Shivers v. Territory

• Decision Date: 10 September 1903
• Citation: 74 P. 899,13 Okla. 466,1903 OK 98
• Parties: SHIVERS v. TERRITORY. [1]
• Court: Oklahoma Supreme Court

74 P. 899

13 Okla. 466, 1903 OK 98

SHIVERS v. TERRITORY. ^[1]

Supreme Court of Oklahoma

September 10, 1903

Syllabus by the Court.

1. That an indictment was not properly "found," "indorsed," or "presented" by the grand jury may be tested by motion to set aside the indictment before plea, and, unless so presented, the defendant is thereafter precluded from raising such questions.

2. The provisions of section 5399, Wilson's St. 1903, construed and defined, and held not to warrant the construction previously adopted by this court, and certain cases overruled.

3. The objections that the indictment was "not found," or was "not indorsed," or was "not presented" in the manner prescribed by the Criminal Code, cannot be presented for the first time on appeal.

4. The defendant in a criminal cause may in person waive the formal reading of the indictment on arraignment, and may consent, in the absence of the original indictment, to have the copy read from the indictment record; and, where he does so consent, he cannot, after conviction, be heard to say that he was not arraigned upon the indictment in the cause.

5. It is not every technical separation of a jury during deliberation that will vitiate their verdict. In order to warrant the court in setting aside a verdict of conviction on account of the separation of the jury "without leave of court after retiring to deliberate on their verdict," it must appear that there was such a separation as that the rights of the defendant might have been prejudiced thereby.

6. The sufficiency of the indictment to support a judgment of conviction, as well as the jurisdiction of the court over the subject-matter of the action, may be raised at any stage of the proceedings, and may be questioned for the first time in the supreme court.

7. Indictment examined, and held to contain all the material averments necessary to constitute the crime of grand larceny.

Error from District Court, Blaine County; before Justice James K Beauchamp.

W. F Shivers was convicted of larceny, and brings error. Affirmed.

P. F Tyler and Lookabaugh Bros., for plaintiff in error.

Ed. Baker, Co. Atty., and J. C. Robberts, Atty. Gen., for the Territory.

BURFORD C.J.

The plaintiff in error, W. F. Shivers, was convicted in the district court of Blaine county of the crime of grand larceny, and sentenced to the penitentiary for a period of two years. From the judgment he appeals to this court.

The plaintiff in error urges four grounds as cause for reversal of the judgment against him. These are: First, that the record does not show that the indictment upon which he was tried was ever "presented" in open court, and that it is not indorsed "A true bill;" second, that he was not arraigned upon the original indictment, or a copy thereof; third, that the jurors separated after the cause was submitted to them, without leave of court; and, fourth, that the indictment does not charge a public offense.

The first objection was never presented to or raised in the district court, nor was it embodied in the motion for new trial. Our Criminal Procedure, c. 68, art. 7, § 213 (section 5349, Wilson's St. 1903), provides: "An indictment cannot be 'found' without the concurrence of at least twelve grand jurors. When so 'found' it must be indorsed 'A true bill,' and the indorsement must be signed by the foreman of the grand jury." Section 5353: "An indictment when found by the grand jury, must be presented by their foreman in their presence, to the court, and must be filed with the clerk, and remain in his office as a public record." When an indictment has been so returned, it is the duty of the clerk to record the facts upon the journal of the court. Such recitals upon the record are conclusive as to what was done in the premises; but, if an indictment was in fact returned into court as required by law, the omission of the clerk to record the facts would not invalidate the work of the grand jury, nor defeat the jurisdiction of the court. The facts that the indictment was on file in the clerk's office, and duly recorded in the indictment record, furnish sufficient memorandum upon which the court, on proper application, and in the absence of a showing to the contrary, could order a nunc pro tunc entry supplying the omission in the record. But can the prisoner raise this question for the first time after conviction, in this court? This must be determined by the several provisions of our statute relating to procedure criminal, and, in referring to the statutes, the section numbers given are the running or general sections of Wilson's St. 1903. Section 5355 provides that "all forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined are those prescribed by this chapter." Section 5356: "The first pleading on the part of the territory is the indictment." Section 5379: "When the indictment is filed, the defendant must be arraigned. ***" Section 5398: "*** He may, in answer to the arraignment, either move the court to set aside the indictment, or may demur or plead thereto." Section 5399: "The indictment must be set aside by the court, in which the defendant is arraigned, and upon his motion in either of the following cases": (1) When it is not "found." (2) When it is not "indorsed." (3) When it is not "presented or filed" as prescribed by the statutes of the territory. (4) When the "grand jury is not drawn and empanelled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause." (5) "When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment," within such reasonable time as the court shall fix. (6) When "a person is permitted to be present during the session of a grand jury while the vote on the finding of the indictment is being taken." (7) When "after the grand jury was first empanelled any member or members thereof were discharged and their places filled by persons not regularly drawn from the jury list," and that they participated in the deliberations of the jury. (8) That the "grand jury was not empanelled anew as a whole body in open court," after adding additional grand jurors. These are the only causes for which an indictment may be set aside on motion. Section 5400: "If the motion to set aside the indictment be not made the defendant is precluded from afterwards taking the objections mentioned in the last section (5399), except the one that the grand jury was not drawn and empanelled as provided by law," under certain conditions. If the defendant does not move to set aside, he may either demur or plead to the indictment. The demurrer must be for causes apparent upon the face of the indictment. "When the objections mentioned in section 5408 appear upon the face of the indictment, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment." Section 5415. The trial court may grant a new trial for one of the causes mentioned in section 5557, and may arrest the judgment for any cause prescribed as grounds for a demurrer, unless waived by a failure to demur (section 5559), as well as for either of the two causes mentioned in section 5415. The plea may be either guilty, or not guilty, or former conviction, or former acquittal (5416), or that he is of unsound mind. Section 5661. These provisions of our criminal procedure act define the rights of the accused in each case, and prescribe the causes for which he may attack the proceedings, the manner in which the attack must be made, and the time for making such attack. The Supreme Court takes appellate, and not original, jurisdiction in this class of cases, and can only review "any decision of the court or intermediate order made in the progress of the case." Section 5606. And where the objection has not been made in the court below, there is nothing to review. It has been held that the objection to the jurisdiction of the court over the subject-matter of the case, and sufficiency of the facts charged to constitute a public offense, may be presented for the first time in this court; and this is the general rule, regardless of the statute.

It is urged that the indictment was not found in the manner prescribed by the Code. The objections that no record was made of the presentment of the indictment, and that it was not indorsed "A true bill," both come within the causes for which a motion may be made to set aside the indictment; and, unless such motion is made before trial, the defendant is precluded from raising the question. The records of the court are open to him at the time he pleads, and the indictment is subject to his inspection before he pleads. If any defects or omissions exist, they are apparent at and prior to arraign ment, and time is allowed the accused after arraignment in order to permit him to make these inspections, and present his objections before being required to plead. His failure to object at the time and in the manner provided by statute is a waiver of any and all such objections.

The objection that the indictment was not presented in open court should have been presented to the trial court by motion to set aside the indictment. An indictment is "found" when 12 grand jurors competent to vote upon such finding shall concur in finding such indictment.

The objection that the indictment was not "found" as prescribed by statute presents only the question as to whether a sufficient number of grand jurors voted to find such indictment, and does not authorize an inquiry into the question of the...