Appeal from the District Court of Canadian County; Boston W. Smith, Judge.
The opinion of the court was delivered by: BUSSEY, Judge.
Rehearing Denied March 4, 1968.
Second Rehearing Denied March 15, 1968
JOHN WILLIAM SHAPARD, PLAINTIFF IN ERROR,
THE STATE OF OKLAHOMA, DEFENDANT IN ERROR.
Appeal from the District Court of Canadian County; Boston W. Smith, Judge.
Shapard & Shapard, Oklahoma City, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Penn Lerblance, Asst. Atty. Gen., for defendant in error.
The opinion of the court was delivered by: BUSSEY, Judge.
¶1 John William Shapard, hereinafter referred to as the defendant, was convicted for the crime of Rape in the Second Degree in the District Court of Canadian County, sentenced to serve five years imprisonment, and appeals.
¶2 In his brief, defendant argues numerous assignments of error under seven separate propositions. For the purpose of clarity, we will deal with each of these assignments of error as they arose in the pre-trial proceedings and during the trial, without regard to the propositions under which they were urged in the defendant's brief.
¶3 The defendant, age 16, was charged in the Justice of the Peace Court of Marvin Cavnar in Oklahoma County, Oklahoma, with his co-defendants, Larry Wyatt Smith, age 17, Richard Payton Stanley, age 17, Michael Otis Stanley, age 17, James David Fellers, Jr., age 17, Johnny Ishmael, age 16, and Paul Hampton Brogan, age 17, for the crime of Rape in the Second Degree, allegedly committed on the 7th day of July, 1965, upon a 15 year old girl. A preliminary hearing was commenced on the 7th day of September, 1965, and terminated on the 9th day of September, 1965, at which time the defendant and his co-defendants were bound over to the District Court of Oklahoma County, where their arraignment was set for September 17, 1965.
¶4 As one of his propositions, defendant urges that he was denied a proper preliminary hearing as required by law by reason of the following errors:
¶5 A. That the examining magistrate refused to call and examine the witnesses present and subpoenaed by the defendant and therefore the information upon which he was tried and all subsequent proceedings were void ab initio;
¶6 B. That the refusal of the examining magistrate to call and examine witnesses present and subpoenaed by defendant constitutes a denial of constitutional right of due process under the Sixth Amendment made obligatory on the States by the Fourteenth Amendment.
¶7 In support of "A" listed above, the defendant further states in his brief:
"In the purported preliminary hearing, the Defendant was denied his statutory, fundamental and constitutional rights under the Constitution and laws of the State of Oklahoma and the Constitution of the United States of America and was denied due process in that the Examining Magistrate refused to allow Defendant to call witnesses subpoenaed for the defense and present at the purported preliminary hearing, which would have proved the defendant innocent and that no crime had been committed.
The Examining Magistrate refused to allow Defendant to call medical witnesses to the stand to prove the physical condition of the prosecuting witness immediately after the alleged crime and which would have proved that no rape was committed.
The Examining Magistrate refused to allow medical technicians and custodians of records in hospitals and laboratories to testify and produce records, showing the results of examinations and laboratory studies conducted by them immediately after the commission of the alleged crime with which Defendant was charged and which would have shown Defendant innocent.
The Defendant issued subpoenas for the following twenty-two (22) witnesses who were present and ready to testify: Johnny Ishmael, Martha Noble, Billy Noble, Patricia Laverty, [the prosecutrix], Sandra Kay Laverty, Dr. Harry Deupree, J.W. Athony, G.P. Tucker, M.B. Cooper, Dr. Joe Reynolds, Larry Uandell, Dr. Rex Kenyon, John Dudley, E.D. Hill, Mary Marshall, Jim Reeding, Dr. William K. Ishmael, Bruce Knox, Robert Singletary, John Rowden and Kelly Jones.
The following (10) witnesses were endorsed upon the Preliminary Information as Witnesses for the State and were present: Patricia Laverty, [the prosecutrix], Sandra Kay Laverty, Dr. Harry Deupree, J.W. Anthony, G.P. Tucker, Lt. Jim Reeding, M.B. Cooper, Dr. Joe Reynolds, Johnny Ishmael.
The testimony in this Preliminary Hearing was terminated after only four (4) witnesses had testified for the State. Johnny Ishmael and [the prosecutrix] testified with reference to the alleged crime and J.W. Anthony, Police-man and M.B. Cooper, County Attorney's Chief Investigator, testified solely as to the location of the alleged crime.
The defendant was permitted to call only two witnesses of the ten witnesses endorsed on the Preliminary Information. Sandra Kay Laverty testified and upon the calling of the second witness, Dr. Harry Deupree who would have shown no crime was committed, the court refused to permit him to testify * * *."
