Leeth v. State, A-11306

• Decision Date: 25 April 1951
• Docket Number: No. A-11306,A-11306
• Parties: LEETH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 942

230 P.2d 942

94 Okla.Crim. 61

LEETH v. STATE.

No. A-11306.

Criminal Court of Appeals of Oklahoma.

April 25, 1951.

Syllabus by the Court

1. The examination of a juror on his voir dire has a two-fold purpose; first, to ascertain when a cause of challenge exists, and, second, to ascertain whether it is wise or expedient to challenge peremptorily. The rulings of the trial court will be carefully examined in connection with the facts and circumstances peculiar to a particular case as disclosed by the record; and, if it appears that the right of the accused to challenge a juror peremptorily was prejudicially impaired and resulted in the prevention of the defendant from having a fair and impartial jury to try the charge against him, the error of the court will be held to constitute reversible error.

2. A wire recording of conversation between county attorney and a co-defendant called as a witness for defendant who was unaware of such recordation, where made out of the presence of the defendant, is hearsay and is inadmissible as evidence against the defendant being tried, but where the defendant on trial testifies and produces said co-defendant as a witness and his statements materially vary from the statements preserved by the wire recorder, the wire or disc involved where proper foundation is laid by proof with respect to use of such method of reproducing the voice of witness, after proper identification, and after instructions from the court to the jury advising them of the limited purpose for which admitted, and being for impeaching defendant's witness and not as evidence against the defendant, is admissible in evidence.

3. The court erred in permitting said wire to be played to the jury where, though it was properly identified, it was not offered in evidence; and the court erred in permitting that portion of the wire to be played where the county attorney was advising the witness as to his opinion of the guilt of the defendant on trial.

4. After a proper foundation is laid, but before a wire or disc recording is admitted in evidence, it should first be played for the benefit of the court in the absence of the jury. At that time the entire record should be taken down by the court reporter. If incompetent and prejudicial matter appears it should be deleted from the wire or disc or skipped when played for the jury. The admission of prejudicial matter may constitute reversible error.

5. To entitle the defense of alibi to consideration, the evidence must be such as to show that at the very time of the commission of the crime charged the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof, and, in a criminal prosecution, unless the evidence fills this requirement of law, no instruction on the subject of alibi is necessary to be given by the trial court.

6. If upon the trial additional instructions are desired, it is the duty of counsel to reduce them to writing and request that they be given, and if he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct the jury upon some material question of law, and that the defendant has been deprived of a substantial right.

Wilkerson & Wilkerson, Pryor, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

John Paul Leeth, J. R. Killion and Frank Wimer were jointly charged by information filed in the district court of Mayes County with the crime of burglary, second degree. It appears that at the first trial the jury was unable to agree, and was discharged. The defendants thereafter each asked for a severance, and the same was granted. The State elected to try Leeth first, and he was by a jury found guilty of the crime charged and his punishment was fixed at two years imprisonment in the State Penitentiary. Appeal has been duly perfected to this court.

The specifications of error in petition in error are argued in briefs filed under three propositions, and being:

(1) That 'The defendant was unduly restricted in the voir dire examination.'

(2) That 'The trial court permitted incompetent evidence to go to the jury engaged in the trial of said cause over the objection of the defendant, to the defendant's hurt.'

(3) That 'The trial court did not in its charge to the jury cover every material issue in the case.'

Considering proposition one, the record discloses that the name of one Christine Walker was endorsed on the information as a witness for the State. The casemade shows that after the jury had been selected and the trial was ready to commence, the following colloquy transpired between counsel for the defendant and the court:

'Mr. Wilkerson: May the record show, your honor, that in the voir dire examination the defendant propounded the following general question to the jurors: 'Are any of you gentlemen acquainted with Christine Walker, of Spavinaw, Oklahoma?'

'The Court: To which the county attorney interposed an objection, and it appearing that Christine Walker is not the prosecuting witness to this case, the court overruled the objection.

'Mr. Wilkerson: We call the court's attention to the fact that her name is endorsed upon the information as one of the witnesses for the State.

'The Court: The Court takes the position the fact that she may be a witness, and the jurors might be, some of them, might be acquainted with her, is immaterial.

'Mr. Wilkerson: To which ruling on the part of the Court, the defendant excepts.

This court has held that an examination of a juror on his voir dire has a two-fold purpose; first, to ascertain when a cause of challenge exists; and, second, to ascertain whether it is wise or expedient to challenge peremptorily. And the ruling of the trial court will be carefully examined in connection with the facts and circumstances peculiar with a particular case and as disclosed by the record; and, if it appears that the right of the accused to challenge a juror peremptorily was prejudicially impaired and resulted in the prevention of the defendant having a fair and impartial jury to try the charge against him, the error of the court will be held to constitute reversible error. Kizer v. State, 67 Okl.Cr. 16, 93 P.2d 58, and Temple v. State, 15 Okl.Cr. 176, 175 P. 733.

In this case the record fails to show that the attention of the court was called on voir dire examination to the facts later revealed during the trial of the case, that the witness Christine Walker was claimed to be an eye witness to the burglary and that she was a niece of the man whose store was claimed to have ben burglarized. The record fails to show that counsel objected to the ruling of the court at the time the question on voir dire was propounded, and fails to show whether defendant exercised any or all of his peremptory challenges, or made any challenge for cause. The record fails to show any effort of counsel to ask further and specific questions concerning any possible kinship or any other relationship of any prospective juror with Christine Walker. We have no evidence before us of any serious effort to convince the court of the possibility that there might be members of the jury panel who by reason of blood relationship or by reason of anything between the witness in question and some of the prospective jurors that might deprive the defendant of a fair and impartial consideration of his case by any such juror. Counsel could, out of the hearing of the jury panel, have advised the court of his reasons for attempting the line of questioning sought, and required the reporter to have made a record. Counsel might have convinced the court of the relevancy of the questions sought to be asked. But at all events, such record would have revealed whether or not the court was advised of the purpose of the line of questioning sought and had a fair opportunity to rule thereon, and at the same time would have presented such a factual history as would have materially assisted this court on appeal in treating the question raised.

It is true that the record discloses that the State's witness Christine Walker was a niece of the prosecuting witness and did work in a bar owned by one Doc Reynolds and that she and Reynolds lived at the same rooming house, but nothing presented by the record would justify even an inference of any relationship between such witness and any juror or jurors that might have prevented the defendant from receiving a fair trial. In the absence of further record, we must assume that the court had good reason for the ruling made. It may have been that the groundwork was being attempted that would enable the defense to get before the jury a surreptitious relationship between the witness and Doc Reynolds, and also the matter of the witness participating with her employer in the violation of the intoxicating liquor laws and other possible law violations. We so conclude from matters set forth in defendant's brief. The court, no doubt, conscious of this was persuaded to rule as he did in an effort to keep out prejudicial matters anticipated from the defense and having no bearing on the guilt or innocence of the accused of the crime charged.

No showing was attempted to be made by the defendant at the time of argument of motion for new trial that he was forced to trial before a prejudiced jury or that there was in fact anything in the relationship between any juror and the witness in question that might have influenced such juror or jurors one way or another in arriving at a verdict. While in light of the later record on trial, we consider the question asked on voir dire to have been a proper question, and that the court should have overruled the objection of the county...