In Re Opinion of the Judges , 24 Okla. Crim. 5 ( 1923 )

According to the provisions of section 2784, Comp. Stat. 1921, it is made mandatory upon the trial judge when judgment of death is rendered to appoint a day upon which such judgment shall be executed, which day must not be less than 60 days nor more than 90 days from the date of the rendition of judgment. He must also direct the sheriff to deliver the defendant within 10 days from the date of the judgment to the warden of the state prison at McAlester, to be dealt with in accordance with the judgment and sentence. The record shows that the judgment fixed the date of execution within the time provided by law, and that the warrant directing the sheriff to transmit the defendant to the penitentiary was in conformity with this statute.

Sections 2805 and 2808, Comp. Stat. 1921, provide that every defendant in a criminal case, as a matter of right, may appeal from a judgment against him within six months from the date of the rendition of judgment. It will be seen, therefore, that this defendant's time in which to appeal will not expire until November 7, 1923, after the date set for the execution of the sentence of death. The record submitted shows that the defendant has given notice of his intention to appeal from the judgment rendered, and that he has taken steps to perfect his appeal to this court.

After the delivery by the sheriff of the defendant to the warden of the penitentiary pursuant to such judgment, the trial court has no authority to extend the time of execution, and this court has no jurisdiction and will acquire no jurisdiction to suspend sentence until the appeal has been filed in this court. It is the advisory opinion of this court that the only way to preserve to the defendant his right of appeal for the full period of six months will be for the Governor of this state to suspend the execution of the judgment until after the expiration of the 6-month period. Section 2787, Comp. Stat. 1921. In re Ledbetter,18 Okla. Crim. 366, 195 P. 151; In re Opinion of the Judges,17 Okla. Crim. 369, 189 P. 198.

We have carefully examined the authenticated transcript of the record in this case, including the testimony and other proceedings, and find that there was a proper observance of all the regularities and formalities of law essential to the rendition of a judgment involving the taking of human life, and that the trial, conviction, and sentence of death were all had and done in substantially the manner and form provided by the laws of this state.

MATSON, P.J., and DOYLE, J., concur.