De Wolf v. State

• Decision Date: 28 May 1952
• Docket Number: No. A-11351,A-11351
• Citation: 245 P.2d 107,95 Okla.Crim. 287
• Parties: DE WOLF v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 107

245 P.2d 107

95 Okla.Crim. 287

DE WOLF v. STATE.

No. A-11351.

Criminal Court of Appeals of Oklahoma.

May 28, 1952.

Syllabus by the Court.

1. Title 38, § 1, O.S.A.1941, setting out the qualifications of a jury commissioner provides that said commissioner shall not be interested in any cause, civil or criminal, pending in any court of this state.

2. A substantial compliance with the provisions of Title 38, § 13, O.S.A.1941, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen thereunder, unless the irregularity in drawing, and summoning or empaneling the same, resulted in depriving a party litigant of some substantial right.

3. The fact that one of the jury commissioners has an action pending which will be determined by jury drawn from the list selected by him, will disqualify any of the jurors selected by the Commissioner from participating in the Commissioner's case, but is not ground of challenge to the array.

4. An application for a continuance on the ground of the absence of leading counsel is properly denied, where the defendant is represented by his other counsel, and the alleged leading counsel later appears and participates in case.

5. A defendant who applies for a continuance on the ground of absent witnesses must exhaust all his legal remedies, Title 12, § 668, O.S.1951, to obtain the presence of such witnesses, and this must affirmatively appear from the affidavit; otherwise it is bad on its face, and it is not an abuse of discretion for the court to overrule the application.

6. The matter of restraint by means of surveillance, shackles and leg irons and other means of maintaining order and preventing acts of violence and escape are matters within the sound judicial discretion of the trial court. In such a case sound judicial discretion is that discretion which is based upon reasonable grounds of apprehension.

7. In order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time showing what testimony will be given if the witness is permitted to answer, as well as a statement disclosing the purpose and object of the testimony sought to be introduced.

8. On appeal, it is fundamental, that only such matters as appear of record can be considered.

9. Title 22, § 702, O.S.1951, does not prevent one spouse, after the marriage relation has terminated, from testifying in a case in which the other is a party.

George Campbell, Sand Springs, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Ass't Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

The plaintiff in error, Carl Austin DeWolf, defendant below, was charged in the District Court of Tulsa county, Oklahoma, by information with the murder of Police Officer Gerald St. Clair on August 30, 1946, in Tulsa county, Oklahoma. The crime was allegedly committed in Tulsa county, Oklahoma, by means of a pistol shot. The defendant was brought to trial on September 28, 1949, tried by a jury, convicted, his punishment fixed at death, and judgment and sentence entered accordingly, on September 30, 1949. From said judgment and sentence this appeal has been perfected.

The delay as to a decision in this case has been incident to changes in personnel of counsel representing the defendant and in filing briefs by counsel for both the defendant and the state. The defendant's brief was filed herein on July 25, 1951, and the state's brief was filed herein on January 7, 1952. The court did not wish to consider this appeal until briefs were filed by both the state and the defendant. The record is long and one legal question presented is of first impression. We did not desire to consider it without adequate briefing. Then the character of the case required the fullest consideration.

Numerous errors are complained of in the trial below, which the defendant urges and which we will consider in the order in which they appear in the defendant's brief.

Before this case came on for trial, the defendant filed his motion to quash the jury panel for the reason, that J. S. Chamblee, as a certified jury commissioner, participated in the selection of the jury in this cause, at which time he was disqualified to serve as a jury commissioner. It is contended Chamblee had litigation pending in said court, same being cause No. 30393, wherein he was plaintiff and one J. T. Thompson was defendant, contrary to the provisions of Title 38, § 1, O.S.A.1941, setting out the qualifications of a jury commissioner and reading in part as follows, to wit, 'and who shall not be interested in any cause, civil or criminal, pending in any court of this State'. The defendant overlooks the fact that this provision must be construed with § 13, Title 38, O.S.A.1941, reading in part as follows, to wit:

'A substantial compliance with the provisions of this Chapter, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning or empaneling the same, resulted in depriving a party litigant of some substantial right.'

