Steudle v. Territory of Oklahoma

Supreme Court of Oklahoma

Steudle v. Territory of Oklahoma

1907 OK 149, 91 P. 1024, 19 Okla. 492, 1907 Okla. LEXIS 226

DecidedSeptember 20, 1907

StatusPublished

This text of 1907 OK 149 (Steudle v. Territory of Oklahoma) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Steudle v. Territory of Oklahoma, 1907 OK 149, 91 P. 1024, 19 Okla. 492, 1907 Okla. LEXIS 226 (Okla. 1907).

Pincite

Opinion

Opinion of the court by

Irwin, J.:

The first assignment of error is the court erred in directing the defendant George Hysaw to be discharged from the indictment on the application of the county attorney for the purpose of using him, the said George Hysaw, as a witness for the territory, after the jury had been empaneled and sworn to try the case against all of said defendants, under one joint indictment. As to this assignment of error, the record shows the following facts (pages 9 and 10 of the record) :

“County Attorney: We desire to dismiss this case as to George Hysaw, one of the defendants. The Court: What is the purpose of that? County Attorney: We desire to use him as a witness. Mr. Massingale: I would like an exjoression from the county attorney as to the effect now of this dismissal. I understand under the statutes that the rule is where there is a joint indictment under certain circumstances the county attorney might dismiss as to one defendant for the purpose of using him as a witness. The Court: I understand that is what he wants; that is what he stated, to use him as a witness. Mr. Massingale: That dismissal is an acquittal. The Court: Yes, sir; the defendant Hysaw is discharged.”

Now, no exception of any kind or character were saved to this ruling of the court, and, from the foregoing colloquy between the county attorney ,the attorney for the defendants, and the court, it would reasonably be inferred that this ruling of the court was entirely satisfactory. We think the dismissal was clearly within the power of the court, and was not error, but whether *495 error or not it was not excepted to and exceptions were not saved, and it is not presented to this court in such a way that error could be assigned on it.

The second assignment of error is that after the jury had returned into court a sealed verdict finding the defendants, not naming them, guilty as charged, it was error on the part of the court to have the jury retire to their jury room and find a verdict naming the defendants found guilty. Section 5530, at page 1237, Wilson’s Statutes 1903, provides that the court may order the jury to seal up their verdict where they agree on a verdict during a temporary vacation of the court, and that they shall return their verdict into court at the next convening of court, and also provides that they may separate after so signing and sealing their verdict. Section 5539, page 1239, Wilson’s Statutes 1903, provides: “If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it. * * *” This verdict as first returned by the jury found all of the defendants guilty as charged in the indictment. This, of course, could not apply to the defendant Hysaw, who had been, by order of the court, previously dismissed out of the case, but it necessarily found all the other defendants guilty as charged in the indictment. The failure to insert the specific names of the particular defendants in the verdict could at best have been only an irregularity. It could only render the verdict defective in form, and we think it was clearly within the province of the court to order the jury to retire and correct their verdict, and the inserting of the particular names could have worked no hardship to either of the defendants, and is not such an error, if error at all, upon which a reversal could be predicated.

The only remaining assignment of error is that the court erred in refusing to grant the defendants Oscar Steudle and Charles Steudle a new trial for the reason that the evidence was not sufficient to warrant their conviction. We have examined the entire record, and we think there is ample and sufficient evidence *496 to sustain tbe finding of the jury, and under the well-recognized rule in this court that, where there is evidence reasonably tending to support the finding of the jury, this court will not disturb or reverse the case on a question of fact.

Having examined the entire record, and finding no error therein, the judgment of the district court is affirmed, with directions to the sheriff of Washita county to proceed with the enforcement of the judgment and sentence of the district court.

Pancoast and Garber, JJ., absent; all the other Justices concurring.

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Opinion of the court by

Irwin, J.:

The first assignment of error is the court erred in directing the defendant George Hysaw to be discharged from the indictment on the application of the county attorney for the purpose of using him, the said George Hysaw, as a witness for the territory, after the jury had been empaneled and sworn to try the case against all of said defendants, under one joint indictment. As to this assignment of error, the record shows the following facts (pages 9 and 10 of the record) :

“County Attorney: We desire to dismiss this case as to George Hysaw, one of the defendants. The Court: What is the purpose of that? County Attorney: We desire to use him as a witness. Mr. Massingale: I would like an exjoression from the county attorney as to the effect now of this dismissal. I understand under the statutes that the rule is where there is a joint indictment under certain circumstances the county attorney might dismiss as to one defendant for the purpose of using him as a witness. The Court: I understand that is what he wants; that is what he stated, to use him as a witness. Mr. Massingale: That dismissal is an acquittal. The Court: Yes, sir; the defendant Hysaw is discharged.”

Now, no exception of any kind or character were saved to this ruling of the court, and, from the foregoing colloquy between the county attorney ,the attorney for the defendants, and the court, it would reasonably be inferred that this ruling of the court was entirely satisfactory. We think the dismissal was clearly within the power of the court, and was not error, but whether *495 error or not it was not excepted to and exceptions were not saved, and it is not presented to this court in such a way that error could be assigned on it.

The second assignment of error is that after the jury had returned into court a sealed verdict finding the defendants, not naming them, guilty as charged, it was error on the part of the court to have the jury retire to their jury room and find a verdict naming the defendants found guilty. Section 5530, at page 1237, Wilson’s Statutes 1903, provides that the court may order the jury to seal up their verdict where they agree on a verdict during a temporary vacation of the court, and that they shall return their verdict into court at the next convening of court, and also provides that they may separate after so signing and sealing their verdict. Section 5539, page 1239, Wilson’s Statutes 1903, provides: “If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it. * * *” This verdict as first returned by the jury found all of the defendants guilty as charged in the indictment. This, of course, could not apply to the defendant Hysaw, who had been, by order of the court, previously dismissed out of the case, but it necessarily found all the other defendants guilty as charged in the indictment. The failure to insert the specific names of the particular defendants in the verdict could at best have been only an irregularity. It could only render the verdict defective in form, and we think it was clearly within the province of the court to order the jury to retire and correct their verdict, and the inserting of the particular names could have worked no hardship to either of the defendants, and is not such an error, if error at all, upon which a reversal could be predicated.

The only remaining assignment of error is that the court erred in refusing to grant the defendants Oscar Steudle and Charles Steudle a new trial for the reason that the evidence was not sufficient to warrant their conviction. We have examined the entire record, and we think there is ample and sufficient evidence *496 to sustain tbe finding of the jury, and under the well-recognized rule in this court that, where there is evidence reasonably tending to support the finding of the jury, this court will not disturb or reverse the case on a question of fact.

Having examined the entire record, and finding no error therein, the judgment of the district court is affirmed, with directions to the sheriff of Washita county to proceed with the enforcement of the judgment and sentence of the district court.

Pancoast and Garber, JJ., absent; all the other Justices concurring.

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Bluebook (online)

1907 OK 149, 91 P. 1024, 19 Okla. 492, 1907 Okla. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steudle-v-territory-of-oklahoma-okla-1907.