Boykin v. State , 86 Okla. Crim. 175 ( 1948 )

I find that I am unable to concur in the majority opinion rendered in this case, and as I consider the question involved constitutes a fundamental proposition of law, I am expressing my dissent, and giving my view of the law applicable to the question involved, as I see it.

On November 7, 1931, the county attorney of Oklahoma county filed an information against the defendant J. G. Boykin, charging him with "assault with a dangerous weapon." Defendant was tried in district court of Oklahoma county before Judge George W. Clark, now deceased, and on January 26, 1932, was convicted by a jury and his punishment fixed at one year and one day in the State Penitentiary. Date for sentence was set for February 13, 1932, at 9 o'clock a. m., and an order was made releasing defendant on bond pending the hearing of his motion for a new trial. Defendant in his brief states that he appeared before the court on that date for sentence, or whatever order the court might make in the cause, or for the purpose of presenting the motion for new trial. The record does not show whether defendant appeared at that time, or did not appear. From the record as a whole, I am of the opinion that it may be inferred that he did appear, as well as to infer that he did not appear. However, this technical inference should not be made the basis of this decision, where fundamental rights of the defendant are involved.

Nothing further appears in the record until July 19, 1945, when the present county attorney of Oklahoma county had the motion for new trial set down for hearing. The defendant appeared in court at that time with his counsel and objected to the court passing on defendant's motion for new trial, for the reason that the court had lost jurisdiction to pass on such motion, by not having a hearing thereon for a period of thirteen years and five months.

On July 27, 1945, Judge Albert C. Hunt, district judge of Oklahoma county, who had become district judge long after the conviction of defendant, overruled defendant's objection to the jurisdiction of the court; on July 28, 1945, overruled the motion for new trial, and on October 5, 1945, defendant was sentenced and judgment rendered in accordance with the verdict ordering defendant to the State Penitentiary for one year and one day. From this judgment and sentence the appeal was perfected to this court.

In defendant's brief, assignment of error is as follows:

"The trial court erred in overruling the defendant's plea to the jurisdiction of said court and in attempting to render judgment and impose sentence in accordance with the verdict of the jury returned in said cause for the reason that more than thirteen years and five months have passed since said verdict of guilty was returned into court without the imposition of sentence thereon, there being no order entered postponing the pronouncement of said judgment and sentence."

Able briefs were filed by both the defendant and the state.

Defendant cites and quotes from the following cases: Ex parte Coley, 67 Okla. Crim. 482, 94 P.2d 968; Collins v. State,24 Okla. Crim. 117, 217 P. 896; White v. State, 45 Okla. Crim. 289,283 P. 581; Willard v. State, 67 Okla. Crim. 192, 94 P.2d 13; Ex parte Clendining, 1 Okla. Crim. 227, 97 P. 650,19 L. R. A., N. S., 1041; Ex parte Eley, 9 Okla. Crim. 76, 130 P. 821; Ex parte Wilkerson, 38 Okla. Crim. 86, 258 P. 1069; and cases from other states: Mintie v. Biddle, 8 Cir., 15 F.2d 931; Grundel et al. v. People, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75; State v. Sapp, 87 Kan. 740, 125 P. 78, 42 L. R. A., N.S., 249; In re Flint, 25 Utah 338, 71 P. 531, 95 Am. St. Rep. 853; Ex parte Peterson, 19 Idaho, 433, 113 P. 729, 33 L. R. A., N.S., 1067; In re Crow, 19 N.W. 713; Posvar v. McPherson, 36 Wyo. 159,253 P. 667; Corporate Authorities of Scottsboro v. Johnston,121 Ala. 397, 25 So. 809; In re Strickler, 51 Kan. 700, 33 P. 620; In re Jennings, C. C., 118 F. 479 (Missouri case); White, Warden, v. Pearlman, 10 Cir., 42 F.2d 788; Ex parte Bugg,163 Mo. 44, 145 S.W. 831; and 22 O. S. 1941 §§, 961, 962, 963.

The state cites the following cases: Barrett v. State,39 Okla. Crim. 50, 263 P. 166; Stone v. State, 55 Okla. Crim. 209,27 P.2d 1057; Miller v. Aderhold, Warden, 288 U.S. 206,53 S. Ct. 325, 77 L. Ed. 702; Ex parte Zwillman, 3 Cir., 48 F.2d 76; Dilley v. Commonwealth, 243 Ky. 464, 48 S.W.2d 1070; Davis v. Commonwealth, 230 Ky. 589, 20 S.W.2d 455.

The facts in the case of Barrett v. State, supra, and the case here before the court are quite different. In that case a motion for new trial was pending from a conviction had on February 1, 1923. On September 1, 1925, a supplemental motion for new trial was filed, and on the same day was overruled, and sentence was entered on September 2nd. In that case the court refers to the Collins case, supra, and the statement made in that case that the court may pronounce judgment at a subsequent term of the court if the judgment is "incident to the administration of justice within its conceded powers." [39 Okla. Crim. 50, 263 P. 167] The court then announced:

"We will not presume error, but will presume that it was continued for a proper purpose in the administration of justice." The court does not cite or review the authories, as was done in the Oklahoma cases above cited. It states that five years had elapsed in the Collins case, and in that case the judgment and sentence was entered on the day following the filing of the supplemental motion for a new trial. No reference is made to that part of the Collins case in which it is stated: "It cannot indefinitely suspend pronouncing judgment and sentence." The question of "reasonable" time was not considered. There can be no doubt, from the expression of the court that "almost five years elapsed" in the Collins case, that if even if that length of time had elapsed in that case it would have been held as an unreasonable time, and not an act "in the administration of justice."