¶8 Defendant relies upon Article 2, Oklahoma Constitution, Section 17, the same providing:
"No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint."
Defendant urges that the language used in Wyatt v. State, 69 Okl.Cr. 93, 100 P.2d 283, is particularly applicable in the instant case wherein this Court stated:
"The district court did not have jurisdiction to try the defendant unless the defendant had actually had a preliminary examination or waived the same."
Defendant further relies upon 22 O.S. § 257 [22-257], which is as follows:
"At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him. He must, also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant."
as well as 22 O.S. § 259 [22-259], which is as follows:
"When the examination of the witness on the part of the State is closed, any witnesses the defendant may produce must be sworn and examined."
¶9 Defendant then cites Parmenter v. State, Okl.Cr.App., 377 P.2d 842:
"At the hearing, all witnesses whose evidence is material and relevant upon these issues should be heard."
He urges that the language used in Wyatt v. State, supra, and Parmenter v. State, supra, are controlling in the instant case.
¶10 In answer to Proposition "A" under this assignment of error, the State's position is that the defendant had a proper preliminary examination as required by law and that he was not prejudiced or denied any fundamental right when all defendant's witnesses were not heard at the preliminary examination. In support of this conclusion, the State relies upon Melchor v. State, Okl.Cr.App., 404 P.2d 63, in which this Court quoted from 22 C.J.S. Criminal Law § 331, in defining a preliminary examination:
"Its purpose is to determine whether an offense was committed and whether there was probable cause to believe that the accused was guilty thereof."
In this regard the State relies upon the following language which appears in Melchor v. State, supra, as well as Parmenter v. State, supra (relied upon by defendant above):
"A preliminary hearing is not a trial, since it is not conducted to determine the guilt of accused, but only the two issues was a crime committed, and is there probable cause to believe the accused committed it."
In 22 C.J.S. Criminal Law § 340, in discussing the duty of the examining magistrate at the preliminary examination it is stated:
"A statute, however, which provides that he shall examine complainant and the witnesses on oath is directory as to the quantity of the evidence to be taken, and does not require him to examine all the witnesses for the state if he is satisfied with less * * *." People v. Curtis, 95 Mich. 212, 54 N.W. 767.
And further, 21 Am.Jur.2d, Criminal Law, § 449, provides:
"Its only obligation is to produce enough proof to give probable cause for believing the accused guilty of the crime charged. An indictment or information will not therefore be quashed on the ground that at the preliminary examination the defendant was committed without the examinations of all the witnesses who were summoned for the State or who were subsequently used at the trial."
The State further quotes from Melchor v. State, supra, in which the following appears:
"Defendant further complains because the county attorney did not call all of the witnesses listed at the preliminary hearing, and that defendant should have been entitled to cross-examine all of these witnesses as a matter of right. However, he does not support this with any cited authority; nor do we find it to be the law in this State."
"Certainly, the evidence at the preliminary hearing was sufficient to believe a crime had been committed, and probable cause to believe that the defendant herein had committed it.
As we stated, defendant did not allege any defense either at the preliminary hearing, or at the district court trial. There is no reason to believe that the jury's verdict would have been any different had all of the witnesses testified at the preliminary hearing. It had no bearing on the evidence submitted to the jury."
¶11 We are of the opinion that the evidence adduced at the preliminary hearing was ample to support the magistrate's finding that a crime had been committed and his finding that there was probable cause to believe that the defendant was guilty. We are of the further opinion that the failure of the magistrate to hear the testimony of the witnesses which the defendant sought to call was in no way prejudicial to the accused who was provided, prior to trial, a report of the medical examination conducted on the prosecutrix shortly after the alleged rape occurred.
¶12 It is significant that the defendant did not attempt to call any of the witnesses on the trial whose testimony he now urges was vital to his defense at the preliminary hearing. It is thus clear that the defendant did not consider the testimony of these witnesses material to his defense and we are of the opinion and therefore hold, that where evidence presented at preliminary hearing before a magistrate is sufficient to establish that a crime has been committed and there is probable cause to believe the defendant guilty, the failure of the magistrate to allow the defendant to offer testimony of witnesses whose testimony is not material to the defense, does not constitute reversible error. The question of the materiality of the testimony sought to be produced at preliminary hearing must be determined from an examination of the entire record.
¶13 The defendant, under Proposition "B", asserts:
"That the refusal of the examining magistrate to call and examine witnesses present and subpoenaed by defendant constitutes a denial of constitutional right of due process under the sixth amendment made obligatory on the states by the fourteenth amendment."
No authority is cited to support this contention and we are of the opinion that the same is wholly without merit.
¶14 It is further urged that:
"The defendant was denied a fair and impartial trial consistent with due process of law as guaranteed and required by the Constitution by reason of the fact that the judiciary overstepped the bounds of judicial propriety and acted with undue haste and with partiality."
