Scrivener v. State

• Decision Date: 28 January 1938
• Docket Number: A-9318.
• Citation: 75 P.2d 1154,63 Okla.Crim. 418
• Parties: SCRIVENER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

75 P.2d 1154

63 Okla.Crim. 418

SCRIVENER v. STATE.

No. A-9318.

Court of Criminal Appeals of Oklahoma

January 28, 1938

Syllabus by the Court.

1. In a prosecution for illegal possession of intoxicating liquor jurors impaneled for the trial may be challenged for bias actual or implied, where it appears that on the day before they had rendered a verdict convicting defendant's partner in business of violating the prohibitory liquor law and that the testimony in the first case involved controverted questions of fact in issue in this case including the general reputation of the partnership place of business of both defendants. Such jurors are not "impartial" jurors within the meaning of the Constitution and laws of this state.

2. The competency of a juror is, under the statute, a question to be determined by the trial court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial juror, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.

3. Whenever the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the defendant.

Appeal from County Court, Seminole County; Bob Aubrey, Judge.

J. E. Scrivener was convicted of illegal possession of intoxicating liquor, and he appeals.

Reversed.

Homer H. Bishop, of Seminole, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for the State.

DOYLE Judge.

This appeal is from a judgment of the county court of Seminole county, rendered on a verdict convicting J. E. Scrivener on a charge that he did have in his possession "two pints of whisky, one pint of alcohol and four pints of gin," with the unlawful intent to sell the same, and fixing his punishment at a fine of $75 and confinement for 60 days in the county jail.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and relate to the rulings of the court in empaneling the jury.

It appears that the State relied for this conviction upon the testimony of George Snider, deputy sheriff, the only witness testifying in the case.

He testified that he searched defendant's place of business in the city of Seminole, directly across the street south of the post office, a cold drink, three-two beer place, known as the Derrick Bar; that Charley Cannon assisted him in the raid. That they found six pints of alcohol, gin, and whisky, one pint was open; that was all the whisky, the rest was alcohol and gin. That he knows the general reputation in that community as to the place for being a place where intoxicating liquor is kept and sold; and that is the reputation of the place.

On cross-examination he was asked if he knew how many pints of gin he found. He stated he did not remember; that he brought the liquor to the jail but did not mark it and did not know where any of it is now, and did not file a report in the county court of the amount of liquor seized.

When the State rested, the defendant demurred to the evidence. Demurrer overruled. Exception reserved.

It appears that Joe Irvine was convicted of a violation of the prohibitory liquor law by the verdict of the jury returned the day before the trial of this case commenced, and five of the jurors in the Irvine case were called as trial jurors in this case. On their voir dire each of these jurors were in substance asked this question: If the evidence should disclose that Mr. Irvine and Mr. Scrivener were partners in that place of business, you sat on the jury yesterday and convicted Mr. Irvine, fixing as penalty a fine of $500 and six months in jail, now, you would say defendant is guilty and vote for conviction if they say they found that liquor there. Wouldn't you?

Four jurors answered "No, sir" and one, "Not necessarily."

The court overruled the challenges for cause.

The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual or implied bias; also to enable the defendant to exercise intelligently his peremptory challenges. Our Procedure...