Petitti v. State

• Decision Date: 29 March 1909
• Citation: 100 P. 1122,2 Okla.Crim. 131,1909 OK CR 42
• Parties: PETITTI v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

100 P. 1122

2 Okla.Crim. 131, 1909 OK CR 42

PETITTI v. STATE.

Court of Criminal Appeals of Oklahoma

March 29, 1909

Syllabus by the Court.

In a criminal case the verdict, when returned into open court must be read to the jury, and they must be asked if they all agree to the verdict, and they must assent thereto before they are discharged.

[Ed Note.-For other cases, see Criminal Law, Dec. Dig. § 872 ^[*]]

When the jury have returned into court a verdict finding the defendant not guilty, it is error, after the jury have been discharged and mingled with the public, for the court to recall the members of the jury and require or permit them to impeach the verdict returned into court by testifying that they really intended to find the defendant guilty.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 2112; Dec. Dig. § 889. ^[*]]

Appeal from Pittsburg County Court; R. W. Higgins, Judge.

John Petitti was convicted of selling intoxicating liquors, and appeals. Reversed.

J. E. Whitehead, and Jack Harley, for appellant.

Fred S. Caldwell, for the State.

FURMAN P.J.

In this case the record affirmatively shows that the jury returned into open court the following written verdict: "We, the jury, duly impaneled and sworn, do find from the law and the evidence the defendant not guilty. [Signed] B. F. Jobe, Foreman." But the jury verbally announced to the court that they had found the defendant guilty. This verdict was not recorded by the clerk and read to the jury as the law directs.

Section 5542, Wilson's Rev. & Ann. St. 1903, is as follows: "(5542) § 406. When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case."

The purpose of this statute is to prevent any uncertainty as to what the verdict of the jury really is, and thereby to avoid any misunderstanding or mistake upon this subject. If the statute had been complied with in this case, the conflict between the verbal report made by the jury as to what their verdict was and the written verdict which was returned into court would have appeared, and it would have been the duty of the court, before discharging the jury, to require them to correct their verdict and make it conform to their actual finding. But this was not done, hence the dilemma which now presents itself.

The question which presents itself for decision is as to whether the court had the power, after the jury had been discharged and had mingled with the public, to place those gentlemen who had constituted the jury on the witness stand and receive their testimony to the effect that the written verdict of not guilty, which they had actually returned into court, and which was signed by their foreman, was so returned by mistake, and that it was the intention of the jury to return a verdict of conviction. This question was before the Supreme Court of Louisiana in a civil case. That court said: "A second bill of exceptions was taken to the refusal of the judge to permit the jury to prove that their verdict was really for the plaintiff, and that the word 'defendant' was written in the verdict through error, instead of 'plaintiff.' *** The ruling was correct." Chevallier v. Dyas et al., 28 La. Ann. 360.

In another civil case the Supreme Court of South Dakota said, "Affidavits of jurors will not be received to impeach their verdicts, unless authorized by statute, and only then upon the grounds, and in the manner, permitted by the statute." Gaines v. White, Sheriff, 1 S. D. 434, 47 N.W. 524.

The rule is clearly stated and the authorities are cited on page 730 of Abbott's Trial Brief in Criminal Causes (2d Ed.) as follows: "After separation.-After the verdict has been recorded, and the jury, after being discharged, have separated, they cannot be recalled to amend their verdict. But the mere announcement of their discharge does not, before they have dispersed and mingled with the bystanders, preclude recalling them. Sargent v. State, 11 Ohio, 472; Mills v. Com. 7 Leigh (Va.) 751; People v. Lee Yune Chong, 94 Cal. 379, 29 P. 776; State v. Dawkins, 32 S.C. 17, 10 S.E. 772; Allen v. State, 85 Wis. 22, 54 N.W. 999. And see civil authorities in Abbott's Civil Trial Brief (2d Ed.) div. 8. And that it is reversible error to...