Boykin v. State

• Decision Date: 25 February 1948
• Docket Number: A-10733.
• Citation: 190 P.2d 471,86 Okla.Crim. 175
• Parties: BOYKIN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

190 P.2d 471

86 Okla.Crim. 175

BOYKIN v. STATE.

No. A-10733.

Court of Criminal Appeals of Oklahoma

February 25, 1948

Rehearing Denied May 5, 1948.

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

J. G Boykin was convicted of assault with a dangerous weapon, and he appeals.

Affirmed.

BAREFOOT P.J., dissenting.

Syllabus by the Court.

1. The only statutory provision pertaining to the time within which the judgment and sentence must be pronounced after a verdict of guilty, is that it cannot be pronounced for at least two days after the verdict (22 O.S.1941 § 962). This provision of the statute is intended to fix the minimum and not the maximum limit for the pronouncement of judgment. It is intended to prevent hasty and ill considered judgments, and to give the defendant time for such further proceedings as may be deemed necessary to protect his rights, including the right to file a motion for new trial or in arrest of judgment.

2. The general rule is that where there is a valid conviction, the power of the court is not exhausted nor its duty completed until sentence is pronounced, and the cause remains pending and stands continued with the unfinished business from term to term.

3. Where court obtains jurisdiction of defendant and of offense, decision of all other questions arising in case is but exercise of court's jurisdiction.

4. Trial court may delay pronouncement of judgment for purpose of determining motion for new trial or in arrest of judgment or for other causes.

5. Where court fixes definite time for pronouncing judgment and sentence, but record shows that judgment and sentence were not pronounced on day set, and is silent as to what was done, presumption exists that sufficient cause appeared to court for not pronouncing judgment at that time.

6. Where court fixes definite time for pronouncing judgment and sentence, but neither defendant nor his counsel appear on date set, the failure of either counsel or defendant to appear on such date constitutes sufficient cause for not pronouncing judgment at that time.

7. Where motion for new trial has been overruled and all that remains is the pronouncement of judgment and sentence in conformity to the verdict of the jury, a trial court may lose jurisdiction to pronounce judgment by indefinitely postponing the pronouncement of judgment for such an unreasonable length of time that defendant has suffered substantial prejudice by the trial court's action.

8. Where motion for new trial is pending and neither defendant nor his counsel appear on date set for hearing of motion and the pronouncement of judgment and sentence, and no order is made at that time fixing definite date for pronouncement of judgment and sentence; in the absence of a statute requiring sentence to be pronounced at a certain time, trial court did not lose jurisdiction to set motion for new trial for hearing and to pronounce judgment and sentence several terms later where record discloses that defendant, at large on bail, did not demand that court determine motion at an earlier date, and no showing is made that defendant has been prejudiced by the unusual delay in the pronouncement of the judgment and sentence.

David Tant, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, J. G. Boykin, was charged by information filed in the District Court of Oklahoma county, with the crime of assault with a dangerous weapon which was allegedly committed October 26, 1931, by the said J. G. Boykin shooting one Ed Ashworth with a twelve-gauge double-barrelled shotgun and causing serious injuries in the hip, shoulder and leg of said Ed Ashworth.

The jury returned a verdict on January 26, 1932, finding the defendant guilty of the crime charged in the information and fixing his punishment at one year and one day in the State Penitentiary. The defendant was allowed to remain on bond and an order was made setting February 13, 1932, at 9:00 A.M. as the date for pronouncing judgment in accordance with the verdict of the jury. On February 12, 1932, a motion for a new trial was filed on behalf of the defendant. No appearance was made by defendant or counsel on February 13, 1932, which was the date set for pronouncement of judgment and sentence in accordance with the verdict of the jury, and no further order was made in said cause until July 19, 1945, when the defendant became involved in another altercation and the present County Attorney of Oklahoma County, who was not the County Attorney at the time of the prosecution in 1932, in checking the record for prior convictions of the accused, ascertained that no judgment had been pronounced upon the verdict of the jury and no action had been taken by the Oklahoma County District Court on the motion for new trial interposed by counsel for defendant in 1932. At the request of the County Attorney of Oklahoma County, the District Court set the motion for new trial for hearing on July 19, 1945. At that time, counsel for defendant appeared and filed an objection to the jurisdiction of the court and contended that by reason of the long lapse of time that the court had lost jurisdiction to pronounce judgment upon the verdict.

At the conclusion of the hearing on the plea to the jurisdiction of the court, counsel for the State and the defendant each presented a list of authorities supporting their respective contentions to the trial court for his consideration. The matter was thereupon taken under advisement for several days so that the court could study the legal authorities on the question involved. At the adjourned time, the Honorable Albert C. Hunt, District Judge, who was the successor to the Honorable George W. Clark, deceased, who presided at the trial of defendant, gave a lengthy summation of the facts and discussed and analyzed the legal authorities cited by the defendant to support his position. We shall not undertake to set forth all that was said by Judge Hunt in his summation, but we shall quote enough of it to show that he saw the distinction between the authorities cited in support of defendant's theory and those authorities which we think govern the facts of this particular case. In fairness to Judge Hunt, we shall quote enough of his summary to show that the statement in the dissenting opinion herein that the trial judge was forced to make a hasty decision without time to study the authorities was erroneous. Judge Hunt after reviewing the facts in the record stated among other things:

'In connection with these authorities that have been cited, I find from examining them, that in all of them there was some affirmative act on the part of the court in undertaking to suspend or delay the time indefinitely for pronouncing the judgment and sentence. In some of the cases cited, the Judge even allowed the defendant to go on his own recognizance without any bond.

'I called attention to the fact that there was a bond made in this case, and an order made allowing the defendant to stand on his bond, and I take it that the defendant has been standing on that bond and he has been at liberty on that bond ever since that order was entered by Judge Clark on January 26, 1932.

'Now, in this Collins case, the case of Collins v. State, 217 P. 896, which was cited and relied upon by counsel for the defendant, of course, the court holds in that case that it is the duty of the court on a conviction or plea of guilty to appoint a time for pronouncing sentence. In this case, the court did appoint a time for pronouncing sentence. This case also says that while the court may delay pronouncing judgment for the purpose of hearing and determining a motion for new trial or in arrest of judgment, or for other proper causes, it cannot indefinitely postpone pronouncing judgment and sentence.

'Now, there has certainly been no order of the court in this case, or no affirmative act on the part of the court, to indefinitely suspend the judgment or the pronouncing of the sentence. I find this quotation in the Collins case, after quoting certain provisions of our statute, it then says:

"Under the foregoing provisions, it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a reasonable time. However, there can be no doubt that a court has the right to delay

the pronouncement of judgment for the purpose of hearing and determining motions for a new trial or in arrest of judgment, or for other proper causes, but to suspend indefinitely the pronouncing of judgment and sentence after conviction is not within the power of the court."

'Now, in the case of People v. Reilly, 53 Michigan, 260 , in stating the facts there, the court says that Reilly was convicted of robbery on October 22, 1881, and moved for a new trial, and on February 10, 1882, sentence was indefinitely suspended and he was admitted to bail on his own recognizance in the sum of $500. That was an affirmative act on the part of the court while that motion for new trial was pending in the case, the court indefinitely suspended the sentence and admitted this man to bail on his own recognizance. The Judge says:

"I do not think it is competent for a Circuit Judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of suspending sentence operates as a quasi-pardon."

'That is true, and, of course, the District Judge has no such right. That is the prerogative of the Governor. But in this case the District Judge did not suspend, or undertake to suspend, the sentence indefinitely or otherwise.

"It relieves the offender

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