Tunnell v. State

• Citation: 216 P. 951,24 Okla.Crim. 176
• Decision Date: 26 July 1923
• Docket Number: A-3932.
• Parties: TUNNELL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

216 P. 951

24 Okla.Crim. 176

TUNNELL v. STATE.

No. A-3932.

Court of Criminal Appeals of Oklahoma

July 26, 1923

Syllabus by the Court.

The presence of the judge is essential to the organization of the court; and where, in the progress of a criminal trial, the judge temporarily relinquishes control over the proceedings or abandons the trial, a judgment of conviction will be reversed.

In a criminal trial, after the retirement of the jury to deliberate, and until the verdict is rendered or the jury discharged in due course of law, it is the duty of the judge to be where he can respond to any call for the exercise of his judicial authority, and thus give protection and security to all parties interested or concerned in the result of the trial.

The reception of a verdict is a judicial act which cannot be delegated; and where, in a prosecution for a misdemeanor, the jury having retired to deliberate of their verdict, the judge became incapacitated to further proceed with the trial on account of illness; and the following day by agreement of counsel a member of the bar received the verdict held, that the verdict so received is a nullity, and no judgment of conviction could be lawfully pronounced upon it by the court.

Appeal from County Court, Payne County; Wilberforce Jones, Judge.

Zelda Tunnell was convicted of manufacturing intoxicating liquors and she appeals. Reversed.

P. D Mitchell, of Yale, and W. M. Taylor, of Cushing, for plaintiff in error.

George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

DOYLE J.

The appellant, Zelda Tunnell, was convicted on a charge that she did unlawfully manufacture whisky, and in accordance with the verdict of the jury she was sentenced to be confined in the county jail for 30 days, and to pay a fine of $100.

The evidence shows that the defendant resided with her husband and children on their farm south of Yale, near the Cimarron river; that the sheriff and three deputies found a still in operation not far from the home of the defendant. Three deputy sheriffs testified that when they first saw the defendant she was 15 or 20 feet from the still, and was walking towards it. Sheriff Lilly testified: "Mrs Tunnell was poking the fire under the still when I first saw her."

As a witness in her own behalf the defendant testified:

"Wade Tunnell is my husband. I was in the truck patch near the river about 200 yards east of the house when I first saw the officers. I was picking tomatoes, and saw some smoke in the brush; looked like it was near a haystack; and I walked over there and met Sheriff Lilly and the other officers. I had never seen the still before that time. I never did make any whisky or do anything in the way of operating the still. It was not on our land."

It is contended by counsel for appellant that the judgment of conviction should be reversed for the following reason: Error in overruling the motion in arrest of judgment based on the ground that the verdict of the jury was returned in the absence of the trial judge. The record shows that the trial commenced November 8, 1920, and the following afternoon the jury retired to consider of their verdict. While the jury were deliberating Judge Jones became seriously ill. The next morning he was unable to return to the courthouse. About 10 a. m. the jury informed the bailiff that they were ready to report, a messenger was sent to notify the trial judge, and the judge sent word to the court clerk that he was not in condition to hold court, and advised that the jury be discharged, and thereupon the county attorney and W. M. Taylor, one of the attorneys for the defendant, in the absence of the defendant, agreed that John P. Hickam, a member of the bar, should act as special judge to receive the verdict of the jury in the absence of Judge Jones. Judge Hickam took the pench, and the jury were conducted into the courtroom. They returned their verdict and were discharged by Judge Hickam. The Attorney General confesses error, saying:

"There is no law that we can find that authorizes a change of judge during the trial, and certainly there is none that would authorize a member of the bar to receive the verdict of the jury, order it read and filed, and make an order discharging the jury."

In a legal sense the judge of a court is the court, and there can be no court without a judge. In Allen v. State, 13 Okl. Cr. 533, 165 P. 745, L. R. A. 1917E, 1085, it is said:

"Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. In many cases this court has held that it is the duty of the presiding judge at criminal trials to be present during each and every stage of the proceedings before him and, when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction will be reversed. Stiles v. State, 9

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