State v. Humphrey
| Citation | 186 P.2d 664,85 Okla.Crim. 153 |
| Decision Date | 05 November 1947 |
| Docket Number | A-10773. |
| Parties | STATE v. HUMPHREY. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Custer County; W. P. Keen, Judge.
Ephie Humphrey was convicted of directing a riot, and his sentence was suspended. From an order denying the State's motion to set aside the suspended sentence, the State appeals.
Appeal dismissed.
Syllabus by the Court.
1. Where the State appeals on a reserved question of law and no brief is filed and no appearance made when the case is called for submission, it may be assumed that the appeal has been abandoned and the judgment will be affirmed.
2. The right of the State to take an appeal is governed by statute (22 O.S.1941 § 1053) and the statutory authority thus conferred cannot be enlarged by construction.
3. Suspension of sentence under statute (22 O.S.1941 §§ 991 992) is not a parole nor pardon, but is an authorized mode of mild and ambulatory punishment, instituted by the Legislature for the purpose of giving persons who come within the operation of the statute an opportunity for reformation.
4. Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court.
5. The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and the hearing in connection therewith may be of a summary character.
6. The granting or refusal of suspended sentence or the refusal to revoke a suspended sentence being a matter addressed to the sound discretion of the trial court, no appeal will lie from an order of the trial court rendered in the exercise of that discretion.
7. There is no statutory authority for the State to take an appeal from an order of the trial court denying a motion filed by the State to revoke a suspended sentence.
Fred E. LaRue, County Atty., Custer County of Clinton, for plaintiff in error.
Meacham Meacham, Meacham & Meacham, of Clinton, for defendant in error.
This is a purported appeal by the State of Oklahoma from an order of the District Court of Custer County refusing to set aside the suspended sentence granted to the defendant, Ephie Humphrey.
The defendant, Ephie Humphrey, was charged jointly with Raymond Schoolcraft and Eddie Duggins with directing a riot. Duggins v. State, Okl.Cr., 170 P.2d 266; Shoolcraft v. State, Okl.Cr., 178 P.2d 641.
On February 9, 1945, the defendant, Humphrey, entered his plea of guilty and was sentenced to serve twenty years imprisonment in the State Penitentiary. At the time judgment was pronounced, it was further ordered by the court that the sentence be suspended pursuant to the terms and conditions imposed by the statute. Thereafter on March 6, 1946, the County Attorney of Custer County filed a motion to revoke the suspended sentence theretofore given to the defendant, Humphrey, for the reason that on several occasions after sentence was pronounced against the defendant, he had engaged in numerous fights and had been intoxicated and was keeping company with another man's wife, all of which constituted violations of the conditions of the suspended sentence.
A hearing was had on the State's motion to set aside the suspended sentence and evidence was introduced on behalf of the state and defendant. At the conclusion of the hearing, the trial court stated that he was convinced that the defendant had not strictly lived up to the conditions of the suspended sentence, but that he was going to give him one more chance and accordingly he refused to set aside the suspended sentence.
This appeal has been taken from such action of the trial court in refusing to vacate the suspended sentence aforesaid. The appeal was filed herein on July 9, 1946. There has been no brief filed on behalf of the State and no appearance was made on behalf of the State at the time the case was assigned for oral argument.
On April 21, 1947, the defendant filed a motion to dismiss the appeal because of the failure of the State to file a brief and for the further reason that there was no authority for the State of Oklahoma to appeal from an order denying the motion to vacate a suspended sentence. No response was filed to this motion.
This court has held that where the State appeals on a reserved question of law and no brief is filed and no appearance made when the case is called for submission the judgment will be affirmed. State v. Sisler et al., 71 Okl.Cr. 211, 110 P.2d 321.
In Barefield v. State, 26 Okl.Cr. 274, 223 P. 408, this Court held that where the time for filing a brief supporting the appeal has passed and no brief having been filed, it may be assumed that the appeal has been abandoned.
The right of the State to take an appeal is governed by statute and it has been held that the statutory authority cannot be enlarged by construction. State v. Gray, 71 Okl.Cr. 309, 111 P.2d 514.
By statute it is provided:
This is not an attempted appeal under either the first or second provisions of the statute, but if the appeal may be sustained it is because it is brought under the third sub-division of the statute 'upon a question reserved by the State'. The State did not contend in their petition in error that they were appealing on a reserved question of law. The purported appeal is based upon the alleged error of the court in not setting aside the suspended sentence and committing the said defendant to the penitentiary. In the petition in error it is prayed 'that a judgment be rendered setting aside the suspended sentence of the said defendant in error, ...
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Marshall v. State
...that the motion is well taken and should be sustained, on the authority of Burgett v. State, Okl.Cr., 362 P.2d 975; and State v. Humphrey, 85 Okl.Cr. 153, 186 P.2d 664. In the former case it was 'Order of Court of Common Pleas revoking suspension of sentence was not appealable. 22 O.S.1951 ......
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Stone v. State
... ... defendant. His plea of guilty entered in 1941, is conclusive ... as to that fact, and this is a purported appeal from the ... denial by the trial court of an application to vacate an ... order revoking a suspended sentence ... In the ... recent case of State v. Humphrey, Okl.Cr.App., 186 ... P.2d 664, it was held: ... 'Only ... those persons coming within terms of statute are eligible ... for suspended sentence, but they have no right to demand ... the same; and it may not be granted to them except at the ... discretion of the court ... ...
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State v. Morgan
... ... submitted on the record January 30, 1947 and the State given ... 30 days in which to file briefs. No briefs have been filed by ... the State and no appearance made on behalf of the State ... This ... court has recently held, in State of Oklahoma v ... Humphrey, Okl.Cr., 186 P.2d 664, 665, not yet reported ... in State Reports: ... '* ... * * where the State appeals on a reserved question of law ... and no brief is filed and no appearance made when the case ... is called for submission the judgment will be affirmed ... State v ... ...