*1 WILLIAMS, Plaintiff Donald Keith Error, n i Oklahoma, Defend
The STATE ant in Error.
No. A-15399. Appeals of Oklahoma. of Criminal
Court 29, 1969.
Oct.
Rehearing Nov. Denied Parks, plaintiff
Curtis A. in error. Atty. Gen., Blankenship, Hugh G. T. H. Collum, Martin, Gen., Max Attys. Asst. A. defendant in error. BUSSEY, Judge. charged, Keith
Donald Williams convicted, tried and in the District Court County, Tulsa crime for the Firearms, Robbery After Former Felony; punishment his Conviction was fixed at an indeterminate sentence years not less than or more than 120 penitentiary, and state appeals. he 14, 1968, the morning On Donald June Williams, Keith hereinafter referred to as *2 998
defendant, At the companion, a Richard Missouri. conclusion and second Thomas, stage proceeding, gave supple- of Freeman’s the court premises entered jury relating to blow mental Jewelry. The defendant threatened punishment. as a out and hold him There also an Freeman’s brains instruc- language tion hostage, using and abusive under directive of 57 vile O.S. 138, Supp.1968 objection and his com- as he did Defendant over the and so. § exception defendant, panion ransacking the store and it then started giving of interrupted Officers this instruction that forms the when were J. Goermar, Dickens, Brown, Ray foundation assignment L. defendant’s first R. D. to the of error. The had been summoned store defendant contends that who in the store of an Speegle Marvin who worked instruction under the au- thority O.S.Supp.1968 Jewelry. The officers of 57 is a next to Freeman’s window, rights the defendant his constitutional looked saw valise, putting items in a Brown statute is unconstitutional. Officer got defendant’s knocked on a window provides: Title 57 138 Defendant then unlocked attention. accomplice door arrest- and he and his were “Every convict who shall have no infrac- ed. The officers found the owner of regulations tions rules and store on floor with his hands hand- prison or laws the State recorded cuffed. No evidence was offered on be- against him shall be his allowed for term of the defendant and the returned half a in (2) deduction two months each a verdict of a stage first years; (2) first two (4) four two-stage proceeding. years; in months each of next (2) two (5) five months in remaining each of the Thereafter, in stage the second years term, prorated any of said for two-stage proceeding, stipulated it was be- year where the sentence is for parties previous tween the convictions year. more or than a The mode of less of the defendant consisting of First De- reckoning gree California, credits shall be as in Robbery, shown prior in and two Degree Burglary convictions Second in following table:
SCHEDULE OF CREDITS
Number of
Time to be served
years
good
Good time
Total
if full time
of sentence
granted
time made
is made
year
1st
2
2
months
months
10 months
year
year,
2nd
2
4 months
months
8 months
year
3rd
years,
4 months
8 months
4 months
year
year
4th
4 months
years
year
5th
1year,
3years,
5 months
5 months
7 months
many years as
on,
days
through
(20)
pint
as
each
and so
of his blood he
And,
donates to the American
the sentence.
Red
be the term of
Cross or
agency
hospital approved
or a
to the deduction
addition
purpose
entitled
every
shall he
In-
for,
convict
vided
Warden.
mates
granted
who are
two
medical leaves
his sentence
to a deduction from
for treatment
days’
which cannot he furnished
every
(6)
work
days for
six
(2)
penal
at
incar-
institution where
him;
each convict
performed
spent
time
cerated shall be allowed the
deduc-
all such
also, addition
All in-
leave
time
twenty
medical
as
served.
to a deduction
tions, be entitled
serving their first
vision of
good
mates
term
commutation
time for
no
good
and who have
behavior.
record
conduct
this Court are determinative
here
The instruction
ment the
infraction
the institution as
to
titled to
be
however, Inmates on
date of their
lieved
prison
in
guilty
vided,
ment is
trial. Provided
prisonment
a
any
the
We
read
mum and minimum
mented
only
exact
deduction
finding of
being
deprived
provided in the event he has been
presented.
provisions
penal institution
part of the
believe
to the
therefrom
further,
rules
upon
the maximum term.”
language
deduction for
imposed,
received at
misconduct
jail
of the rules
in the
parole who
in
from his term
release
that the
in the
complained
of this section
term,
any
no convict shall be
any
punishment may
further, when a maxi-
of 57 O.S. §
this section
regulations,
parole
penitentiary,
argument
trial to
on
credits earned
the
if
this
shall be allowed
the Warden.
or
term
good
prior
a
parole.
any,
*3
penal
crime
are
section shall
violators
of the court’s
regulations
time as here-
a
served
was
decisions
returned to
institution.