Under this assignment of error defendant urges that the remarks of Judge Cavnar occurring at preliminary hearing, were so fundamentally prejudicial as to require reversal. The remarks complained of appear in the transcript as follows:
"Before I rule on these other boys, I have the urge to make some statements.
Probably, a little philosophy is involved in matters like this. You know, we have laws of God and we have laws of Nature; we have the laws of Pennsylvania and New York and Illinois and Oklahoma, as well as our federal laws. These laws are all made to be obeyed; all of them.
If you don't know, all the laws are based upon right and wrong. You can check the law, pro and con, on most any matter, civil or criminal, and you'll find that they are fair.
They have been meted out by lawyers and judges from time immemorial. There has been a lot of study made on them.
I think that we have got a situation here in Oklahoma City, and in Oklahoma County, probably in the entire state, that needs to be looked into.
This old song, you have heard it, `Love makes the world go round,' I think it's a pretty true song.
There are many ways to demonstrate love. Love of father, love of mother, love of brother, love of sister, love of the Flag, love of our country, love of everything.
Love makes the world go round; it really does. If love didn't make this world go round, the Almighty, I think, would stop it and burn it up.
Now, I believe that we have to back up and take a look at things. I heard my old father say one time, he said, `You know, if my foresight was just about one-tenth as good as my hindsight, I'd be rich.'
The same is true of other things. It's time for us to take stock. It's time for parents everywhere to know where their children are. It's time to do that.
Maybe we need a curfew here in town. I understand that we have one; I don't know whether it is ever enforced or not. I haven't checked it lately. I don't know whether we have a curfew or not.
But, if we don't have, we should have one, and I think that applies to grown people as well as kids.
I think it's incumbent upon every parent, under the sound of my voice, to know where their children are at all times, to see that they obey.
I think if that happens, you can control your children, that you will not have any trouble with them.
I raised two boys; maybe I'd better knock on wood. They have never been in any serious trouble.
But, that doesn't mean that it couldn't happen to anybody at any time.
Here, we have a bunch of fine men whose children have gone astray just a little bit; some of the finest men in town, and it's a shame.
I had the urge to just make these few remarks, and to have fathers and mothers to take stock of themselves and their family life, and see how much love there is in that family.
If you'll pardon a personal remark, my youngest son is 29 years old, and do you know I've been sitting down reading the paper, watching television or something, and if he took a notion, he would come over and stoop down and kiss me on the jaw, and tell me that he loved me.
And, do you know something else, I like it; I like that.
And, he's got more whiskers on his face than I have, but I have kissed his face a time or two and told him that I loved him. And, it doesn't hurt a father to kiss a 16-year-old boy or a 17-year-old boy and tell him that you love him. You can't just tell him that you love him by giving him a car and a place to go. You've got to tell him, actually, that you love him. Let them know that they belong.
Now, these are just a few of the things that are necessary to make up this life that we live.
There is many, many ways that a child can have a good time without him going out and violating the law.
You kids that are here and under the sound of my voice, I want you to take heed of what I am telling you about this.
I have so many cases like this up in my court. For instance, a child abandonment case that the County Attorney files in my court, or vagrancy for non-support of a child or children, and I never the lawyers will tell you who practice in my court up there, that I always ask these wayward fathers, `Do you love this child? Do you love these children? Well, if you say you do, why aren't you supporting them? Don't you know that they are entitled to a glass of milk before you even get a drink of water? These children are innocent.' Those are the things we are fighting for. These kids ought to know that we are fighting for them; we're trying to do things for them. Sometimes we have to get pretty rough with the father that thinks that he is more important than his children, or than his family. We don't like that.
Now, we're not up there in this little old court of mine to persecute people. We're there to prosecute, if need be, and that's all.
I know that we do a lot of good up there; we put a lot of people in jail, we have to. * * *."
¶15 Defendant contends that these remarks were published in the paper where prospective jurors probably read them and they were prejudiced thereby.
¶16 The remarks of the Magistrate at the preliminary hearing were undoubtedly made by Judge Cavnar in good faith and with a view of advising the defendants and their parents of his philosophy relating to the parent-child relationship and their duty toward each other and society, but they were improper as a part of the preliminary hearing and should not have been made. These remarks, however, were not made before the jury who tried the case in El Reno after the first change of venue was granted, and there is nothing in the record of the voir dire examination of the jurors to indicate that the magistrate's remarks were ever read by any of them or that they had formed an opinion of the defendant's guilt based upon said remarks. To the contrary, as we will later point out, we are of the opinion that the jurors who tried the defendant were fair and impartial and that their verdict was not based on pre-trial publicity.
