Jones v. Territory Oklahoma

• Decision Date: 13 February 1896
• Citation: 4 Okla. 45,1896 OK 18,43 P. 1072
• Parties: TOM JONES v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1896 OK 18

43 P. 1072

4 Okla. 45

TOM JONES v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 13, 1896

Error from the District Court of Payne County.

Syllabus

¶0 1.INDICTMENT--For Murder Embraces Crime of Manslaughter. Every good charge, in an indictment for murder, embraces the crime of manslaughter in some of its grades, and a verdict of a jury which finds "the defendant guilty as charged in the indictment of manslaughter in the first degree" is sufficiently certain to warrant a judgment of guilty of manslaughter in the first degree and does not find the defendant guilty of two offenses.

2.CRIMINAL CAUSE--Judgment Takes Effect, When. A judgment in a criminal cause takes effect from the date of its entry, unless a different time is fixed by the court, and the person convicted can not complain of the failure of the court to name a date at which his imprisonment shall commence.

3.TRIAL--Proceedings Presumed to Be Regular Unless Otherwise Shown By the Record. All presumptions that may be rightfully entertained by an appellate court in a criminal cause are in favor of the regularity of the proceedings below; and one complaining of error in the trial court must bring enough of the record to the appellate court to make manifest such error. Where only a partial record is relied upon, every error complained of must be made to affirmatively appear. If the whole record is before the court, and from such record it does not affirmatively appear that essential requirements have been complied with in the trial court, then no presumptions can be entertained in favor of the regularity of such proceedings. But this rule does not prevail in the absence of the record.

4.JUDGMENT--No Particular Form of Words Required. No particular language or form of words are necessary in rendering and recording a judgment of conviction in a criminal cause, and where the words "commanded by the court" are used instead of the usual form "considered and adjudged by the court" it is sufficient on appeal.

5.VERDICT AND SENTENCE--Time Waived--Presumption. The prisoner may waive the statutory time allowed between time of trial and judgment, and where sentence was pronounced the next day after verdict, and the record does not show objection was made or additional time asked, we will presume that the prisoner waived such time.

6.SENTENCE. An appellate court can not say, as a matter of law, that a sentence to fifty years' imprisonment for manslaughter in the first degree is cruel and unusual punishment, the statute fixing the punishment at any period not less than four years; there being nothing in the record showing the age or previous character of the prisoner, or the circumstances under which the crime was committed.

7.INDICTMENT--Recitals Not Required. There is no requirement that an indictment shall contain a recital of the drawing, selecting and empanneling of the grand jury which found such indictment. Such proceedings are had prior to the finding of an indictment, by the court, or its officers, and are proper to be recorded in the journals of the court. What reasons that may have once existed in olden times for the recital of these matters in an indictment, have long since ceased.

8.NEW TRIAL--Motion Not Part of Record. This court will not review the action of the trial court in overruling a motion for new trial, unless the motion for new trial is made part of the record in some of the modes prescribed by statute. Attaching it to the papers filed in this court does not make it a part of the record.

9.ALLEGED ERRORS--Practice Not Commended. The practice of presenting alleged errors for the consideration of this court, which have nothing in the record for a basis, is not to be commended, and should not be indulged in, as it consumes valuable time without profit.

C. R. Buckner & Sons, for plaintiff in error.

C. A. Galbraith, Attorney General, and M. B. Williams, for the Territory.

BURFORD, J.:

¶1 The appellant, Tom Jones, was prosecuted in the district court of Payne county for the crime of murder, tried by jury and convicted of manslaughter in the first degree, and sentenced to fifty years in the territorial penitentiary at Lansing, Kansas. He brings the cause to this court upon certified copies of the indictment and journal entries embracing the trial, verdict of the jury, judgment and sentence of the court. No other parts of the record or proceedings of the trial court are before this court.

¶2 The assignment of error contains thirteen alleged errors. The first of which is as follows: "The verdict of the jury finds the defendant guilty of two offenses, both of murder and manslaughter in the first degree." The verdict as set out in the journal entry is as follows:

"Territory of Oklahoma v. Tom Jones.

"VERDICT OF JURY.

"We, the jury, in the above entitled cause, do upon our oaths find the defendant guilty in manner and form as charged in the indictment of manslaughter in the first degree.

N. S. DAVIS, Foreman."

¶3 There is no merit in the contention that this verdict finds the defendant guilty of two crimes. The indictment charges murder in the usual form and embraces within its terms the charge of manslaughter in the first degree. It was proper on a trial of the charge of murder for the jury to find the defendant guilty of any charge necessarily embraced within that contained in the indictment, and the jury in their verdict makes certain that which they intended to do by finding the defendant guilty of manslaughter in the first degree in manner and form as charged in the indictment.

¶4 The alleged error is, "the judgment and sentence is erroneous for being indefinite and uncertain." There are two journal entries in the record, each signed by the presiding judge, and each embracing in part the final judgment and sentence of the court, and these must be construed together in determining what judgment the court rendered. From this record it appears that a motion for a new trial and in arrest of judgment was filed by the defendant and each overruled by the court, to which the defendant excepted, after which, the court proceeded to pronounce judgment to the effect that the defendant was guilty of manslaughter in the first degree as found by the jury, and that he be punished by confinement in the territorial penitentiary of Oklahoma at Lansing, in the state of Kansas, for a period of fifty years, and that the sheriff of Payne county, O. T., transport the defendant, Tom Jones, to said penitentiary, and deliver him to the warden thereof, and that he be remanded to jail until such time as it should be convenient for the sheriff to execute the order. The defendant was then informed of his right of appeal and bond fixed at the sum of $ 10,000, and time given to make and serve a case for the supreme court.

¶5 The judgment conforms to the usual requirements of law and we find no cause for objection to the same.

¶6 The third assignment is, "the judgment fails to state the date at which the sentence shall commence." There is nothing in this objection. All judgments and sentences in criminal cases take...