Davis v. State

• Decision Date: 21 August 1931
• Docket Number: A-8121.
• Citation: 2 P.2d 965,51 Okla.Crim. 386
• Parties: DAVIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2 P.2d 965

51 Okla.Crim. 386

DAVIS v. STATE.

No. A-8121.

Court of Criminal Appeals of Oklahoma

August 21, 1931

Dissenting opinion.

For majority opinion, see 1 P.2d 824.

DAVENPORT P.J.

I do not concur in the majority opinion of this court, 1 P.2d 824 but think a new trial should be awarded the plaintiff in error.

The plaintiff in error was by information charged with the crime of murder. In his trial, the court, in its seventh instruction, advised the jury in part as follows "Should you find the defendant guilty of murder, it is your duty to designate in your verdict whether such punishment shall be by death or by imprisonment in the State penitentiary at hard labor for life."

The record discloses that, after the case had been finally submitted to the jury, and they had deliberated for some time, they were brought into court, and upon inquiry informed the court they had agreed upon the verdict, but could not agree as to the punishment, and requested the court to assess the punishment. The court then said: "Mr.

Foreman and you gentlemen of the jury, it is a great responsibility you ask this court to take; under the law you have the right to ask that but before I accept the request I will ask that you go back to your room and see if you can't agree on the punishment. You have a right to do as you have under the law but this is a grave responsibility, and if you cannot agree on the punishment you may ask this court to assess the punishment, however, go back and see what you can do about it."

It is further disclosed by the record the jury returned to the jury room and deliberated for an hour and again stated they had been unable to agree on the punishment, and, over the objections of the defendant, the court received the verdict finding the defendant guilty of murder, reporting a failure to agree on the punishment and requesting the court to assess the punishment. The defendant objected to this procedure of the court, and again presented his objection at the time he was sentenced.

It also appears that the court at the time made extended remarks upon the question, quoting sections 1739 and 2750, C. O. S. 1921, and announced that he was of the opinion that he had the authority to assess the penalty. Section 1739, C. O. S. 1921, reads as follows: "Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same."

Section 2751, C. O. S. 1921, is as follows: "In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided."

Section 2751, C. O. S. 1921, is as follows: "Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly."

It is clearly shown that sections 2750 and 2751, supra, are general in their nature and apply in all cases in the absence of a special statute overriding the general provisions of these two sections. The rule of construction is laid down in 36 Cyc. 1151, in these words: "Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way the two should be read together, and harmonized if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication."

The Supreme Court of this state and this court have followed this general rule. Carpenter v. Russell, 13 Okl. 277, 73 P. 930; Hill et al. v. Webb, 127 Okl. 249, 260 P. 450; Lovins v. State (Okl. Cr. App.) 293 P. 273.

Section 1739, C. O. S. 1921, supra, is a special statute dealing with the subject of murder only, and, in the matter of punishment, it therefore follows that section 1739 prevails and takes precedence over the general provisions of sections 2750, 2751, supra.

My contention is that under this special statute the trial court was without jurisdiction to render judgment upon the verdict returned by the jury; in other words, I contend that under the instructions of the court to the jury advising them they must fix the punishment, and under the statute herein quoted, there was no legal verdict returned, and, when the court attempted to render judgment and impose the death penalty, it was without jurisdiction, and the attempted judgment was void, and this court was not warranted in modifying the judgment the trial court had rendered without jurisdiction, and that the only power this court had was to reverse the case and send it back to the trial court for a new trial.

In Noel v. State, 17 Okl. Cr. 308, 188 P. 688, 690, this court said: "The Penal Code (section 2319, Rev. Laws) requires the jury to fix the punishment for murder, and authorizes the penalty of death at the discretion of the jury; and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor; this, in order that the defendant may not be sentenced to suffer death, except in the discretion of the jury, and when a plea of not guilty is entered to an indictment or information charging murder, the extreme penalty can be adjudged only upon the verdict of a jury fixing the punishment by death, 'but upon a plea of guilty the court shall determine the same.' Hopkins v. State, 9 Okl. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736. The judgment in this case does not recite the fact that the defendant was convicted of murder by the verdict of a jury assessing the death penalty."

In the case of the People v. Hall, 199 Cal. 451, 249 P. 859, 861, the Supreme Court of the state of California, in construing a statute very similar to section 1739, says:

"The duty of the jury was thus made plain. Its discretion was to be exercised in the manner pointed out in the instructions and under section 190 of the Penal Code that discretion applied both to the fixing of the death penalty and the penalty of life imprisonment. The result of the exercise of that discretion must appear on the face of the verdict either by the use of specific words to express it, or, in the absence of such words, by necessary inference in the light of the instructions. It may, therefore, not rightly be said that, when the jury found the defendant guilty of murder in the first degree, but disagreed as to the penalty, it thereby fixed the death penalty. It was the duty of the jury to exercise its discretion and fix the penalty. Failing to do so, no penalty was determined upon. The jury could not exercise its discretion and not exercise it in one and the same verdict. When a verdict, such as the one here under consideration, discloses on its face that such discretion was not exercised as to either penalty, it is not a verdict upon which the court is authorized to pronounce judgment of either death or life imprisonment. In receiving such a verdict and in imposing the sentence of death upon the defendant, the court usurped the function of the jury, and its judgment was a nullity. The proceeding therefore resulted in a mistrial, and the judgment must be reversed. It is obvious, from what has been said, that the trial court should not have received the verdict in its present form, but should have caused the jury to return a verdict in conformity with law, or should have discharged the jury and retried the cause.

It is earnestly insisted by the respondent that the defect in the form of the verdict constitutes no more than 'matter of procedure'; that under section 4 1/2 of...