Keith v. State

• Decision Date: 16 April 1912
• Parties: KEITH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

123 P. 172

7 Okla.Crim. 156, 1912 OK CR 144

KEITH v. STATE.

Court of Criminal Appeals of Oklahoma

April 16, 1912

Syllabus by the Court.

Unless required by statute, a verdict cannot be impeached by the affidavits or testimony of jurors, showing misconduct on their part in arriving at the verdict.

Appeal from Superior Court, Muskogee County; Farrar L. McCain Judge.

R. E Keith was convicted of violating the prohibitory law, and appeals. Affirmed.

G. W Wheatley, for appellant.

Smith C. Matson, Asst. Atty. Gen., W. E. Disney, Co. Atty., P. A Gavin, and Alvin F. Molony, for the State.

FURMAN P.J.

There is no question in this case as to the sufficiency of the evidence to sustain the verdict, and but one proposition is submitted in the brief of counsel for appellant, and that is that the court erred in refusing to allow the appellant, by taking the testimony of two jurors, to show the manner in which the jury arrived at its verdict.

It has been repeatedly decided by the unanimous opinions of this court that the affidavits of jurors cannot be received for the purpose of impeaching their verdict.

In the case of Vanderburg v. State, 6 Okl. Cr. 486, 120 P. 301, Judge Doyle, speaking for the court upon this very question, said: "It will be sufficient to say on this question that jurors will not be allowed to impeach their verdict by their affidavits or testimony after they have been discharged."

In the case of Spencer v. State, 5 Okl. Cr. 11, 113 P. 226, this court said: "Jurors cannot be heard to impeach their verdict, unless expressly authorized to do so by statute, and then only in the manner provided by statute. When jurors are impaneled, they are sworn to decide the case submitted to them according to the law and the evidence. For a juror to make an affidavit that he has violated his oath and rendered a verdict upon any other ground than the sworn evidence in a case places him in contempt of court. *** If, after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, judgment based upon verdicts of juries would rest upon a very uncertain foundation. Litigants against whom verdicts had been rendered would be continually importuning jurors, and attempting to obtain from them affidavits upon which such verdicts could be assailed. This would result in perjury and bribery. There would be no end of litigation in cases tried before juries. Therefore, for the security of litigants, and to prevent fraud and perjury, as well as for the protection of the jurors themselves, courts will not allow jurors to impeach their own verdict, unless they are permitted to do so by the express provisions of the statute. We have no statute permitting this to be done."

In the case of Petitti v. State, 2 Okl. Cr. 134, 100 P. 1123, this court said: "This question was before the Supreme Court of Louisiana in a civil case. That court said: 'A second bill of exceptions was taken to the refusal of the judge to permit the jury to prove that their verdict was really for the plaintiff, and that the word "defendant" was written in the verdict through error, instead of "plaintiff." *** The ruling was correct.' Chevallier v. Dyas et al., 28 La. Ann. 360. In another civil case, the Supreme Court of South Dakota said: 'Affidavits of jurors will not be received to impeach their verdicts, unless authorized by statute, and only then upon the grounds and in the manner permitted by the statute.' Gaines v. White, Sheriff, 1 S. D. 434, 47 N.W. 524. The rule is clearly stated and the authorities are cited on page 730 of Abbott's Trial Brief in Criminal Causes (2d Ed.), as follows: 'After Separation.--After the verdict has been rendered, and the jury, after being discharged, have separated, they cannot be recalled to amend their verdict. But the mere announcement of their discharge does not, before they have dispersed and mingled with the bystanders, preclude recalling them. Sargent v. State, 11 Ohio, 472; Mills v. Commonwealth, 34 Va. 751; People v. Lee Yune Chong, 94 Cal. 379, 29 P. 776; State v. Dawkins, 32 S.C. 17, 10 S.E. 772; Allen v. State, 85 Wis. 22, 54 N.W. 999. And see civil authorities in Abbott's Civil Trial Brief (2d Ed.) div. 8. And that it is reversible error to send out, for further deliberation upon their verdict, a jury in a criminal case who have rendered an incomplete sealed verdict during the night, and have been allowed to separate, see Farley v. People, 138 Ill. 97, 27 N.E. 927. ***' The written verdict of the jury must control. If it had been read to them before their discharge, as the law contemplates, then it would have still been subject to their control, and could have been altered or corrected as they desired, if permitted by the court; or, it could have been returned to them, with directions from the court to retire and continue with the consideration of their verdict. After a jury has been discharged and has mingled with the public, the persons who served on it are no longer a jury, and have lost all connection with and control over their verdict. They have nothing more to do with the verdict than any other private citizen. If they were allowed to contradict or impeach the verdict which they have returned into court, the door would be opened to all manner of abuses. All conceivable attempts would be made to cajole, browbeat, and even to corrupt jurors to testify that there was some such mistake made as would require the court to set aside verdicts in many cases. Especially would this be true in verdicts of conviction in criminal cases."

