Stokes v. State
| Citation | 190 P.2d 838,86 Okla.Crim. 21 |
| Decision Date | 03 March 1948 |
| Docket Number | A-10704. |
| Parties | STOKES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Tulsa County; Leslie Webb, Judge.
On petition for rehearing.
Judgment modified by reducing sentence from term of five years in the state penitentiary to a term of two years in the state penitentiary and, as so modified, affirmed.
Original opinion, 189 P.2d 424.
Syllabus by the Court.
Held--After considering petition for rehearing, ends of justice warrant further modification of judgment and sentence to a term of two years in the State Penitentiary.
Irvine E. Ungerman, and Joe Chambers, both of Tulsa (Charles A Whitebook, of Tulsa, of counsel), for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for defendant in error.
It was urged by the defendant, Howard J. Stokes on rehearing, that this court was without jurisdiction to modify and affirm the judgment and sentence of the lower court on the record as herein made. It was further contended that the modification amounted to a different sentence by this court and constituted a denial of due process in that the defendant was denied a new trial by jury. He further contended that since the information charged second degree arson and that the case was tried for first degree arson and the jury so instructed, that this court under the authority of Martin v. State, 48 Okl.Cr. 102, 289 P. 787, could only reverse the cause for a new trial and was without power to modify the judgment and sentence. Finally, it was contended that there was no precedent to support the action of this court.
These contentions are without merit and there is ample authority to support this action of the court. A case that is squarely in point with the procedure pursued in the court's original opinion is Cunningham v. State, 55 Okl.Cr. 67, 24 P.2d 1013, 1015, wherein the defendant was charged with rape in the second degree but he was tried as though charged with rape in the first degree and the jury was so instructed. Upon conviction the defendant was sentenced to serve 15 years in the State Penitentiary. Therein, this court said:
In this same connection, see Randall v. State, 33 Okl.Cr. 262, 243 P. 983, Mayberry v. State, 44 Okl.Cr. 134, 279 P. 934, and the rather recent case of Kilpatrick v. State, 75 Okl.Cr. 28, 128 P.2d 246, wherein the court modified the conviction from first degree rape and punishment at 15 years, to assault with intent to commit rape and punishment at two years. The foregoing authorities constitute ample support of the court's action in this matter, in addition to the provisions of Title 22 O.S.A. § 1066, 22 O.S.1941§ 1066.
Moreover as was said by Justice Harlan in Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 1000, 44 L.Ed. 1150: 'It would be...
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Baker v. State
...and the requisites for same have been repeatedly stated by this Court and are exemplified in Stokes v. State, 86 Okl.Cr. 21, 189 P.2d 424, 190 P.2d 838: 'The instructions of the court should conform to the charge in the information and the defense interposed and to the testimony in the case......