Gant v. Raines , 377 P.2d 603 ( 1962 )

BUSSEY, Judge.

On the 30th day of October, 1961, Don Gant, hereinafter referred to as defendant, filed an application for Habeas Corpus in Court of Criminal Appeals Docket No. A-13,137. Thereafter, on the 12th day of June, 1962, he perfected an appeal from the judgment and sentence rendered against him in the District Court of Creek County, assessing his punishment at a term of 15 years in the State Penitentiary at McAlester, Oklahoma, for the Crime of Rape in the First Degree.

Since the issue forming the foundation for the defendant’s application for a Writ of Habeas Corpus is urged as one of the grounds for reversal, Court of Criminal Appeals Cases Nos. A-13,137 and A-13,223 are consolidated in this opinion.

Briefly it appears from evidence introduced at the trial, that on the evening of July 23, 1961, the defendant and the complaining witness, Shirley Green accompanied by another couple left a tavern in Keifer, where Miss Green was employed, after the establishment was closed, around midnight, and drove to Tulsa, Oklahoma. After visiting several night spots in Tulsa, the defendant drove the other couple home, and then proceeded to park on a country-road with Miss Green.

Miss Green testified that the defendant forced her into the hack seat of his car, and there sexually molested her. That after attacking her, he had driven her back to her car and let her out around 5:30 A. M.; and that from a near by phone booth she had called her mother. She was taken to a local hospital where the family doctor examined her and found that she had had sexual relations.

Defendant testified that after leaving the other couple, Miss Green had insisted on taking a ride, then parking, and after he had parked the car, had climbed into the back seat and disrobed. He further testified that she had asked him to join her there; he had refused and after thirty minutes of “wiggling”, she had climbed back into the front seat and he had driven her to her car. Thereupon, he returned home, where he was arrested around ten the next morning.

There are four assignments of error, three of which will not be considered in this opinion for they were not objected to in the trial court; properly preserved in the record or urged by defendant in his Motion for New Trial, and, they are not of such a fundamental nature as to require reversal. This Court has repeatedly held:

“Errors to which no exceptions were taken will not be considered on appeal unless they are jurisdictional or fundamental in character.” Williams v. State, Okl.Cr., 373 P.2d 85.

It is the defendant’s fourth contention on appeal, and his primary contention in the application for habeas corpus, that the verdict of the jury rendered in District Court Case #4969-C “was indefinite, uncertain and insufficient to confer jurisdiction on the court to pronounce the judgment which was pronounced or any judgments.”

The verdict complained of was returned by the jury in the following form: (C.M. 145)

“We, the jury, empaneled and sworn in the above cause do upon our oaths, find the defendant guilty — We recommend the minimum sentence with leniency.”

It should here be observed that when the verdict was returned by the jury, it was examined by Fred Patrick, counsel for defendant, and no objection was interposed to the verdict until the jury had been discharged by the court.

Under these circumstances, we follow the rule set forth in Hill v. State, Okl. Cr., 266 P.2d 979, wherein this Court stated:

“Where verdict is irregular in form but is not objected to at time it is returned, and court given opportunity to have jury correct it, every intendment will be indulged to uphold it, and where from examination of verdict and entire record intent of jury as expressed in verdict may be clearly ascertained, it will be upheld.” See also, Pruitt v. State, 94 Okl.Cr. 387, 236 P.2d 702, Spencer v. State, Okl.Cr., 275 P.2d 329, and, Dunbar v. State, 75 Okl.Cr. 275, 131 P.2d 116, Medley v. State, 81 Okl. Cr. 242, 162 P.2d 881, Bisanar v. State, Okl.Cr., 223 P.2d 795.

Don Gant was charged in the District Court of Creek County with the Crime of Rape in the First degree, and, an examination of the instructions reveals that the sole issue presented to the jury was whether or not the defendant was guilty of rape in the First Degree. The court’s instructions to the jury defined the essential elements of the Crime of Rape in the First Degree, and further instructed the jury that Rape in the First Degree is punishable by death or by imprisonment in the penitentiary for not less than fifteen years at the discretion of the jury. The jury was also instructed that if they failed to agree upon the punishment, “then the same shall be pronounced by the court.”

From the language, “we recommend the minimum sentence with leniency,” it is clear that the jury had reference to the minimum punishment of 15 years, as set forth in the trial court’s instruction #5.

The judgment and sentence rendered by the Court on the 23rd day of October, 1961, fixed the defendant’s punishment at 15 years in the State Penitentiary and was, in our opinion, in accordance with the verdict of the jury.

We are therefore of the opinion that this assignment of error is without merit, and that the judgment and sentence appealed from should be, and the same is hereby, AFFIRMED, and that defendant’s Application for Writ of Habeas Corpus should be, and the same is hereby, Denied.

NIX, P. J., and BRETT, J., concur.