¶17 Although the arraignment was set for September 17, 1965, on that date said arraignment was continued to the 20th day of September, 1965, and the defendants thereafter filed a Plea in Abatement and Motion to Quash and Set Aside the Information. A hearing on these pleadings and defendant's arraignment were set down for October 1, 1965, before JoAnn McInnis, District Judge, Division No. 6, Oklahoma County, Oklahoma. Judge Clarence Mills also sat in an advisory capacity. Said Motions were overruled, whereupon the defendants stood mute and the court entered a plea of "Not Guilty."
¶18 Thereafter, Shapard, et al, sought an order of this Court prohibiting the District Court of Oklahoma from further proceedings on the ground that the defendants had been denied a proper preliminary hearing and that the District Court was without jurisdiction. On the 2nd day of November, 1965, this Court denied the writ prayed for holding that the question raised was reviewable only on appeal. Thereafter trial was set.
¶19 Thereupon, the defendant filed a Motion for Continuance and a Motion for Change of Venue, which was heard on the 4th day of November, 1965, before Judge Boston Smith, presiding Criminal Division Judge of Oklahoma County. At the conclusion of said hearing, the following appears in the record at Page 75 of the Transcript of Proceedings November 4, 1965:
"THE COURT: The Court is going to grant Change of Venue.
Like Mr. Duncan says and I respect his opinion, I have seen him try cases before juries here for years and he says, `Why take a chance.' I think that Oklahoma City wants these defendants to have a fair trial and it is our sworn duty to give them a fair trial and the mention of the word `rape' stirs emotion. We know that, particularly in the minds of women, mothers, but the record is replete here, I have just been going through this exhibit here while counsel was making their argument.
Their affidavits from responsible citizens who all bear good reputations in the community. It is pretty hard to disregard these affidavits.
MR. MOORE: If the Court will notice that those are the form affidavits.
THE COURT: I understand that. But, we want them to have a fair trial. Let's give them a fair trial.
Now the State has some rights here too. We sometimes forget that the State of Oklahoma is the plaintiff and that is the people of Oklahoma or State of Oklahoma and the defendant in so many of these cases demand a speedy trial. The constitution says that he is entitled to a speedy trial and the public is entitled to have these trials these cases tried just as fast.
The offenses occurred in July, the alleged offenses, that is what the Information says. And, here it is November, of course, October and November were the first two months we could have tried it, isn't that right?
THE COURT: Now I am going to check on the availability of the Courtroom in El Reno and a Jury. We are going to try this case this month if at all possible.
And so we are just going to move over to El Reno and start this case.
Now, I am going to check right now the availability of the Courtroom and a jury panel and I will ask counsel to stand by. It will take a few minutes while I call over there.
MR. SPIVEY: If the Court please, is the Court granting now the Change of Venue?
(THEREUPON, the Court recessed at 4:00 o'clock P.M.)."
¶20 As assignment of error defendant asserts (quoting from page 119 of his brief):
"On the 4th day of November, Judge Smith had listened to convincing testimony in support of the Change of Venue and almost in what appeared to be anger because the trial of the Defendant might be delayed, with his voice reaching the point of shouting, stated:
`The State has rights too * * * The public is entitled to have this trial * * * we are going to try this case this month * * * We are going to move over to El Reno and start this case' (C-M., Transcript of Proceedings Nov. 4, 1965, page 76.)"
¶21 When taken out of context the remarks quoted in the brief and the description of the tone of voice in which they were made, tend to support the defendant's contention; however, even the most cursory reading of Judge Smith's remarks discloses a desire and intention to protect the rights of the defendants in securing them a fair trial. His statement that defendants and the public are entitled to a speedy trial as guaranteed by the Constitution is a correct statement of law and there is nothing to support the defendant's contention that his conduct or ruling showed partiality for the State and against the accused. Moreover, we are of the opinion that it does not demonstrate that Judge Smith acted with undue haste and thus sped the defendant to trial. We will again deal with this issue as it appears in the record.
¶22 At said hearing of November 4, 1965, an Order for a Change of Venue was issued by Judge Smith and the case was removed from Oklahoma County to Canadian County, in the City of El Reno, Oklahoma, for trial.
¶23 On the 10th day of November, 1965, the defendant filed an application for a Change of Venue from Canadian County and a Motion for Continuance; on the 12th day of November, 1965, he filed an application to take out-of-state depositions. A hearing was conducted on the 12th day of November, 1965 on defendant's Motion for Change of Venue and Continuance and the same were denied by the trial court.
¶24 Defendant now asserts that the trial court's ruling denying him a change of venue and a continuance constitutes reversible error. The defendant argued in support of these motions in the trial court, and here on appeal, that he could not obtain a fair trial in Canadian County by reason of adverse pre-trial publicity.
