Kizer v. State
| Decision Date | 28 July 1939 |
| Docket Number | A-9400. |
| Citation | 93 P.2d 58,67 Okla.Crim. 16 |
| Parties | KIZER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. An examination of a juror on his voir dire has a twofold purpose; first, to ascertain when a cause of challenge exists, and, second, to ascertain whether it is wise or expedient to challenge peremptorily. We think the right of the accused to challenge a juror peremptorily, under the peculiar circumstances of the record, was prejudicially impaired.
2. The examination of jurors upon voir dire, and the challenges of the counsel for cause or otherwise, and the exceptions to the rulings of the court are part of the proceedings during the trial; and the defendant is entitled to examine a juror on all matters that touch his qualifications to sit as an unbiased juror in the case; and if requested may have the same and all other proceedings taken down by the court reporter and correctly transcribed for use in the trial court or upon appeal.
3. It is the duty of the trial courts to guard well their expressions, and to act with dignity and discretion to the end that the jurors may not be influenced by anything except the evidence; and they should be left to make their own deductions therefrom.
4. The judge should be particularly circumspect in his conduct and in the proceedings before him that no intimation of his opinion in the case as to the evidence, or the credibility or character of the witnesses should be made in the presence of the jury.
5. It is error for the county attorney on cross-examination of the defendant's witnesses, or the defendant, to ask impeaching questions which tend to prejudice the defendant's rights, unless he follows such questions up by evidence to establish the facts contained in the questions propounded to the witnesses.
6. When the record discloses that counsel for the State in the prosecution of a person charged with crime has been guilty of conduct calculated to arouse the prejudice or passion of the jury, and prevent the accused from having a fair and impartial trial, a conviction had should be set aside by the trial court, and a new trial awarded.
7. The repeated asking of incompetent questions which clearly have for their purpose the intimation of something to the jury that is either not true, or not capable of being proved if true, is wrong and such conduct of counsel is not cured, even if the trial court sustains the objections to the questions.
8. It is improper for the prosecuting attorney to state his personal opinion as to the defendant's guilt, or to state facts not proved by evidence, or otherwise get before the jury that which amounts to his own opinion.
9. Where the record shows that counsel for the State, in the prosecution of a person charged with crime, has been guilty of conduct calculated to inflame the minds of the jury or prevent the accused from having a fair and impartial trial convictions will be set aside, and a new trial granted.
10. However strong the prosecuting attorney's belief of the prisoner's guilt may be, he must remember that unfair trials may happen and result in doing justice in particular cases; but the justice so obtained is dangerous to the whole community. It matters not how guilty the prisoner on trial charged with crime may be; he is entitled to a fair and impartial trial; and a judgment of conviction for manslaughter in the first degree and an imposition of a fifty year sentence may be as great a wrong to society if unfairly secured, although the accused may be guilty, as it would be for such a person to go unwhipped of justice.
Appeal from District Court, Choctaw County; Geo. R. Childers, Judge.
On rehearing.
Judgment reversed.
For former opinion, see 85 P.2d 330.
O. A. Brewer, of Hugo, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
On rehearing, the petition of the defendant for rehearing is sustained, and the law and facts reconsidered.
Joe Kizer was by information jointly charged with John Kizer in the District Court of Choctaw County with the crime of murder; was tried separately; convicted of manslaughter in the first degree; and sentenced to serve a term of fifty years in the State Penitentiary.
Motion for a new trial was filed, considered, overruled, exceptions saved, and the defendant has appealed.
The case of the defendant, Joe Kizer, was called for trial on the 7th day of April, 1937. Hal Welch, as a special prosecutor, and M. W. Gross, county attorney, appeared for the State. The defendant appeared in person and by his attorney, O. A. Brewer.
The defendant's counsel moved the court to quash the panel and continue the cause for the reason that when the case was called on the morning of April 7, 1937, the county attorney called out the names of witnesses and, among others, the name of one Merle Slaton. Her father was in the court room and advised that the witness was not present, but was visiting in the State of Arkansas.
The county attorney in the presence of the entire jury panel made the statement: "Why did she take such a sudden notion to leave and go to Arkansas?"
The defendant in his motion contended that the statement of the county attorney made in the presence of all the jury panel left the implication with the jury panel that the defendant or some one for him had caused the absence of the witness, and procured the same.
The defendant further contended that such statement, regardless of the effect it had or did not have on the jurors, would leave some impression on their minds in their deliberation of the case, and precluded the defendant from having a fair and impartial trial by a jury of his peers.
This motion was overruled by the court, and the defendant excepted.
The defendant further excepted to the ruling of the court for the reason that he insisted that the court had deprived him of his right to offer testimony, and make a showing by offering witnesses that the statement made by the county attorney had some impression on the minds of the jurors, composing the panel.
The court stated:
Mr. Hal Welch, an attorney of the Bar, who was employed specially to assist in the prosecution, was called as a witness, and examined by the county attorney, and stated in substance:
The defendant called the court clerk, and he identified what had been marked as Defendant's Exhibit "A", which is a discharge of witnesses, showing that Mrs. Merle Slaton was on the 22d day of October, 1936, discharged as a witness in the case.
It was then stipulated by and between the prosecutor and defendant's counsel that no subpoena had been issued for Mrs. Merle Slaton to attend the trial of Joe Kizer, in which this hearing is being had.
H. M. Pardoe was called by the defendant and stated in substance:
"By Mr. Welch: Just a minute, that's what I objected to."
Witness Pardoe asked if it was all right to state what he said, and the court said, "Sure."
"I made the remark that naturally that would come into my mind all through the trial. I heard the admonition of the court, admonish the jury not to consider the statement made by the county attorney for any purpose. I do not know, Judge, whether or not I could follow the instructions of the court or not. Naturally it could come in my mind. I think it would come back in my mind. I want to try to go by the evidence of the case, but naturally that would come into my mind along. I would say that I do not want to sit on the jury after hearing that remark.
By the Court: You may be excused from jury service."
The defendant's counsel then stated to the court: "I think that would be the condition of the mind of every juror."
"By the Court: If they say that, I will excuse every one of them.
By Mr. Brewer: I offer this evidence to show that the entire jury panel is disqualified.
By the Court: Let the record show that this juror is disqualified.
By Mr. Brewer: I want to offer the evidence to show the state of mind of the jury."
The offer was refused as to the entire jury.
"By Mr. Brewer: We except.
By the Court: Is there any other record you want to make?
By Mr Brewer: We want to present that as a motion for...
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