Tracy v. State

• Decision Date: 23 July 1923
• Docket Number: A-4054.
• Citation: 216 P. 941,24 Okla.Crim. 144
• Parties: TRACY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

216 P. 941

24 Okla.Crim. 144

TRACY v. STATE.

No. A-4054.

Court of Criminal Appeals of Oklahoma

July 23, 1923

Syllabus by the Court.

An objection to the receiving of a verdict or rendition of judgment thereon, or to the rendition of judgment on a plea of guilty, which would have been a good ground for a demurrer to the information, may be urged by a motion in arrest of judgment. A motion in arrest of judgment must be made before the rendition and entry of the judgment.

Where an appeal is taken to this court by petition in error and attempted case-made in a case where such an appeal is not authorized by law, the purported case-made, or portions of it, may be considered as a transcript of the record for consideration as such on appeal to this court.

Where judgment has been rendered and the defendant has suffered the penalty pronounced in the judgment in whole or in some substantial part, even during the term, the authority of the court rendering the judgment is at an end, and the trial court is without jurisdiction to modify, suspend, or otherwise alter the judgment, except to set aside a judgment void on its face as shown by the record.

The word "steal" in an information implies the want of consent of the owner, and where this term is used a specific allegation that the property was taken without the consent of the owner is unnecessary.

Where two statutes provide different penalties for the same class or kind of offense, the state may elect under which the prosecution may be maintained.

Appeal from District Court, Comanche County; Cham Jones, Judge.

Tom Tracy was convicted of grand larceny, and he appeals. Affirmed.

C. R Reeves, of Lawton, for plaintiff in error.

Geo. F Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

BESSEY J.

Tom Tracy, referred to in this opinion as the defendant, was on the 18th day of February, 1921, upon a plea of guilty to the charge of grand larceny, sentenced to imprisonment in the state reformatory at Granite for a term of two years. At the same time two others, jointly charged with the defendant entered pleas of guilty and received like sentences. A portion of the journal entry of judgment against the defendant is as follows:

"The above-named defendant, Tom Tracy, appeared and is present in person before the bar of said court for arraignment upon the charge contained in the information in said cause, and thereupon said information was read to said defendant, Tom Tracy, and he was asked by the court whether he is guilty or not guilty of the crime charged in said information, and thereupon the said Tom Tracy, defendant in said cause, voluntarily and in open court says he is guilty of the crime of larceny as charged in said information, and thereupon the said defendant is asked whether or not he has any just cause to show why judgment and sentence for said crime should not be pronounced against him, and, the defendant failing to show any just cause, the court accepts said defendant's plea of guilty as charged in said information and finds the defendant guilty as charged therein."

On the 16th day of May, 1921, at a subsequent term of court, before another district judge, and after the defendant had been taken to the state reformatory at Granite and had served a portion of the sentence imposed by the court, he filed a motion in the trial court to "vacate, set aside, and dismiss the defendant and hold for naught the judgment" theretofore rendered in the cause, for the following reasons: (1) That the court was without jurisdiction to pronounce the judgment; (2) that the plea of guilty made and entered by the defendant was made under duress, threats, and undue influence used and exerted upon the defendant by the county attorney and the sheriff and his deputies; (3) that the defendant was denied the right of counsel; (4) that the information did not state facts upon which a judgment of conviction could be predicated.

Upon consideration of this motion the court, on the 25th day of July, 1921, made and caused to be entered the following:

"This cause coming on to be heard on motion of the defendant, Tom Tracy, to arrest the judgment herein rendered in said cause and action, and the defendant's attorney being present in court, and the court having heard said motion and the same having been submitted with affidavits setting forth the grounds of said motion, the court is of the opinion that the same should be denied. It is therefore considered, ordered, and adjudged by the court that the motion in arrest of the judgment of this court for conviction herein rendered against the said defendant be, and the same is hereby, denied and in all things herein overruled.

The crime of larceny, for which the defendant is convicted, being bailable, and the defendant entitled to bail upon his appeal to the Criminal Court of Appeals, the amount of his appeal bond is hereby fixed in the penal sum of $500. It is therefore ordered, adjudged, and decreed that the defendant shall have 30 days within which to file and give bond in order to stay the execution of the judgment pending the filing of the appeal to the Criminal Court of Appeals, and upon giving the bond in the time fixed by this court, approved by the clerk, execution of the judgment shall be stayed during the time fixed for the settling of the case-made, and if the case-made be settled within 30 days from this date and the appeal filed in the appellate court as required by law, then the said bond shall stay execution of the sentence during the pendency of the appeal.

Done in open court this 25th day of July, 1921.

A. S. Wells, District Judge."

Upon the same day an order of discharge was addressed to the warden of the state prison at Granite, as follows:

"To the Warden of the State Prison at Granite, Okl.: Tom Tracy, the defendant, having presented his motion in arrest of judgment and the same having been overruled by this court on the 25th day of July, 1921, and said defendant giving notice of his intention to appeal, the court having fixed bond at $500, to stay said execution and sentence and judgment in the above-entitled cause, and the said Tom Tracy having given said bond in compliance with said orders of the court and notice of his intention to appeal, it is hereby ordered that upon service of a certified

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