Smith v. State

• Decision Date: 23 November 1910
• Citation: 111 P. 960,4 Okla.Crim. 328,1910 OK CR 199
• Parties: SMITH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

111 P. 960

4 Okla.Crim. 328, 1910 OK CR 199

SMITH v. STATE.

Court of Criminal Appeals of Oklahoma

November 23, 1910

Syllabus by the Court.

(a) When an information is amended upon the eve of trial and the defendant files a motion for a postponement supported by affidavit showing surprise, and that the amendment to the information requires additional preparation upon the part of the defendant before he could be ready for trial, reasonable time should be allowed the defendant, by the court, within which to make such preparation.

(a) When a negro is charged with violating the criminal laws of a state, and when under oath he challenges the panel of the jury upon the ground that the commissioners who selected such jury and the sheriff who summoned them had excluded from the jury all persons of African descent solely on account of their race and color, and offers evidence to sustain this ground of challenge, the trial court should hear the evidence, and if it is of the opinion that as a matter of fact negroes were intentionally excluded from the panel solely upon the ground of their race and color, said motion should be sustained. This has been repeatedly decided by the Supreme Court of the United States, and all state tribunals are bound thereby.

(b) The mere fact that the jury was composed solely of white men will not be ground for challenge in such case. There is no law requiring that negroes shall be selected to sit upon juries. The only law upon this subject is they must not be excluded therefrom solely on account of their race or color.

(c) Officers charged with the duty of selecting and summoning jurors can exercise their own discretion in selecting those persons who, in their judgment, are competent and qualified to serve as such jurors, provided that they do not exclude competent persons who are negroes solely on account of their race and color.

Appeal from Muskogee County Court; W. C. Jackson, Judge.

Paul Smith was convicted of violation of the prohibition law, and appeals. Reversed and remanded.

S. E Gidney, for appellant.

Fred S Caldwell, for the State.

FURMAN P.J.

First. The information in this case was filed on the 21st day of September, 1908. It charged the defendant in general terms with the unlawful sale of intoxicating liquor on the 21st day of September, 1908, but did not allege to whom such liquor was sold, or that the name of the purchaser was unknown to the informant. The case came on to be tried upon this information on the 6th day of January, 1909. Defendant demurred to the information because it did not state to whom the sale was made, or that the name of the purchaser was unknown to the informant. Thereupon the county attorney, with the permission of the court, filed an amended information, in which he alleged that the sale of liquor on the 21st day of September, 1908, was made by the defendant to Al Ayer. Defendant thereupon moved the court to postpone the case for a period of 24 hours to enable him to prepare to meet such charge. The motion was in conformity with the statute and duly sworn to by the defendant. This motion was by the court overruled, and the defendant excepted. Defendant was immediately forced into trial. To this defendant excepted. In this there was error. Under the repeated decisions of this court, an information for the sale of intoxicating liquor which does not state the name of the person to whom such sale was made or state that the name of such party was unknown, if demurred to upon this ground in apt time, is wholly insufficient. Under our statute an information can be amended, but when such amendment is allowed and it sets up any new matter which operates as a surprise to the defendant upon his filing the motion provided for by the statute, in all fairness and justice he should be allowed reasonable time within which to prepare to make his defense. According to the record in this case, defendant did not know until the amendment was filed as to what transaction he would be called upon to defend. He had no time to prepare for trial, to consult his attorneys, or to summon witnesses. His request for a postponement of the case for 24 hours to enable him to prepare to meet the amended information was reasonable, and should have been allowed by the trial court.

Second. Before the jury was impaneled, the defendant filed the following challenge to the array of jurors: "In the County Court of Muskogee County, State of Oklahoma. State of Oklahoma v. Paul Smith. Comes the defendant, Paul Smith, and objects to the panel of the jury called in this court for the purpose of sitting as a jury in this cause, and objects to going to trial because he says: That he is a person of African descent known as a negro, and that the panel from which all jurors must be called in this cause is composed exclusively of white persons, and that all persons of color or African descent known as negroes were excluded from serving on said panel of jury by the commissioners of Muskogee county on account of their race and color and for no other reason. (2) That the jury commissioners of this Muskogee, county, have for a long period of time, to wit, 14 months last past during the entire time since the organization of Muskogee county, neglected and refused and excluded all colored persons, or persons of African descent, from serving on juries in said county solely on account of their race and color. That said exclusion, neglect, and refusal is a discrimination against this defendant, who is a negro, and is a denial to him of an equal protection of the laws as guaranteed to him under the Constitution of the United States. (3) That the persons...