State v. Smith

• Decision Date: 20 November 1946
• Docket Number: A-10772.
• Citation: 174 P.2d 932,83 Okla.Crim. 188
• Parties: STATE v. SMITH.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

174 P.2d 932

83 Okla.Crim. 188

STATE v. SMITH.

No. A-10772.

Court of Criminal Appeals of Oklahoma

November 20, 1946

Appeal from County Court, Nowata County; Leslie J. Coffman, Judge.

June Smith was convicted for unlawful possession of intoxicating liquor. From an order suspending a 30-day jail sentence, the State appeals.

Order vacated and cause remanded.

Syllabus by the Court.

1. Prohibition ordinance adopted by people and made a part of Constitution does not prohibit the possession of intoxicating liquor.

2. In appeal by the state, Criminal Court of Appeals will not give advisory opinion on some legal question that might possibly arise in the future, but will confine its decision to the points of law at issue in the appeal.

3. The granting of a suspended sentence to a person convicted of crime is a creature of the statute. This power did not exist in the court at common law.

4. Under statute (22 O.S.1941 § 991) vesting in courts of record authority to suspend judgment and sentence after conviction for certain crimes upon conditions named in the statute gives trial court the judicial discretion to determine whether an accused is eligible for suspended sentence and whether court chooses to suspend the sentence.

5. Statute authorizing court to suspend sentence does not authorize the suspension of just a portion of the judgment and sentence, but if suspension is granted it must be of entire judgment.

6. Act of county court in suspending jail sentence imposed on conviction for unlawful possession of intoxicating liquor upon condition that accused pay fine and costs is unauthorized and the order of the court suspending a part of said judgment and sentence is a nullity.

J. M Springer, Co. Atty., of Nowata, Mac Q. Williamson, Atty Gen., and Owen J. Watts, Asst. Atty. Gen., for plaintiff in error.

June Smith, pro se.

JONES Presiding Judge.

This is an appeal by the state from an order of the County Court of Nowata County suspending a thirty-day jail sentence pronounced against defendant upon the condition that defendant pay a fine of $75 and costs of prosecution.

On June 29, 1946, the defendant June Smith was arraigned before the County Court of Nowata County upon an information charging him with the unlawful possession of intoxicating liquor. The defendant entered a plea of guilty to said charge, and thereupon the court rendered judgment sentencing the defendant to serve thirty days in the county jail and to pay a fine of $75 and costs of prosecution, and at the same time the court made an order suspending the jail sentence upon the condition that the defendant pay the fine and costs assessed against him.

The county attorney, as representative of the state, objected to the jail sentence being suspended, saved his exception to the court's action in suspending the jail sentence and has perfected his appeal to this court by filing a transcript of the record with petition in error attached.

Two questions are presented by the state in its appeal. First the Prohibition Ordinance of the Constitution of the State of Oklahoma makes it mandatory upon the trial court to sentence an accused in a prohibition case to a term of imprisonment in the county jail for not less than thirty days and to pay a fine of not less than $50 and the court is wholly without authority to suspend a sentence thus fixed by the Constitution. Second, the trial court has no authority to suspend part of a sentence pronounced against an accused upon his conviction.

It is unnecessary for us to decide the first proposition as the charge against the defendant in this case was for illegal possession of intoxicating liquor, and such crime is not included in the prohibition amendment to our State Constitution. The possession of intoxicating liquor is made a crime solely by reason of the statute, 37 O.S.1941 §§ 1, 31. The prohibition ordinance adopted by the people and made a part of our Constitution prohibits the manufacture, sale, barter, giving away, or otherwise furnishing, or the conveyance of intoxicating liquors from one place within this state to another place therein. In no part of this prohibition ordinance is it made unlawful to have the possession of intoxicating liquor.

Since the crime charged to the defendant is not one of those included in the prohibition ordinance of the Constitution, the question raised in proposition one is not properly before this court for determination and any statement we might make in reference thereto would be dicta.

In the case of Ex parte Banks, 74 Okl.Cr. 1, 122 P.2d 181, 183, this court held: 'When an accused is convicted of an offense which carries with it imprisonment in the county jail and the payment of costs, the payment of costs of the prosecution is made a part of the punishment, and payment shall be enforced by imprisonment in the county jail until the same shall be satisfied. § 3166, O.S.1931, 28 Okl.St.Ann. § 101; Ex parte Autry, 58 Okl.Cr. 88, 50 P.2d 239. * * *

Where accused is convicted of an offense which carries with it imprisonment in the county jail and payment of costs, and trial court suspends execution of sentence, such order suspends not only the confinement to the county jail but the payment of costs.'

In that case the petitioner Ollie Banks had been sentenced by the District Court of Carter County to...