Shapard v. State

• Decision Date: 20 November 1967
• Docket Number: No. A--14017,A--14017
• Citation: 1967 OK CR 197,437 P.2d 565
• Parties: John William SHAPARD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 565

437 P.2d 565

John William SHAPARD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14017.

Court of Criminal Appeals of Oklahoma.

Nov. 20, 1967.

Rehearing Denied March 4, 1968.

Second Rehearing Denied March 15, 1968.

Syllabus by the Court

1. Where evidence presented at preliminary hearing before a magistrate is

sufficient to establish that a crime has been committed and there is probable cause to believe the defendant guilty, the failure of the magistrate to allow the defendant to offer testimony of witnesses whose testimony is not material to the defense, does not constitute reversible error.

2. The question of the materiality of the testimony sought to be produced at preliminary hearing must be determined from an examination of the entire record.

3. Statements of magistrate at the conclusion of preliminary hearing expressing his philosophy relating to the parent-child relationship and their duty toward each other and society, while improper, do not constitute reversible error when after change of venue, voir dire examination of jurors does not disclose remarks read by them and influenced their verdict.

4. Mere fact that there has been widespread adverse pretrial publicity about defendant does not, by itself, establish reasonable probability that defendant cannot obtain a fair and impartial jury at criminal trial and is therefore entitled to postponement of trial for indefinite or substantial period of time.

5. Statement of trial judge in granting motion for change of venue, that not only the defendant but the public has a right to a speedy trial, held to be a correct statement of law and not to evince bias or prejudice against accused.

6. Mere fact that prospective jurors have read newspaper or other publicity items critical of defendant does not, by itself, establish bias, pre-judgment, or other disqualification on part of prospective jurors, and does not entitle defendant to postponement of trial for indefinite or substantial period of time.

7. Where there has been widespread adverse pretrial publicity about defendant, proper procedure in vast majority of cases is not to postpone trial indefinitely or for substantial period of time, but to proceed to trial and to determine on voir dire of panel and individual talesmen whether fair and impartial jury can be selected.

8. In order to properly preserve alleged errors in calling jury panel, Motion to Quash must be filed prior to empaneling of jury, called to the attention of the court, hearing held thereon and exceptions taken to the ruling of the court. When this is not done no question is presented on this issue for review on appeal.

9. No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court.

10. It is not required that the jurors be totally ignorant of the facts and issues involved. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

11. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed; provided, that the venue may be changed to some other county of the State, on the application of the accused, in such manner as may be prescribed by law.

12. Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants are so prejudiced against the defendant that a 13. Title 22 O.S. § 561 does not expressly prohibit a second change of venue to a county outside the judicial district when an impartial jury cannot be selected from the counties within the judicial district.

fair and impartial trial cannot be had therein.

14. Where a change of venue has been granted and the trial judge, on the second application for change of venue, or after voir dire examination of the jury, determines that a fair trial cannot be had within the district, the Judge must direct a change of venue to another county within the State outside the judicial district.

15. Where jurors are extensively examined by defense counsel who is given wide latitude in questioning them and all of the jurors state that they would base their verdict on the evidence presented and lay aside any impression or opinion which they might have formed as a result of what they had heard discussed or read, and the evidence adduced on the trial overwhelmingly supports their verdict of guilty and defendant receives substantially less than the maximum penalty prescribed by law, defendant's allegation that the jury was biased and prejudiced by pretrial publicity which influenced their verdict held to be without merit since an examination of the entire record established fairness and impartiality of jurors.

16. An accused is not entitled to discovery and inspection of statements of a prosecution witness in the possession of the state, of the transcript of the statement of a state witness taken before a prosecuting officer preparatory to trial, or of the 'work product' of the prosecutor consisting of statements signed by others than the defendant.

17. Where witness for the prosecution falsely testifies that there was no agreement that he was to receive lenient treatment for testifying against defendant, prosecuting authorities should expose the lie of the witness, and failure to do so constitutes error so fundamental and substantial that verdict of guilty will not be permitted to stand, even though proof of defendant's guilt may be convincing. Conversely, where counsel for defendant is present when immunity is granted, has an opportunity to extensively examine the witness relative to the circumstances under which immunity was granted, and an opportunity to call it to the attention of the jury, and the court properly instructs the jury, there is no basis for granting a reversal.

18. One to whom complaint has been made may testify to the making of the complaint by the prosecutrix, and her condition and appearance at the time the complaint was made.

19. In a prosecution for forcible rape where the undisputed evidence establishes that sexual intercourse was accomplished with the prosecutrix by force or fear overcoming her resistance, and where neither the evidence offered on behalf of the State, nor the evidence offered on behalf of the defendant, tends to any substantial degree to raise the issue of consent, neither the evidence of the general reputation of the prosecutrix for unchastity, nor specific acts of sexual intercourse between the prosecutrix and others, are admissible.

20. In the event that the evidence on behalf of the prosecution or of the defense, raises the issue of consent, then evidence of the general reputation of the prosecutrix for unchastity is admissible, but not specific acts of sexual intercourse unless such acts were with the accused.

21. When the evidence adduced on the trial tends to establish that the prosecutrix is pregnant, then in that event, evidence of specific acts of sexual intercourse between the prosecutrix and persons other than the accused, occurring near the time of conception, are admissible as tending to show that the pregnancy resulted from sexual connection with persons other than the accused and this evidence is admissible without regard to whether the charge be forcible or statutory rape.

22. Where prosecuting attorney states that witness is a 'plant and we know it' 23. Immunity can be granted only when a charge is pending against an accused and the witness to whom immunity is granted has evidence tending to establish the guilt of the accused.

and counsel for defense interposes an objection and argument is held thereon outside the presence of the jury, counsel for defense offers no evidence that the remarks were heard by the jury but the judge held that remarks were improper whether heard by the jury or not, but were not error in view of the fact that witness' testimony was offered for the sole purpose of attempting to establish a specific act of sexual intercourse with the prosecutrix, and was incompetent and inadmissible.

24. Where the record does not reflect that timely objections were interposed to cross-examination of a witness whose deposition is admitted into evidence and an exception taken to the ruling of the court, no question is presented for review on appeal.

25. Where a jury remains sequestered throughout the trial and the trial court repeatedly admonishes them not to read, listen to, or discuss the case being tried, it is unnecessary and repetitious for the court to further instruct them on this matter at the conclusion of the trial.

26. Where several persons pursuant to a common design and purpose and all present and acting together by force and violence commit a rape upon a female, and by a continuous uninterrupted use of force and violence continue until all of the participants have had sexual intercourse with the female, such acts constitute a single crime, and no election of ann intercourse of any particular participant is essential, and all the persons so participating may be...