Turner v. Territory Oklahoma

• Decision Date: 06 September 1905
• Citation: 15 Okla. 557,1905 OK 91,82 P. 650
• Court: Oklahoma Supreme Court
• Parties: TURNER v. THE TERRITORY OF OKLAHOMA.

1905 OK 91

82 P. 650

15 Okla. 557

TURNER v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: September 6, 1905

Error from the District Court of Kiowa County; before Frank E. Gillette, Trial Judge.

Shartel, Keaton & Wells and J. A. Powers, for plaintiff in error.

P. C. Simons, Attorney General, for defendant in error.

PER CURIAM

¶1 The defendant was indicted and tried for murder. The jury returned a verdict of manslaughter in the first degree. On appeal the judgment was reversed and a new trial granted. When the case came on for trial the second time, the defendant, through his attorneys, objected to being placed on trial for murder, on the ground that, having been convicted of manslaughter only on the first trial, such verdict was equivalent to an acquittal of the charge of murder. The court sustained the contention of the defendant over the protests of the prosecution, and he was tried for the crime of manslaughter in the first degree. The ruling of the court was erroneous, but the territory cannot get a new trial on the ground that the defendant might have been convicted of a higher degree of homicide. When the former judgment was reversed, the case stood in exactly the same position that it did before the first trial was had; and, while there are authorities to the contrary, we think that the rule herein announced is the better rule, and it is supported by able authorities. 12 Cyc. 285, State v. McCord, 8 Kan. 232, 12 Am. Rep. 469; State v. Miller, 35 Kan. 328, 10 Pac. 865; Bohanan v. State, 18 Neb. 57, 24 N.W. 390, 53 Am. Rep. 791; People v. Keefer (Cal.) 3 Pac. 818; Ex parte Bradley, 48 Ind. 548; Veatch v. State, 60 Ind. 291; Waller v. State (Ga.) 30 S.E. 835; State v. Billings (Mo.) 1 S. W. 135; State v. Simms, 71 Mo. 538; State v. Behimer, 20 Ohio St. 572; State v. Bradley (Vt.) 32 Atl. 238.

¶2 But, independent of the rule herein announced as a principle of law, our own statute is conclusive. Section 1, of article 14, of chapter 68, (running section 5268) of the 1893 Statutes of Oklahoma, provides:

"A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment."

¶3 A defendant is given the right of an appeal so that any errors committed against him to the prejudice of his substantial rights may be corrected. Is it not possible that the court may also have committed errors in his favor? Experience has taught us in the trial of criminal cases that there are probably more errors in favor of a defendant than against him; but, as a rule, only those against him are presented to the appellate court. A defendant should be given a fair and impartial trial, but when he shows that such a trial has not been afforded him and he is given the chance of an entire acquittal by another trial, he must also assume the risk of conviction for the highest crime legally charged in the indictment. The effect of a new trial in circumstances such as are presented in this case is to wipe out and set aside the entire judgment; that part which is favorable to the defendant as well as that part which is against him.

¶4 The defendant on the second trial was convicted of manslaughter in the first degree, and we will now consider his assignments of error. After the jury had been empaneled and some evidence taken, one of the jurors became too sick for jury service and was excused. The court thereupon asked the attorneys to suggest their respective views of the procedure in the circumstances, and directed their attention to section 31 of article 10 of chapter 68 of the Statutes of 1893, which provides:

"If, before the conclusion of a trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards empaneled."

¶5 No procedure was suggested, and the court called another juror in the place of the one excused. The record fails to show that any objections were made by the defendant's counsel, but it does appear that when the court directed the clerk to call another juror, one of the defendant's attorneys said: "Defendant excepts. " After the Territory and the defendant had each interrogated the juror called, as to his qualifications, the following conversations and transactions took place:

"By the court: Does the Territory now desire to exercise a peremptory challenge?

"By Mr. Thacker, county attorney: No sir.

"By the court: Does the defendant at this time desire to exercise a peremptory challenge?

"By Mr. Keaton: (for defendant) If the court please, we would like to claim the right and exercise a peremptory challenge, but if we could not exercise one after this one, as each juror is called, it would not be of any avail to us.

"By the court: If you desire to exercise a peremptory challenge you may.

"By Mr. Keaton: As to any of the panel or simply the last juror called?

"By the court: I think you have a right to exercise it as to any of the jury as now constituted; you have the right to exercise it as to any one of them.

"The Territory objects; objections overruled; Territory excepts."

¶6 Thereupon the defendant challenged Mr. Owen, who was one of the original jurors sworn to try the case.

¶7 The court proceeded upon the theory that each party was entitled to nine challenges after the sick juror had been excused, and the Territory waived the first two and exercised the remaining seven. The defendant exercised the entire nine. The regular panel having first been exhausted, two special venires were served before a jury was finally secured. The defendants attorneys excepted to the issuance of each of these venires, but made no formal objection. There is, however, a statement by the defendant's counsel in the record, after the defendant had exercised his eighth peremptory challenge to the effect that the defendant objected to the calling of any of the jurors summoned on the second venire; and when the court requested counsel to state the grounds of his objections, he said that he had "no special grounds except that counsel claims that the court has no power to empanel the jury by the methods that are being taken." Then, just before the jury was sworn, the defendant's counsel asked to be allowed an additional challenge, for no other reason than they thought it was necessary to ask an...