The facts in the case of Stone v. State, supra, are not identical, and it seems to be based upon the case of Stuckey v. State, 47 Okla. Crim. 423, 288 P. 394. The facts in these cases and the difference in time in pronouncing judgment and sentence might be considered as coming within the rule announced in the Collins case, that judgment and sentence may be rendered at a subsequent term of the court, but they definitely would not satisfy the rule announced in that case that the postponement must be "[an] incident to the administration of justice within its conceded powers." [24 Okla. Crim. 117, 217 P. 898] These cases were written by the same judge, and no reference is made to the Collins case and other Oklahoma cases heretofore cited.

The case of Ex parte Zwillman, supra, was an action in a federal court for writ of habeas corpus, and the writ was denied upon the ground that federal courts will follow construction of state statutes as interpreted by the courts of the respective states. The case had been decided by the Supreme Court of New Jersey. Zwillman v. State, 152 A. 775, 9 N.J. Misc. 66. The merits of petitioner's contention were not passed upon. The facts were governed by a special New Jersey statute. There was very little delay in this case.

The facts in the two Kentucky cases cited by the state are not such as to be of any value to a decision in this case, and especially in view of the decisions of our own court heretofore cited.

Miller v. Aderhold, supra, was a case in the Supreme Court of the United States, deciding an appeal in a federal case on habeas corpus. The defendant was convicted in the State of Georgia on December 10, 1930, on a plea of guilty, and sentence was suspended and he was discharged. At a subsequent term, on June 17, 1931, the defendant was by another judge sentenced to four years' imprisonment. An application for habeas corpus was denied by the Federal District Court for the Northern District of Georgia. The Circuit Court affirmed the judgment (5 Cir.,56 F.2d 152) and the case was appealed to the Supreme Court of the United States. The question considered by the court was the power of the court to impose sentence at a subsequent term. The court, after stating: "The decisions on the point are in conflict. The greatest number support the view of petitioner," reaches the conclusion that "The weight of reason is the other way." The court discusses and quotes from the case of Mintie v. Biddle, 8 Cir.,15 F.2d 931. This case is cited and relied upon by the defendant.

I see a difference in the facts in the Miller case because there was a delay in pronouncing sentence of only from December 10, 1930, to June 17, 1931, and the rule announced in the Collins case and adhered to in the Coley and White cases, supra, clearly states that a judgment and sentence may be entered at a succeeding term yet the court "cannot indefinitely suspend pronouncing judgment and sentence." The Supreme Court in affirming the judgment in the Miller case [288 U.S. 206,53 S. Ct. 326] bases the decision upon the proposition that the defendant could have ended the delay by "requesting the court to pronounce judgment, which the court no doubt would do unless good cause to the contrary were made to appear. In the absence of such request he must be held to have consented to the indefinite delay, and cannot complain."

This argument does not appeal to the writer of this dissent, when viewed with the facts in the instant case, and in view of the decisions in the cases from this court hereinbefore cited. It does not consider the question of the injustice which may be done a defendant by the delay. Of course, there was no such unreasonable delay in that case as in the instant case. If there had been a delay of thirteen years and five months, as in the instant case, and the court had considered the "reasonable time" and the administration of justice, the decision, in my opinion, would have been different.

For a period of thirteen years and five months no step was taken by the officers of Oklahoma county to dispose of defendant's case. Was there not some affirmative duty imposed upon them to examine their court dockets during this extended time and dispose of this case? Did the defendant not have the right to presume that there had been an abandonment of this case, and that there was no intention on the part of the officers of Oklahoma county to again revive it? Is it a fair and impartial administration of justice to wait for thirteen years and five months, and then when something happens which causes an officer to search the records and place a case like this on the docket which for such a length of time had remained dormant? If the motion for new trial had been sustained when it was finally called up, the witnesses of defendant may well have left the state or have been dead, and not subject to the process of the court. The same applies to the witnesses for the state. The further argument and reason for not permitting such delay in pronouncing judgment and sentence is that to do so would place in the courts the pardoning power, which, under the Constitution, is reposed in the Governor, and not in the courts. This question will be discussed further in the latter part of this opinion.

The facts in the case of People v. Barrett, 202 Ill. 287,67 N.E. 23, 24, 63 L. R. A. 82, 95 Am. St. Rep. 230, cited and quoted from by Judge Doyle in the case of Willard v. State, supra, are almost identical with the facts in the instant case; and, in my opinion, the logic and reasoning used therein are unanswerable.

