and would agree to leave it up to the Court?

By the Court: What do you mean?

By the Juror: If we can't agree whether he is guilty or not guilty and if we could all agree to do it, could we leave it up to the Court.

By the Court: You mean let the Court decide as to whether he is guilty or not guilty? No sir. That would do away with his right to a jury trial. If you should decide that he is not guilty, you will acquit him, and if you should decide he is guilty and want to leave the punishment to the Court, you may do that. There are cases when the guilt of the defendant is left to the Court, but that is where a jury is waived. In a case where a jury is demanded, the jury has to decide

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