Liddell v. State

• Decision Date: 12 November 1920
• Docket Number: A-3334.
• Parties: LIDDELL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

193 P. 52

18 Okla.Crim. 87

LIDDELL v. STATE.

No. A-3334.

Court of Criminal Appeals of Oklahoma

November 12, 1920

Syllabus by the Court.

It is essential to the fair and impartial administration of justice that an open or special venire of jurors should be summoned by an officer who is not disqualified by reason of interest bias, or prejudice.

Section 5848, Revised Laws 1910, authorizes a challenge to the panel of an open or special venire of jurors on account of the bias of the officer who summoned such jury, upon any ground which would be good ground of challenge to a juror. Held, that where the sheriff who serves an open or special venire of jurors is a material witness for the state, and a challenge to the panel of such open or special venire is interposed by defendant on such ground, it is reversible and prejudicial error for the trial court to overrule such challenge in a cause where a substantial defense is made to the charge.

Statements of material facts concerning the cause and circumstances of the homicide, made by the victim under the solemn conviction of impending death, are properly admitted as a dying declaration.

A dying declaration may be discredited by showing that the declarant has been convicted of a felony or other crime involving moral turpitude.

Upon proper proof of a sufficient predicate therefor, the transcript of the testimony of a witness given in the examining trial may be read in evidence at the trial.

An instruction, in substance that "proof of communicated and uncommunicated threats could not be considered as justifying the killing on the part of defendant, unless the threats themselves were accompanied by some overt act or demonstration on the part of deceased," is disapproved. The court should have instructed that neither communicated nor uncommunicated threats would tend to mitigate or justify a homicide, unless at the time of the killing deceased made some demonstration or overt act towards defendant which evidenced an intention to carry such threats into immediate execution, because in a self-defense case the jury is not limited in the consideration of proof of threats only to such threats as were themselves accompanied by some overt act or demonstration of hostility, but the jury may consider both communicated and uncommunicated threats, which are made by deceased against defendant to other parties for the purpose of showing the condition of deceased's mind with reference to his feelings towards defendant, and also for the purpose of determining who was the probable aggressor in the difficulty.

Appeal from District Court, Love County; W. F. Freeman, Judge.

Haney Liddell was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years' imprisonment in the state penitentiary, and he appeals. Reversed and remanded.

Graham & Logsdon and A. E. Waldon, both of Marietta, and G. H. Culp of Gainesville, Tex., for plaintiff in error.

S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

MATSON J.

This is an appeal from the district court of Love county, wherein Haney Liddell was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years in the state penitentiary, for the killing of one T. M. Boyd, which occurred in the town of Thackerville, in said county, on or about the 25th day of April, 1917. In view of the disposition made of this appeal, we deem it unnecessary to narrate the facts and circumstances surrounding the commission of this alleged homicide.

The first error assigned as ground for reversal is the alleged erroneous action of the trial court in overruling the motion of defendant to quash the special venire of jurors summoned and returned for jury service by F. N. Smith, the sheriff of Love county, Okl., who was then and there a material witness for the state in the trial of this cause, and whose name as such witness was indorsed on the information. The record bearing upon this assignment is substantially as follows:

On the 5th day of November, 1917, the trial court made an order directing the sheriff of Love county to summon in this cause a special venire of 40 men to be and appear before the court on November 13, 1917, at the hour of 9 o'clock a. m., for the reason that the regular venire of jurors drawn for that term was insufficient for the purpose of obtaining a jury in this cause. Thereafter, on the 13th of November, 1917, this cause came on regularly for trial, with all the necessary parties present, and after both sides had announced ready for trial, the selection of the jury to try the cause was begun, and after the regular panel of jurors had been exhausted, and before the special venire of 40 men summoned by the sheriff had been sworn, counsel for defendant interposed a motion in writing to quash said special venire upon two grounds: (1) Because said special venire was summoned by F. N. Smith, sheriff of Love county; the said F. N. Smith being a material witness for the state in said cause, and biased and prejudiced against defendant. (2) Because the said venire was not drawn from the body of the county; the said motion being duly verified by the oath of defendant. Counsel for the state filed an answer to said motion, which was in substance as follows: (1) The state of Oklahoma admits that F. N. Smith is the sheriff of said county, and is a witness for the state, and did serve said process, as is alleged in said motion. (2) The state denies each and every other allegation contained in said motion; the said answer being duly verified by the county attorney of Love county. Whereupon the trial court, after considering the motion and answer thereto, overruled the said motion, to which action of the trial court counsel for defendant then and there excepted. Thereupon the special venire of 40 men summoned by the sheriff were duly sworn, and counsel for defendant further objected to the calling of any member of the special venire for jury service in the cause for the same reasons and objections urged as grounds in the motion to quash the panel, which general objection to each of said jurors was overruled by the court, to which action counsel for defendant excepted. Thereupon the selection of a jury to try said cause was proceeded with, and 9 members of the said special venire served by the sheriff became jurors and sat in the trial of the cause.

The question here presented is not one of first impression in this court. In the case of Koontz v. State, 10 Okl. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689, it is held:

"It is essential to the fair and impartial administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice."

Section 5848, Revised Laws 1910, provides:

"When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror."

In the Koontz Case, construing section 5848, it is said:

"The language of the statute is so plain that no room is left for interpretation. It authorizes a challenge to the panel, on account of the bias of the officer who summoned a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because he was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by him."

We think it not necessary to support with the citation of authority the proposition that, if a juror was called to serve in the trial of a criminal case, who was challenged by defendant upon the ground that he was a material witness for the state in the prosecution, whose name was indorsed upon the indictment or information, and that fact should be admitted by the county attorney, and the challenge to such a juror should be overruled, over the...