Tegeler v. State
| Decision Date | 05 April 1913 |
| Citation | 130 P. 1164,9 Okla.Crim. 138,1913 OK CR 87 |
| Parties | TEGELER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) The act of the Legislature of the territory of Oklahoma directing the manner in which grand juries should be impaneled was expressly repealed by Act Cong. Feb. 9, 1906, c. 155, 34 Stat. 11.
(b) A deputy clerk may perform the purely ministerial duties which are performed by the clerk of the district court in the matter of recording the list of jurors upon the journal of the court and certifying to the correctness thereof.
(c) It was not error for the trial court to overrule a challenge to the panel of the grand jury because the grand jury was selected after the commencement of the term of the court at which the indictment complained of was returned, instead of before the commencement of such term.
(d) A substantial compliance with the law in the matter of selecting, summoning, and impaneling grand jurors is all that the law requires.
(e) It is discretionary with the court to permit the withdrawal of a plea of not guilty for the purpose of allowing a defendant to file a motion to set aside an indictment, and such action will not be reviewed upon appeal, unless an abuse of this discretion is shown.
(a) Where a defendant has filed a motion for a change of venue supported by affidavits as provided by law, the state may file counter affidavits putting in issue the grounds upon which such change of venue is sought.
(b) Where a motion for a change of venue is filed and affidavits in opposition to such change of venue are presented by the state, the court may have the parties making such affidavits on both sides or such other persons as the court may think proper sworn as witnesses and examined in open court regarding the controversy.
(c) The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto.
(d) The granting of a change of venue is discretionary with the trial court, and will not be reviewed upon appeal, unless it is made clearly to appear that there has been an abuse of this discretion.
(a) It is the constitutional right of every citizen of Oklahoma, if charged with a criminal offense, to have a public trial by an impartial jury of the county in which the offense was committed, and that upon such trial justice shall be administered to him without sale, denial, delay, or prejudice.
(b) The acts of the Legislature with reference to the conduct of criminal cases and the qualifications of jurors must be construed in connection with and in subordination to the provisions of our Constitution. The words "prejudice" and "impartial," as used in our Constitution, have no narrow, technical meaning in a legal sense, and must be construed as used in the everyday affairs of life, and as understood by persons of ordinary intelligence.
(c) "Prejudice" means prejudged; without due examination; an opinion formed beforehand.
(d) "Impartial" means not favoring one more than another; treating all alike; unbiased; equitable, fair and just.
(e) Light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind to a fair consideration of the testimony, constitute no sufficient objection to a juror, but those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, and which will combat that testimony and resist its force, will disqualify a juror.
(f) Where a juror testifies on his voir dire that he has a fixed opinion as to the guilt of a defendant, which it will take strong evidence to remove, and that he was then upon one side of the case, such juror is clearly disqualified; and the mere fact that the juror may be of the opinion that he can try the case fairly and impartially by the testimony heard in court and the instructions of the judge does not qualify such juror.
(g) The doctrine of harmless error has no application to a case in which the defendant has been deprived of a substantial right.
Appeal from District Court, Oklahoma County; G. A. Brown, Judge pro tem.
Rudolph Tegeler was convicted of murder and his punishment assessed at confinement in the penitentiary for life, and he appeals. Reversed and remanded for new trial.
Where a juror testifies that he has a fixed opinion as to the guilt of defendant, which it will take strong evidence to remove he is disqualified, and the mere fact that he may be of opinion that he can try the case fairly and impartially does not qualify him.
Taylor Pruiett & Sniggs, A. C. Cruce, A. N. Munden, and E. G. McAdams, all of Oklahoma City, for appellant.
Smith C. Matson, Asst. Atty. Gen., and Sam H. Harris, for the State.
First. When this case was reached for trial, appellant requested the court to permit him to withdraw his plea of not guilty, and file a motion to quash and set aside the indictment. This motion was by the court overruled, and the motion to quash the indictment which had been filed was stricken from the records, to all of which appellant duly excepted.
The motion to quash and set aside the indictment contains 44 separate paragraphs, alleging that the grand jury which found the indictment in this case was not organized as directed by law. There are a number of good and sufficient reasons why the trial court did not err in striking out and refusing to consider this motion. It is only necessary to state one of these reasons, viz.: The territorial law upon which counsel rely had been repealed nearly two years before this indictment was presented. The indictment in this cause was presented by the grand jury of the district court of Oklahoma county at the first term of said court after the incoming of statehood in 1907. The act of the Legislature of the territory of Oklahoma directing the manner in which grand juries should be impaneled was expressly repealed by the act of February 9, 1906, of the Congress of the United States. See Federal Statutes Annotated, Supplement 1909, p. 327; Act Feb. 9, 1906, c. 155, 34 Stat. 11. So it appears that the statute upon which counsel rely had been repealed nearly five years before the motion was filed, and nearly two years before the indictment was presented. If counsel had investigated this question thoroughly, they would have saved themselves much inventive labor in thinking up reasons why the law had not been literally complied with, for this court has twice passed upon this question and construed the act of Congress of February 9, 1906. In the case of Reed v. Territory of Okl., 1 Okl. Cr. 481, 98 P. 583, 129 Am. St. Rep. 861, this court held that a deputy clerk may perform the merely ministerial duties directed by this act of Congress to be performed by the clerk of the district court in the matter of recording the list of the jurors upon the journals of the court, and certifying to the correctness thereof.
In the case of Price v. Territory, 1 Okl. Cr. 508, 99 P. 157, this court in construing this act of Congress held that it was not error for the trial court to overrule a challenge to the entire panel of the grand jury because the grand jury was selected after the commencement of the term of the district court at which the indictment complained of was returned, instead of before the commencement of such term, as provided by this act of Congress, and that the provisions of the act as to the time of the selection of the grand jury were directory only. These opinions have never been questioned, and will be found quoted in the Supplement of 1909 of the Federal Statutes Annotated, on page 328. All of the decisions cited by counsel for appellant were in cases where the indictments in question were presented by grand juries before the repeal of the territorial law. They therefore have no reference to the law existing at the incoming of statehood. This court is committed to the doctrine that where there has been a substantial compliance with the law with reference to the selection of a grand jury, and where no injury is shown to a defendant, a motion to quash the indictment upon the grounds relied upon in this case should be denied. It is nowhere contended in the brief of counsel for appellant that there was a failure to comply substantially with the requirements of the act of Congress of 1896 which was in force when this indictment was presented in the matter of impaneling the grand jury. The trial court, therefore, did not err in striking from the record the motion to set aside the indictment.
In addition to this, the court had the right to refuse permission to withdraw the plea of not guilty. The statutes on this subject are specific and reasonable. The failure of a defendant to file a motion to set aside an indictment at the proper time cannot reasonably be said to give him the right to file such a motion at any time upon the ground that the facts stated in such motion were not previously known to one of his attorneys when appellant had had for years a number of other attorneys employed in his defense. Even if the motion now under consideration had been good upon its face, it was discretionary with the court to permit the withdrawal of the plea and a consideration of the motion. This is not an open question in Oklahoma. See Hunter v. State, 3 Okl. Cr. 533, 107 P. 444; Weatherholt v. State, 131 P. 185, decided at the present term. The views expressed in these cases are without exception sustained by the authorities.
In the case of State v. Lamon, 10 N.C. 175, the Supreme Court of that state said: ...
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