Milligan v. Territory Oklahoma

• Decision Date: 07 September 1894
• Citation: 1894 OK 31,37 P. 1059,2 Okla. 164
• Parties: JOHN MILLIGAN v. TERRITORY OF OKLAHOMA
• Court: Oklahoma Supreme Court

1894 OK 31

37 P. 1059

2 Okla. 164

JOHN MILLIGAN v. TERRITORY OF OKLAHOMA

Supreme Court of Oklahoma

Decided: September 7, 1894

SYLLABUS

¶0 1. Where the trial court, after an examination touching the competency of a witness under the age of ten years, permits such witness to testify, the appellate court will not reverse the cause, unless it affirmatively appears, from the record of such examination, that the court below erred.

2. Section 8, article 11, chapter 66, Procedure Criminal, authorizes the court to receive the verdict of a jury upon the Sabbath day.

3. Where the trial court received the written verdict of a jury, and the same was thereafter read to them by the clerk, and the judge inquired of the jury if that was their verdict, and they answered in the affirmative, and afterwards the jury was polled by the judge, each juror answering that the verdict so read was his verdict, held: That the substantial requirements of § 12, art. 12, of the laws of Oklahoma were complied with.

Error from Oklahoma County.

The opinion states the material facts.

From a conviction at the February term, 1894, of the district court of Oklahoma county, the defendant, John Milligan, appeals.

Amos Green, D. C. Lewis, and Charles R. Reddick, for appellant.

C. A. Galbraith, Attorney General, J. H. Woods, County Attorney, and J. M. Johnson, for appellee.

The opinion of the court was delivered by

DALE, C. J.:

¶1 This is an appeal from a judgment returned in the district court of Oklahoma county. At the February term, 1894, the defendant was convicted of the crime of murder, and was, by the judge of the lower court, in accordance with the verdict returned by the jury, sentenced to be hanged.

¶2 An appeal was taken from the judgment of the lower court and such judgment duly stayed pending the affirmance or reversal of the judgment by this court.

¶3 The errors complained of are not specifically pointed out, but from a reading of the transcript and case made we find that the defendant below has fairly before us three propositions which we may consider:

1. Did the court below err in permitting the witness named Amelda Clark to testify on behalf of the territory?

2. Did the court err in receiving the verdict of the jury upon the Sabbath day?

3. It is alleged that the verdict of the jury was not recorded upon the minutes of the clerk and thereafter read to them before the jury was allowed to separate.

¶4 Upon the first proposition is appears that Amelda Clark was called as a witness for the prosecution; that counsel for defendant applied to the court for an examination of said witness touching her competency as a witness, which request was granted, and, after sending the jury out, the witness was questioned by the court and counsel as to her age, knowledge of the facts and the nature and obligations of an oath administered to her.

¶5 It is insisted that such examination did not justify the court in permitting the witness to testify before the jury. The questions propounded to the witness, as well as the answers thereto, and the testimony she was permitted to give to the jury, appear in the record.

¶6 A perusal of the record shows the witness to have been of ordinary intelligence upon most of the subjects about which she was interrogated. She was unable to give her age, and we will assume that she was under the age of ten years.

¶7 The second subdivision of § 4213, of the statutes of Oklahoma, which section provides what persons shall be incompetent to testify upon the trial of a cause, reads as follows:

"Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly."

¶8 Upon the objection of counsel for the defendant to receiving the testimony of the witness, the court examined the child with a view to determine whether or not she had an understanding touching the facts about which she was called to testify, or whether the impressions she had received were just, and also to determine her ability to relate the facts truly. Our statute leaves the question of determining the competency of such witness wholly in the discretion of the trial judge. He has the witness before him and is better able to judge of the intelligence of a witness than can the appellate court in reading the answers of the witness to the questions as they appear in the record. Before an appellate court should reverse the lower court, it must clearly appear from the record that the judge, in admitting the testimony of the witness, did not act within the discretion granted by the statute. The record fails to show such a condition in this case. On the contrary, an analysis of the questions and answers of the witness, both upon the examination touching her competency and her testimony as given before the jury, indicates that the witness should have been permitted to testify.

¶9 The second objection raised is easily disposed of under our statute. Seccion 8, article 11, chapter 68, Procedure Criminal, of the statutes of Oklahoma, is as follows:

"While the jury is absent the court may adjourn from time to time as to other business, but it is, nevertheless, deemed open for every purpose connected with the cause submitted to them, until a verdict is rendered or the jury discharged. A final adjournment of the court discharges the jury."

¶10 In the case under consideration it appears that the verdict was received by the judge on Sabbath morning. The section of the law above quoted keeps the court continuously in session until the jury have returned their verdict or shall have been discharged, or until the final adjournment of the term. If the court is by law in session, it follows that the court can perform the acts for which it is in session. It is kept open to receive the verdict of the jury, and under the statute quoted, for the...