Boykin v. State

The defendant, J. G. Boykin, was charged by information filed in the district court of Oklahoma county, with the crime of assault with a dangerous weapon which was allegedly committed October 26, 1931, by the said J. G. Boykin shooting one Ed Ashworth with a twelve-gauge double-barrelled shotgun and causing serious injuries in the hip, shoulder and leg of said Ed Ashworth.

The jury returned a verdict on January 26, 1932, finding the defendant guilty of the crime charged in the information and fixing his punishment at one year and one day in the State Penitentiary. The defendant was allowed to remain on bond and an order was made setting February 13, 1932, at 9:00 a. m. as the date for pronouncing judgment in accordance with the verdict of the jury. On February 12, 1932, a motion for a new trial was filed on behalf of the defendant. No appearance was made by defendant or counsel on February 13, 1932, which was the date set for pronouncement of judgment and sentence in accordance with the verdict of the jury, and no further order was made in said cause until July 19, 1945, when the defendant became involved in another altercation and the present county attorney of Oklahoma county, who was not the county attorney at the time of the prosecution in 1932, in checking the record for prior convictions of the accused, ascertained that no judgment had been pronounced upon the verdict of the jury and no action had been taken by the Oklahoma county district court on the motion for new trial interposed by counsel for defendant in 1932. At the request of the county attorney of Oklahoma county, the district court set the motion for new trial for hearing on July 19, 1945. At that time, counsel for defendant appeared and filed an objection to the jurisdiction of the court and contended that by reason of the long lapse of time that the court had lost jurisdiction to pronounce judgment upon the verdict.

At the conclusion of the hearing on the plea to the jurisdiction of the court, counsel for the state and the defendant each presented a list of authorities supporting their respective contentions to the trial court for his consideration. The matter was thereupon taken under advisement for several days so that the court could study the legal authorities on the question involved. At the adjourned time, the Honorable Albert C. Hunt, district judge, who was the successor to the Honorable George W. Clark, deceased, who presided at the trial of defendant, gave a lengthy summation of the facts and discussed and analyzed the legal authorities cited by the defendant to support his position. We shall not undertake to set forth all that was said by Judge Hunt in his summation, but we shall quote enough of it to show that he saw the distinction between the authorities cited in support of defendant's theory and those authorities which we think govern the facts of this particular case. In fairness to Judge Hunt, we shall quote enough of his summary to show that the statement in the dissenting opinion herein that the trial judge was forced to make a hasty decision without time to study the authorities was erroneous. Judge Hunt, after reviewing the facts in the record, stated among other things:

"In connection with these authorities that have been cited, I find from examining them, that in all of them there was some affirmative act on the part of the court in undertaking to suspend or delay the time indefinitely for pronouncing the judgment and sentence. In some of the cases cited, the Judge even allowed the defendant to go on his own recognizance without any bond.

"I called attention to the fact that there was a bond made in this case, and an order made allowing the defendant to stand on his bond, and I take it that the defendant has been standing on that bond and he has been at liberty on that bond ever since that order was entered by Judge Clark on January 26, 1932.

"Now, in this Collins case, the case of Collins v. State, [24 Okla. Crim. 117] 217 P. 896, which was cited and relied upon by counsel for the defendant, of course, the court holds in that case that it is the duty of the court on a conviction or plea of guilty to appoint a time for pronouncing sentence. In this case, the court did appoint a time for pronouncing sentence. This case also says that while the court may delay pronouncing judgment for the purpose of hearing and determining a motion for new trial or in arrest of judgment, or for other proper causes, it cannot indefinitely postpone pronouncing judgment and sentence.

