Rushing v. State, 199 P.2d 620

Rushing v. State

199 P.2d 620 | Okla. Crim. App. | 1948

On Rehearing. Defendant, Tilson O'Dane Rushing, has for some time had pending in this court an appeal in another case (88 Okla. Cr. 82, 199 P.2d 614) where he was convicted of the crime of burglary, and sentenced to serve a term of six years in the State Penitentiary. An opinion has this day been handed down by the court in that case (Rushing v. State) in which the judgment and sentence was modified from a term of six years to a term of three years in the State Penitentiary.

Judge Jones, in modifying the judgment and sentence in that case, stated: *96

"We have come to the conclusion after an earnest and full consideration of all the facts and circumstances surrounding the case, including the youthfulness of the offender and other attendant circumstances, that justice would be served by modifying the sentence herein to a term of three years imprisonment in the state penitentiary. Thus the defendant will have to serve a term of seven years imprisonment as a total for these two offenses, unless sooner given executive clemency."

In considering the question of punishment to be given this young offender, we have considered the judgment and sentence given in each of the cases, and the fact that they were to run consecutively, and not concurrently. Also, the fact that this defendant escaped from the Oklahoma county jail while incarcerated there and pending the trial of his cases.

As shown by the evidence, which we reviewed in the original opinion, the case against the defendant was partially circumstantial. In the petition for rehearing counsel have been very insistent that the evidence is insufficient to corroborate the testimony of the accomplice. We reiterate that it is our opinion that the evidence was sufficient to require the trial court to submit the case to a jury.

Taking into consideration all of the facts and circumstances as presented on the motion for rehearing, coupled with the fact that this defendant entered the State Penitentiary and served some time upon these sentences and will soon be eligible for consideration for a parole by the State Pardon and Parole Board, we have come to the conclusion that the judgment and sentence in this case should be modified from ten years to a term of four years in the State Penitentiary, and as so modified, *97 the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.