Stone v. State

• Decision Date: 11 March 1916
• Docket Number: A-2355.
• Citation: 155 P. 701,12 Okla.Crim. 313,1916 OK CR 30
• Parties: STONE ET AL. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

155 P. 701

12 Okla.Crim. 313, 1916 OK CR 30

STONE ET AL. v. STATE.

No. A-2355.

Court of Criminal Appeals of Oklahoma

March 11, 1916

Syllabus by the Court.

The issue raised upon a challenge for cause to a juror in a criminal case on the ground that he has formed or expressed an opinion as to the issues to be tried, founded upon rumor statements in public journals, or common notoriety, is one of mixed law and fact to be determined by the court. Before the court can so determine, it must be shown by the examination of the juror upon his voir dire, not only that his opinion was formed solely in the manner stated, but, in addition to this, the juror must swear unequivocally that he feels able notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. Section 5861, Rev. Laws 1910.

The trial court's refusal to sustain a challenge to a juror for cause will not be disturbed by the appellate court, where it appears from the examination of such juror that he had not talked with any one who purported to know about the case of his own knowledge, but had heard neighborhood rumor about the case, and that he had no opinion other than that derived from such rumor, and that he was positive that he could disregard that opinion, and try the case solely upon the evidence fairly and impartially.

Under Penal Code (section 2431, Rev. Laws 1910): "Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime." Held that, by the provisions of this section, the spouse of either of the guilty parties is authorized to make complaint and carry on the prosecution against either or both of them.

Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea before pleading to the merits.

Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our Code of Criminal Procedure. Section 5791, Rev. Laws 1910. Our Code further provides: "When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, 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 5799, Rev. Laws 1910. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.

While it is not essential to the sufficiency of an information for adultery that it should allege that the prosecution was commenced on the complaint of the husband or wife, as the case may be, the better practice would be to allege the name of the spouse, and that he or she was the complaining and prosecuting witness in the case.

Appeal from District Court, Delaware County; John H. Pitchford Judge.

Logan Stone and another were convicted of adultery, and appeal. Affirmed. of Grove, and Ben F. Williams, of Norman, for plaintiffs in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

DOYLE P.J.

The plaintiffs in error were jointly tried and convicted in the district court of Delaware county on an information charging that in said county on or about the 5th day of January, 1913, they did--

"commit the crime of adultery, in the manner and form as follows, to wit: They, the said Logan Stone and Ada Shoemaker, then and there being, then and there did unlawfully, voluntarily, and feloniously have sexual intercourse with each other, each of the opposite sex, not husband and wife, the said Logan Stone being a married man, and the said Ada Shoemaker being a married woman--contrary to," etc.

The jury by their verdict assessed the punishment of Logan Stone at four years' imprisonment in the penitentiary, and the punishment of Ada Shoemaker at three years' imprisonment in the penitentiary. From the judgments rendered on the verdict, they appeal.

The evidence for the state established or tended to establish the following facts:

The prosecuting witness, John Shoemaker, married his wife, Ada, in 1910, and they lived on his place about four miles east of Jay, in Delaware county, until some time in 1913. The defendant Logan Stone, a married man, father of six or seven children, lived with his family about three miles east of Jay. The prosecuting witness testified that on January 5, 1913, he saw Logan Stone ride up to his house and go in; that he slipped up to the house and forced the door open, and found his wife, Ada Shoemaker, and Logan Stone in bed together; that Logan Stone raised up in the bed, and he thought he had a gun, so he went away; that one night about a month before that Amos and Albert Peyton were at his house playing cards; about 9 o'clock his wife quit the card game and went out; a little later he followed her out, and saw her standing in the yard talking to Logan Stone; that he went back into the house and got a gun and came out and shot at Stone as he ran away; that whenever he would leave home on his return he would find Logan Stone there with his wife. He identified his signature to the original complaint filed with the examining magistrate.

Four or five witnesses testified to having seen the defendant frequently visit John Shoemaker's home in his absence. One witness testified to having seen the defendants in the woods near Deerlick Prairie, and there was no house within half a mile of the place, and that another time he saw them in a hollow near Shoemaker's place, and they were laying down. Two or three witnesses testified that they heard the defendant Ada Shoemaker tell the defendant Logan Stone that he was the father of her baby. The defendants did not testify, and the evidence on the part of the state was uncontradicted.

It is contended that the court erred in overruling challenges for cause to Jurors Davis and Ridenhour. The examination of these jurors was quite extended, and it could serve no good purpose to restate the same. It is sufficient to say that both jurors stated, in substance, that they had heard neighborhood rumors about the case, and that they both heard George Pitts talk about the case; that Pitts said that he was simply repeating what he heard. Each stated that he had formed an opinion from what he had heard. Each stated in his examination by the court that, notwithstanding such opinion, he could and would act impartially and fairly upon the matters to be submitted to him, and would render a fair and impartial verdict under the evidence of the witnesses and the law as given by the court.

Under our statute the mere expression of an opinion by a juror in common conversation, without anything to show ill will hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. In order to disqualify the juror there must be--

"the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the

...