Opinion of the Judges

To his Excellency, Lee Cruce,

Governor of Oklahoma.

The judges of the Criminal Court of Appeals responding to your official communication of the 24th inst., which presents for the consideration of the judges of the court a certified copy of the record of the conviction of John Henry Prather, who was on April 24, 1911, by the judgment of the district court of Oklahoma county, sentenced to death upon his plea of guilty of murder, which judgment and sentence is that such execution shall take place on Wednesday, the 21st day of June, 1911, with the request that we give an opinion thereon as prescribed by sec. 6928, Snyder's Stat., we hereby respectfully submit the following opinion of the judges:

From an examination of the records of this court we find that no appeal has been taken in said cause. As we view the law, this provision of the statute (sec. 6928, Snyder's Stat.) contemplates an advisory opinion of the judges where an appeal has not been taken from a judgment and sentence of death.

"The proposition then presented would be, has there been an observance of all the formalities of the law essential to the taking of human life? Or has the trial, conviction, and sentence of death been in accordance with the law of the land?" (Opinionof the Judges, 3 Okla. Cr. 315.)

Upon a careful examination of the record we find that the information sufficiently and correctly charges the crime of murder. The defendant had the benefit of counsel, and the record shows that said defendant made a voluntary written confession which details the facts of the murder of W.H. Archie, as charged in the information, wherein defendant states that after he and his codefendants robbed said Archie, he, the defendant, with a forty-four caliber revolver, shot him.

The record further shows that this defendant being called as a witness on the trial of his codefendants, and being first duly sworn, testified that he held the revolver in his hand when it was discharged. On cross-examination he stated that he had been convicted of a felony and served a term of imprisonment in the penitentiary.

Without considering this defendant's admissions and confessions of guilt, his testimony as a witness is alone conclusive of his guilt of the crime charged.

Sec. 2275, Snyder's Stat., provides:

"Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment (or information) for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same."

The sole question presented for our consideration is whether, according to a proper judicial construction, the concluding clause of the above section authorized the district court to pronounce and enter a judgment of death upon the defendant's plea of guilty, or whether, on the contrary, it is necessary under the statute to submit the question whether he shall be punished by death or imprisonment for life at hard labor to the discretion of a jury.

There is no reason why this provision of the statute is not constitutional and valid. A conviction of crime may be had in three ways; either by the verdict of a jury, or by findings of fact by the judge where a jury is waived (sec. 20, art. vii, Const.), or by a plea of guilty. Where a defendant who is indicted or informed against for a capital crime in a court of competent jurisdiction pleads guilty, the court is authorized to pronounce judgment and sentence against such defendant according to law. The authority thus granted is not in any degree affected or controlled by the previous provisions contained in said section 2275, Snyder's Statutes, that:

"Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury."

And that:

"Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith."

The foregoing provisions apply only to cases where there is a trial upon an indictment or information for murder on a general plea of not guilty.

It is evident that the foregoing provisions of our criminal code were not designed to abrogate the well-established rule of the common law, by which a party indicted for an offense, however grave its nature, may enter a plea of guilty thereto, if he sees fit so to do. In such cases there is no issue to be submitted to a jury on which a verdict can be founded. All that the court is required to do is to render judgment and pass the sentence of the law affixed to the crime.

The record shows that the defendant John Henry Prather is guilty of a wanton and deliberate murder. It would seem that never was a murderer more guilty. All good citizens must acknowledge the justice of the penalty of the law in such a case.

We are of opinion that the defendant John Henry Prather has been adjudged to suffer the just penalty of the law in the manner prescribed by law, and upon his trial the formalities of law essential to the taking of human life have been fully observed.

Very respectfully,

THE CRIMINAL COURT OF APPEALS.

Opinion by DOYLE, J.; FURMAN, P.J., and ARMSTRONG, J., concur.