Spencer v. State, A-12031
| Decision Date | 06 October 1954 |
| Docket Number | No. A-12031,A-12031 |
| Citation | 275 P.2d 329 |
| Parties | Charles SPENCER, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
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. Under provisions of statute, 22 O.S.1951 § 927, where the jury finds a verdict of guilty and does not declare the punishment by the verdict, it is the duty of the court to assess and declare the punishment and render judgment accordingly.
3. Where the jury returns a verdict of guilty and endorses on the verdict, 'We recommend a suspended sentence,' such recommendation is not a part of the verdict, and is a matter addressed to the sound judicial discretion of the trial judge as to whether he should follow the recommendation of the jury.
4. Under 22 O.S.1951 § 973, after a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the matter summarily at a specified time and upon such notice to the adverse party as it may direct.
5. Assessment of maximum term of imprisonment of 7 years in the penitentiary upon conviction of 18 year old offender, where punishment was left to court, was excessive where record does not disclose any former convictions any jury, county attorney and prosecuting witness all recommended a suspended sentence; and judgment was reduced to 3 years imprisonment in penitentiary.
Sam W. Moore, Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.
The defendant, Charles Spencer, was jointly charged with James Lavon Burns and Garrett Burns, Jr., in the District Court of Lincoln County with the crime of burglary in the second degree. Garrett Burns, Jr., entered a plea of guilty and was sentenced to serve a term of 7 years in the penitentiary but the sentence was suspended under the terms of the statute. 22 O.S.1951 §§ 991 and 992. James Lavon Burns failed to appear at the time set for his arraignment and his bond was forfeited. The defendant, Spencer, was tried, found guilty by verdict of the jury which failed to fix the punishment. On a separate sheet of paper the jury recommended a suspended sentence. Thereafter the trial court overruled a motion for new trial and sentenced Spencer to serve the maximum term of 7 years imprisonment in the penitentiary and he has appealed.
Two contentions are presented by the appeal. First, the verdict is irregular and not in sufficient form to justify the court in pronouncing judgment and sentence. Second, the judgment and sentence was excessive and constituted the assessment of cruel punishment.
The defendant did not testify and offered no testimony in his behalf. The proof of the State showed that defendant was 18 years of age, Garrett Burns, Jr., 17 years old and James Lavon Burns was much older, he being a married man and the father of one child. The Burns brothers entered the farmhouse of Charlie Peace, 5 miles south of Chandler between the hours of 7:00 and 8:00 P.M. on July 2, 1953, and took various articles of merchandise from the home. The defendant sat in the automobile as a lookout while the other two entered the house and brought out the personal property. About the time of the burglary some neighbors of Mr. and Mrs. Peace saw a green DeSoto automobile with an Oklahoma County tag on it near the Peace home and from its suspicious nature, they wrote down the license tag number. Mr. and Mrs. Peace had left their home about 7:00 P.M. to see about some cattle and when they returned about 8:00 P.M., they found their house had been entered. The neighbors gave them the tag number of the automobile and a description of the parties who were in it and the defendant and his alleged accomplices were apprehended near Oklahoma City by highway patrolmen shortly after the burglary had been committed. They had...
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