Henderson v. State , 1971 Okla. Crim. App. LEXIS 603 ( 1971 )

MEMORANDUM OPINION

NIX, Judge:

Charles Oliver Henderson was charged by information in the District Court of Oklahoma County, with Burglary Second Degree, After Former Conviction of a Felony. He was tried before a jury, found guilty, and sentenced to 11 years in the penitentiary. Defendant was represented by the Public Defender and appeals as an indigent.

The Court has examined the record thoroughly, read the briefs, and found only one error that merits consideration. The record reveals that the trial court gave an instruction as to “good time” granted a prisoner, as provided in 57 O.S.1968 Supp., § 138. This Court has heretofore declared it to be error to give such an instruction, as the statute is unconstitutional. See, Williams v. State, Okl.Cr., 461 P.2d 997.

There can be little doubt as to the prejudicial nature of such instruction and when it is given, constitutes error. However, in the instant case, it was not given until after the jury had arrived at a verdict of guilty, and could only have prejudiced the jury as to the punishment rendered.

In such an instance, this Court has consistently modified the sentence. We note from the record that the minimum sentence which defendant could have been given after being found guilty as charged was ten years. The jury assessed the punishment at eleven years. In view of the erroneous instruction, we feel justice would be best served by modifying said sentence to Ten (10) Years in the penitentiary, and otherwise affirming said judgment, and it is so ordered.

Modified and affirmed.

BUSSEY, P. J., and BRETT, J., concur.