James v. State

• Decision Date: 23 June 1943
• Docket Number: A-10147.
• Parties: JAMES v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

139 P.2d 202

77 Okla.Crim. 108

JAMES v. STATE.

No. A-10147.

Court of Criminal Appeals of Oklahoma

June 23, 1943

Syllabus by the Court.

1. Under Oklahoma Session Laws 1937, page 20, section 1, 22 Oklahoma Statutes Annotated 1941 § 991, the trial court does not have the right or authority to suspend the sentence of one who prior to said conviction has not "borne a good reputation, or who may have been, prior thereto, convicted of any crime in any state or territory of the United States.

2. It is error to instruct the jury that they may in their verdict recommend a suspended sentence for a defendant, when the law gives the judge no discretion in passing sentence upon a convicted prisoner.

3. Courts should be unusually careful with reference to instructing juries after they have retired to deliberate upon their verdicts.

4. Where the court upon request instructs the jury that if defendant was found guilty they should assess the punishment and the jury in conformity with this request found the defendant guilty and assessed his punishment at two years in the State Penitentiary, held not error.

Appeal from District Court, Bryan County; Roy Paul, Judge.

Jake James was convicted of burglary in the second degree, and he appeals.

Reversed and remanded.

Ben W Carter, of Durant, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen and Bill Steger, Co. Atty., of Durant, for defendant in error.

BAREFOOT Judge.

Defendant Jake James, was charged in the District Court of Bryan County with the crime of burglary in the second degree, was tried, convicted, sentenced to serve a term of two years in the State Penitentiary, and has appealed.

From an examination of the record, it becomes necessary to discuss only one assignment of error.

Defendant was charged with burglarizing a building occupied by the tag agent of Bryan County, in Durant, on the night of May 17, 1940, by prying open a transom, entering therein and stealing a money box containing $18.70.

Just after defendant had committed this burglary he was seen by a police officer, who gave chase and captured the defendant on the streets of Durant. He was taken to the place where the officer had seen him throw the box away, and the box, with the money therein, was recovered.

It is unnecessary to give the details of the evidence. Defendant's defense was that of an alibi, several witnesses testifying that he was at his home, and therefore could not have been present at the time the burglary was committed. The evidence was amply sufficient to sustain the conviction of the defendant.

After the case had been submitted to the jury and they had deliberated on their verdict for quite a period of time, they returned into court and the following proceedings were had:

"Reporter's note: After the court gave oral instructions, and after argument of counsel, the Jury retired to the Jury room to consider its verdict, and after deliberating a while, returned to the court room to get certain information from the court, and was advised by the court, and ordered to the jury room in charge of the bailiff.

By Mr. Carter (attorney for the defendant): Let the records show that the jury returned to the court room at 3:15 p. m. and told the Judge that they wanted to know if they could give the defendant a suspended sentence and the Judge instructed them, that it was not within their power to give the defendant a suspended sentence, but they could recommend a suspended sentence and he would not promise them anything, except that he would go into the case and decide whether or not the defendant was entitled to a suspended sentence, whereupon the attorney for the defendant requested the Judge to instruct the Jury that it was not within their power nor within his power to grant the defendant a suspended sentence and that it was necessary they should assess the punishment.

By the Court: Let the record show this last request was made by the attorney for the defendant, after the Jury went back to the jury room and not in the presence of the jury and will be overruled.

By Mr. Carter: Exception.

Reporter's note: The jury returned to the court room at 4:28 p. m. in charge of the bailiff with their verdict. The clerk reads the verdict, and before the jury was discharged from the case, the court made the following remarks:

By the Court: I didn't know at the time I talked to you a while ago and didn't know it until later, I can't suspend the sentence, because this boy has been convicted before. I don't want you to think I am violating my trust, but I can't do it where he has been convicted before. The statute says if a man has a previous good reputation. If he has a clean record, I can suspend the sentence, but where he has been convicted before, I have no discretion in the matter."