There, the petitioner applied for a writ of habeas corpus. Here, it was a direct appeal from the judgment and sentence. He was indicted in Cook County, Illinois, in 1898. He was tried and found guilty of grand larceny April 12, 1900. He immediately filed a motion for new trial (just as in the instant case). Not being able to make bond, he was remanded to the custody of the sheriff. On May 5, 1900, the motion for new trial was continued (just as in the instant case) and he was released on his own recognizance in the sum of $500, without sureties (here he executed a bond with sureties), for his appearance before the Criminal Court of Cook County on May 7, 1900, "and from day to day and from term to term" until the final order of the court, or until released from custody. He was thus released while the motion for new trial was pending (just as in the instant case) and no further action was taken until October 31, 1902, two years and five months from his release, when the same judge and court before whom he was tried and convicted overruled his motion for new trial. He then filed a motion in arrest of judgment, contending that the court lost jurisdiction by reason of the lapse of time, and on November 11, 1902, his motion was overruled and he was sentenced and entered the penitentiary. He immediately filed a petition for habeas corpus, as above stated.

No state of facts could be more in point with the facts in the instant case. The court did not hold, as does the majority opinion in the instant case, that the defendant had the duty of calling up the motion for new trial and that he was the cause of the delay by the filing of the motion for a new trial; but the unanimous opinion of the Supreme Court of Illinois was that the court and prosecuting officers of Cook county had a duty and responsibility to perform, and that it was their duty as judge and officers to see that there was no unusual and indefinite delay in the pronouncement of judgment and sentence after the trial and conviction; and that the pending of a motion for new trial (as in the instant case) was no reason for delay on the part of the court, and that a delay of two years and five months was an unreasonable and unwarranted delay, and such delay was in no way a compliance with the rule announced in all of the cases, that the delay may be granted in the pronouncement of judgment and sentence as "an incident to the administration of justice within its conceded powers," for a reasonable time, but that the court can not and should not delay the pronouncement of judgment and sentence so that it interferes with "the administration of justice."

In the Barrett case, supra, there was a delay of two years and five months. In the case at bar, the delay was thirteen years and five — almost six — months.

Listen to the quotations of the Supreme Court of Illinois from other state courts, as reasons for its holding: Quoting from People v. Blackburn, 6 Utah, 347, 23 P. 759, 760:

"It is the duty of the court (not the defendant) to keep the control of the case, and within a reasonable time to proceed to give judgment, and in doing so to exercise such discretion as the statute governing the particular offense commits to the court."

And from Weaver v. People, 33 Mich. 296:

"The failure to take steps during the October term 1874 was a practical abandonment of the prosecution, and corroborates the opinion that such must have been understood as the object of the suspension, and, as the record stands, it is fairly to be inferred it was intentional."

The court also quotes from the case of People v. Reilly,53 Mich. 260, 18 N.W. 849, 850, in which Judge Champlin of the Supreme Court of Michigan said:

"I do not think it is competent for a circuit judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of suspending sentence operates as a quasi pardon. It relieves the offender for the time being from the punishment which the law has prescribed shall be inflicted. The pardoning power under our constitution is reposed in the governor and not in the judges. It is for the governor to say whether the criminal shall be relieved from the infliction of the penalty due to his crime. The constitution having vested this power in the governor, it cannot be exercised by the circuit judges indirectly by letting the prisoner to bail on recognizance to appear when required to receive sentence. * * *

"If such power can be exercised by a judge, it incorporates into our administration of the criminal law the 'ticket-of-leave' system of the English jurisdiction, without its surveillance and checks, and places the criminal at the caprice of the judge, subject to be called up for sentence at any time. If the judge can delay the sentence one year, I do not see why he may not fifteen years. An exercise of such power in this age would be no less revolting to our sense of justice than was the exercise of such power in the reign of James I., when he sent Sir Walter Raleigh to the block 15 years after his conviction."

In the Reilly case a little more than one year had elapsed from the time Reilly was convicted of the crime of larceny before he was sentenced.

The Supreme Court of Illinois, in the Barrett case, quotes from the case of Neal v. State, 104 Ga. 509, 30 S.E. 858, 860, 42 L. R. A. 190, 69 Am. St. Rep. 175, where the Supreme Court of Georgia said:

"The power to indefinitely postpone the punishment prescribed by the law, whether exercised by suspending the imposition or by suspending the execution of a sentence, is the power to perpetually prevent punishment, — a power which, under such provisions as are found in the constitution of this state, does not exist in the courts."

The Supreme Court of Illinois then says [202 Ill. 287,67 N.E. 27]:

"It is true, there was in the case of the relator amotion for a new trial pending (just as in the instant case) which was continued to the next term; but nothing was done in the matter, (just as in the instant case) although numerous terms intervened for 29 months. We are of the opinion that this was an unreasonable and unwarrantable delay — it being entirely unexplained by anything in the record (just as it was in the case at bar) — and that the court, in view of all the circumstances * * * lost jurisdiction of the case, and that the subsequent sentence was without judicial authority."

And quoting from the case of People v. Allen, 155 Ill. 61,39 N.E. 568, 41 L. R. A. 473:

"If such power remained in the court three years, it would continue indefinitely, and might be exercised at any future time; and that, too, without any reason for doing so, except such as might exist in the mind of the judge causing the rearrest, and pronouncing judgment * * *.

