Turner v. State
| Decision Date | 29 November 1910 |
| Citation | 111 P. 988,4 Okla.Crim. 164,1910 OK CR 175 |
| Parties | TURNER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The application for a change of venue in a criminal cause is addressed to the sound discretion of the court, and the Criminal Court of Appeals will not reverse the ruling of the trial court denying an application for a change of venue unless it is made to appear that there has been such an abuse of discretion as to constitute a denial of a substantial right.
When counter affidavits are introduced "to show that the persons making affidavits in support of the application for a change of venue are not credible persons and that the change is not necessary," it then becomes a question of fact for the court to determine whether the defendants supporting affiants are credible persons within the requirement of the statute.
Where persons making affidavits in support of an application for a change of venue for the reason "that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein" are examined in open court in regard to the truth of said application, and their examination shows their means of knowledge was not sufficient to support, sustain, or justify the statements made in their supporting affidavits, said supporting affiants were not credible persons within the statute requiring the application of a defendant for a change of venue to be supported by the affidavits of at least three credible persons.
A mere impression not amounting to an opinion, derived from newspaper reports or rumor, does not disqualify a juror, and is not sufficient cause for challenge. It must appear that he has formed a fixed opinion.
A juror who states on his examination on the voir dire that he has an impression, not amounting to an opinion, from the reading of a newspaper account of the tragedy, and that his impression did not amount to an opinion, and was not such as would in any way influence his verdict is competent, and a challenge for cause by reason of implied bias was properly overruled.
The statute which provides (section 6814, Snyder's Comp. Laws 1909) that "no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him," is not in violation of the constitutional guaranty of the right to a trial by an impartial jury (section 20, Bill of Rights).
The statute cannot in any degree change the essential qualifications which jurors must possess. It merely furnishes a test by which these qualifications are to be determined and makes the statement of a juror "that he can and will notwithstanding such opinion act impartially and fairly upon the matters to be submitted to him" competent, as bearing upon the question of his impartiality, and requires the court to consider such statement when so made. The result is to make the competency of a juror as affected by his opinions based upon newspaper reports or rumor a question of fact for the court to determine.
The statute does not attempt to determine in the least what shall be the probative force of the statement of the juror when so made, or how far it shall have the effect of relieving him of the disqualification arising from his opinion, and when the opinion of the juror is only slight or transient, or is hypothetical, his statement under oath that, notwithstanding such opinion, he will act impartially and fairly as a juror is one of the most satisfactory tests of his impartiality but where it is clearly shown that the juror has a fixed opinion as to the merits of the case, or as to the guilt or innocence of the defendant, such statement then has little if any tendency to establish his impartiality, as it does not tend to show the nonexistence of the fixed and positive opinion which he admits he has formed or expressed.
A juror who states on his examination on the voir dire that he has formed an opinion as to the guilt of the defendant based upon a newspaper account of the tragedy, which purported to be the statement of an eyewitness well known to said juror, and whose name was indorsed upon the indictment, said statement being substantially the evidence expected to be presented by the prosecution on the trial is incompetent, and on a challenge for cause should be rejected, even though he states on cross-examination that he can and will notwithstanding such opinion act impartially and fairly upon the matters to be submitted to him, and that he will render an impartial verdict upon the law and the evidence.
When a juror who should have been rejected for cause is afterwards peremptorily challenged, and a full panel of impartial and acceptable jurors is obtained before the defendant has exhausted all his peremptory challenges, the error does not prejudice him, and is harmless, and is no ground for reversal.
Whether the appearances were sufficient to cause a reasonable apprehension that death or great bodily harm was intended is a question for the jury.
See opinion for instructions held to be correct and complete in application to the facts of the case.
Appeal from District Court, Carter County; S. H. Russell, Judge.
Frank Turner was convicted of murder, and he appeals. Affirmed.
A juror is not disqualified from sitting in a murder case because he has an impression not amounting to an opinion from the reading of a newspaper account of the homicide, which impression is not such as would influence his verdict.
Plaintiff in error (hereinafter designated the defendant) was on the 12th day of November, 1908, indicted in the district court of Carter county. The indictment charged that on the 19th day of September, 1908, in said county and state, the defendant did kill and murder one Charles McCumber by shooting him with a shotgun. Upon his trial the jury returned a verdict of guilty of murder and designated as his punishment imprisonment for life at hard labor. Motions for a new trial and in arrest of judgment having been overruled, on January 2, 1909, the court pronounced judgment in accordance with the verdict, from which judgment the defendant appealed by filing in this court November 1, 1909, his petition in error with case-made attached.
The material facts in the case as disclosed by the record may be briefly stated as follows: It appears that the defendant and McCumber at the time of the tragedy resided about 10 miles northwest of Ardmore on adjoining farms. For some time prior to the killing, there had been trouble between them concerning the killing of a cow belonging to McCumber on the defendant's farm. On the morning of the 19th day of September, 1908, McCumber went to Ardmore with a Mr. Carter and his son, his neighbors. The defendant was in Ardmore on that day, and, meeting McCumber, an altercation arose over the killing of the cow. McCumber left Ardmore late in the afternoon for his home with the Carters in their farm wagon, passing near the home of the defendant about dusk, where the roadside was covered with a dense thicket. McCumber, standing in the front end of the wagon, without a word of warning, was shot by the defendant with a shotgun, killing him almost instantly.
The theory of the prosecution is that the defendant following the altercation in the town of Ardmore proceeded home and armed himself with the shotgun, and, lying in wait near the wayside, deliberately assassinated McCumber for revenge. That the defendant killed Charles McCumber by shooting him is not denied. The only defense interposed was that the defendant believed that the deceased was about to attack him, and that he killed him in defense of himself.
The state called as a witness one Claude Bumper, who testified that his home was a half mile east of Richardson's; that at the time of the homicide the defendant lived with Richardsons, who were tenants on the defendant's farm; that the deceased lived about 300 yards west, and that Carters lived 1/2 mile west of Richardson's; that witness was then staying with Carters; that on that day he was in Ardmore and left about 3 o'clock for Carter's, arriving there a little before sundown; that he then went to his home on horseback, and turned his calves out; that, starting back to Carter's, he met the defendant carrying a Winchester shotgun on his shoulder; that he asked the defendant where he was going, and he answered that he was going to Mr. Donhams, who lived about a mile east; that 15 or 20 minutes later as he was unsaddling his horse at Carter's he heard a shot in the direction of Richardson's; that the sun had just about set at that time. He further testified that the road east from Richardson's to his house passed through a dense thicket, and was only wide enough for a wagon to pass through and that east from his house it was open prairie.
The state called as a witness also J. E. Carter, who testified that he lived 10 miles northwest of Ardmore; that on the day of the homicide he and his son drove to Ardmore with a load of corn; that Charles Mccumber rode to town with them, and that he rode back with them; that, as they approached the house where the defendant lived, Mr. McCumber was standing in the front end of the wagon, on the left-hand side, and witness was standing on the right-hand side, driving, and his son was behind them; that, when they were about opposite defendant's house, the horses shied to the right; that he noticed an object on the...
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