The verdict rendered by the jury was as follows (omitting the caption): "We the jury duly empanelled and sworn in the above entitled case, do upon our oaths, find from the law and the evidence the above named defendant, guilty as charged in said information and assess his punishment at two years in State Penitentiary. We the jury reco mmed that the sentence be suspended."

It is contended by defendant that the refusal of the court to recall the jury before they had rendered their verdict, and instruct them that under the law he did not have the authority to suspend the sentence, was prejudicial to the substantial rights of the defendant, and constituted reversable error. He contends that the jury would not have rendered a verdict of guilty if they had been so instructed.

We have carefully examined the authorities cited by defendant to sustain this contention: People v. Sherwood, 271 N.Y. 427, 3 N.E.2d 581; Hackett v. People, 8 Colo. 390, 8 P. 574; McBean v. State, 83 Wis. 206, 53 N.W. 497; Randolph v. Lampkin, 90 Ky. 551, 14 S.W. 538, 10 L.R.A. 88; Crawford v. State 2 Yerg., Tenn., 60, 24 Am.Dec. 467; 23 C.J.S., Criminal Law, p. 870, § 1291; State v. Matthews, 191 N.C. 378, 131 S.E. 743; 16 C.J. 1026.

The state relies upon one case, that of State v. Ruzzo, 63 R.I. 138, 7 A.2d 693.

We have also examined many other cases touching upon this question, and have come to the conclusion that not only the majority of the decisions sustain the contention of the defendant, but they are based upon the soundest principles.

Oklahoma Session Laws 1937, page 20, sec. 1, 22 O.S.A.1941 § 991, provides: "Whenever any person shall be convicted in any court of record for any crime other than murder, manslaughter or arson, the Judge trying said cause may, after sentence, suspend said judgment and sentence, and allow said person so convicted to be released upon his own recognizance. Provided, that no such person shall be so released, who has not, prior thereto, borne a good reputation, or who may have been, prior thereto, convicted of any crime in any state or territory of the United States."

The record and brief of plaintiff in error reveal that the defendant had previously been convicted four times; that he had been tried in the District Court of Bryan County on a charge of burglary in the second degree before the same Judge who was trying this case, convicted and sentenced to the Penitentiary.

Under the statute above quoted, the court had absolutely no authority under the law to suspend any sentence given the defendant who, prior thereto, had been "convicted of any crime in any state or territory of the United States."

When this fact was called to the attention of the court by the attorney for the defendant, he should have recalled the jury and informed them of the statute. He could have done this at the request of the defendant, who would thereby have waived any right he had of informing the jury of his prior conviction. It can hardly be argued that the jury in the instant case came to the conclusion after being told by the court that they could recommend in their verdict that the defendant be given a suspended sentence, that the court would not only give consideration thereto, but that in all probability the recommendation would be carried out. Yet under the law he had no right to consider the same or to suspend the sentence. It is true that the court said he would not promise them anything, except that he would go into the case and decide whether or not the defendant was entitled to a suspended sentence. Yet the very fact that he told them they could make such recommendation when as a matter of law he had no discretion in the matter was, in our opinion, prejudicial to the rights of the defendant. A short time thereafter the jury returned into court and the court informed them that he could not suspend the sentence, "because this boy has been convicted before." However, he did not permit the jury to return to their jury room for further consideration after he had given them this information, but at that time accepted their verdict. The record does not disclose that the jury was even polled after this statement was made to them. Under circumstances such as this, it has been almost the unanimous opinion of the courts that such error is so prejudicial to the rights of a defendant that when it occurs the case will be reversed for a new trial.

In 16 C.J. 1026, § 2459, it is stated: "It is error to instruct the jury that they can recommend the prisoner to the mercy of the court, where the law gives the judge no discretion in passing sentence upon a convicted prisoner." See, also, 23 C.J.S., Criminal Law, p. 870, § 1291.

In the case of Hackett v. People (Colorado), supra, it is said "Plaintiff in error was tried and convicted upon an indictment for murder. He is now, and has been for upwards of five and one-half years last past, in the penitentiary under a sentence of imprisonment for...