Leard v. State
| Citation | 235 P. 243,30 Okla.Crim. 191 |
| Decision Date | 21 February 1925 |
| Docket Number | A-4594. |
| Parties | LEARD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied April 27, 1925.
Syllabus by the Court.
The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and upon an application for change of venue from such county the burden is on the defendant seeking such change to establish his right thereto. The granting or refusal of a change of venue is largely in the discretion of the trial court, and the reversal of a case for failure to grant a change of venue will not be made, unless it is made to clearly appear that the trial court abused its discretion to the prejudice of the applicant.
The prospective juror is not disqualified by reason of having an opinion in a case formed from reading newspaper accounts or from current rumor, not obtained from personal knowledge of the facts, or from witnesses who purport to know the facts when he testifies that he can and will, and the court finds that he would, if selected, render a fair and impartial verdict.
A physician, who makes an examination of a person at the direction of a prosecuting attorney, if he does not assume to act as a physician for such person, and is not called or employed as a physician by or for the person examined, is a competent witness to testify regarding the information gained in such examination.
The exclusion of evidence will not constitute reversible error where it reasonably appears that its admission would not have affected the verdict.
Evidence examined, and found to sustain the verdict of the jury.
Appeal from District Court, Okfuskee County; John L. Norman, Judge.
M. L Leard was convicted of rape in the first degree and sentenced to a term of 15 years in the state penitentiary, and he appeals. Affirmed.
See, also, 216 P. 1118.
Crump, White & Seawel, of Muskogee, for plaintiff in error.
George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
The plaintiff in error assigns several errors as reasons for reversing this case: First, that the court erred in overruling plaintiff in error's application for a change of venue; second, that the court erred in overruling the plaintiff in error's challenge for cause to certain jurors; third, that the court erred in excluding competent evidence offered on the part of plaintiff in error; fourth, that the evidence is insufficient to sustain the verdict.
On the application for change of venue, the plaintiff in error filed an affidavit, with four supporting affidavits, to the effect that the minds of the inhabitants of Okfuskee county were so prejudiced against him that he could not obtain a fair trial therein. In addition the sheriff of Okfuskee county testified that there had been talk of mob violence. The county attorney made a counter showing. We have examined carefully the record on this point, and adhere to the rule, heretofore adopted by this court, that the granting or refusing of a change of venue is within the sound discretion of the trial court, and a case will not be reversed unless there is abuse of such discretion. We believe that there is no such showing of the inability of plaintiff in error to get a fair trial in Okfuskee county as would constitute an abuse of discretion. Starr v. State, 5 Okl. Cr. 440, 115 P. 356; Turner v. State, 4 Okl. Cr. 164, 111 P. 988; Hopkins v. State, 4 Okl. Cr. 197, 108 P. 420, 111 P. 947; Black v. State, 3 Okl. Cr. 547, 107 P. 524; Edwards v. State, 9 Okl. Cr. 306, 131 P. 956, 44 L. R. A. (N. S.) 701; Bouie v. State, 9 Okl. Cr.
345, 131 P. 953; Tegeler v. State, 9 Okl. Cr. 138, 130 P. 1164.
The plaintiff in error contends that the court erred in overruling the challenge for cause to the jurors Eskridge, Catlett, Finney, Turner, and Board, and that they each disclosed on their voir dire examination that they had an opinion such as would disqualify them. The juror Eskridge testified that he had read something about the case, and had formed an opinion from so reading which would take evidence to remove. He did not testify, however, that it was a fixed opinion, and on being further examined testified as follows:
The jurors Catlett, Finney, and Board testified in effect the same as the juror Eskridge. The juror Turner was objected to not because he had an opinion as to the guilt or innocence of the plaintiff in error, but because he stated in response to questions by counsel for plaintiff in error that, if the accused admitted having intercourse with prosecutrix, he would not feel that it was justifiable. But he did testify that, notwithstanding such might be the case, he would not be prejudiced thereby, but would give the plaintiff in error a fair trial. We know of no rule that requires a juror to approve the moral code of a defendant in order to be qualified to serve in the trial of a case.
A juror is not disqualified by reason of having an opinion resulting from reading newspaper accounts of the crime charged, or from current rumors, provided it appears to the court, upon the declaration of the juror, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly. The trial court, of course, is not limited to the answers made by the jurors on their voir dire, but should be satisfied, from such examination and from all the circumstances, that the juror is not prejudiced against the accused. The question of competency of a juror is addressed to the sound discretion of a trial court, and the court should be clearly satisfied that a juror is fair and impartial before permitting him to sit in a criminal case. On an appeal to this court, in order to warrant a reversal on this point, it must be made clearly to appear that the trial court abused its discretion. All the jurors complained of were excused by peremptory challege, and it does not appear that any objectionable juror was on the trial panel. Section 2678, Compiled Laws 1921; Johnson v. State, 1 Okl. Cr. 323, 97 P. 1059, 18 Ann. Cas. 300; Turner v. State, 4 Okl. Cr. 164, 111 P. 988; Jones v. State, 8 Okl. Cr. 576, 129 P. 446; Tegeler v. State, 9 Okl. Cr. 138, 130 P. 1164, supra; Littrell v. State (Okl. Cr. App.) 209 P. 184.
Some four days after the offense charged in the information, the county attorney had a physician, Dr. C. M. Bloss, make a physical examination of the prosecuting witness. The physician was not called as a witness by the state, but was offered as a witness for the plaintiff in error, and objection was made to...
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