Temple v. State
| Decision Date | 09 November 1918 |
| Docket Number | A-2997. |
| Citation | 175 P. 733,15 Okla.Crim. 176,1918 OK CR 152 |
| Parties | TEMPLE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In a prosecution for larceny of live stock, jurors impaneled for the trial may be challenged for actual bias, where it appears that the day before they had rendered a verdict convicting the same defendant of forgery, where it appears that the testimony in the first case involved certain controverted questions of fact in issue in this case, and where the same witnesses will be called to give the same testimony on an issue the same in both cases. Such jurors are not "impartial" jurors, within the meaning of the Constitution and laws of this state.
[Ed Note.-For other definitions, see Words and Phrases, First Series, Impartial Juror.]
The competency of a juror is, under the statute, a question to be determined by the trial court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.
Whenever the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the defendant.
A liberal latitude should be given the defendant in the examination of jurors on their voir dire.
Proof of predicate for the introduction of the transcript of the testimony of an absent witness taken upon the preliminary examination held incompetent and insufficient.
Defendants should not be convicted upon mere suspicion of guilt or even strong probabilities of guilt; to warrant their conviction the testimony, when the whole is considered, should be clear and convincing, entirely satisfying the minds and consciences of the jury.
Additional Syllabus by Editorial Staff.
The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual or implied bias and to enable defendant to intelligently exercise his peremptory challenges.
That jurors stated on their voir dire that they had formed no opinion as to guilt or innocence, and could and would act impartially, in view of Rev. Laws 1910, § 5861, relating to formed or expressed opinions, was wholly immaterial, as they could not be the judges of their own impartiality.
Appeal from District Court, Atoka County; J. H. Linebaugh, Judge.
C. A Temple was convicted of cattle theft and appeals. Reversed.
The plaintiff in error, Temple, and Ben Jordon were jointly informed against for the theft of two steers, the property of C. A. Stewart. A severance was granted and the state elected to first try the defendant Jordon. He was tried, convicted, and sentenced to the penitentiary for a term of 10 years. Upon the trial of the defendant Temple, generally known as Tom Temple, he was found guilty, but the jury failed to agree upon the punishment. On November 29, 1916, the court sentenced him to imprisonment in the penitentiary for the term of 5 years. Unable to give supersedeas bond, he was committed to the state penitentiary.
The proof on the part of the state, briefly stated, is as follows:
C. C. Stewart testified that he lived near the southeast corner of Atoka county, and was the owner of six work steers; that in November he missed two of these steers; that about the 1st of January he found his steers in Webb's feed pen at Hugo; that they were taken without his knowledge or consent.
Otis Morgan testified that he lived near Farris, in Atoka county; knows the defendant Ben Jordon, and bought cattle from him at different times, including two steers, which he paid for by a check signed by his father, J. S. Morgan; on the request of Ben Jordon, he made the check payable to Ben Willis; that he bought the steers in Atoka county, and there gave the check to Ben Jordon. He identified the check and it was offered in evidence. It was dated at Indorsed, "Ben Willis." He drove the steers to Hugo. He was then asked:
O. P. Ray, Jr., sheriff of Atoka county, testified as follows:
The state then offered a subpoena issued for John Morgan to the sheriff of Choctaw county, with the return thereon of O. P. Ray, Jr., sheriff of Atoka county, that he could not find the within-named John Morgan in Choctaw county. Over the defendant's objections the same was admitted in evidence. He further testified that he found the steers in question in a feed lot at Hugo, and notified the owner, Mr. Stewart. Recalled, he further testified as follows:
"
Proper objections were made and exceptions reserved.
Russell Telle testified that he was deputy court clerk and as such took the testimony in the preliminary examination in the case of State of Oklahoma v. Tom Temple and Ben Jordon, and produced a transcript of the testimony of John Morgan, witness for the state in said examination; that the same was a correct transcript. Over the defendant's objection that no proper predicate had been proven, the same was read to the jury. His testimony on the preliminary examination was that he is in the butcher business at Hugo, and his son Otis Morgan bought cattle and handled them for him on his farm in Atoka county; that his son delivered some cattle in November, including two work steers; that on or about the 15th of December he had a conversation with the defendant Tom Temple at Hugo about the check that his son gave for these steers, and Temple said he had been to the bank, and found that he did not have enough money in the bank to pay the check for his cattle; that he went to the bank, and told them to pay the check. On cross-examination he stated that he had met Tom Temple but a few times; that he knew Charley Norris, who was with Tom Temple at the time, but didn't know whether it was Tom Temple or Charley Norris that went into the bank with him to cash the check; that Henry Colbert was present when they were talking about the check; that he formerly knew a Ben Willis that lived near Farris.
Henry Colbert testified that he worked for John Morgan in his butcher shop about the 15th of December, 1914, and Tom Temple was there about that time, but he did not understand what they were talking about.
For the defense several witnesses testified that they were well acquainted with the defendant, and knew he could not read or write except to write his name.
C. B. Memninger testified that he was cashier of the Atoka State Bank, and knows the custom of banks in cashing checks, and that, if a person should present a check for payment that purported to be payable to any person other than the one presenting it, the bank under the rule would require the person presenting the check to indorse the same. To the same effect was the testimony of James Hudspet, cashier of the Oklahoma State Bank.
Two or three witnesses, including the court clerk, qualified as experts in handwriting, and were asked to compare the signature of the defendant with the indorsement on the check, and to state their opinion whether or not both were written by the same person. Objections by the county attorney to this evidence were sustained by the court.
The defendant, as a witness in his own behalf, testified that he was 33 years old, a resident of Atoka county; had lived in and around there all his life; that he never had anything to do with the $70 check introduced in evidence; the first time he ever saw the check was at the examining trial; that he had never had the check in his possession and did not cash or get the money on it at Hugo; that he could not read or write, but could sort of halfway sign his name, so that people could understand it; that he knew John Morgan, but never had any conversation with him in regard to the two steers in question; that he was not at Hugo on or about the 15th day of December; that at one time he sold Mr. Morgan a couple of heifers, and received a check for $50, and he took it to the bank at Hugo, and they said Mr. Morgan had not money enough there to pay it with, and he went to Morgan's market, and he took the check and gave him the money for it. Cross-examination was in part as follows:
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