Whether to give a proposed jury instruction is within the discretion of the district court and will not be overturned absent an abuse of discretion. State v. Saybolt, 461 N.W.2d 729, 735 (Minn. App. 1990), review denied (Minn. Dec. 17, 1990).
"Theft by swindle requires the intent to defraud." State v. Saybolt, 461 N.W.2d 729, 735 (Minn.App. 1990) (citation omitted), review denied (Minn. Dec. 17, 1990).
"Although the trial court here could have in the reasoned exercise of its discretion granted defendant's mistrial motion," nonetheless "[a]bsent prejudice, reversal is not warranted"). See also, e.g., Cooper v. Campbell, Superintendent, Arkansas Department of Correction, 597 F.2d 628, 629 (8th Cir. 1979), cert. denied, 444 U.S. 852, 100 S. Ct. 106, 62 L. Ed. 2d 69 (1979); State v. Gallow, 452 So.2d 1288, 1290 (La. App. 1984); State v. Saybolt, 461 N.W.2d 729, 736-737 (Minn. App. 1990); Lester v. State, 767 So. 2d 219, 223 (Miss. App. 2000); State v. Barone, 329 Ore. 210, 227, 986 P.2d 5, 17-18 (1999).We agree with the majority view that draws a distinction between (1) a jury which is never sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but the oath is administered before the commencement of jury deliberations.
It is intended to impress upon the jury its solemn duty to carefully deliberate on the matter at issue. Most importantly the oath serves as a safeguard of a criminal defendant's fundamental constitutional right to trial by an impartial jury."); State v. Saybolt, 461 N.W.2d 729, 737 (Minn.Ct.App. 1990) ("[Juror oaths] are not formalities, are sacred, and no citizen need expose himself to loss of liberty and property by people who are not sworn to do their duty." (Emphasis in original.)); Slaughter v. State, 28 S.E. 159, 161 (Ga. 1897) (in criminal cases, "a total failure to swear the jury is a matter which cannot, in any manner or under any circumstances, be waived; and, as a consequence, a conviction by an unsworn jury is a mere nullity");
judice"); People v. Morales, 168 A.D.2d 85, 89, 570 N.Y.S.2d 831, 833 (1991) ("[T]he jury was sworn prior to deliberations," and "the delay in swearing the jury constituted harmless error"); Statev. Roberge, 155 Vt. 121, 122-123, 582 A.2d 142, 143 (1990) ("[A]bsent . . . a showing of prejudice by the delay in swearing, there is no reversible error where a jury is sworn before deliberations in a criminal case"); State v. Block, 170 Wis.2d 676, 682, 489 N.W.2d 715, 717-718 (1992) (The jury was not sworn until six prosecution witnesses had testified, and the court held: "Although the trial court here could have in the reasoned exercise of its discretion granted defendant's mistrial motion," nonetheless "[a]bsent prejudice, reversal is not warranted"). See also, e.g., Cooper v. Campbell, Superintendent, Arkansas Department of Correction, 597 F.2d 628, 629 (8th Cir. 1979), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979); State v. Gallow, 452 So.2d 1288, 1290 (La.App. 1984); State v. Saybolt, 461 N.W.2d 729, 736-737 (Minn.App. 1990); Lester v. State, 767 So.2d 219, 223 (Miss.App. 2000); State v. Barone, 329 Or. 210, 227, 986 P.2d 5, 17-18 (1999). We agree with the majority view that draws a distinction between (1) a jury which is never sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but the oath is administered before the commencement of jury deliberations.
Although the court goes on to state that "if the oath were not given at all we would have no hesitation in finding reversible error even absent any showing of actual prejudice," the fact that defense counsel apparently was aware that the jury was unsworn and did not bring this to the court's attention served as a factor in the appellate court's determination to uphold swearing the jury at such a late stage. {34} In State v. Saybolt, 461 N.W.2d 729, 737 (Minn.Ct.App. 1990), the oath was not given until just prior to closing arguments, and while the appellate court stated that "[o]aths are not formalities" but "are sacred," the court upheld the conviction. The defendant raised the issue of the unsworn jury in his motion for a new trial, but the court held that the defendant did not object in a timely manner, thus failing to preserve the error.
See State v. Matousek, 178 N.W.2d 604, 609 (Minn. 1970); State v. Saybolt, 461 N.W.2d 729, 733-35 (Minn. App. 1990), review denied (Minn. Dec. 17, 1990).
The state first argues that this case is similar to State v. Saybolt, in which this court affirmed an employee's conviction for theft by swindle. 461 N.W.2d 729, 734-35 (Minn. App. 1990), review denied (Minn. Dec. 17, 1990).
But during trial, appellant either failed to object to the admission of these items or withdrew any objection made. "[W]hen allegedly improper or prejudicial evidence has been admitted without objection, a party may not object to its admissibility for the first time in a motion for a new trial or on appeal." State v. Saybolt, 461 N.W.2d 729, 737 (Minn. App. 1990), review denied (Minn. Dec. 17, 1990).
"Theft by swindle requires the intent to defraud." State v. Saybolt, 461 N.W.2d 729, 735 (Minn.App. 1990), review denied (Minn. Dec. 17, 1990).