This question was also decided adversely to the contention of counsel for appellant in the case of Colcord v. Conger, 10 Okl. 460, 62 P. 276. Chief Justice Burford, of the Supreme Court of Oklahoma Territory, quoted from Thompson on Trials, § 2618, as follows: "Upon grounds of public policy, courts have almost universally agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered, or to show a mistake in it, or that they misunderstood the charge of the court, or that they otherwise mistook the law or the result of their finding, or that they agreed on their verdict by average or lot." Chief Justice Burford then proceeded as follows: "And this statement is amply sustained by a multitude of authorities. In fact, the only courts, it seems, which have made exceptions to this rule, are the courts of Kansas, Iowa, and Tennessee, and they limit the inquiry to matters which do not inhere in the verdict."

We might well rest our decision of this case upon the authorities above cited and reasons hereinbefore given; but in a number of cases now pending before us this question is again raised. We will therefore go into the discussion of this matter more fully than we have heretofore done, with the statement that we will not discuss it again, except for the gravest reasons.

In support of their contention, counsel for appellant cite the following cases: Perry v. Bailey, 12 Kan. 544; Wright v. I. & M. Telegraph Co., 20 Iowa, 195; Fain v. Goodwin, 35 Ark. 109; Fredericks v. Judah, 73 Cal. 604, 15 P. 305; Dixon v. Pluns, 101 Cal. 511, 35 P. 1030; People v. Azoff, 105 Cal. 632, 39 P. 59; Weinburg v. Somps, 33 P. 341; ^[1] Flood v. McClure, 3 Idaho (Hasb.) 587, 32 P. 254; Griffiths v. Montandon, 4 Idaho, 377, 39 P. 548; Giffen v. Lewiston, 6 Idaho, 231, 55 P. 545; Bernier v. Anderson, 8 Idaho, 675, 70 P. 1027; Paducah Ry. Co. v. Commonwealth, 80 Ky. 147; Gordon v. Trevarthan, 13 Mont. 387, 34 P. 185, 40 Am. St. Rep. 452; Murphy v. Murphy, 1 S. D. 316, 47 N.W. 142, 9 L. R. A. 820; Gaines v. White, 1 S. D. 434, 47 N.W. 524; Wood v. State, 15 Tex.App. 135, 44 Am. Rep. 701.

As a matter of first impression, the cases above cited appear to sustain the contention of counsel for appellant; but when the statutes of the states in which these decisions were rendered are examined it will be found that they cannot be considered as authority in this state. For instance, the statute of California (Code Civ. Proc. § 657, subd. 2) is as follows: "Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors."

It is provided in the Texas Code of Criminal Procedure 1879, art. 777, that new trial in felony cases shall be granted for certain causes therein mentioned. Among the enumerated causes is that set out in subdivision 3, where the verdict is decided by lot, or in any other manner than by a fair expression of opinion by the jurors; and in subdivision 8, we find the following provision: "Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial, and it shall be competent to prove such misconduct by the voluntary affidavit of a juror; and a verdict may in like manner, in such cases, be sustained by such affidavit."

Section 6896, Comp. Laws of Oklahoma 1909, provides: "A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only *** 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of the jury." It will be observed that this statute is a limitation upon and not an extension of the common-law grounds for a new trial in criminal cases, and that the statute does not require the granting of a new...