¶25 The evidence adduced and attempted to be introduced on behalf of defendant on the application for Change of Venue was in sharp conflict with that offered by the State, save and except the newspaper articles, letters and exhibits, which the defendant introduced. Based on the evidence presented to him on this motion, we are of the opinion that the trial court did not err in refusing to grant the change of venue; however, this ruling is not determinative of the issue of whether the jury selected was biased and prejudiced against the accused. We are of the opinion that the trial court did not err in overruling defendant's Motion for Continuance based upon the identical evidence offered in support of the Motion for Change of Venue. We here adopt the language used in United States v. Hoffa, D.C., 156 F. Supp. 495:
"Mere fact that there has been widespread adverse pretrial publicity about defendant does not, by itself, establish reasonable probability that defendant cannot obtain a fair and impartial jury at criminal trial and is therefore entitled to postponement of trial for indefinite or substantial period of time.
Mere fact that prospective jurors have read newspaper or other publicity items critical of defendant does not, by itself, establish bias, pre-judgment, or other disqualification on part of prospective jurors, and does not entitle defendant to postponement of trial for indefinite or substantial period of time.
Where there has been widespread adverse pretrial publicity about defendant, proper procedure in vast majority of cases is not to postpone trial indefinitely or for substantial period of time, but to proceed to trial and to determine on voir dire of panel and individual talesmen whether fair and impartial jury can be selected."
¶26 We will later consider the competent evidence preserved in the record in Volume I of the Case-made insofar as it relates to the issue of whether the defendant was able to secure a fair trial in Canadian County.
¶27 On the 16th day of November, 1965, the Motion to Take Out-of-State Depositions of witnesses was granted. On this same date, the parties, after having announced ready for trial, began selecting the jurors on voir dire, and on this same day defendant filed a Motion to Quash the jury panel. It is now urged that the trial court erred in overruling this Motion to Quash the jury panel on a number of grounds, but argues specifically that the court violated Rule 22 of the 7th Judicial District. This rule is set forth in defendant's brief as follows:
"`When a jury should be called, the presiding judge shall specify in a written order to the court clerk, the number of jurors needed. * * * The order shall be made and drawing had at a time not less than twelve days or more than twenty next prior to the date on which said jurors shall be ordered to report for duty.' (Emphasis supplied.)"
¶28 Although the defendant alleges that the Motion to Quash was called to the attention of the court, we have carefully examined the record and are unable to find anything which would support this contention. This motion was filed on the day that jury selection began and had defendant wished to urge the motion he should have called it to the attention of the court prior to the selection of the jury and requested a hearing thereon, presented evidence and argument, and excepted to the ruling of the court.
¶29 Title 38 O.S. § 29 [38-29] provides in part:
"* * * A substantial compliance with the provisions of this Chapter [the calling of juries], 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; provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause." (Emphasis supplied.)
The failure of the defendant in the instant case to specifically present this motion to the court prior to the selection of the jury constituted a waiver or abandonment of the same and cannot be considered on appeal.
¶30 Defendant's argument, appearing at page 120 in his brief, that the trial court's ruling, when none had been made, demonstrated bias and prejudice toward the accused, under the circumstances here presented is completely without merit.
¶31 Prior to this time, a severance was granted to several defendants and the State elected to try John William Shapard first.
¶32 This leads us to a consideration of one of the crucial issues in this appeal, viz., was the jury selected in Canadian County so biased and prejudiced against the accused by the pre-trial publicity that he was unable to secure a fair trial in Canadian County? In considering this issue we deem it necessary to set forth in considerable detail the voir dire examination of prospective jurors as they appear in Volume I of the Casemade.
¶33 The jury selection commenced on November 16, 1965, with the voir dire examination of the prospective jurors being examined by the County Attorney, who challenged six of the first 18 jurors for cause and passed the remaining 12 for cause, at approximately 12:30. Thereafter, at 2:00 p.m., the voir dire examination resumed with Mr. Bill Berry, one of the defense counsel, examining the remaining 12 jurors extensively as to their qualifications to sit as jurors, whether or not they were familiar with the pre-trial publicity, and their opinion or impression based thereon. This examination continued until a 15 minute recess was declared by the court. After the recess, counsel for defense resumed the questioning of the prospective jurors until 5:15 in the afternoon, at which time the court recessed the proceedings and properly admonished the jury panel not to discuss, listen to, or read anything concerning the case during the recess. He further instructed the jury to return the following morning.
¶34 On the morning of November 17, 1965, Mr. Berry called the court's attention to an article which appeared the previous evening in the Oklahoma City Times. The gist of the article purported to quote the County Attorney as stating that two of the co-defendants intended to enter a plea of guilty. The State then called the court's attention to an article in the morning paper which purported to reflect on the immorality of the prosecutrix. The defendant then moved for a mistrial and the same was overruled.
