Lyde v. State
| Decision Date | 16 September 1922 |
| Docket Number | A-3882. |
| Parties | LYDE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A sheriff, who is a material witness for the state in a criminal action, and who was present and testified and heard practically all the testimony offered at a former trial of the same issues, is disqualified to summon talesmen for a special venire in a subsequent trial of the cause.
A challenge to the jury panel under such circumstances should have been sustained, under the provisions of section 5848, Rev. Laws 1910.
Appeal from District Court, Love County; W. F. Freeman, Judge.
Kearby Lyde was convicted of rape in the first degree, and he appeals. Reversed and remanded.
See also, 187 P. 252; 191 P. 606.
Graham & Logsdon, of Marietta, and George H. Culp, of Gainesville Tex., for plaintiff in error.
S. P Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
On December 1, 1918, Kearby Lyde was by a verdict of the jury found guilty of rape in the first degree. Judgment was rendered on September 13, 1920, pursuant to a mandate of this court in Ex parte Kearby Lyde, 191 P. 606, August 23, 1920 assessing his punishment at confinement in the state penitentiary for a term of 15 years.
Plaintiff in error was on the 20th day of November, 1918, regularly placed on trial before a jury, charged with rape. At this trial the issues were regularly submitted to the jury, but on account of the illness of one of the jurors and their inability to agree upon a verdict the jury was ordered discharged. On November 29, 1918, the cause came on for trial a second time. The sheriff, F. N. Smith, thereupon returned into open court his service of a special open venire of jurors, and the court ordered such venire impaneled. Plaintiff in error objected to this special venire by a motion to quash the panel, for the reason that the sheriff who summoned these jurors was an important and material witness for the state in the prosecution of this charge; that this sheriff was present and heard all the testimony taken, both at the examining trial and upon the former trial of the cause, wherein the jury failed to reach a verdict; that the sheriff was disqualified to summon a special venire in this cause, on account of his actual bias against the plaintiff in error; that on account of having heard the testimony upon the trial in district court he had formed and expressed an opinion relative to the merits of this case, and was therefore clearly disqualified to select an impartial venire from which to select the jury.
The county attorney admitted that F. N. Smith was the sheriff of Love county, and that his name was indorsed as a witness on the information, and that he had been present and heard the testimony in the two former trials. In support of this motion to quash the panel the sheriff testified that he was present and assisted in the arrest of the plaintiff in error; that he was present at the examining trial, and heard practically all the testimony at that trial, as well as at the former trial in district court; and that he was a witness for the state at the former trial. In the course of this examination of the sheriff the following question was propounded to him:
"From the testimony which you heard, Mr. Smith, both upon the examining trial and in the case upon the final trial in the district court at this term, have you formed or expressed an opinion as to the guilt or innocence of the defendant as to the offense charged in the information?"
This was objected to as incompetent, irrelevant, and immaterial,...
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