Taylor v. State

• Decision Date: 31 January 1952
• Docket Number: No. A-11487,A-11487
• Citation: 95 Okla.Crim. 98,240 P.2d 803
• Parties: TAYLOR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 803

240 P.2d 803

95 Okla.Crim. 98

TAYLOR v. STATE.

No. A-11487.

Criminal Court of Appeals of Oklahoma.

Jan. 31, 1952.

Syllabus by the Court.

1. Among the provisions of Tit. 38 O.S.A. 1951 §§ 18-32, commonly called The Jury Wheel Act, § 29 thereof states, in part that 'A substantial compliance with the provisions * * * shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen * * * unless the irregularity in drawing, and summoning or empaneling the same, resulted in depriving a party litigant of some substantial right; * * *.'

2. It is determined that Tit. 22 O.S.1941 § 633 is in full force and effect (and not in conflict with Tit. 38 O.S.1951 § 29) and in part provides that 'a challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury * * * from which the defendant has suffered material prejudice.'

3. To entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice.

4. It is unlawful to search the curtilage of a residence in the absence of a search warrant being first had and obtained, and evidence where obtained in violation of this rule is subject to suppression on timely motion of occupant defendant where such evidence forms the basis for crime charged.

5. Curtilage includes all outbuildings used in connection with the residence, such as garage, sheds, barn, yard, and lot connected with and in close vicinity of residence, but an open pasture and wooded area beyond fenced residential property would not constitute part of the curtilage.

6. Where motion is filed to suppress evidence alleged to have been obtained by search of curtilage of defendant's home without authority of a search warrant, the burden of proving the character of the grounds searched is on movant.

7. The corpus delicti of an offense may be established by circumstantial evidence.

8. The criminal Court of Appeals will not reverse a conviction upon the ground that the evidence is insufficient to sustain the same unless there is no testimony in the record from which the jury could reasonably conclude that the defendant was guilty, there being no contention that the jury was influenced by improper motives in arriving at a verdict.

9. If upon the trial additional instructions are desired, it is the duty of counsel to reduce them to writing and request that they be given, and if he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct the jury upon some material question of law, and that the defendant has been deprived of a substantial right.

Windham & Windham, Poteau, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Velva Taylor, who will hereinafter be referred to as defendant, was jointly charged with one Fred Mansell in the district court of LeFlore County, with the crime of larceny of domestic animals. A severance was granted, and Taylor was tried before a jury, was convicted and punishment assessed at three years imprisonment in the State Penitentiary. Appeal has been duly perfected to this court.

Counsel for defendant for reversal present four specifications of error. We shall, for convenience, first consider the validity of defendant's contention that the court erred in overruling his motion to quash the jury panel drawn for the January, 1950, term of the district court of LeFlore County. This motion was properly filed and presented prior to the jury being sworn to try the case on April 20, 1950.

This was the first jury term held for the trial of criminal cases in said court following the enactment of Senate Bill No. 155, S.L.1949, page 279, effective June 2, 1949, Tit. 38 O.S.A. §§ 18-32, commonly known as 'The Jury Wheel Act.' The provisions in question being quite lengthy, they will not, for our purpose, all be quoted, but reference to the various provisions is suggested.

Though eight separate points were advanced in defendant's motion as presented to the trial court, in brief filed in this court but three points are argued in support of the contention that there was a material departure from the method and procedure provided by the above referred to statutory provisions for the selection of a jury panel.

It is asserted particularly that the evidence supports defendant's contention that the jurors summoned to serve at the term of court in which defendant was tried and convicted were not substantially drawn in the manner provided by Sections 18 and 19 of Tit. 38, O.S.A., hereinafter quoted, and that the deviation was substantial and material.

Section 18 provides: 'Meeting for selection of jurors.--Between the tenth and twenty-fifth day of November of each year, the County Treasurer or one of his deputies, together with the County Assessor or one of his deputies, together with the Sheriff or one of his deputies, and the County Clerk or one of his deputies, and the Court Clerk or one of his deputies, shall meet at the Courthouse of their County in the office of the County Clerk and select from the list of qualified jurors, as prescribed by this chapter, of such county as shown by the tax lists in County Assessor's office for the current year, all qualified jurors for service in the District, Superior, Common Pleas and County Courts of such County for the ensuing year in the manner hereinafter provided.'

Section 19 provides: 'Writing names on cards--Deposit in wheel--Form of wheel--Locking.--Said officer shall write or cause to be written the names of all persons who are known to be qualified jurors under the law on separate cards of uniform size and color, writing also on said cards, whenever possible, the post office address of each juror so selected, the expense thereof to be paid from the court fund of each county, said names and addresses of such qualified voters to be typed upon the cards as herein described under the supervision of the Court Clerk. The cards containing said names shall be deposited in a circular hollow wheel, to be provided for such propose by the Board of County Commissioners of each county after they have examined the contents thereof and removed therefrom and destroyed any cards found therein. Said wheel shall be in the form of a drum made of iron or steel and shall be so constructed as to freely revolve on its axle and big enough to freely mix all the cards placed therein, the size thereof in each to be determined by the number of names placed therein and shall be kept locked at all times, except when in use as hereinafter provided, by the use of two separate locks, so arranged that the key to one will not open the other lock; and said wheel and the clasps thereto attached into which the locks shall be fitted, shall be so arranged that said wheel cannot be opened unless both of said locks are unlocked at the time the wheel is opened. The keys to such locks shall be kept, one by the Sheriff and the other by the Court Clerk. The Sheriff and the Court Clerk shall not open such wheel, nor permit the same to be opened by any person, except at the time and in the manner and by the persons herein specified; but said Sheriff and Court Clerk shall keep such wheel, when not in use, in a safe and secure place where the same cannot be tampered with.'

Defendant complains and asserts:

'1. At the meeting in the office of the County Clerk no effort was made to select qualified jurors, as provided by law, of such County as shown by the tax lists in the County Assessor's office for the current year, but instead, they decided to have a complete typewritten list prepared of all names, regardless of qualifications for jury service, appearing upon the tax lists in the County Assessor's office; they then adjourned and met again when notified that the list of tax payers had been completed, at which time the County Attorney was present; they went over the list and eliminated certain persons whom they knew to be disqualified or excusable from jury service, such as school teachers, postmasters, women and persons convicted of crime; that no effort was made to ascertain the qualifications of the persons whose names remained on the list. This meeting was held in the office of Mr. Ferguson, the County Treasurer, and the list thus completed was turned over to the Court Clerk, who placed it in a steel cabinet in his office and kept it there for several days until the jury wheel, which was being prepared, arrived.

'The combination to the cabinet was known to him and his deputy, and the cabinet was not at all times closed during the day when they were in the office working.

'2. When the jury wheel arrived, the Court Clerk and the Sheriff removed the list of names from the safe in the office of the Court Clerk, placed them in the jury wheel, which was thereafter kept in the office of the Sheriff in a compartment upon which there was a Yale lock, to which the Sheriff and Under-sheriff had a key and in which, in addition to the jury wheel, as aforesaid, there was kept liquor, weapons and other objects in the custody of the Sheriff, to be later used as evidence in cases to be tried; that the other deputies, and the City Officers, had access to the Sheriff's office both night and day, for the purpose of obtaining access to the elevator and putting persons in prison.

'3. The Board of County Commissioners did not meet and examine the jury wheel for contents prior to the time the names constituting the list of jurors, as aforesaid, was placed therein. In fact, the Chairman of the Board of County Commissioners testified (C.M. 29-30) that he had never seen the jury wheel and the only thi...