"The state has a right to demand, and the welfare of societyrequires, that those who are convicted or plead guilty toviolations of the law shall be promptly and certainlypunished."

In the Collins case, supra, the following quotation from the case of People v. Barrett, supra, appears [24 Okla. Crim. 117,217 P. 898]:

"Long and unreasonable delays in passing upon motions for new trials or in arrest of judgment are calculated to obstruct the administration of public justice and to operate as a denial of the right of the citizen to a speedy trial. It is said, however, in this case, that all the delay was with the consent of the relator, and that he cannot now be heard to complain. It cannot, of course, be contended that the doctrine of estoppel has any application here, nor can it be held that the relator could waive any requirement respecting the jurisdiction of the court to enter judgment and pronounce the sentence. If the court had no power thus indirectly to suspend sentence and to permit the relator to go at large upon his own recognizance or upon parole,such power could not be conferred by his consent nor by hisexpress request. Harris v. People, 128 Ill. 585, 21 N.E. 563,15 Am. St. Rep. 153; Morgan v. People, 136 Ill. 161,26 N.E. 651. The rendering of judgment and the final sentencing of thedefendant cannot be made a mere matter of discretion with thejudge or the public prosecutor, nor to depend upon thesubsequent conduct of the convicted person. If it were so, what subsequent conduct would demand or justify the pronouncing or the withholding of the sentence? And who would determine its character? Such conduct might be innocent in itself yet offensive to those in whom the power to apprehend or to punish resided. The liberty of the citizen cannot, in a free country,be made to depend for its security on the arbitrary will of anypublic officer; it can be taken from him by due process of lawonly."

And further quoting the case of People v. Barrett, supra, the Supreme Court of Illinois said:

"The act of 1899 providing a system of parole (Hurd's Rev. St. 1901, p. 669) is the only law in this state authorizing the parole of a person convicted of crime. Provisions are made and means and instrumentalities are provided for its uniform operation and for its due administration. If the many criminal courts of the state had the power to enlarge persons convicted of crime, on their own recognizance, during their good behavior or at the discretion of the presiding judge, there would, in effect, be in full force another and different system of parole, without bounds or limitations and without uniformity, but wholly dependent in its operation in each individual case upon the discretion of the sitting judge. We are of the opinion, as we have already said, that no such power exists in the courts.

"It follows that the imprisonment and detention of the relator by virtue of the mittimus issued in pursuance of the judgment and sentence so rendered were without authority of law, and that he should be, and accordingly is, discharged therefrom. Relator discharged."

I quote from the case of Mintie v. Biddle, 8 Cir.,15 F.2d 931, 932, cited by defendant. The logic and reasoning there is so convincing that I do not hesitate to adopt it as my reasoning in this case. There the court says:

"We have no doubt that, after a plea of guilty or after conviction of one guilty of a crime, sentence may be deferred at convenience till some day, or any day in the current term. This is so, because the court ordinarily retains jurisdiction over its judgments for the current term in all cases. Nor have we any doubt that sentence may, in furtherance of the administration of justice, be deferred to some day in the next term or even to some definite time in the second succeeding term (Ex parte United States, 242 U.S. 27, 37 S. Ct. 72,61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), by an order made in the case (Miner v. United States, 3 Cir.,244 F. 422, 157 Cow. C. A. 48, 3 A. L. R. 995; Ex parte Singer, 3 Cir.,284 F. 60). But, in the instant case, sentence was not deferred to a day certain, or to a term certain; it was in effect deferred indefinitely. For the court omitted to make an order deferring sentence. He merely said, in substance, to petitioner, that the latter should keep the district attorney advised of his whereabouts and appear for further proceedings when notified. It is true, that the case, wherein petitioner and his codefendants stood indicted, was then continued till the next term. No serious question, we think, could have been raised had sentence been pronounced at the term to which the case of defendant had thus been continued. But this was not done; no orders in the case were entered at the latter term. But, after the term to which continuance was thus had, some four terms elapsed before any other order was made of record in the case. The language of the court connotes clearly an indefinite postponement of the imposition of sentence on petitioner. It may well be, other things being equal, that, if the case had, at the next time, been further postponed by an order of continuance, and so on, from term to term, such order, or orders of continuance would have afforded such definiteness of deferment of sentence, as to have taken from the case the illegality created and existing, by reason of the language of the court, and the lack of the existence of record of an order definitely deferring sentence. But no such situation is presented by the record, and no occasion arises to speculate about an hypothetical situation.

"So the question presented by the case is whether the trial court, by postponing the sentence of petitioner indefinitely, lost jurisdiction to lawfully impose a sentence on him at all.

