Hill v. State , 9 Okla. Crim. 629 ( 1913 )

Without intending to be in the least disrespectful to counsel for appellant, we are of the opinion that this appeal is absolutely without merit, and that the action of the trial judge should be in all things approved.

As an act of justice to the trial court we have prepared an elaborate statement of what occurred when the motion to set aside the judgment was submitted. While it is true a defendant has the right before sentence is pronounced to give any reasons which he or his counsel may have as to why sentence should not be pronounced against him, yet a defendant in a criminal case may waive any right, not inalienable, given him by the statute or the Constitution, where it can be relinquished without affecting the rights of others, and without detriment to the community at large, and such waiver may be made either by express agreement or by conduct, or by a failure to insist upon the right in seasonable time. Scribner v. State, ante, 132 P. 933; State v.Frisbee, 8 Okla. Cr. 406, 127 P. 1091.

The record shows conclusively that immediately after the plea of guilty was entered the court doubtless through want of confidence in the good faith of appellant, asked the appellant in the presence of her counsel if she desired to waive delay and receive immediate sentence, and one of her counsel asked that the court sentence the defendant at once and have the matter gotten through with. To this appellant assented. It is therefore too late now to object that appellant was not asked what reasons, if any, she had to give why sentence should not be pronounced upon her. The answers made by appellant and her said counsel were equivalent to saying to the court, "We have no reasons to give why sentence should not be pronounced."

Counsel for appellant are not in a position to say that appellant was not in a proper mental condition to receive sentence at the time. The record shows the following:

"Mr. Disney: Your honor, I want to introduce Dr. Claud Thompson as a witness, but I can't get him here until 4:15 p.m. Mr. Leith: If the court please, what is the necessity? I can't see the relevancy of any of this testimony. The only proposition involved in this motion is as to whether or not the question propounded to the defendant whether or not she had anything to say why the sentence of the law should not be passed upon her. The Court: They are not contending here that she was not in physical and mental condition to receive the sentence of the court. Mr. Disney: Do I understand that to be agreed? Mr. Leith: Yes; that is agreed. The Court: Let the record show that it is agreed that the question of her mental and physical condition at the time of being sentenced is not at issue upon this motion, and for that reason the request of the county attorney that the hearing be postponed until the physician can arrive is denied."

Further comment is unnecessary. We find no errors in the record. The judgment of the lower court is in all things affirmed.

ARMSTRONG, P.J., and DOYLE, J., concur.