Williams v. State, A--15399
| Decision Date | 29 October 1969 |
| Docket Number | No. A--15399,A--15399 |
| Citation | 461 P.2d 997 |
| Parties | Donald Keith WILLIAMS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. It is error for the trial court to instruct the jury on time credits as provided in 57 O.S.Supp.1968, § 138, but where the instruction is given after a determination of the defendant's guilt, it does not constitute reversible error.
2. Where it appears that the giving of an erroneous instruction, together with other errors not requiring reversal, may have caused the jury to impose a greater sentence, in the interest of justice the judgment and sentence will be modified and as so modified, affirmed.
An appeal from the District Court of Tulsa County; Robert D. Simms, Judge.
Donald Keith Williams was charged, tried and convicted of the crime of Robbery with Firearms, After Former Conviction of a Felony, was sentenced to serve not less than 40 nor more than 120 years in the state penitentiary and appeals. Modified to an indeterminate sentence of not less than 30 nor more than 90 years in the State Penitentiary, and as so modified, affirmed.
Curtis A. Parks, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Hugh H. Collum, Max A. Martin, Asst. Attys. Gen., for defendant in error.
Donald Keith Williams was charged, tried and convicted, in the District Court of Tulsa County, Oklahoma, for the crime of Robbery with Firearms, After Former Conviction of a Felony; his punishment was fixed at an indeterminate sentence of not less than 40 or more than 120 years imprisonment in the state penitentiary, and he appeals.
On the morning of June 14, 1968, Donald Keith Williams, hereinafter referred to as defendant, and a companion, Richard Thomas, entered the premises of Freeman's Jewelry. The defendant threatened to blow Freeman's brains out and hold him as a hostage, using vile and abusive language as he did so. Defendant and his companion then started ransacking the store when they were interrupted by Officers J. R. Brown, D. L. Goermar, and Ray Dickens, who had been summoned to the store by Marvin Speegle who worked in the store next to Freeman's Jewelry. The officers looked in the window, saw the defendant putting items in a valise, and Officer Brown knocked on a window and got defendant's attention. Defendant then unlocked the door and he and his accomplice were arrested. The officers found the owner of the store on the floor with his hands handcuffed. No evidence was offered on behalf of the defendant and the jury returned a verdict of guilty in the first stage of a two-stage proceeding.
Thereafter, in the second stage of the two-stage proceeding, it was stipulated between the parties the previous convictions of the defendant consisting of First Degree Robbery, in California, and two prior convictions of Second Degree Burglary in Missouri. At the conclusion of the second stage proceeding, the court gave supplemental instructions to the jury relating to punishment. There was also an instruction given under the directive of 57 O.S.Supp.1968 § 138, over the objection and exception of the defendant, and it was the giving of this instruction that forms the foundation of defendant's first assignment of error. The defendant contends that the giving of an instruction under the authority of 57 O.S.Supp.1968 § 138, is a violation of his constitutional rights and that the statute is unconstitutional.
Title 57 O.S.Supp.1968 § 138 provides:
'Every convict who shall have no infractions of the rules and regulations of the prison or laws of the State recorded against him shall be allowed for his term a deduction of two (2) months in each of the first two (2) years; four (4) months in each of the next two (2) years; five (5) months in each of the remaining years of said term, and prorated for any part of the year where the sentence is for more or less than a year. The mode of reckoning credits shall be as shown in the following table:
and so on, Through as many years as may be the term of the sentence. And, in addition to the deduction above provided for, every convict shall be entitled to a deduction from his sentence of two (2) days for every six (6) days' work performed by him; and each convict shall also, in addition to all such deductions, be entitled to a deduction of twenty (20) days for each pint of his blood he donates to the American Red Cross or to any agency or a hospital approved for such purpose by the Warden. Inmates who are granted medical leaves for treatment which cannot be furnished at the penal institution where incarcerated shall be allowed the time spent on medical leave as time served. All inmates serving their first term with a good conduct record and who have no infraction of the rules and regulations of the penal institution shall be allowed as a deduction from his term of imprisonment the jail term, if any, served prior to being received at the penal institution. Inmates on parole who are returned to the institution as parole violators shall be deprived of any credits earned up to date of their release on parole. Provided, however, that no convict shall be entitled to deduction for good time as herein provided in the event he has been guilty of misconduct or violation of the prison rules and regulations, unless relieved therefrom by the Warden. Provided, further, that this section shall be read to the jury as part of the court's instructions in any trial to a jury, after a finding of guilty of a crime for which any part of the punishment may be imprisonment in the penitentiary, and that the provisions of this section may be commented upon in the argument of any such trial. Provided further, when a maximum and minimum term of imprisonment is imposed, this section shall apply only to the maximum term.'
The instruction complained of was given in the exact language of 57 O.S. § 138, supra. We believe that the prior decisions of this Court are determinative of the issue here presented.
In Bean v. State, 58 Okl.Cr. 432, 54 P.2d 675 (1936), where an instruction strikingly similar to the one in the instant case was given, this Court, speaking through the Honorable Judge Davenport in holding that the giving of the instruction was error which, under all the facts and circumstances required modification, had this to say:
'We have searched in vain to find where any court in the trial of a defendant has instructed the jury that when a defendant is convicted of a felony and receives a prison sentence as a punishment therefor he does not necessarily serve the entire term of punishment imposed, for the reason that the law makes a provision of commutation of time for good behavior.
Under the statutes of Oklahoma when the court has instructed the jury as to the law as applied to the evidence in the case, it has discharged its full duty under its oath and the law; and when that duty has been fully discharged, the court goes outside of the facts in this case and gives the instruction herein complained of, it committed an error prejudicial to the rights of the defendant. * * *'
The Court then went on to say that it was not the legislative intent that the jury be instructed on this matter.
Again in Hudman v. State, 89 Okl.Cr. 160, 205 P.2d 1175 (1949), this Court cited with approval Bean v. State, supra, and in modifying the judgment and sentence imposed, stated in the body of the opinion:
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...II, Sections 1, 2, of said Constitution because it amounts to an attempt by the legislature to exercise judicial powers. Williams v. State, 461 P.2d 997 (Okl.1969). See also Fisher v. Dabbs, 14 Tenn. 119; Brown v. Haywood, 51 Tenn. 357; Mabry v. Baxter, 58 Tenn. 682; Perkins v. Scales, 2 Sh......
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...with respect to parole are exclusively a matter within the province of the executive branch of government. In Williams v. State, 461 P.2d 997 (Okla.Crim.App.1969), the highest court of Oklahoma with criminal jurisdiction held a statute requiring trial courts to instruct the jury on parole l......
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...of the penitentiary under 57 O.S.1971, § 138. Such an instruction is error requiring modification of the sentence. Williams v. State, Okl.Cr., 461 P.2d 997 (1969). Accordingly, the term of imprisonment is hereby modified to not less than twenty (20) years nor more than sixty (60) years, and......
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Gonzales v. State, A--15247
...of the two-stage proceeding, which instruction was excepted to. We feel it is only necessary to reiterate our holding in Williams v. State, Okl.Cr., 461 P.2d 997, wherein we '1. It is error for the trial court to instruct the jury on time credits as provided in 57 O.S.Supp.1968, § 138, but ......