¶35 The voir dire examination was then resumed by counsel for defense, who completed his examination of the 12 jurors and passed them for cause; whereupon, the State then exercised its first preemptory challenge and excused one of the 12 jurors. At 10:50 a.m., the court inquired of the jury panel if any of them had read, heard, or seen anything about the case since they came to the courthouse the previous morning. Those jurors who acknowledged that they had were then questioned by the respective parties in chambers. Some of the jurors were excused by the court for having read about or discussed the case; some were excused from further attendance for other reasons. Neither the State nor the defense objected to the discharge of these jurors. The proceedings in chambers terminated at 11:40 a.m. and at 11:45 a. m. the jury was seated in the box and voir dire examination resumed with the County Attorney examining the prospective juror who was called after the 12th juror had been pre-emptorily challenged by the State. This juror, Mrs. Shoemate, was challenged for cause and thereafter Mr. Clarence Kepler was called as a prospective juror on voir dire examination. This juror was passed for cause by the State (C-M 246) and defense (C-M 251). Whereupon, the defendant exercised his first pre-emptory challenge. Mr. Carl Kickingbird was then called as a prospective juror and was passed for cause by both the State (C-M 254) and defense (C-M 255). Whereupon the Court recessed at 12:00 with the usual admonitions and court resumed at 1:30 p.m., at which point the defense exercised its second pre-emptory challenge. Mr. Robert McDaniel was then called and passed by the State (C-M 261) and passed by the defendant (C-M 265). The State then exercised its third pre-emptory challenge and Mr. Alvin Tatum was called as a juror and passed for cause by the State (C-M 268), and passed by the defendant (C-M 272). Defendant then exercised his third preemptory challenge and Mr. Walter A. Shepherd was called, but was challenged by the State (C-M 273), with no objection by the defense and Mr. Shepherd was excused. Reba Barrett was then called, and was passed for cause by the State (C-M 275), and passed for cause by the defense (C-M 282). The State then exercised its fourth pre-emptory challenge and Herman Eden, Jr. was called as a prospective juror, but was challenged by the State (C-M 282), with no objection by defendant. Mr. Darzenkiewicz was then called and passed for cause by the State (C-M 284), and passed for cause by defendant (C-M 289). Defendant then exercised his fourth pre-emptory challenge and Mr. Charles Yeck was called, but was challenged by the State (C-M 290), with no objection by defendant. Mr. Charles H. Schmitzer was then called, but was challenged by the State (C-M 291), again with no objection by defendant. Mr. M.E. Girard was then called and passed for cause by the State (C-M 293), and passed by defendant (C-M 296). The State then exercised its fifth pre-emptory challenge and Goldie Wade was called, but was challenged by the State (C-M 299), as she had worked for one of the defense counsel and defendant agreed. Frank Jenkins was then called and passed for cause by the State (C-M 303), and passed for cause by defendant (C-M 308). Defendant then exercised his fifth and last challenge, and David Lee Barger was called as a prospective juror and was passed for cause by the State (C-M 309), and passed for cause by the defendant (C-M 313).
¶36 At this point in the proceedings the 12 jurors to whom the case was ultimately submitted, were duly empaneled and consisted of the following residents of Canadian County: Lawrence Gatz, William Hanson, Clarence Kepler, Carl Kickingbird, Alvin Tatum, Frank Jenkins, Buddy Alexander, Thomas B. Rains, Vernon Urban, David Lee Barger, Raymond L. Morris and Robert McDaniel.
¶37 Thereafter, further voir dire examination continued for the selection of two alternate jurors, but since they did not participate in the deliberations when the case was finally submitted, we deem it unnecessary to consider the proceedings relating to their selection; suffice it to say that at the conclusion of the selection of the alternate jurors, the defendant renewed his Motion for Continuance on the "grounds set forth" and for the reason of the hostility in the community. This Motion for Continuance was by the court overruled. The jurors were thereafter sequestered by the court until they returned the verdict.
¶38 In his brief, defendant contends that three of the jurors (Gatz, Urban and Alexander) selected to consider the case when it was ultimately submitted, had expressed various degrees of an opinion of the guilt of the defendant and that a fourth juror, selected as an alternate (Davis), had also expressed an opinion as to the guilt of the defendant which would take evidence to remove.
¶39 We reiterate that since Mr. Davis was an alternate juror and was not on the jury to which the case was ultimately submitted for deliberation, it is unnecessary to consider whether he was qualified to sit on the jury.
¶40 At the outset we observe that none of the jurors to whom the case was ultimately submitted of whom defendant now complains, were challenged for cause, except Mr. Alexander, and this challenge for cause was withdrawn by the defendant. We reiterate that since the issue here presented is one of the crucial issues in this appeal, we deem it necessary to set forth in detail the examination of jurors Gatz, Urban and Alexander on voir dire, in response to questions propounded by the respective parties and the court as they relate to this issue.
