Smith v. State

• Decision Date: 19 February 1947
• Docket Number: A-10497.
• Parties: SMITH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

177 P.2d 523

83 Okla.Crim. 392

SMITH v. STATE.

No. A-10497.

Court of Criminal Appeals of Oklahoma

February 19, 1947

Appeal from District Court, Okmulgee County; W. H. Blackbird, Judge.

George Smith was convicted of the crime of maiming and he appeals.

Petition for rehearing sustained, former opinions withdrawn and case reversed and remanded.

For former opinions, see 165 P.2d 381, 167 P.2d 83.

BAREFOOT P.J., dissenting.

Syllabus by the Court

1. Where verdict is irregular in form but is not objected to at time it is returned, and court given opportunity to have jury correct it, every intendment will be indulged to uphold it, and, where from examination of verdict and entire record intent of jury as expressed in verdict may be clearly ascertained, it will be upheld.

2. If the jury render a verdict, incorrect in form, the court may with proper instructions as to the law, direct them to reconsider it and it cannot be recorded until it be rendered in some form from which the intent of the jury can be clearly understood.

3. Verdict in such form that court must speculate or guess at intention of jury will be too indefinite and uncertain to sustain judgment.

4. Verdict which found accused guilty and assessed 'punishment at imprisonment in the State penitentiary for seven (7)', was so unintelligible and indefinite as to the punishment assessed as to require reversal.

5. Verdict which found accused guilty of maiming and which assessed 'his punishment at imprisonment in the State penitentiary for seven (7)', should not have been received by trial court but should have been returned to jury with directions for it to be rendered in some form from which it can be ascertained what is the intention of the jury.

6. Trial court's lack of jurisdiction to render a particular judgment and sentence by which a person is imprisoned may be raised for first time on appeal.

Amos T. Hall, of Tulsa, and James K. Eaton of Pitcher, for plaintiff in error.

Randall S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for defendant in error.

BRETT Judge.

The record in this case discloses, beyond doubt, that the defendant, George Smith, a negro, made an unprovoked attack on H. O. Crane, a white man, with premeditated design to injure Crane. The facts, however, are not involved in the appeal. For those who may be interested in the facts, see Smith v. State, Okl.Cr.App., 165 P.2d 381, wherein Judge Barefoot gives a full and complete statement of the facts.

The only question herein involved is one of law, as set forth in assignment of error No. 2, 'that the verdict of the jury is contrary to law.' This error was based upon the verdict which reads as follows: 'We the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant George Smith guilty of maiming * * * as charged in the Information herein, and assess his punishment at imprisonment in the State penitentiary for Seven (7) * * * John T. Cole, Foreman.'

This verdict was returned in open court and was read. We are mindful that the defendant and his counsel had the right to examine it and to raise any objection to the verdict that they might desire to lodge against it. We are also aware of the fact that no objection was raised to the verdict in the motion for new trial and that no motion in the arrest of judgment was filed. We also realize that by this course of conduct, the defendant and his counsel could have been said to have waived the right to object at the trial and, being raised for the first time on appeal, that the objection would be too late. Notwithstanding all of this, the conduct on the part of the defendant's counsel can readily be understood, when reference is had to the usual and accepted trial procedure, and as the matter is presented herein. The jury, herein, returned their verdict to the trial judge and the judge read it to himself and handed it to the clerk to read in open court. The court clerk, in reading the verdict added the word 'years' to it. Under these circumstances, it is easy to perceive how the defendant's attorney was complately disarmed and misled. It would be a harsh rule that would hold that under such circumstances this error was waived by failure to object. It would be particularly harsh where the error complained of is fundamental and one of substance and not just a matter of form. The verdict in this instance is the very essence of the conclusion of the trial, so far as this defendant was concerned. He was entitled to know when found guilty, what penalty the jury imposed. Upon being found guilty, and the jury fixing the punishment by confinement in the penitentiary, the defendant was certainly entitled to know the length of time he would be required to serve. Verdicts should not be returned in such form as to be left dangling in the realm of speculation. The verdict should be in such form that the judgment and sentence, in a criminal case, should never become a matter of guess work on the part of the court. Courts dealing with life and liberty have no right to dispense what might be termed speculative, or 'bucket shop justice'.

The fact is, that, whatever the jury had in their minds in this case, they did not express it with that degree of certainty required in so serious a matter as a verdict fixing punishment. Who are we to invade the unfathomed recesses of mental process and say the jury intended to inflict the maximum penalty of seven years? If their intention had been clearly expressed, it might just as easily have been for a shorter period of time. As one member of this court so aptly put it in the dissenting opinion filed on January 16, 1946, Smith v. State, Okl.Cr.App., 165 P.2d 381, 386, 'as the verdict is written, it could have meant 7 months, 7 weeks, 7 days, or even 7 hours, and still have been within the limitations of the Statute fixing the punishment for this offense.' Suppose the jury had intended to fix the punishment at seven months. Would the court have been justified in fixing the judgment and sentence at seven years? Obviously not. Suppose the jury had fixed the time at ten. Would the court say that the jury intended the punishment to be confinement in the penitentiary for ten years, or ten days, or ten months? If the verdict is to stand in this case, it is clear that we must enter the realm of speculation to sustain it. Even a casual examination of the verdict nowhere discloses of any indication that the jury intended to fix the punishment at seven years, seven months, seven weeks, or seven days. It is no more the right of this court than it was the right of the trial court to interpret what we think the jury had in their minds. Particularly is this true, where a conclusion cannot be reached with a fair degree of certainty, but must be resolved by speculative practice. It is still inescapable that whatever the jury had in their minds was not expressed, with that degree of certainty to which the defendant was entitled, under the law.

In following the foregoing process of reasoning, we are not unmindful that this court has held that verdicts are to be liberally construed, and where irregular as to form and not objected to at the time the verdict is returned and the court given an opportunity to have the jury correct it, that every intendment and effort will be indulged to uphold it, and where from an examination of the verdict and the entire record the intention and purpose of the jury, as expressed in the verdict, might be clearly ascertained, the verdict will be upheld. Dunbar v. State, 75 Okl.Cr. 275, 131 P.2d 116. Nor are we unmindful that this court has repeatedly held that a verdict will not be void if its meaning can be determined by reference to the record proper. Bowlegs v. State, 9 Okl.Cr. 69, 130 P. 824; Walker v. State, 11 Okl.Cr. 339, 127 P. 895; Simmons v. State, 15 Okl.Cr. 442, 177 P. 626; Coleman v. State, 16 Okl.Cr. 579, 194 P. 282; Gidens v. State, 31 Okl.Cr. 137, 236 P. 912; Nelson v. State, 34 Okl.Cr. 187, 245 P. 1009; Horton v. State, 44 Okl.Cr. 318, 280 P. 857; Bayne v. State, 72 Okl.Cr. 52, 112 P.2d 1113. Here, we have indulged every intendment and inference, have examined the pleadings,...