Ward v. State

1973 OK CR 155, 508 P.2d 708, 1973 Okla. Crim. App. LEXIS 791

• Court: Court of Criminal Appeals of Oklahoma
• Decided: March 19, 1973
• Docket: No. A-17688
• Status: Published

Opinions

BUSSEY, Judge:

This is an appeal from the District Court of Washita County, Case No. CRF-71-48, wherein James E. Ward, hereinafter referred to as defendant, was charged, tried and convicted for the crime of Larceny of Domestic Animals, and from the judgment and sentence fixing his punishment at five (5) years in the state penitentiary, he appeals.

There are several assignments of error presented in the Petition in Error, only one of which is urged on appeal with citations of authority.

The single contention urged by defendant is that the trial court erred in overruling the Motion to Quash the jury panel. The following appears in the record, at page 1:

“Whereupon, a jury of twelve citizens was duly empaneled, and after voir dire of the jury the following transpired:

‘MR. BRIGGS: If the Court please, comes now the Defendant at the close of the voir dire of this jury panel and moves to quash this panel for the reason and upon the grounds that the ballots in the ballot box have not been folded and are not in accordance with the laws of the State of Oklahoma and decisions of the Court of Criminal Appeals, and that this denies to the Defendant a substantial right at this time, and moves to quash it before the jurors are sworn.

THE COURT: Motion be overruled.’ ”

After carefully searching the record, we fail to find where counsel for defendant ever filed a written Motion, as required by law. The applicable law is found in 22 O.S. § 634, which provides:

“A challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.” [Emphasis added]

In construing the statute, we stated, in McGriff v. Oklahoma City, Okl.Cr., 452 P.2d 156:

“An examination of the record fails to disclose that the defendant challenged the panel as required by the provisions of 22 O.S. § 634, supra, and therefore this question is not properly before us on appeal . . . .”

See also Lauhoff v. State, Okl.Cr., 508 P. 2d 285.

Moreover, we also note that it was not until the completion of voir dire examination and 12 jurors had been selected, did counsel for defendant attempt to raise an oral objection to the method of empaneling the jury. It is apparent that he was aware of the failure to fold the names of the jurors, since the same was done in his presence, but instead “lay behind the Log” speculating on whether, after all challenges had been exercised, the members of the jury selected were pleasing to him. His failure to make timely objection in the manner prescribed by law, constituted a waiver of his right to object to the method of empaneling the jury, and he has preserved nothing for review on appeal.

While the defendant has apparently abandoned the other allegations in his Petition in Error, including the sufficiency of the evidence; suffice it to say that we have carefully examined the record and find that the evidence, although conflicting, amply supports the verdict of the jury and that the record is free of any error which would justify modification or reversal.

The judgment and sentence appealed from is affirmed.

BLISS, P. J., concurs. BRETT, J., dissents.