¶41 From the record it appears that Mr. Gatz is a farmer, living in Union City, Oklahoma, and is the father of two girls and one boy, whose ages at the time of trial were eleven, ten and nine. From the record the pertinent questions and answers appearing in the Case-made, at pages 43-65, are as follows:
"MR. BILL BERRY: Now, the remainder of these questions, I hope none of you will think that I am being repetitious or unduly boring but I want to ask them of you individually.
There will be some changes in them, but basically these questions are the same.
Mr. Gatz, I would like to start with you now and ask you some individual questions which will be your qualifications to sit as a Juror.
The complaining witness in this case is a fifteen year old girl by the name of Sherri Noble and she through the County Attorney's Information alleges that Bill Shapard raped her, based upon this charge or her information and as I have explained to you the County Attorney has filed this charge and we are today defending Bill Shapard, John William Shapard.
Do you believe, Mr. Gatz, that he is entitled to make every reasonable effort to defend himself?
BY MR. BILL BERRY: (Continuing)
Q. Do you believe that when one person makes a charge against another that the person who is accused has a right to make an investigation into the background of the individual who has made these charges against him?
Q. Well, now then, do you think there is anything wrong with me as the lawyer for this boy or for the people working for me, I having accepted as a lawyer employment in this case, going out to talk to people who have known this fifteen year old girl, the complaining witness, in an effort to find out what kind of a person she is or was at the time of this alleged crime?
Do you see anything wrong with it?
A. I don't really think so.
Q. Now, the Judge at the conclusion of this case, you are going to hear the evidence from the witness stand but at the conclusion of this case, the Judge will instruct you on the law that is applicable to the facts in this case.
Those are the only two things under our system of judicial prudence in arriving at this decision in this case. You are the triers of the facts and you are, Mr. Gatz, the sole determiner of the weight and credibility to be attached to any testimony of the witnesses and the Court will so instruct you that credibility of the witnesses is an issue in this case.
Now then, do you believe that is again this is slightly repetitious but that is all right for this boy and his lawyer to exert every reasonable effort to obtain evidence that establishes that the witnesses are credible?
A. Well, I think that is part of it.
Q. Now then, even though the complaining witness is a fifteen year old girl in this case, do you believe and are you satisfied that this boy can question her credibility without you thinking he is taking unfair advantage of her?
Q. Mr. Gatz, we know through our experience we have in common with each other, some people are truthful and some people aren't, is that right?
Q. And some people may be more truthful than others, isn't that correct?
Q. And, so you have no quarrel of this boy's right to establish by competent evidence that what this girl says is untrue if he can so establish that?
A. I think that is right.
Q. All right, you do not feel then at this time that a fifteen year old girl can only tell the truth that is she is not capable of telling anything but the truth. You don't feel at this time that just because she is a fifteen year old girl she is not capable of telling anything but the truth?
Q. And, not only insofar as the complaining witness is concerned but insofar as other witnesses which may be put on the witness stand by the State in support of their case, the State's case, I should say, do you believe that we also have a right to question their credibility?
Q. And then, you understand that you as the sole determiner of the facts, as a trier of the facts, you may attach what weight and credibility to any witness' credibility that you want to?
Q. Now then, I must explain to you that the very nature of this case is going to require considerable in the way of testimony about sex (spelling) s-e-x, I anticipate that on occasion that the testimony is going to border on the sordid and you may or may not, as I anticipate hear four letter words used from the witness stand and possibly by the lawyers in eliciting testimony from the witness stand.
Would this in any way shock your conscience to the effect that you think it might interfere with your deliberations in this case?
Q. Then it might develop that I, on behalf of my client out of necessity must necessarily elicit or bring out matters which are not going to be pleasant to your ears or to anybody else's. If I do so, this will be in the effort to present the facts in this case to you.
Q. Mr. Gatz, on behalf of my client, Bill Shapard, I may find I will necessarily have to elicit matters that wouldn't be pleasant to listen to. If I do this, this is going to be in an effort to present the facts to you in this case and I want to know now whether you will take offense to it if it is unpleasant and hold it against me or my client because of the nature or connotation may be offensive?
Q. I'll anticipate that the complaining witness will take the witness stand and that I will cross examine her at length and I may have to ask her questions on cross examination that I won't even discuss in the presence of my daughter but it will be in an attempt to put before you the facts in this case.
Are you going to take offense if I ask the complaining witness I am a forty-four year old and this is a fifteen year old girl things that would ordinarily be offensive, are you going to hold it against me and my client?
You would not be offended?
A. I think anything permitted by the Court would be all right with me.
Q. Let me put it another way. If I do anything as a lawyer in this case which offends you, you would not hold it against this client?
