State v. McCain

State v. McCain
1981 OK 132
637 P.2d 72
Case Number: 53300
Decided: 11/10/1981
Supreme Court of Oklahoma

 
STATE OF OKLAHOMA, APPELLEE,
v.
STEVEN KENT McCAIN, APPELLANT.

Appeal from the District Court, Oklahoma County; Charlie Y. Wier, Judge.

¶0 Appellant appeals from a jury verdict in a paternity action which found that he was adjudicated to be the father of a child born out of wedlock.

AFFIRMED.

Andrew M. Coats, Dist. Atty. and David H. Hardwicke, Asst. Dist. Atty., Oklahoma City, for appellee.

Thomas E. Salisbury, Tulsa, for appellant.

HODGES, Justice.

[637 P.2d 73]

¶1 This is an appeal from a six-member jury verdict in which the appellant, Stephen McCain, was found to be the natural father of a child born out of wedlock. It is asserted by McCain that his constitutional rights have been violated by the court's failure to seat a twelve-member jury, and by the non-unanimous verdict rendered by the six-member jury.

¶2 A paternity complaint was filed by Gayla Calhoun, appellee, against McCain on September 14, 1978. At the pre-trial conference, McCain's attorney asked for a jury trial, and it was agreed that a six-member jury would be empaneled. The trial was held on January 10, 1979, and McCain was found to be the father of Ms. Calhoun's child. The verdict was rendered by five of the six jurors.

I

¶3 McCain contends the trial court failed to protect his constitutionally guaranteed right to a twelve-member jury and that a non-unanimous verdict rendered by the six-member jury panel violated due process of law.

¶4 The Okla.Const. art. 2, § 19 provides for juries of twelve persons in civil and criminal cases.

[637 P.2d 74]

¶5 There is historical precedence for the utilization of a six-person jury in paternity proceedings. The Okla.Const. art. 2, § 19 initially provided for six-person juries in county courts.

II

¶6 The Oklahoma Constitution provides that in civil cases and in criminal cases less than felonies, three-fourths of the jurors concurring have the power to render a verdict.

III

¶7 It is also argued that the trial court was without jurisdiction to set child support while this matter is on appeal. This Court has consistently held that the trial court has continuing jurisdiction to determine ancillary matters of support pending appeal.

¶8 AFFIRMED.

¶9 IRWIN, C.J., BARNES, V.C.J., and LAVENDER, DOOLIN, and HARGRAVE, JJ., concur.

¶10 SIMMS, J., concurs in result.

¶11 OPALA, J., dissents.

Footnotes:

1 Okla.Const. art. 2, § 19 provides in pertinent part:

". . . [T]he Legislature may provide for jury trial in cases involving lesser amounts. Juries for the trial of civil and criminal cases shall consist of twelve (12) persons; but in the trial of misdemeanors, proceedings for the violation of ordinances or regulations of cities and towns, juvenile proceedings, actions for forcible entry and detainer, or detention only, of real property and collection of rents therefor, and civil cases concerning causes of action involving less than Twenty-five Hundred Dollars ($2,500.00), juries shall consist of six (6) persons. In civil cases, and in criminal cases less than felonies, three-fourths (3/4) of the whole number of jurors concurring shall have power to render a verdict."

2 The Okla.Const. art. 2, § 19 initially provided in pertinent part:

"The right of a trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve (12) persons; but in county courts and courts not of record, a jury shall consist of six (6) persons."

3 Cummings v. State, 46 Okla. 51, 148 P. 137, 138 (1915).

4 See 10 O.S. 1971 § 1101 , et seq.

5 10 O.S.Supp. 1974 § 71 states:

"Whenever any woman residing in any county of this state is delivered of a child out of wedlock, or is pregnant with a child which if born alive will be a child born out of wedlock, complaint may be made, in writing duly verified, by any person to the county court stating that fact and charging the proper person with being the father thereof. The proceeding shall be entitled in the name of the state against the accused as defendant. The death of the mother shall not abate an action which is brought under this section, and it will not prevent the bringing of an action for the support of the child."

6 Okla.Const. art. 2, § 19 . See note 1, supra.

7 Leach v. State ex rel. Cooper, 398 P.2d 848 (Okl. 1965); Ex parte Mitchell, 189 Okla. 51, 113 P.2d 979 (1941); Bell v. Territory, 8 Okl. 75, 56 P. 853 (1899).

8 Harris v. State, 430 P.2d 337 (Okl.Cr.App. 1967); In re Comstock, 10 Okl. 299, 61 P. 921 (1900).

9 Jones v. Jones, 612 P.2d 266-268 (Okl. 1980); Cochran v. Rambo, 484 P.2d 500 (Okl. 1971).

10 Blair v. Gullett, 594 P.2d 367 (Okl. 1979).