"We think it did, and we think the great weight of the ruledcases, as well as of the analogous authorities and the reasonof the thing, lead to the same conclusion. Some latitude of action of the court, referable to the furtherance of the administration of justice, of course exists. Deferring of a sentence to a day, or term certain by affirmative orders in furtherance of justice, or for the purpose of observing the behavior of a defendant, so that less punishment, if he behave, shall be inflicted than if he does not behave, is legally permissible. For the former may be and the latter is for the benefit of defendant, and to such action, within reasonablelimits, he could not be heard to complain, for, if he did not get that, he would likely have to accept worse. Here, however, the government, for its own ends and convenience deferred sentence till such time as the district attorney might see fit to notify defendant to appear. Thirty-four months passed, and then defendant was notified to appear as a witness, and not as a defendant. Obviously, the matter of the furtherance of the administration of justice is not a unilateral one. The accused is due some modicum of consideration. It is not alone the endsand accommodation of the government which are to be consideredand subserved; but those of the defendant as well. Held thus in suspension indefinitely and for a period which turned out to be thirty-four months, defendant could, in the interim, make no plans, enter into nocontracts, engage in no permanent occupation, and bind himselfto no obligations, or create any permanent ties, business ordomestic."

The court then cites and quotes from the cases of United States v. Wilson, C. C., 46 F. 748; Ex parte Singer, 3 Cir.,284 F. 60; Ex parte United States, 242 U.S. 27, 37 S. Ct. 72,61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, and concludes:

"The great weight of authority in the state courts is in favor of the rule that (absent a statute, and there was no such federal statute when the matter complained of, in the case at bar, occurred) when sentence is indefinitely deferred by an order of court (except to an indefinite day in the current term), the court loses jurisdiction to impose a legal sentence."

The court then cites a long line of cases from the Supreme Courts of the various states, including the Collins case, supra, and Ex parte Clendining, supra.

The logic and reasoning in the Mintie v. Biddle case is, in my opinion, unanswerable. It recognizes both the rights of the state and of the defendant. Thirty-six months had passed in that case before sentence was passed. Here, thirteen years and five months had passed. It was held that the government had a duty and responsibility to perform and they failed to meet it. Can the majority opinion be upheld in the face of the argument in this case, that all of the duty and responsibility was upon the defendant, and none upon the court? The argument that "justice though long delayed should be meted out to him," as expressed in the majority opinion, should, in my opinion, have little weight when the rights of the defendant are considered in this case. It seems to me as it has to the judges of the Supreme Courts of Illinois, Michigan, Georgia, Utah, Colorado, Kansas, Idaho, Wyoming, Alabama, Missouri, and the Eighth Circuit Court of Appeals, and others that the statement in the Mintie v. Biddle case, supra [15 F.2d 933], is a complete answer to this when it is said:

"Obviously, the matter of the furtherance of the administration of justice is not a unilateral one. The accused is due some modicum of consideration. It is not alone the ends and accommodation of the government which are to be considered and subserved; but those of the defendant as well. Held thus in suspension indefinitely and for a period which turned out to be thirty-four months, defendant could, in the interim, make no plans, enter into no contracts, engage in no permanent occupation, and bind himself to no obligations, or create any permanent ties, business or domestic."

The majority opinion is based primarily upon the following Oklahoma cases: Stone v. State, supra, Stuckey v. State, supra, and Barrett v. State, supra. I have heretofore noted a distinction in those cases and the case at bar. We have carefully examined the cases cited in the Stuckey case, and this is the only case which cites other cases. I now desire to refer to these cases, written by Judge Chappell, a former member of this court.

In the case of Ex parte Sparks, 9 Okla. Crim. 665, 132 P. 1118, the facts were that the defendant was convicted of the crime of murder in Choctaw county, in January, 1913. An epidemic of smallpox was prevalent in Choctaw county, and the district judge, who lived in Marshall county, by agreement of counsel for the state and defendant, continued sentencing of defendant until the first day of the next term of court at Hugo, in Choctaw county. The defendant, over his objection and exception, was sentenced by the court to life imprisonment. It will be noted that this was at the next term of court. There was no extraordinary or unreasonable delay, and nothing that would interfere with "the administration of justice within its conceded powers." The question of unreasonable delay was not presented or considered in this case, and the judgment was in conformity with the written orders of the court.

In the case of People v. Felix, 45 Cal. 163, there was no unusual delay, and it only decides that a judgment and sentence may be entered at a succeeding term. This is in no way in conflict with the holding in the Collins case. The question of unreasonable or unwarranted delay is not discussed.

In the case of Thurman v. State, 54 Ark. 120, 15 S.W. 84, the defendant escaped immediately after conviction, and before sentence was pronounced. He was later recaptured and the court held he could then be sentenced. It is obvious that this could be done.

The case of State v. Overton, 77 N.C. 485, has no application to the fact similar to those in this case.

In the case of State v. Watson, 95 Mo. 411, 8 S.W. 383, the defendant was charged with murder and convicted of manslaughter in the third degree, in 1882. He filed motion in arrest of judgment and for a new trial, which were overruled at that term, and the defendant appealed to the Supreme Court of Missouri. The case was stricken from the docket for the reason that no formal judgment and sentence had been entered in the case. At the June term, 1885, of the Circuit Court the defendant was brought before the court and sentenced in accordance with the former verdict, and this whole record was brought before the court, and the court held that by reason of the appealing of the case, the defendant had delayed the sentence, and in compliance with the rule announced that a sentence could be pronounced at a subsequent term, it was not error for the court to pronounce sentence in this case. The case was reversed and remanded for other reasons.