Q. This case as it has been brought previously today has received considerable publicity in the form of newspaper print, radio announcements or stories, television reports and presentations and I anticipate that this publicity will continue throughout the trial, Mr. Gatz, and I want to know at this time, the Court may I may request him to impound or sequester the Jury and by that I mean hold the Jury together during recesses, during lunches, and at night, throughout the trial of this case.
This is a matter which the Judge may or may not do. I can only inquire at this time and presume for the purpose of this question that he will, that I may request him to do that, and this will probably be rather a protractive proceedings and we may run over into Thanksgiving, new week.
Now if you are held together, and if you feel would you feel that if I would request you suppose I just told you that I am going to request that the Jury be held together and you are permitted to you are retained as a Juror in this case and you are going to be with the other eleven people in this trial, would that in any way cause you to have any feelings against me or my client in your deliberations of this case?
Q. This is a request that can be made both by the prosecution or the defense and they may or may not make it and I can't tell you at this time if I may request that or the Court may do it or Mr. Harris and I may never say a word.
Mr. Gatz, prior to your selection and prior to your being summoned, I should say as a prospective juror in this proceedings, have you heard other persons express an opinion as to the guilt of Bill Shapard or any of these boys?
A. Well, I don't know about the guilt itself but I have heard the crime discussed a lot, a lot of discussion on it.
Q. Have you ever heard anybody in your presence say as far as they are concerned, they are guilty?
A. I might have, there has been a lot of talk.
Q. Have you ever heard any person say they were innocent?
Q. Have you heard anybody comment on the fact that these boys are rich boys and they will buy their way out of this?
A. Yeah, I have heard some talk about it.
Q. There has been considerable talk about it. I wanted to be sure if you heard it.
Q. Did you hear the old saw of the thing kicked around about, `well, boys will be boys'?
A. I don't think I heard that.
Q. Have you heard anything about this girl having suffered any sort of mutilation or injury?
Q. Did you ever hear anything about anything said that they thought these boys ought to be taken out and hung?
A. Well, I heard pretty bad things.
Q. You never heard one person stand up and say that they oughten even to have a fair trial?
Q. Have you had occasion to be in a church or your church or anybody's church and heard any sermons about this purported fact?
Q. Ever attended any P.T.A. meetings or anything like that to have heard the purported testimony?
Q. Have you heard the prosecutor or his assistants talk at civic meetings about this?
Q. Do you have any private information that has come to you by the purported facts in this case?
Q. Your names as prospective Jurors were published in the newspaper and since you were summoned has anybody come up to you and remarked to you about reading about the fact that your name was in the newspaper and you were serving on the Jury in this case?
A. There has been several people that said they knew I was going to be on it.
Q. They knew that you were going to be called on this case?
Q. Did they make any remarks in your presence about their innocence or guilt?
A. Yes, like I said there has been a lot of talk.
Q. This has been since you were summoned as a Juror and none have ever told you that they were innocent and they all told you that they were guilty?
A. I don't know if all of them said they were guilty or not. There is more talk about what they feel ought to be done if they were found guilty rather than guilt.
Q. Have you ever expressed any opinion one way or the other yourself?
A. About whether they are guilty?
Q. And now, it has been brought out, I will tell you this because I have got to tell you something else first, you know a man is presumed innocent until he is proven guilty beyond a reasonable doubt, is that correct?
Q. Do you also realize, Mr. Gatz, that you must give the defendant, Bill Shapard, the benefit of this presumption of innocence without any mental reservations whatsoever?
Q. This is what is required, he is presumed innocent?
Q. And if you are permitted to remain on this Jury, you must presume him innocent without any mental reservations whatsoever.
Q. And, do you realize that you are to consider this presumption of innocence as actual proof of innocence until it is overcome by proof of guilt beyond a reasonable doubt?
Q. Now then, Mr. Gatz, do I have your promise that you will give this defendant Bill Shapard the full benefit of the presumption of innocence?
Q. Now then, I am sure that you do, do you realize that you are entitled to decide for yourself whether a doubt that you may entertain is reasonable or not and nobody else is entitled to tell you whether this is reasonable or not but you are to determine whether it is reasonable or not that is your decision?
Q. If you have a doubt and if this doubt appears reasonable, do you can you and will you maintain your individuality and not surrender your judgment to another Juror or other Jurors and hope to acquit the defendant?
A. Absolutely, I think that is my privilege.
Q. You make your decisions and you stay with it?
Q. Now then, the Court will instruct you that the prosecution must prove every element of this crime beyond a reasonable doubt and he will tell you what the elements are contained in the charge that is filed and they must prove every single solitary element of the crime beyond a reasonable doubt.
Now then, if they do not establish beyond a reasonable doubt every ingredient to your ...