138, supra.
unless
for which
Provided,
any
be com-
up
apply
prior
after
issue
shall
Pro-
im-
en-
the
re-
in
modifying
not the
The Court
instructed on this matter.
with
posed,
160, 205
the law as applied to the evidence in the
Under the statutes of
case, it
plained
duty
its oath and the
goes
[*]
dicial
Again
thorough
“Finally,
ishment imposed upon the defendant is
unreasonable and excessive.
sentence
the
should be
meritorious, and that
including the
hereinabove
conclusion that
[*]
approval
controverted
feel
stated in the
gives
has
outside of
legislative
[*]
P.2d
to the
mentioned,
in
fy
of,
the
then went on
been
assessed
it is contended
consideration
has instructed
Hudman v.
reduced.
discharged
the instruction herein com-
Bean
judgment and sentence im-
discussed and
committed
fully
rights
ruling
intent
(1949),
the
legal questions
body
law;
against
assignments
this
discharged,
State,
In this
facts
of the defendant.
its full
have
State,
that the
Oklahoma
of all the
this Court cited
and when that
an error
proposition
say
the
supra,
in this
come
particularly
that it
duty
connection,
opinion:
defendant
the court
the
After
jury
Okl.Cr.
herein-
and in
preju-
to the
under
facts,
error
pun-
case
was
on
be
a
alleged mis-
the one with reference to the
State,
432, 54 P.
In
58 Okl.Cr.
Bean v.
jury after
conduct of the
and the
court
strik-
an instruction
(1936),
2d
where
concerning
submission of the case
in the
case
ingly
to the one
instant
similar
question
year
a
length of
calendar
of the
Court,
through
speaking
given, this
*
* *
in
considered
penitentiary,
holding
Davenport in
Judge
the Honorable
facts, prompts
all
the other
us
that the
instruction
giving
give
proposition of law.”
relief
which,
facts and circumstances
under all the
modification,
required
say:
had
Okl.Cr.,
State,
In
written, prejudicial Judge (specially deemed For or reversal. quiring modification either Had the of been complained instruction decisions comprehensive discussion given one-stage proceeding, I think in a concerning jurisdictions in other clearly have constituted reversible would possible relating to a of oral instructions error, but the case at bar was through 783. A.L.R.2d 769 pardon, see 35 after defendant had been found only prejudice as could have resulted in the authorities In accordance imposed far as the sentence was concerned. forth, opinion that are of the above set agree I commit case, in the instant the trial court should be modified. express pro error, notwithstanding the ted 138, supra, visions of 57 not should an instruction that such ORDER DENYING PETITION FOR
given. REHEARING are further We State of The *5 during the sec General, arose the instruction filed a Attorney since through its trial, after two-stage stage styled ond of Rehearing Petition for guilty, found the defendant had been grounds on the and numbered cause Al require pass this does not reversal. Court, opinion, failed this in its evi opinion though O.S.Supp.1969, are constitutionality we of overwhelm guilt Attorney of defendant’s dence contention In this § ordinarily ing crystal and that the facts would correct, make it and to General imposed, and sentence justify judgment should not be clear that an instruction are to believe O.S.Supp. constrained of 57 provisions under ap error, urged on together with others At 1969, the District nor should 138, § discussion, peal requiring closing not reversal or of his torney argue it as a require justice that in the interest of specifically hold remarks to from an judgment and be reduced making of the statute provisions to 120 from 40 indeterminate sentence of an give such mandatory it for the court to from years, 4, indeterminate sentence an Article Sec instruction is modified, years, and as so 30 to 90 of the State 1, tion of the Constitution appealed from is Oklahoma, and sentence providing: the some affirmed. government of the powers “The and affirmed.
Modified into be divided State shall Oklahoma separate departments: Legis- The
three Executive, BRETT, lative, and ex- Judge (specially Judicial; Presiding Constitution, cept in this curring) provided : as Executive, de- Legislative, and Judicial by my opinion I concur in the rendered sep- be partments government go colleague. However, I would learned distinct, neither shall ex- arate in- my so far as state it belonging to powers properly ercise the required by struction either of the others.” requires in that is unconstitutional propriety determination of province the Since the judiciary invade scope of Also, given and government. Executive Branch of exclusively powers are argument of counsel Bussey opinion, in his Judge points out department exercised the Judicial
government, provisions hold O.S.Supp.1969, 138, making manda-
tory for the courts to instruct provisions, providing its “that
provisions this section com- upon argument
mented
trial” are an unconstitutional encroachment Legislature powers upon the Judicial State. denied,
The Petition Rehearing
and the Clerk Court is directed to
forthwith issue the mandate.
Larry FUGETT, Bernard Dale Gardner Pol- lard, Bobby Wayne Connally, Error, Plaintiffs in
The STATE Defend- ant in Error. A-15244.
No. Appeals
Court of Criminal of Oklahoma. 26, 1969.
Nov.