Davis v. State

• Decision Date: 31 July 1931
• Docket Number: A-8121.
• Citation: 1 P.2d 824,51 Okla.Crim. 386
• Parties: DAVIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

1 P.2d 824

51 Okla.Crim. 386

DAVIS v. STATE.

No. A-8121.

Court of Criminal Appeals of Oklahoma

July 31, 1931

Syllabus by the Court.

Under section 2628, Comp. St. 1921, an application for a change of venue must be made before the trial is begun. Unless made before the trial has begun, the right to make application is waived.

A special statute prevails over a general statute covering the same subject-matter. Sections 2750, 2751, Comp. Stat. 1921 are general statutes providing for the assessment of punishment for crimes generally. Section 1739, Comp. Stat 1921, is a special statute providing for the assessment of punishment of an accused convicted of murder. In the assessing of punishment in a conviction for murder, the latter section controls.

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 a trial for murder the jury, if they find the accused guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty, the court shall determine the same. (Section 1739, Comp. Stat. 1921.)

Upon a trial for murder, when a plea of not guilty is interposed the extreme penalty can be adjudged only upon the verdict of the jury fixing the punishment at death. Since the law in such case authorizes the penalty of death at the discretion of the jury, in the absence of a verdict of the jury, fixing the punishment at death, the trial court is without authority to assess the death penalty.

The trial court should not receive a verdict finding the accused guilty of murder unless such verdict further designates whether the accused shall be punished by death or imprisonment for life at hard labor. If the trial court does receive a verdict of guilty of murder which does not designate the punishment, only life imprisonment, the minimum punishment fixed by law, can be assessed.

Appeal from District Court, Carter County; Asa E. Walden, Judge.

Colquitt Davis was convicted of murder, and he appeals.

Modified and affirmed.

DAVENPORT, P.J., dissenting.

Stephen A. George, of Ardmore, for plaintiff in error.

J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Carter county, and his punishment fixed at death.

The record discloses that at the time charged defendant and his brother were at the town of Wirt, in the possession of a stolen automobile. Two deputy sheriffs, W. C. Keirsey and Vernon Cason, went to the place where the defendant and his brother were. Keirsey entered and defendant and his brother pointed pistols at him, disarmed him; about this time Cason came into the room; a shooting followed in which Keirsey received a mortal wound from which he died the next day. The proof amply sustains the charge of murder. Stephen A. George was appointed by the court as counsel for defendant.

It is first argued that the court erred in overruling defendant's application for a change of venue. Section 2628, Comp. Stat. 1921, among other things, provides that at any time before the trial is begun, on the application of defendant the cause may be removed from the county in which it is pending to some other county, when it shall appear that the minds of the inhabitants of the county are so prejudiced against him, a fair and impartial trial cannot be had therein. Before entering upon the trial, counsel for defendant suggested to the court that he had been informed of the state of feeling in that county, and that it was probably his duty to apply for a change of venue, and asked to reserve the right to do that at any time before the jury was completed. The trial court then stated that he gave him permission to do so. The trial was then entered upon. A panel of 50 jurors was examined and there were two additional drawings of jurors made, and on the second morning of the trial counsel presented a petition for a change of venue, which was overruled by the court. A sufficient showing to require a change of venue is not made by the petition. In this connection, it may be well to say that the proceedings are irregular. As stated, section 2628, supra, requires the application for change of venue to be made before the trial is begun. The purpose of this requirement is to avoid any question of jeopardy and to fix the place of trial before the county is put to the expense of making an examination of the jurors and the calling of additional jurors, as was done in this case. If an application for change of venue is to be made, it must be made and disposed of before beginning the trial. The right is waived by entering into the trial. A district judge is without authority to extend the time for the filing of a petition for change of venue until after the trial has begun.

The authority of the trial court to assess the death penalty in a case of murder where the jury do not designate such penalty in their verdict is challenged. 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 that they had agreed upon a verdict, but could not agree as to the punishment, and would request the court to assess the punishment. The court 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 a 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."

This amounts to an invitation to the jury to report a disagreement as to the punishment, and to leave the assessing of the punishment to the court. In so saying, we do not wish to be understood as criticising the able trial judge who presided. The jury then returned to the jury room and deliberated for an hour and were again brought into court and again stated that they had not agreed on the punishment, and, over the objection of defendant, the court received the verdict finding defendant guilty of murder, reporting a failure to agree on the punishment and requesting the court to assess the punishment. An objection to this procedure was made at the time, and was again presented at the time of sentence. The court then made extended remarks upon the question, quoting sections 1739 and 2750, and announced in substance he was of the opinion a trial judge had authority to assess the punishment in a case of murder, and proceeded to sentence defendant to suffer death. The Attorney General, in effect, has confessed error; after reviewing the statutes and the authorities, he concludes the brief of the state in these words: "In view of the above authorities, it will be seen that the trial court in assessing the death penalty in this case exceeded its power and authority."

In determining the authority of a trial court to assess the punishment in a case of murder, three sections of our statute should be considered and harmonized:

Section 1739, Comp. Stat. 1921, which reads: "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 2750, Comp. Stat. 1921, 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, Comp. Stat. 1921, 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 obvious that sections 2750 and 2751, supra, are general in their nature and apply in all cases unless there is a special statute overriding the general provisions of these two sections. They are broad enough in their terms and provisions to include murder, in the absence of a special statute dealing with that subject. A controlling rule of statutory construction of universal application is that where a general statute and a special statute conflict, the special statute prevails over the general statute.

The rule of construction is laid down by 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...