Wilkins v. State , 80 Okla. Crim. 142 ( 1945 )

Since the opinion in the above case was rendered on April 4, 1945, attention has been called to 21 O. S. 1941 § 64, which reads as follows:

"Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding two hundred dollars in addition to the imprisonment prescribed."

This statute was not referred to in the briefs. It will be noted that it gives the court the right to impose a fine of not to exceed $200, "in addition to the imprisonment prescribed", where no fine is provided.

It has been held by this court that where a fine is imposed in addition to the assessment of a penitentiary sentence in a felony case, the defendant can not be confined in the State Penitentiary for the payment of the fine. Ex parte Autry,58 Okla. Crim. 88, 50 P.2d 239; Ex parte Farve, 64 Okla. Crim. 326,79 P.2d 1034.

The fine here assessed is $50 in excess of the amount permitted by the statute. The original opinion was recalled for correction on April 11, 1945. It is now ordered that the original judgment and sentence be modified to a term of four years in the State Penitentiary, and a fine of $200; and the original opinion in this case is refiled.

The judgment of the district court of Delaware county, as above modified, is affirmed.