Oden v. State

• Decision Date: 31 May 1958
• Docket Number: No. 34387,34387
• Citation: Oden v. State, 166 Neb. 729, 90 N.W.2d 356, 73 A.L.R.2d 1182 (Neb. 1958)
• Parties: , 73 A.L.R.2d 1182 Charles J. ODEN, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 356

90 N.W.2d 356

166 Neb. 729, 73 A.L.R.2d 1182

Charles J. ODEN, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error.

No. 34387.

Supreme Court of Nebraska.

May 31, 1958.

Syllabus by the Court

The procedure relating to the voir dire examination of prospective jurors requires the trial court to give each of the parties the right, within reasonable limits, to put pertinent questions to each and all of the prospective jurors for the purpose of ascertaining whether or not there exists sufficient grounds for challenge for cause and also to aid each of the parties in the exercise of the statutory right of peremptory challenge. This right, when requested, must be granted and failure to do so is prejudicial error.

W. O. Baldwin, Hebron, for plaintiff in error.

Clarence S. Beck, Atty. Gen., John E. Wenstrand, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

WENKE, Justice.

This is an error proceeding brought here from the district court for Gage County by Charles J. Oden. Oden was charged in the district court with having unlawfully operated a motor vehicle upon a public street in Gage County on April 28, 1957, while under the influence of alcoholic liquor. A jury found Oden 'guilty as charged.' After his motion for new trial had been overruled and after the trial court had found it was his third such offense, Oden was sentenced to serve not less than 24 nor more than 30 months in the State Reformatory, his driver's license was revoked, and he was ordered not to operate a motor vehicle until after 1 year had elapsed following his final discharge from such sentence.

It should be stated that the charge made against Oden, who will hereinafter be referred to as defendant, contained a statement that it was his third offense of operating a motor vehicle while under the influence of alcoholic liquor and, after being convicted, defendant admitted to the trial court, before sentence was imposed, that that was true.

The principal question raised by defendant is, did he have a right to have his counsel personally conduct a voir dire examination of the prospective jurors? At the beginning of the trial defendant's counsel requested permission of the trial court to personally conduct the voir dire examination of the jury and to be permitted to personally ask questions of the individual jurors. This request the trial court refused. The trial judge did, however, examine the jurors, both individually and collectively, as to their qualifications to serve and permitted counsel for both sides, through him, to submit questions to them in regard thereto.

Apparently this court has never passed directly on this question but has often inferred that such right existed. See, Basye v. State, 45 Neb. 261, 63 N.W. 811; Van Skike v. Potter, 53 Neb. 28, 73 N.W. 295; Wilson v. State, 87 Neb. 638, 128 N.W. 38; Stone v. State, 103 Neb. 712, 174 N.W. 303; Strong v. State, 106 Neb. 339, 183 N.W. 559; Nama v. Shada, 150 Neb. 362, 34 N.W.2d 650; Trebelhorn v. Bartlett, 154 Neb. 113, 47 N.W.2d 374. As stated in Van Skike v. Potter, supra [53 Neb. 28, 73 N.W. 297]: 'It is true that a litigant has the right to examine a person called as a juror for the purpose of ascertaining whether or not there exists grounds for challenging such person for cause.' And in Nama v. Shada, supra, we said: 'The right of counsel to interrogate jurors on their voir dire examination, in order to determine whether or not it is expedient to challenge any of them peremptorily, within proper limits, cannot be denied.'

Other state courts that have passed on this question are divided in regard thereto. As stated in 50 C.J.S. Juries § 276, p. 1055: 'While the statutory mode of examination must be followed where applicable, the conduct of the examination is under the supervision and direction of the court, and in some jurisdictions, but not in others, the court may assume exclusive conduct of the examination, without permitting counsel personally to examine the jurors.' In many states the procedure relating thereto is specifically controlled by statute. That is not the situation in this state. However, in some states where it is not controlled by statute the courts have come to opposite conclusions. See, State v. Guidry, 160 La. 655, 107 So. 479; State v. King, 158 S.C. 251, 155 S.E. 409. As stated in State v. Guidry, supra [160 La. 655, 107 So. 480]: 'There is a wide variance in American jurisdictions in the method adopted for the examination of jurors on their voir dire. In some of the jurisdictions, the statutes provide for certain specific questions to be propounded to the prospective jurors to test their qualifications. In other jurisdictions, the courts hold that counsel for the defendant cannot insist upon such an examination as a matter of right. Where this rule prevails, the practice is for the judge, on his own initiative or upon the motion of either party, to interrogate the juror asking such questions as he shall deem necessary, or by propounding any question, which he considers proper, submitted to him by counsel on either side. The usual and better practice, however, is to permit counsel to conduct the examination under the direction and supervision of the court. 35 C.J. 397; 16 R.C.L. 246. That is the procedure followed in this state. While it has not been prescribed by statute, it has been the uniform and customary practice in our courts, so far as we are aware, since their organization. As a result of a long series of actions, constantly repeated, and by uninterrupted acquiescence, it has acquired the force and effect of a rule of law governing jury trials in this jurisdiction.' In federal courts the procedure is controlled by Rule 47(a), 28 U.S.C.A. p. 480. See Paschen v. United States, 7 Cir., 70 F.2d 491.

Our Constitution provides, insofar as here material, that: 'In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel * * * and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' Art. I, § 11, Constitution of Nebraska. As we said in Wilson v. State, supra [87 Neb. 638, 128 N.W. 40]: 'It is unnecessary for us to repeat what is provided by our Constitution and so often declared by all the courts of the land, including this one, that in all criminal cases an accused is entitled to a fair and impartial trial by an impartial jury, and that it is the sworn duty of the courts to see that that right is scrupulously maintained.'

To safeguard this constitutional right the Legislature has provided for peremptory challenges and challenges for cause. Sections 29-2005, 29-2006, 29-2007, 29-2008, 25-1609, 25-1636, R.R.S.1943.

In Basye v. State, supra, we said [45 Neb. 261, 63 N.W....