The record herein does not disclose that the defendant was deprived of any substantial right. Moreover, so far as this defendant is concerned there was a substantial compliance with the provisions of the chapter herein involved, for the litigation of the commissioner bears no relation to the case at bar. Furthermore, so far as the trial of this case was concerned there was no material departure from the forms prescribed as to law. It nowhere appears in the record that the jury commissioner had any interest in the outcome of the trial of DeWolf. The rule is stated in 50 C.J.S., Juries, § 156, page 880, Note 34, and 35 C.J. page 260, Note 92, the fact that a 'jury commissioner has an action pending which will be determined by a jury drawn from the list selected by him,' will disqualify the commissioner from selecting jurors for that case, but 'is not ground of challenge to the array'. Turner v. State, 111 Tenn. 593, 69 S.W. 774, wherein it was held that such situation 'does not vitiate the proceedings of the commissioners when the other members of the board are qualified.' To the same effect is Walker v. State, 98 Tex.Cr. 663, 267 S.W. 988. This rule was followed in Viduarri v. Bruni, Tex.Civ.App., 179 S.W.2d 818, involving the jury wheel and the sheriff's participation in the use thereof where he has a suit pending to try title.

No cases appear to have been decided in Oklahoma factually in point with the case at bar, but cases holding that the burden is on the defendant to show that the illegality or wrong, which is the basis of such challenge, is such as to have caused the defendant to suffer prejudice. Houston v. State, 63 Okl.Cr. 49, 72 P.2d 526; Maddox v. State, 12 Okl.Cr. 462, 158 P. 883; Buxton v. State, 11 Okl.Cr. 85, 143 P. 58. Herein the proof of prejudice to the defendant on this point is totally lacking.

Second, the defendant contends the trial court erred in refusing the motion for continuance on the ground of the absence of one of his counsel, George Striplin, public defender, on account of illness. The defendant contends that George P. Striplin was the counsel duly representing him, and that Quinn M. Dickason had looked after only formal matters. He further contends Striplin had prepared said case for trial, and that Dickason who was unfamiliar with the case, was compelled to go to trial, upon overruling of the defendant's motion for continuance. The gist of said motion was as follows, to wit, that the defendant was destitute of funds with which to prepare his defense. That his brother arrived from the east about a week before trial, conferred with Mr. Striplin and endeavored to locate the defendant's witnesses without success, and that a certain girl known to the defendant who was supposed to be present to testify for him to the effect the defendant was in Drumright, Oklahoma, in the early part of the evening, before the murder, and that the defendant was back in Drumright shortly after the murder was supposed to have been committed, could not be found by defendant's brother. That this young woman had gone to California, and defendant had not had time to procure her return, and was without funds or time in which to take her deposition. Further, that the defendant rode from Jennings, Oklahoma, on the afternoon of the murder to an address in West Tulsa or Sand Springs with a man whose name is unknown, and whose whereabouts he had been unable to ascertain because of lack of time and funds.

As to the first part of this motion the record discloses that Mr. Dickason represented the defendant in the preliminary proceedings, was appointed on July 27, 1949, by the trial court, (at time of arraignment) to represent the defendant, and that he has been one of the attorneys representing the defendant at every stage of this case, except on this appeal. No proof was offered in support of said motion.

On the basis of such facts the trial court overruled the motion for continuance, which ruling the defendant contends was erroneous. The defendant contends the overruling of his motion was a denial of his constitutional right to have compulsory process for witnesses in his behalf, and contrary to his constitutional guarantees under the Bill of Rights.

In relation to the defendant's contention concerning Mr. Striplin's absence, the record shows that Mr. Dickason was at all times leading defense counsel. Furthermore the record shows that during most of the time both public defenders were present and participating in the trial. Under these conditions, it has been held, 'an application for a continuance on the ground of the absence of leading counsel is properly denied, where the defendant is represented by his other counsel. Waldock v. State, 42 Okl.Cr. 331, 276 P. 509, 512. If such be the rule in relation to the absence...