Ex parte Boyd

• Decision Date: 04 February 1942
• Docket Number: A-10107.
• Citation: 122 P.2d 162,73 Okla.Crim. 441
• Parties: Ex parte BOYD.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

122 P.2d 162

73 Okla.Crim. 441

Ex parte BOYD.

No. A-10107.

Court of Criminal Appeals of Oklahoma

February 4, 1942

Syllabus by the Court.

1. Sec 2, art. 2, ch. 17, p. 20, Laws 1937, 22 Okl.St.Ann. § 992 (suspension of sentence statute), is not unconstitutional as being in conflict with sec. 10, art. 6, Oklahoma Constitution, Okl.St.Ann., which vests the power to grant reprieves, commutations, paroles, and pardons for all offenses, except impeachment, in the governor.

2. Suspension of sentence under said statute is not a parole nor pardon, but is an authorized mode of mild and ambulatory punishment, instituted by the Legislature for the purpose of giving persons who come within the operation of the statute an opportunity for reformation.

3. The language of the statute empowering court to suspend sentences is important in determining extent of court's power since such power did not exist at common law.

4. Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court.

5. Where all constitutional and statutory guarantees have been observed in criminal prosecution, requirements of due process are fully satisfied, presumption of innocence is overcome and hence suspension of sentence is not a matter of right but purely within trial court's discretion.

6. One brought before court accused of violating conditions of suspended sentence is not entitled to benefit of counsel nor to a jury trial as a matter of right.

7. When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.

8. The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and the hearing in connection therewith may be of a summary character.

9. In habeas corpus proceeding by accused, alleging trial court revoked suspended sentence without due process of law, the question for determination is whether there has been an abuse of discretion by trial court, and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action.

10. In habeas corpus proceeding by accused, attacking trial court's revocation of suspended sentence, order of revocation reciting that prisoner was present in court when hearing on accusation that conditions of suspension had been violated was held, and that court finds that defendant has violated conditions of suspended sentence, creates presumption that trial court found from facts brought to his attention that defendant had violated conditions set forth in statute and is sufficient to sustain trial court's action, in absence of proof that court acted arbitrarily or through mere whim or caprice.

Original proceeding in habeas corpus by Jerry Wilbur Boyd to secure his release from the State Reformatory at Granite, Oklahoma.

Writ denied.

Sid White, of Oklahoma City, for petitioner.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

JONES Judge.

This is an original proceeding filed in this court by the petitioner, Jerry Wilbur Boyd, to secure his release from imprisonment in the State Reformatory at Granite.

The verified petition filed herein alleges in substance as follows:

That the petitioner is twenty-two years of age and has been imprisoned in the State Reformatory at Granite since July 8, 1939.

That on July 20, 1935, an information was filed in the District Court of Oklahoma County charging the petitioner with larceny of an automobile. That on July 22, 1935, the petitioner entered his plea of guilty to said charge and was sentenced to serve a term of five years in the State Reformatory at Granite, to begin from the date of the delivery of the defendant to the warden of said reformatory.

That at the same time and as a part of the same proceedings, the District Court of Oklahoma County suspended the judgment and sentence pronounced against the defendant upon the following terms and conditions, to-wit:

"(1) That said defendant shall refrain from associating with bad, lewd or vicious men or women; (2) that said defendant shall not indulge in vicious habits; (3) that said defendant shall not violate any criminal law of this State, the United States, or any state or territory of the United States of America, but shall be a quiet, peaceful and law-abiding citizen; (4) that said defendant shall refrain from loitering in or around or frequenting pool or billiard halls; (5) that said defendant shall personally appear before the undersigned Judge of this Court once each month, and, if required by the Court or Judge, prove to the satisfaction of said Judge, by two citizens of the County of good reputation, that said defendant has not violated any of the terms or conditions of this judgment and sentence; (6) that said defendant shall not depart from the jurisdiction of this Court without leave."

That subsequent to said time, and about May 1, 1939, the petitioner was again arrested and placed in the county jail of Oklahoma County upon suspicion of having committed the crime of grand larceny.

That two days later, on the 3rd day of May, 1939, the petitioner was taken before the Honorable Clarence Mills, one of the judges of the District Court of Oklahoma County, Oklahoma, and who was the judge who had suspended the sentence theretofore pronounced upon the petitioner. That when the petitioner was taken before the district judge, and without any formality, the judge announced that the order suspending the petitioner's sentence would be and was revoked. A copy of which said order revoking suspended sentence is attached to the petition and made a part thereof.

That on July 6, 1939, the petitioner, still being confined in the county jail of Oklahoma County, and knowing little or nothing of his legal rights, and hopeless of securing his release from imprisonment, entered his plea of guilty to two charges of grand larceny, after former conviction of a felony, in cases Nos. 13233 and 13234, respectively. That thereupon he was sentenced to serve two years in the State Reformatory at Granite upon his plea of guilty in each of said cases, with a further provision that the judgment and sentence thus pronounced in those cases should run concurrently.

The petitioner concedes in his petition, for the purpose of this proceeding, the validity of the sentences imposed in cases Nos. 13233 and 13234, but alleges that if the petitioner is credited with the time served in the reformatory against the sentences imposed in those cases that his punishment is long since completed.

That when the District Court of Oklahoma County entered the order revoking the suspended sentence theretofore made against the petitioner, no notice was given to the petitioner that an application had been made to revoke his suspended sentence, and no opportunity was given to the petitioner to be heard as to whether he had failed to comply with the conditions of his suspended sentence; that no accusation of any kind was ever filed charging the petitioner with the violation of any condition imposed upon him in the order suspending the sentence aforesaid; and that under the suspended sentence the petitioner became and was entitled to his liberty until he had forfeited that right by a hearing in accordance with due process of law.

The order revoking suspended sentence, attached to the petition filed herein and made a part thereof, reads as follows:

"Now on this 3rd day of May, 1939, this cause comes on for hearing to revoke and set aside the order heretofore made on the 20th day of July, 1935, suspending the sentence of the defendant, said defendant being present in court, and it appearing to the court that heretofore to wit: on the 20th day of July, 1935, the defendant entered his plea of guilty to the charge of larceny of an automobile and was sentenced to serve a term of five years in the state reformatory at Granite, Oklahoma, said sentence to run from the date of delivery to the warden of the said state reformatory by the sheriff of Oklahoma County, Oklahoma; that on said date this court made an order suspending the sentence of said defendant pending his good behavior; thereafter, the State of Oklahoma filed herein motion to set aside and revoke said suspended sentence, the matter was properly set for hearing, the defendant being wholly and fully advised of his rights herein.

The court finds and is satisfied from the evidence introduced that the said defendant has violated the terms and conditions of the order heretofore made on the 20th day of July, 1935; by reason thereof the court finds that said suspension of sentence should be set aside and the sentence carried out in full according to its terms."

The petitioner attaches to his petition a certified copy of the appearance docket of the District Court of Oklahoma County, in the case wherein the petitioner received a suspended sentence, to show that no motion or petition was ever filed by any one alleging that he had violated the conditions of his suspended sentence, and to refute the recital in the order revoking the suspended sentence that a motion had been presented by the county attorney, asking that the suspended sentence be revoked for a violation of some of the conditions imposed upon the petitioner.

To this petition the warden of the State Reformatory, acting by and through the Attorney General of the State of Oklahoma, has filed a demurrer, alleging that the petition, taken in...