Noel v. State

• Decision Date: 22 March 1920
• Docket Number: A-3523.
• Citation: 188 P. 688,17 Okla.Crim. 308
• Parties: NOEL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

188 P. 688

17 Okla.Crim. 308

NOEL v. STATE.

No. A-3523.

Court of Criminal Appeals of Oklahoma

March 22, 1920

Syllabus by the Court.

Our statutes provide that the punishment of death must be inflicted by electrocution, that the penitentiary shall be the place of execution, and, that, when judgment of death is rendered, the judge must sign a warrant duly attested, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed which must be not less than 60 nor more than 90 days from the time of the judgment (chapter 113, Sess. Laws 1913). In this case the day designated in the judgment and fixed in the warrant for the execution was only 56 days subsequent to the judgment. Held, that the death warrant was therefore void.

The judgment and sentence in a capital conviction ought to show by its recitals that all the requirements of the statute have been complied with, and where the jury find the defendant guilty of murder and assess the death penalty, the judgment should contain such verdict, or recite the fact that the defendant was convicted of murder by the verdict of a jury assessing the death penalty.

It is the constitutional right of every person charged with crime to have compulsory process for obtaining witnesses in his behalf, and this involves the time reasonably necessary to prepare for trial, and where in a capital case the record shows that only two days intervened between defendant's arraignment and his trial, and that his attorney had only been appointed by the court to defend him two days before the trial, held, that the defendant was not allowed the time reasonably necessary to prepare for trial, or to enable him to secure the attendance of his witnesses.

The right of appeal is a constitutional right, and counsel appointed by the court to defend an indigent defendant fails to fulfill his duty as an attorney when he neglects to take an appeal from a judgment and sentence of death.

It is the duty of courts in the administration of criminal law to see that the accused shall have the benefit of every right which the law secures to him upon his trial, and in a capital case, where the defendant by reason of his poverty is unable to employ counsel, and the court appoints counsel to defend him, and the trial results in a judgment and sentence of death, the court should direct such counsel to appeal the case, and to this end it is the duty of the court to order the court clerk to furnish a duly certified transcript of the record, and to order the court reporter to furnish a transcript of the testimony without expense to the defendant.

Additional Syllabus by Editorial Staff.

A "sentence" is the final determination of the trial in a criminal cause, and is the order of the court, made in the presence of the defendant and his counsel, pronouncing the judgment and ordering the same to be carried into execution in the manner prescribed by law.

Appeal from District Court, Cherokee County; E. B. Arnold, Judge.

Zack Noel was convicted of murder, and sentenced to death, and he appeals. Reversed, and cause remanded, with directions.

DOYLE P.J.

This appeal is from a judgment of conviction for murder and sentence of death. The judgment reads as follows:

"Be it remembered that on this the 13th day of February 1919, being one of the days of the regular February, 1919, term of the district court within and for Cherokee county, Oklahoma, there being present and presiding the Honorable E. B. Arnold, district judge, and there being also present J. B. Weaver, court clerk, C. W. Saunders, sheriff, and H. M. Vance, county attorney, and public proclamation of the opening of said court having been made, and said court being regularly and duly in session, the following, among other proceedings, were had, to wit:

The defendant above named, Zack Noel, being personally present in open court and attended by his counsel, and having been legally presented by information by the county attorney and arraigned, and having pleaded not guilty to the crime of murder, charged in said information, and having been then and there in said court duly and legally tried and convicted of said crime, and upon being asked by the court whether he had any legal cause to show why judgment and sentence should not be pronounced against him, and giving no good reason in bar therefor, and none appearing to the court:

It is therefore ordered, adjudged, and decreed by the court that the said Zack Noel be punished by death for said crime by him committed, said judgment to be executed within the walls of the state penitentiary at McAlester, in the state of Oklahoma, on the 10th day of April 1919.

It is further ordered that the sheriff of Cherokee county, Oklahoma, transport the said defendant, Zack Noel, to the said penitentiary at McAlester, Oklahoma, and deliver the said Zack Noel to the warden of said penitentiary within ten days from this date, for execution in accordance with this judgment, and that said sheriff make due return of his proceedings hereunder as required by law.

It is further ordered that the warden of the said penitentiary do confine and detain the said defendant Zack Noel in said penitentiary until said 10th day of April, 1919, and on said date execute this judgment by inflicting death by electrocution in the manner provided by law upon the said defendant, Zack Noel, and make due return and report of his proceedings to this court, as required by law.

Done in open court at Tahlequah, Oklahoma, Cherokee county, this the 13th day of February 1919.

E. B. Arnold, Judge of said Court."

This appeal was taken by filing in this court on April 9, 1919, a petition in error with a transcript of a part of the record attached thereto.

The court clerk of Cherokee county certifies that the foregoing is a full, true, and correct copy of the original judgment in the case of State of Oklahoma v. Zack Noel. A duly certified copy of the death warrant, which conforms to the judgment and sentence, is attached thereto. The plaintiff in error was sentenced under the provisions of chapter 113, Session Laws 1913, entitled:

"An act prescribing death by electrocution for offenses punishable by death, and relating to procedure in the execution of the death sentence."

Section 1 reads:

"The punishment of death must be inflicted by electrocution."

Section 2 reads:

"When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must be not less than sixty nor more than ninety days from the time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the warden of the state prison at McAlester, in this state, for execution."

It appears from the judgment in this case that the court, in fixing the date of the defendant's execution, appointed a day within 60 days from the time of the judgment. It will be observed that the statute above quoted requires the court to appoint a day for the execution not less than 60 nor more than 90 days from the judgment, and the judgment in this case shows that the date of execution is fixed on the fifty-sixth day from the time of the judgment. Thus it appears that the trial court improperly sentenced the defendant to be executed within the minimum time prescribed by the statute. We have examined all the cases accessible bearing upon the question presented, but find none directly in point. In the case of Lowenberg v. People, 27 N.Y. 336, the prisoner was convicted of murder in the first degree and sentenced under the act of April 14, 1860 (Laws 1860, c. 410), to suffer death. The court fixed a day for the execution 13 1/2 months from the date of judgment. By section 4 of said act it was provided:

"When any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall at the same time, be sentenced to confinement at hard labor in the state prison until such punishment of death shall be inflicted."

Section 5 declared:

"No person so sentenced or imprisoned shall be executed in pursuance of such sentence within one year from the day on which such sentence of death shall be passed, nor until the whole record of the proceedings shall be certified by the clerk of the court in which the conviction was had, under the seal thereof, to the Governor of the state, nor until a warrant shall be issued by the Governor under the great seal of the state, directed to the sheriff of the county in which the said prison may be situated, commanding the said sentence of death to be carried into execution."

In the opinion written by Balcom, J., it is said:

"The Supreme Court could not lawfully affirm this judgment. Its duty was to reverse it. * * * My conclusion is, as the only error the Court of Sessions committed was in giving a wrong judgment, in part, against the prisoner, no new trial can be legally granted, and that the judgment must be wholly reversed, and the prisoner discharged."

All the judges concurred that the judgment was erroneous in fixing the day of execution; but the Chief Justice and four of the justices were for affirmance upon this ground:

"So much of the sentence as fixed the day of execution was absolutely void. The day so fixed being more than a year subsequent to the sentence, the Governor, but for the stay of proceedings upon the entire judgment, might have directed the execution to take place on any day after the expiration of a year. The convict having procured the stay of proceedings until the day of execution had passed, the error had, by his own act,

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