Jenkins v. State , 11 Okla. Crim. 168 ( 1914 )

The plaintiff in error, Harrison Jenkins, was convicted at the September, 1913, term of the county court of Bryan county, sitting at Durant, on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of 90 days. This appeal is by transcript only. The information follows:

"Comes now Walter J. Turnbull, the duly qualified and acting county attorney in and for Bryan county, state of Oklahoma, and gives the county court of Bryan county and state of Oklahoma, to know and be informed that the above-named defendant, Harrison Jenkins, late of Bryan county, did, in Bryan county, and in the state of Oklahoma on or about the 1st day of July, in the year of our Lord one thousand nine hundred and thirteen, commit the crime of violating the prohibition laws, in the manner and form as follows: That is to say, the defendant did in said county and state, at the above-named date, unlawfully and willfully, sell, barter, give away and otherwise dispose of certain spirituous liquors, to wit, one pint of whisky to J.A. Strutton, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma."

It is contended that the court erred in giving instruction No. 2, which instruction is as follows:

"You are therefore instructed, if you find from the evidence in this case beyond a reasonable doubt that the defendant, Harrison Jenkins, did, within Bryan county, Okla., on or about the 1st day of July, 1913, unlawfully and willfully sell, barter, give away or otherwise furnish one pint of whisky or any amount whatsoever, to one J.A. Strutton, as charged in the information, then and in that event the defendant would be guilty as charged, and you should so find in your verdict; otherwise the defendant would not be guilty, and you should so find in your verdict."

The instructions of the court should conform to the charge contained in the information and correctly state the law. Counsel having failed to bring up a transcript of the testimony, the court is not in position to determine definitely what the proof was, but it is apparent that the state relied upon an unlawful sale. Instruction No. 2 clearly indicates that fact. We are of opinion that instruction No. 2 should not have been given in the language it was given, but we cannot say it was error prejudicial to the rights of plaintiff in error, in the absence of a complete record. A correct instruction in this cause should have submitted only the proposition of whether or not an unlawful sale or barter was made within the contemplation of the statute, because that is all the information properly charges. Any person interested in the making of a sale is guilty under the law.

It is next contended that the court erred in failing to instruct upon the presumption of innocence. This instruction should always be given, but we are of opinion that in this case this oversight was unintentional, and was also without prejudice. Counsel failed to call the court's attention to the matter at the time, and failed to save any exceptions to the instructions on that ground. In Beatty v. State, 5 Okla. Cr. 105, 113 P. 237, we said:

"Where the court failed to instruct upon the presumption of innocence, but did instruct the jury fully upon reasonable doubt, and where the defendant did not request any instruction on the presumption of innocence or save an exception to the action of the court in neglecting to charge on this presumption, a conviction will not be reversed because the court omitted to give said instruction."

It is next urged that the court erred in the matter of allowing time within which to plead. The transcript shows that when the information was filed the plaintiff in error entered a plea of not guilty; that later he asked to withdraw the plea, which was granted, and filed a dilatory motion, which was overruled; that he then asked for further time in which to plead. The court granted him half an hour. Counsel fail to bring this case within the statutory rule. There was no error in this proceeding by the court. Counsel had no right to withdraw the plea in order to delay the trial, and, when the withdrawal was allowed, the time given within which to plead was in the discretion of the court, and there is nothing in the transcript to indicate an abuse of that discretion.

It is next urged that the court erred in sentencing the prisoner to pay a fine of $150 and imprisonment in the county jail for a period of 90 days. The contention of counsel is that the judgment should conform to the verdict, but no copy of the verdict is disclosed, except the recital in the judgment shown by the transcript, which reads as follows:

"We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant guilty as charged in the information and assess his punishment at $150 and 90 days' imprisonment in the county jail."

Counsel have included a notation from the judge's docket, which is as follows:

"Time set for sentencing Monday, Sept. 15th, 1913. Sept. 15. Sentence to 30 days and $150.00."

These later notations are no part of the transcript of the record, and could not be used to impeach the record proper or the recital of the verdict as it appears in the judgment. If, as a matter of fact, the court had made a mistake in rendering judgment, imposing 90 days imprisonment, when the jury intended only 30 days by their verdict, a proper motion to correct the judgment to conform to the verdict should have been made and proof offered to establish the fact. No such steps were taken. In fact, the judgment rendered and the verdict, as shown by the recital in the judgment, are the same. Each imposes 90 days' imprisonment and a fine of $150. Counsel undertake to impeach the record by filing an affidavit. This court has heretofore said that the record could not be impeached in any such manner. These corrections, if made at all, must be made by the trial court in the manner prescribed by law.

We have carefully reviewed the record, and find no error sufficient to justify a reversal.

The judgment of the trial court is therefore affirmed.

DOYLE, J., concurs. FURMAN, J., absent on account of sickness.