In the case of People v. Blackburn, 6 Utah 347, 23 P. 759, the facts were that application was made to the Supreme Court of Utah for a writ of mandamus to require the district court to enter a judgment and sentence against the defendant Blackburn, who had been convicted of voluntary manslaughter on September 26, 1889. On October 10, 1889, the day defendant had been ordered to appear for sentence, the court, upon motion of defendant, for good reason shown, entered an order suspending the sentence during good behavior. There was of course no statute authorizing the suspension of sentence by the court. The Supreme Court, in refusing to issue the writ of mandamus, said:

"Ample authority is vested in the court by the statutes of the territory and rules of practice to set aside verdicts for errors or want of proof to support them; but this power was not invoked in this case, and Dodds stood convicted before the court of the crime of voluntary manslaughter by a verdict which was in full force and effect. After conviction the trial court may, undoubtedly, suspend judgment temporarily, for stated periods, from time to time. It may be proper to do so to allow the defendant time to move for a new trial, to perfect an appeal, to present a petition for pardon, and to allow the court time to consider and determine the sentence to be imposed. People v. Reilly, 53 Mich. 260, 18 N.W. 849; Whart. Crim. Pl. § 913; Commonwealth v. Dowdican's Bail,115 Mass. 133; State v. Addy, 43 N.J.L. 113; [39 Am. Rep. 547]. But when a defendant stands convicted, and all the remedies provided by law for testing the correctness of the conviction have been exhausted or waived, we have no doubt it is the duty of the court to keep control of thecase, and within a reasonable time to proceed to give judgment, and in doing so to exercise such discretion as the statute governing the particular offense commits to the court. Theauthority to wholly relieve parties from a conviction for crimeis not given to the courts, but belongs to the pardoning power. People v. Reilly, 53 Mich. 260, 18 N.W. 849; People v. Brown,54 Mich. 15, 19 N.W. 571. It is apparent from this record that it was not intended by the court to temporarily suspend judgment, but, on the contrary, to entertain the prosecution no further, and to discharge the defendant therefrom without sentence."

The holding in this case, in my opinion, is directly against the proposition which it is cited to sustain.

Under the facts of the case at bar, did the defendant not have a right to assume that after a delay of thirteen years and five months it was the intention of the court that he should not be prosecuted further? The court before whom he was tried had long since died. He was the only one qualified to properly pass upon the motion for new trial. This presumption on the part of the defendant would have been fully justified.

The case of People v. Manes, 104 Cal. App. 493, 285 P. 1073, has no application to the facts here presented.

From a careful review of these cases cited by Judge Chappell to support the decision in the Stuckey case, supra, it seems they were cited without reading or considering the same, and while the holding in that case is not in absolute conflict with the previous decisions of the Collins and White cases, it is evident that the court did not consider the decisions of Judge Doyle and Judge Davenport and the cases cited by them in the Collins and White cases.

I now wish to refer to the decisions of this court where the question here involved has been considered.

I have already referred to the cases cited in the majority opinion, and have called attention to the difference in the facts in those cases and the case at bar.

In the Collins case, supra, the facts were that the defendant was tried and convicted in the superior court of Muskogee county upon a misdemeanor charge, on January 18, 1917. The court fixed the day for sentence at January 22, 1917, and defendant was released on his bond. On that date the case was passed for sentence until January 25, 1917. Defendant filed a motion for new trial, and the same was pending. On January 27, 1917, the court was informed that the defendant Collins had been convicted in the federal court and sentenced to serve a term in the penitentiary at Leavenworth, and ordered that the proceedings against him "be stayed and continued until such time as the defendant, Matt Collins, shall be out of the custody of the United States Marshall on bond or otherwise." On March 17, 1917, the superior court of Muskogee county made an order suspending the sentence of defendant Collins until "he may come into the custody of the sheriff of this county."

Thereafter the superior court of Muskogee county was abolished by an act of the Legislature, effective March 24, 1921, § 3137, O. S. 1921. By the terms of that act it was provided:

"All criminal cases of which the county court * * * has jurisdiction, * * * which are now pending in said superior court are hereby transferred for hearing, trial and determination, or any other proceeding proper therein, to such county court with the same effect as if such causes had been originally instituted therein, and such county court is hereby constituted the successor of such superior court as to all such causes so transferred."

On September 10, 1921, the county attorney of Muskogee county moved for judgment and sentence on the verdict of the jury returned in the superior court on January 18, 1917. The question was raised that the county court was without jurisdiction to render judgment under said verdict, for the reason the court had lost jurisdiction on account of the delay. The court refused to sustain the objection and sentenced defendant to imprisonment in the county jail for six months, and to pay a fine of $500. During all this time, the motion for a new trial had been pending in the superior court. Under the state of facts, which are identical with the facts in the instant case, Judge Doyle in rendering the opinion, after referring to the statutes in reference to the pronouncing of sentence, said [24 Okla. Crim. 117, 217 P. 897]:

"Under the foregoing provisions it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a reasonable time. However, there can be no doubt that a court has the right to delay the pronouncement of judgment for the purpose of hearing and determining motions for a new trial or in arrest of judgment, or for other proper causes; but to suspend indefinitely the pronouncing of judgment and sentence after conviction is not within the power of the court." (Citing a long list of cases.)

