Reed v. State, A-12638

• Decision Date: 17 December 1958
• Docket Number: No. A-12638,A-12638
• Citation: 1958 OK CR 115,335 P.2d 932
• Parties: Juanita Louise REED, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 932

335 P.2d 932

Juanita Louise REED, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12638.

Criminal Court of Appeals of Oklahoma.

Dec. 17, 1958.

Rehearing Denied Feb. 26, 1959.

Syllabus by the Court.

1. It is not improper for trial judge, after a jury has been deliberating for some time, to call them into court to ascertain whether there is reasonable probability of reaching a verdict and to inquire of the likelihood of them so doing. However, the court must exercise great caution to say nothing tending to coerce an agreement, to indicate his feelings in the case, or to invade the province of the jury.

2. For remarks of the trial court not amounting to an attempt to coerce the jury into returning a verdict of guilty, see body of opinion.

3. Inquiry by trial judge as to how the jury stands numerically without indicating how they stand as to guilt or innocence comes within trial judge's right to inquire for purpose of determining the plausibility of additional deliberation or discharge and does not constitute an invasion of the jury's province.

4. The length of time a jury is required to deliberate is within the sound discretion of the trial judge and his judgment is final unless there is a clear abuse of his discretion.

Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.

Juanita Louise Reed was convicted of the crime of Robbery, 2nd degree and appeals. Affirmed.

Maurice Nagle, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Juanita Louise Reed, hereinafter referred to as the defendant, was charged by information with the crime of Robbery, 1st degree, in the District Court of Oklahoma County. Defendant was tried before a jury who found her guilty of Robbery in the 2nd degree, but could not agree on the punishment and left same to be assessed by the trial judge who sentenced the defendant to serve 2 years in the Oklahoma State Penitentiary.

The record reflects that the defendant and the prosecuting witness met in a beer parlor where they were engaged in drinking beer. After a conversational acquaintance was made they left the beer parlor in defendant's car. Prosecuting witness contends that he accompanied the defendant at her request after she had told him her car would not start and she wanted him to help her start the same. Defendant said they left at the invitation of the prosecuting witness who wanted to take her to a square dance. Prosecuting witness left his parked car and rode with the defendant to the southeast part of Oklahoma City. The car was stopped in a rather isolated section. Defendant said they stopped to answer a call of nature. Prosecuting witness said defendant stopped the car under the pretence of borrowing some money from a girl friend. An unidentified person known only as Jack came to the car and attacked the prosecuting witness. Defendant testified she had seen the assailant around the beer parlor a number of times, but knew him only as Jack from Wewoka, and that she begged the assailant not to hurt the prosecuting witness. Prosecuting witness contends he was beaten and choked until he was about unconscious, and that when he came to he heard the assailant ask the defendant, 'Have you got his pocket book?' She said, 'No, it is in his hip pocket,' and that defendant proceeded to remove his billfold, examine it, remove six dollars and said, 'The S.O.B. .........., a lousy six bucks.' That defendant left in her car and after the assailant hit him three or four times left him in a bar ditch. The case arose from this set of facts.

Upon appeal the defendant in her brief advances one assignment of error and relies exclusively for reversal upon one proposition of law asserted as follows:

'1. The court committed fundamental error in his unwarranted, unnecessary and improper questioning of the jury after the jury had received the charge and his untimely remarks in instructing the jury to retire for further deliberation.'

That portion of the proceedings about which the defendant complains took place after the jury had been charged and had retired to deliberate were as follows:

'Thereupon, at 4:00 o'clock p. m., the jury returned to the courtroom where the following proceedings were had:

'The Court: The Bailiff advised the Court that you ladies and gentlemen had something you wanted to report. I don't know what it was. You will have to state it here in court. He can't act as a messenger very well.

'Foreman Barbour: Well, Your Honor, acting as Foreman of the jury, we were unable to reach upon a verdict of either guilty in the first degree nor in the second degree. We are not in accordance in any respect.

'The Court: Well, let me start asking a few questions now. Without you disclosing more than you need to, because you can't just discuss this thing with the Court of with these parties in here, it is a matter in the bosom of the jury, do you feel that if you deliberated further that you could reach a verdict, or do you feel that you have reached a point where you can't reach a verdict? That is what I am trying to get to.

'Foreman Barbour: My personal opinion is we would be wasting the Court's time to deliberate further. We are not in accord.

'The Court: Well, are you deadlocked? That is what we usually say.

'Foreman Barbour: We are deadlocked, yes, sir.

'The Court: How many ballots have you taken?

'Foreman Barbour: Two.

'The Court: Without disclosing how you stand, whether you are for the State or the defendant, you can disclose how you are divided numerically.

'Foreman Barbour: Well, on the first degree robbery, we were--(pause)

'The Court: Just--well, all right. I thing that is all right.

'Foreman Barbour: (continuing) Four guilty and eight not guilty. On second degree----

'The Court: (interrupting). I thought I made it plain to you, sir, you are not to disclose whether you are for one or the other. Isn't that plain?

'Foreman Barbour: I didn't understand that, sir.

'The Court: I said 'Divided numerically.' That would simply mean numbers, not telling whether you are for or against either side.

'Foreman Barbour: Eight to four, Your Honor.

'The Court: You took another ballot on the other, on the included offense; is that correct?

'Foreman Barbour: Yes, sir.

'The Court: And how do you stand on that one?

'Foreman Barbour: Eight to four also.

'The Court: Well, it would seem to the Court to be be wise for you to deliberate some further. We have been on this case most of the day. I am not going to punish you in the matter, but I feel like you ought to try a little longer. If you still can't reach a verdict and are dead-locked in the matter, I will check with you in about thirty or forty minutes, and we will see what the situation is then, but at this time I feel it best for you to go back to your jury room and deliberate further. (Emphasis ours.)

'Foreman Barbour: If you so instruct.

'The Court: Yes, sir. (Thereupon, jury returns to jury room to commence further deliberations. Thereafter, and at 4:15 o'clock p. m. the jury returned to the courtroom, where the following further...