Odell v. State

• Decision Date: 27 April 1949
• Docket Number: A-10970.
• Citation: 206 P.2d 229,89 Okla.Crim. 184
• Parties: ODELL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

206 P.2d 229

89 Okla.Crim. 184

ODELL v. STATE.

No. A-10970.

Court of Criminal Appeals of Oklahoma

April 27, 1949

Appeal from County Court, Kiowa County; Clarence W. Hunter, Judge.

Tip Odell was convicted of unlawful possession of intoxicating liquor, and he appeals.

Judgment affirmed.

Syllabus by the Court

Where a new trial is asked upon the ground that a juror who served upon the jury did not divulge information to counsel for defendant concerning his acquaintance with the defendant when asked on voir dire examination, and that said juror was prejudiced against the defendant, which prejudice was unknown to the defendant or his counsel prior to the rendition of the verdict; to entitle the defendant to a new trial, it must be affirmatively shown that said juror was prejudiced and that defendant suffered an injustice by reason of said juror having served upon said jury.

Clayton Carder, of Hobart, for plaintiff in error.

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

JONES Presiding Judge.

The defendant, Tip Odell, was charged in the County Court of Kiowa County with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve sixty days in the County Jail, and pay a fine of $250, and has appealed.

The single proposition presented by the appeal is that the misconduct of the jury prevented the defendant from having a fair and impartial trial.

In the amended motion for a new trial, the defendant contended that he was prevented from having a fair and impartial trial by reason of the fact that one of the jurors, George B. Lester in his voir dire examination denied that he knew the defendant when in truth and in fact he was present in court as a juror on December 15, 1942, when the defendant was charged and convicted of another offense involving a violation of the prohibitory law, although Lester did not serve upon the jury which convicted the defendant; and that the juror knew the defendant and the results of that trial; that neither defendant nor his counsel were aware of the situation of the juror, and did not ascertain such facts until after the submission of the case and the verdict of the jury.

At the time of the hearing on the motion for new trial, evidence was presented by the defendant in support of his motion. This evidence consisted of testimony by the Court Clerk identifying the records in his office which showed that the juror, George B. Lester, who served on the jury which convicted the defendant in the instant case had been summoned as a juror in the year 1942, at a time when the defendant was convicted in another prohibitory law violation and sentenced to serve thirty days in the County jail and pay a fine of $200; that the jury list in the case where the conviction was sustained in 1942, does not contain the name of George B. Lester as one of the jurors who served in the trial of that case.

Counsel for defendant then made a statement into the record as follows:

'The Juror, George B. Lester, who served on the trial jury in the present case was asked on preliminary examination, touching his qualifications and competency, along with the other Jurors, whether or not he knew or was acquainted--the exact words used not being remembered--with the defendant, Tip Odell, and the Jurors that knew him were requested to hold up their hands. And the Juror Lester gave no indication that he was acquainted with the defendant, and that the first information that came of the situation that has heretofore been put in evidence, was by conversation between the Juror and myself, which

...