After this statement, the court quoted from the cases from the Supreme Courts of Utah, Michigan and Illinois to which reference has already been made, and which will not be repeated.

Judge Doyle, in the Collins case, distinguishes some Oklahoma cases, and then says:

"It seems to be well settled that, in the absence of a statute to the contrary, sentence need not necessarily be imposed at the same term of court at which the verdict or plea of guilty was had, and, if the court's purpose in postponing the imposition of sentence is incident to the administration of justice within its conceded powers, andits orders postponing sentence are unconditional and todefinite periods, the jurisdiction of the court to impose sentence at a term after the trial term is not affected. * * *

"Upon a careful review of the record in this case, we are convinced that the trial court lost jurisdiction to pronounce judgment on the verdict returned on January 18, 1917. By the order of the trial court entered on March 17, 1919, no definite time was fixed within which sentence should be pronounced. The failure of the trial court to enter judgment at the time appointed or when the order of postponement was made, or at the succeeding term, was, we think, a practical abandonment of the prosecution, and the trial court having failed to exercise its power to pronounce judgment in the defendant's absence in term time, or during the succeeding term, or to enter proper orders postponing the time when sentence should be pronounced, lost jurisdiction to pronounce judgment on said verdict long before said court was abolished.

"It follows that the county court, as the successor of said superior court, had no authority or jurisdiction to pronounce judgment and sentence on the verdict."

How the majority opinion in the case at bar can get around this decision is beyond me. Certainly it is not an answer to state that the court took the view that the court decided the case on the ground that "the vice of allowing a trial court to do indirectly that which it was not authorized to do directly." There was a motion for new trial pending in the Collins case, just as there was in this case, and the court did not hold that by reason of this pending motion the defendant had waived any right, and that it was no less the duty of the court to pronounce the judgment and sentence within a reasonable time and that the act of the court was not "incident to the administration of justice within its conceded powers."

In the case of White v. State, supra, the agreed statement of facts show that the defendant White was charged on June 5, 1925, with the crime of forgery in Woodward county. On September 14, 1925, he entered a plea of guilty, and was required by the court to pay the costs, pay the prosecuting witness the sum of $15, the amount of the forged check, and was then paroled without judgment and sentence and released on his own recognizance, without stating any date for further judgment and sentence. On December 17, 1927, the defendant was cited and brought before the court, and on January 2, 1928, more than two years after his plea of guilty, over his objection that the court had lost jurisdiction to sentence him was overruled, he was sentenced to three years in the Granite reformatory, and the case was appealed to this court.

It will be noted that the facts in this case are not identical with the facts in the instant case and the Collins case, as the defendant entered a plea of guilty and no motion for new trial was filed. But this court did not base its decision upon that question and cited and followed the Collins case. The court said [45 Okla. Crim. 289, 283 P. 582]:

"We hold that, in view of the length of time elapsing between the plea of guilty entered by the defendant, which was more than two years, (here it was thirteen years and five months) and the failure of the court to enter judgment at the time appointed or at any succeeding term and as no definite time was fixed in which the defendant should appear for sentence, theprosecution was abandoned and the court was without jurisdiction to pronounce the judgment and sentence."

The defendant was ordered discharged.

The reasoning in this case is certainly applicable here, and is in conformity with the decisions of the Supreme Courts of the many states I have cited.

In the case of Ex parte Coley, 67 Okla. Crim. 482, 94 P.2d 968, the petitioner, Harry Coley, filed a petition for habeas corpus in this court, asking his release from the jail of Seminole county. The agreed statement of facts was that defendant on March 21, 1938, entered a plea of guilty in eight misdemeanor cases in the county court of Seminole county, and sentence day was set for April 4, 1938. On that date the judgment and sentence was postponed and continued by order of the court until June 2, 1939. No further order or action was taken therein until September 26, 1939, at which time judgment and sentence was pronounced and petitioner was remanded to the custody of the sheriff to serve judgment and sentence.

This court, after citing and quoting from the Collins and White cases, followed the rule there announced and granted the writ of habeas corpus and ordered the petitioner discharged. The syllabus reads:

"Sentences need not necessarily be imposed at the same term of court at which the verdict or plea of guilty was had, and, if the court's purpose in postponing the imposition of sentence is incident to the administration of justice within its conceded powers, and its orders postponing sentence are unconditional and to definite periods, the jurisdiction of the court to impose sentence at a term after the trial term is not affected. But in the case at bar several terms of court had passed and no order was entered postponing the pronouncement of judgment and sentence. The court, under the law, had lost jurisdiction."

I call attention to the fact that in this case, as in the Collins case, the court held that it was not necessary that the judgment and sentence be pronounced at the same term of court at which the conviction or plea of guilty is entered, especially if the imposition of sentence is "incident to the administration of justice within its conceded powers" and the judgment and sentence is rendered within a reasonable time.

