Keahbone v. State

1957 OK CR 109, 318 P.2d 894, 1957 Okla. Crim. App. LEXIS 228

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 21, 1957
• Docket: A-12514
• Status: Published

Opinions

BRETT, Presiding Judge.

Plaintiff in error, Leonard Keahbone, defendant below, was charged by information in the County Court of Caddo County, Oklahoma, with the offense of operating a motor vehicle on a public highway while under the influence of intoxicating liquor. He was tried by a jury, convicted, and his punishment fixed at a fine of $200 and thirty days in the county jail. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

The defendant complains that the trial court erred in overruling his motion for new trial and as grounds therefor he says: “The jury sought and received evidence out of court from the bailiff contrary to the provisions of 22 O.S.1951 § 857 not to permit any person to speak to the jury, nor to do so himself.

"That the fact that the jury did so seek and receive such evidence was discovered some days after the verdict of the jury had been returned and filed in this cause, and he offers to produce testimony in support of this ground at such time and place as the court may determine.”

Thereafter, on May 17, 1957, the motion for new trial was heard, at which time Milton Singleton, a member of the jury, was called as a witness by the defendant. Mr. Singleton testified substantially as follows: that while the jury were deliberating on their verdict, they called the bailiff to the jury room. The bailiff “just stuck his head through the door.” One of the jurors asked the bailiff if the defendant had a prior conviction.

The foregoing was elicited from the witness and nothing more. Of course, this question and the answer thereto constituted an unlawful invasion of the sanctity of the jury room by the bailiff, prompted, of course, by the jury itself. The answer thereto might have prejudiced the defendant’s rights, and a presumption of prejudice immediately arose by reason thereof. Low-rey v. State, 87 OkI.Cr. 313, 197 P.2d 637.

When counsel for the state sought to elicit the information as to what the bailiff’s reply was, counsel for the defendant immediately objected. The objection was overruled and to the question, Mr. Singleton said the bailiff replied: “Well, he said, no, he said, it was his first offense, if it hadn’t of been his first offense, they would have called him up to District Court or some other court, couldn’t be brought in County Court. That was the answer he gave us.” This answer by the defendant’s only witness excluded the possibility of prejudice, and obviated the necessity of proof by the state.

The defendant relies upon the case of Lowrey v. State, supra. The Attorney General contends the outcome of the- Lowrey case was based upon the actions of the Sheriff who was the principal witness for the state. We cannot agree. That case also involved the conduct of the bailiff. The state therein did not overcome the presumption of prejudice. The same is therefore not controlling herein. In the case at bar, the defendant’s only witness testified to a state of facts sufficient for the creation of a presumption of prejudice, but then the presumption of prejudice was destroyed by his answer on cross-examination. Hence, the situation, in import, is similar to that in Sanders v. State, 50 Okl. Cr. 274, 296 P. 764, 765, wherein the affidavit of Mr. Buell, a juror and witness for the state on the motion for new trial, on its face overcame the presumption of prejudice as the testimony of juror Singleton did herein. Therein, it was said:

“Where the bailiff violates the instructions of the court by making a statement to the jury, while the jury is considering its verdict, in the absence of any showing that the statement influenced the jury in arriving at its verdict, the rights of the defendant were not prejudiced.”

Furthermore, in the case at bar, the statement made by the bailiff in response to the juror’s question, as hereinbefore set forth, in fact was beneficial to the defendant and could therefore not have influenced the jury to the defendant’s prejudice.

In Parker v. State, 86 Okl.Cr. 388, 193 P.2d 607, 608, it is held:

“It is of the utmost importance that jurors and court officials should at all times be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having acted in a manner prejudicial to the accused, or in his favor. However, this court will not set aside a verdict because of comments between jurors and the officers, which, even though improper, are not of a character calculated to prejudice accused, or to influence the verdict. We deem it sufficient to say that there was no prejudice to the substantial rights of the defendant resulting from the irregularity complained of, and that the trial court did not err in refusing a new trial upon this ■ ground.”

Such is the situation in the case at bar, and the judgment and sentence herein is accordingly affirmed.

POWELL, J., concurs. NIX, J., dissents.