Rhea v. United States

• Citation: 6 Okla. 249,1897 OK 98,50 P. 992
• Parties: DAVID M. RHEA v. THE UNITED STATES.
• Decision Date: 30 July 1897
• Court: Supreme Court of Oklahoma

1897 OK 98

50 P. 992

6 Okla. 249

DAVID M. RHEA v. THE UNITED STATES.

Supreme Court of Oklahoma

Decided: July 30, 1897

Error from the District Court of Lincoln County; before Frank Dale, District Judge.

Syllabus

¶0 1. CRIMINAL LAW--Judgment and Sentence Defective--Effect of. It is error for the trial court to fail to inform defendant, before passing sentence upon him, of the nature of the indictment, his plea and the verdict, and to fail to state, in the judgment or sentence, the crime of which defendant has been convicted, but the only effect of such errors would be to require defendant to be returned to the court wherein convicted for proper judgment and sentence.

2. INDICTMENT--Sufficiency of--Defects Waived. All defects in an indictment, except that it does not state facts sufficient to constitute a public offense, or to give the court jurisdiction, are waived by defendant upon his failure to challenge the sufficiency of same with a motion or demurrer.

3. INSTRUCTIONS--Not Reviewable, When. The giving, or refusing, by the trial court, of instructions based upon and applicable to particular phases of the testimony will not be reviewed by this court unless the evidence is contained in the record filed herein.

4. EXCEPTIONS TO INSTRUCTIONS--Sufficiency of. Where the court's charge to the jury is in separate instructions which are properly numbered and, at the conclusion thereof, the record shows that, "to the giving of each and every and all of said instructions to the jury by the court, the defendant excepted separately at the time and still excepts;" held, sufficient to entitle appellant to have his objections to said instructions passed upon by this court.

5. INTEREST OF DEFENDANT--Instruction Thereon--Province Of Jury. An instruction to the effect that, in determining the credibility of defendant, and the weight to be given his testimony, the jury should consider the fact that he is the defendant and the interest which he has in the result of the trial, and also that, "in determining the weight to be given to the testimony of a defendant, you should take into consideration the testimony of all the other witnesses, and also such facts and circumstances as are in proof in the case, and, with the testimony of the other witnesses and such facts and circumstances, determine how much weight and credit you should give to the testimony of the defendant, and, after such consideration, give it such weight and credit as in your judgment it is entitled to under all of the facts and circumstances and other testimony in proof in the case," does not invade the province of the jury, and is not prejudicially erroneous. (Keaton, J., and McAtee, J., dissenting.)

6. CHANGE OF JUDGE--Application for--Sufficiency Of--Construction Of Statute. When an application, in the language of the statute, for a change of judge, in a criminal action, because "of the bias and prejudice of the presiding judge," is filed and presented before the commencement of the trial, it is not reversible error for the court to refuse same, under subdivision 4, sec. 21, ch. 41, Session Laws, 1895. (Keaton, J., dissenting.)

L. E. Payne, for plaintiff in error.

C. R. Brooks and Roy Hoffman, for defendant in error.

KEATON, J.:

¶1 Twelve assignments of error are set out in appellant's petition in error and urged in his brief, and I shall notice them in their inverse order in so far as they are properly presented by the record filed in this court, and as a consideration thereof is deemed necessary to properly dispose of the case

¶2 I. The twelfth assignment is that, "No judgment was rendered or entered therein, in said case, as provided by law." The judgment complained of, omitting the caption, is as follows:

"Comes now the said defendant, David Rhea, in his own proper person, and by his attorney, L. E. Payne, and presents his motion for a new trial. The court having heard the motion, together with the arguments of counsel thereon, and being fully advised, does now overrule defendant's said motion for a new trial, to which ruling the defendant duly excepts. The defendant now files and presents his motion in arrest of judgment, which motion is by the court heard, together with argument of counsel thereon, and overruled, to which ruling the defendant excepts. The defendant is now ordered to stand before the bar of the court and is asked what he has to say why the sentence and judgment of the court should not be pronounced against him, and having nothing justifiable to offer, the court now passes judgment and sentence upon said defendant.