The cases cited and relied upon by the majority opinion in this case all announce the doctrine as above stated; and I have been unable to find any case which holds that the time as in this case, of thirteen years and five months, was not an unreasonable and unwarrantable time for a court to sit and do nothing toward the entering of the judgment and sentence in compliance with the verdict of the jury. The answer that a motion for new trial was pending and that defendant could have called it up is, to me, a technical excuse that fails to consider that the court who had charge of its records had a duty and responsibility even greater than the defendant. The law is more fundamental and is for the protection of the defendant, as well as the state, in my opinion.

A statement made by Judge Albert C. Hunt at the time of overruling the motion for new trial and entering judgment and sentence has been quoted in the majority opinion. No one has more respect for Judge Hunt, and for his ability as one of the leading district judges of this state, than the writer of this dissent. I also realize that a trial judge is much more handicapped than is the appellate judge, in that it is often necessary for him to come to a hasty decision when he does not have the time or opportunity to carefully review the decisions of the various courts of the country, or even of our own courts, before making his decision for the proper dispatch in the trial of a given case. But this is no excuse for the appellate judge where a case has been carefully briefed, and who has time for exhaustive research of all the authorities before arriving at a conclusion as to what the law is or should be. It is after this careful consideration of the cases cited, and many others examined from other states and the decisions of this court, as well as a careful examination of the record, that I have come to the conclusion that under the facts here presented this case should be reversed and remanded, and an order entered discharging the defendant. If this be not true, you have laid down the bars so that a court may exercise the pardoning power according to his own ideas and desires, whether good or bad, when this power, under our Constitution, is bestowed only on the Governor of the state, and on the recommendation of the Pardon and Parole Board.

Suppose that some person is convicted and found guilty by a jury, and a judge for some reason does not desire that he be punished. Counsel representing the defendant knows this, and he files a motion for new trial. No order is made thereon, and it lays dormant for a great number of years, as in the instant case. Is any attorney going to urge the court to take action in the matter so long as his client is free? The statement of the question is a refutation of the same. No lawyer would do that. Is there not some duty of the court and the prosecuting officers, who have charge of the docket and cases in the court, to see that within a reasonable time action is taken as the law requires, and that the sentence of the law is carried out within a reasonable time, as the law provides? In my opinion, it was never intended that the courts of this state should have this power for good or bad to delay this official duty for a time of thirteen years, five months and twenty-three days — almost thirteen and a half years — as was done in this case.

I have to some extent quoted from some of the cases on the question of the failure of the court to pronounce judgment and sentence within a reasonable time after the conviction of a defendant, or a plea of guilty, for the reason that to do so places in the courts the pardoning power, which under the Constitution is vested in the Governor of the state, and under our Constitution acting upon the advice and recommendation of the Pardon and Parole Board.

I close this opinion with a quotation from the case of People v. Reilly, supra, where the Supreme Court of Michigan says [53 Mich. 260, 18 N.W. 850]:

"I do not think it is competent for a circuit judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of suspending sentences operates as a quasi pardon. It relieves the offender for the time being from the punishment which the law has prescribed shall be inflicted. The pardoning power under our constitution is reposed in the governor, and not in the judges. It is for the governor to say whether the criminal shall be relieved from the infliction of the penalty due to his crime. The constitution having vested this power in the governor, it cannot be exercised by the circuit judges indirectly by letting the prisoner to bail on recognizance to appear when required to receive sentence. A stay of sentence may be granted where a certiorari is sued out, or when a writ of error is obtained for the purpose of review by the higher courts. Temporary stay may also be granted where steps are taken for a new trial; but all these are steps in the progress of the case, taken for the purpose of bringing about a change in the result."

This argument, in my opinion, cannot be answered. What does the court mean when it says: "Temporary stay may also be granted where steps are taken for a new trial?" It certainly did not mean that the postponement could be for an indefinite period, either by the court or the defendant. The due administration of justice by the courts refutes this. What was meant by the Supreme Court of Illinois when it said, in the Barrett case [202 Ill. 287, 67 N.W. 28]:

"Long and unreasonable delays in passing upon motions for new trials or in arrest of judgment are calculated to obstruct the administration of public justice"?

Certainly this statement did not mean that a defendant could sit idly by and defeat the purpose of the law by failure to press his motion for new trial.

No, these expressions placed the duty upon the court where it should be placed if law and procedure is to prevail. As stated in all the cases, it was not intended that the pardoning power of the state should be placed in the courts, instead of in the hands of the Governor, as designated by the Constitution.

I do not deem it necessary to refer to that part of the majority opinion which attempts to bolster its decision by referring to the Oklahoma statute which now gives a district judge the power to suspend sentences in this state. Suffice it to say that this statute was not enacted until long after this defendant had been convicted. Nor to the question of a speedy trial, which is in no way involved in this case.

I have extended this opinion for the reason that I consider the question involved is fundamental, and therefore desired to express my view of the law. I recognize the rule that dissenting opinions are not to be favored unless fundamental principles are involved.

Since writing the above, the majority opinion has been practically entirely rewritten. I do not desire to further lengthen this opinion, as the above states fully my views as to the fundamental principles involved in this case.

As hereinbefore stated, I am of the opinion that this case should be reversed and remanded, and an order entered discharging the defendant for the reason that the court, by delaying for a period of thirteen years and five months to pronounce judgment and sentence, had lost jurisdiction.