Cupp v. State

5 Citing cases

  1. Badgwell v. State

    418 P.2d 114 (Okla. Crim. App. 1966)   Cited 6 times
    Showing of unauthorized communication "automatically shifts the burden upon the state to show non-prejudice by competent evidence"

    The law is stated in explicit terms, and this Court has repeatedly stated that these statutes are mandatory. See, Grable v. State, 60 Okla. Cr. 339, 44 P.2d 152; Rabb v. State, 62 Okla. Cr. 361, 71 P.2d 773; Graham v. State, 73 Okla. Cr. 337, 121 P.2d 308; Cupp v. State, 76 Okla. Cr. 342 136 P.2d 700; Lowrey v. State, 87 Okla. Cr. 313, 197 P.2d 637; Ladd v State, 89 Okla. Cr. 294, 207 P.2d 350; Green v. State, Okla. Cr. 281 P.2d 200; Keahbone v. State, Okla. Cr. 318 P.2d 894; Ford v. State Okla. Cr. 330 P.2d 214; and Fields v. State, Okla. Cr. 364 P.2d 723. All of these cases are discussed briefly in the well written brief of defense counsel.

  2. State v. Montgomery

    363 Mo. 459 (Mo. 1952)   Cited 35 times
    In State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, loc. cit. 656(2), this court (Division I) said: "We have held that in the absence of any objection or exception by the defendant to the separation of the jury it will be presumed that the necessary consent of defendant was given thereto; that defendant's consent to jury separation may be acted or even implied; and that, in other than capital cases, `the act of permitting them (the jury) to separate is a matter of procedure, amounting to an irregularity, which must be taken advantage of by exception.

    (3) Where the conduct of counsel for defendant is improper, the trial court should excuse the jury before administering a rebuke or threatening to fine or imprison him for contempt. Garrett v. State, 74 Okla. Cr. 78, 123 P.2d 283; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700; 23 C.J.S. 342. (4) It is prejudicial error for counsel for the state in a criminal prosecution to express or imply in his argument to the jury that he has knowledge of facts, aside from the evidence, which are detrimental to defendant and indicate his guilt. State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120; State v. Mathis, 323 Mo. 37, 18 S.W.2d 8; State v. Ferguson, 152 Mo. 92, 53 S.W. 427. (5) It is improper for counsel for the state to argue facts not in evidence, and in the absence of a proper reprimand, or an instruction to the jury to disregard such argument, it is reversible error.

  3. McGowan v. State

    380 P.2d 274 (Okla. Crim. App. 1963)   Cited 8 times

    In support of this contention, he cites Holcomb v. State, 95 Okla. Cr. 55, 239 P.2d 806; Harrell v. State, 85 Okla. Cr. 293, 187 P.2d 676; Lyons v. State, 94 Okla. Cr. 288, 234 P.2d 940; Ash v. State, 93 Okla. Cr. 125, 225 P.2d 816. The cases relied upon by counsel state the general rule of discretion to be employed by the trial judge in his comments to counsel. While it is a well-established rule that the court must excuse the jury before rebuking counsel or threatening to fine or imprison him for contempt (Berrie v. State, 55 Okla. Cr. 302, 29 P.2d 979; Garrett v. State, 74 Okla. Cr. 78, 123 P.2d 283; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700), the instant cause reveals no such situation. The comments of the trial court cited as error by defendant are occurrences in which the Court apparently attempts either to clarify the testimony of certain witnesses or speaks to counsel in reply to a ruling on objections, and are, in our opinion, of an "advisory" nature only.

  4. Ash v. State

    225 P.2d 816 (Okla. Crim. App. 1950)   Cited 6 times
    In Ash v. State, 93 Okla. Cr. 125, 129, 225 P.2d 816, 819 (1950), the trial judge cited the defense counsel for contempt before the jury and then ordered him to "purge himself of the charge of contempt before this court, before further participating in this trial.

    This court has from the beginning been committed to the rule that it is highly prejudicial for the trial judge to reprimand counsel for defendant in the presence of the jury. Garrett v. State, 74 Okla. Cr. 78, 123 P.2d 283; Smith v. State ex rel. Gallaher, 12 Okla. Cr. 513, 159 P. 941; Whittenburg v. State, 46 Okla. Cr. 380, 287 P. 1049; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700; McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72; Hargrove v. U.S., 8 Cir., 25 F.2d 258, 262. The proper thing to do is to excuse the jury and thereafter fine counsel, or if the facts justify, have counsel committed to jail.

  5. Trotter v. State

    77 Okla. Crim. 368 (Okla. Crim. App. 1943)   Cited 9 times

    It is well settled by many decisions of this court that when a defendant seeks a reversal of a judgment of conviction on account of error in the proceedings of the trial court the record must show the proceedings upon which the alleged error is based. Ables v. State, 35 Okla. Cr. 26, 247 P. 423; Baker v. State, 65 Okla. Cr. 136, 83 P.2d 586; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700. In the absence of any record sustaining this assignment of error, the same may not be considered by this court.