"It is the judgment and sentence of the court that the defendant, David M. Rhea, be trasported to the United States penitentiary, at Leavenworth, Kansas, and be confined therein for a period of three (3) years, and to pay the costs of this prosecution, to which judgment and sentence of the court the defendant objects and duly excepts."

¶3 The objections urged against this judgment of the trial court are as follows:

"1. Because it is not stated when the term of imprisonment commences.

"2. Because the journal entry is not signed by the judge.

"3. Because the sentence does not state what offense the defendant was guilty of.

"4. That the defendant was sentenced to the United States penitentiary, at Leavenworth, Kansas, when it should have been Fort Leavenworth, Kansas.

"5. Because the sentence and journal entry do not contain the words: 'It is considered, ordered and adjudged.'

"6. Because the record does not show that when the defendant appeared for judgment, he was informed of the nature of the indictment, of his plea, and of the verdict."

¶4 I do not think there is any merit in the second, fourth and fifth objections. Had not the question raised by the first objection already been decided by this court adversely to the contention of appellant herein, I should be inclined to regard it of a more serious character than did the learned justice who delivered the opinion of the court in the case of Jones v. Territory, 4 Okla. 45, 43 P. 1072, wherein it is held that, "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 effect and begin to operate from the date of their entry, unless a different time be fixed by the court in the judgment itself. There is no uncertainty as appears from the record before us."

¶5 I am of the opinion, however, that the third and sixth objections are well taken and that the proceedings and judgment had and entered at the time appellant was sentenced are irregular because of the failure of the court to inform him of the nature of the indictment, his plea and the verdict and to state in said judgment the crime for which he had been convicted. Section 5283, Okla. Stat. 1893, provided that:

"When the defendant appears for judgment, he must be informed by the court, or by the clerk under his direction, of the nature of the indictment, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him."

¶6 But, perhaps, the only effect of these errors would be to have the appellant remanded to the district court of said county for proper judgment and sentence. (State v. Jennings, 24 Kan. 642; Messner v. People, 45 N.Y. 1; Dodge v. People, 4 Neb. 220; Benedict v. State, 12 Wis. 313.) In Dodge v. People, supra, it is held that, "A person convicted of felony cannot waive his right to be present in court, at the time sentence is pronounced, and he must be 'informed by the court of the verdict of the jury, and asked whether he has anything to say why judgment should not be pronounced against him.' As it does not appear that these requirements of the statute have been complied with, the judgment must be reversed, and an order directed to the court below, to proceed to render judgment on the verdict in the manner prescribed by law."

¶7 In justice to the defendant, we do not feel authorized to require him to be returned and re-sentenced, as he has now served the greater portion of the time for which he was originally sentenced.

¶8 II. The tenth and eleventh assignments of error are directed against the indictment, claiming that it is "bad for duplicity, charging several offenses in one count thereof." Said indictment, omitting the formal parts, is in the following language:

"The grand jurors do find and present that at and within said Lincoln county, in said Territory, on the eighteenth day of July, in the year of our Lord, one thousand, eight hundred and ninety-four one David Rhea, at the town of Chandler, aforesaid, in the county and district aforesaid, a certain building there situated and then used in part as a post office of the said United States, wilfully, unlawfully and feloniously, did forcibly break into and enter, with intent the moneys, postage stamps, goods and chattels of the said United States in the said building there being, and the moneys, goods and chattels of one A. D. Wright, in said building, then being, then and there feloniously to steal, take and carry away."

¶9 This indictment was drawn under section 5478 R. S. United States, which reads as follows:

"Any person who shall forcibly break into, or attempt to break into, any post office, or any building used in whole or in part as a post office, with intent to commit therein larceny, or other depredation, shall be punishable by a fine of not more than one thousand dollars and by imprisonment at hard labor for not more than five years."

¶10 The defendant below, so far as the record in this court discloses, neither moved to set aside the indictment nor demurred thereto, and has, therefore, waived all objections to same, except that it does not state facts sufficient to constitute a public offense, or to give the court jurisdiction of the subject matter. (Sections 5119, 5126 and 5271 Okla. Stat. 1893; sections 19 and 20,...