Stone v. State

• Decision Date: 14 January 1948
• Docket Number: A-10788.
• Citation: 188 P.2d 875,86 Okla.Crim. 1
• Parties: STONE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

188 P.2d 875

86 Okla.Crim. 1

STONE v. STATE.

No. A-10788.

Court of Criminal Appeals of Oklahoma

January 14, 1948

Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.

Jewel Stone was convicted, on a plea of guilty, of wife and child abandonment, and was sentenced to serve a term of five years in the penitentiary, but the sentence was suspended on good behavior. Thereafter the district court entered an order revoking the suspended sentence, and defendant filed a written application to vacate the order revoking the suspended sentence. From a judgment denying defendant's application, the defendant appeals.

Affirmed.

Syllabus by the Court.

1. Where an appeal is submitted without briefs and without oral argument, it is the rule to search the record for fundamental error only, and, if none is found, and there is competent evidence in the record to sustain the conviction, affirm the judgment.

2. 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.

3. Where all constitutional and statutory guarantees have been observed in criminal prosecution, requirements of due process are fully satisfied, presumption of innocense is overcome and hence suspension of sentence is not a matter of right but solely within trial court's discretion.

4. When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.

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. Where it is alleged that trial court erred in revoking suspended sentence, the sole question for determination is whether there has been an abuse of discretion by trial court, and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action.

Herbert K. Hyde, of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., and W. A. Carlile, Asst. Co. Atty., both of Oklahoma City, for defendant in error.

JONES Judge.

The defendant, Jewel Stone, was charged by information filed in the District Court of Oklahoma County, on September 6, 1941, with the crime of wife and child abandonment. On September 15, 1941, the defendant entered his plea of guilty to said charge and was sentenced to serve a term of five years imprisonment in the State Penitentiary.

At the same time and place an order was entered suspending the sentence on good behavior in accordance with the statute authorizing the suspension of sentences in certain cases. 22 O.S.1941 §§ 991 & 992.

On December 1, 1945, the County Attorney of Oklahoma County filed a written application to revoke the suspended sentence given to the defendant for the reason that he had failed to comply with the terms and conditions of said suspended sentence. On December 20, 1945, the District Court entered an order setting the application to revoke the suspended sentence for hearing on January 3, 1946, at 9:00 A.M. On January 3, 1946, the District Court entered an order revoking the suspended sentence. Thereafter, on the 4th day of February, 1946, defendant through his counsel, filed a written application to vacate the order revoking the suspended sentence. This application was set for hearing on February 8, 1946, at which time the defendant appeared in person and by his attorney, and the State of Oklahoma was represented by the Assistant County Attorney of Oklahoma County. Considerable evidence was offered both by the State and the defendant as to whether the defendant had complied with the terms and conditions of the suspended sentence which had been given him in 1941. At the conclusion of the hearing, the trial court took the matter under advisement until March 15, 1946, at which time he entered an order denying the application to vacate the order revoking the suspended sentence, and directing the sheriff to transport the defendant to the State Penitentiary to commence serving his sentence.

The defendant excepted to the order of the court denying his application to vacate the order revoking the suspended sentence, gave notice of appeal and was released from confinement upon execution of an appeal bond in the sum of $2,500.

The...