"Now, there has certainly been no order of the court in this case, or no affirmative act on the part of the court, to indefinitely suspend the judgment or the pronouncing of the sentence. I find this quotation in the Collins case, after quoting certain provisions of our statute, it then says:

" 'Under the foregoing provisions, it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a reasonable time. However, there can be no doubt that a court has the right to delay the pronouncement of judgment for the purpose of hearing and determining motions for a new trial or in arrest of judgment, or for other proper causes, but to suspend indefinitely the pronouncing of judgment and sentence after conviction is not within the power of the court.' "

"Now, in the case of People v. Reilly, 53 Michigan, 260 [18 N.W. 849], in stating the facts there, the court says that Reilly was convicted of robbery on October 22, 1881, and moved for a new trial, and on February 10, 1882, sentence was indefinitely suspended and he was admitted to bail on his own recognizance in the sum of $500. That was an affirmative act on the part of the court while that motion for new trial was pending in the case, the court indefinitely suspended the sentence and admitted this man to bail on his own recognizance. The Judge says:

" 'I do not think it is competent for a Circuit Judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of suspending sentence operates as a quasi-pardon.' "

"That is true, and, of course, the District Judge has no such right. That is the prerogative of the Governor. But in this case the District Judge did not suspend, or undertake to suspend, the sentence indefinitely or otherwise.

" 'It relieves the offender for the time being from the punishment which the law has prescribed shall be inflicted.' "

"That was an affirmative act on the part of the Judge. He took it upon himself to suspend the time of sentence indefinitely and let him out on his own bond, and, of course, the court says he cannot do that.

" 'The pardoning power under our Constitution is reposed in the Governor, and not in the Judges.' "

"Now then, they go ahead, this is the same opinion, it goes ahead to say though that:

" 'Temporary stay may also be granted where steps are taken for a new trial, but all these are steps in the progress of the case, taken for the purpose of bringing about change in the result.' "

"The status of this case when it comes to my attention is, here is a case long since been tried and counsel for the defendant filed a motion for new trial, and for some reason it was never passed on and never has been disposed of. The record does not show, and it is not apparent as to why it had not been passed on, but there is nothing in this record to indicate that there is any fault or blame to be attached to the court. The appearance docket shows that the court acted promptly and expeditiously whenever the matter was before it, and fixed the time for sentence, and that the motion for new trial was filed before the time fixed for sentence. It appears from the docket that neither party saw fit to call that motion up, at least, it was not disposed of."

"I might say that I do not think it can be said it was the fault of the court, any more than it was of counsel on one side or the other, or on both sides, and, as I see the thing, I find in all these cases that hold that the court did lose jurisdiction, it is where the court undertook to exercise or do an affirmative act which was entirely beyond his jurisdiction to do; but in this case, the court did not do any affirmative act after that motion for new trial was filed. It was just allowed to remain undisposed of. It was an effort, as pointed out in this Michigan case, that was an effort taken on the part of the defendant during the progress of the case for the purpose of trying to bring about a change of the result and to have the judgment that had been rendered against him vacated and set aside, and a new trial granted."

"Of course, it is unfortunate that this thing has been allowed to remain undisposed of all this long time, but I just can't find any case where it definitely satisfies me at least, that this court has lost jurisdiction to pass on the motion for new trial."

"Of course, this may not be a controlling feature in it, but it may be considered, the fact that the defendant at least has not been prejudiced by it, and he has been out all this time and been out on bond; he has not been out on his own recognizance; and I just can't come to any other conclusion from an examination of this record and all the authorities cited, but that this court still has jurisdiction to pass on the motion for new trial, and the motion challenging the jurisdiction at this time will be overruled, and exception allowed."

After overruling the objection interposed by counsel for defendant to the jurisdiction of the court and upon request of counsel for defendant, the court continued the hearing on the motion for new trial to allow counsel to prepare a transcript of the evidence so as to properly enable the court to pass upon the questions urged in the motion for a new trial.

On the postponed date after a hearing, the court overruled the motion for a new trial, and at the request of counsel for defendant, the time for pronouncing sentence was passed to October 5, 1945. On October 5, 1945, the defendant appeared in person and with his counsel, and the court pronounced judgment and sentence in accordance with the verdict of the jury, and the defendant has appealed.

The only question presented in the appeal is stated in defendant's brief as follows:

"The trial court erred in overruling the defendant's plea to the jurisdiction of said court and in attempting to render judgment and impose sentence in accordance with the verdict of the jury returned in said cause for the reason that more than thirteen years and five months had passed since said verdict of guilty was returned into court without the imposition of sentence thereon, there being no order entered postponing the pronouncement of said judgment and sentence."

This cause was twice argued to the court and counsel for both the state and the defendant have written excellent briefs presenting many authorities to sustain their respective views.

We have no statute providing that the judgment and sentence in a criminal case must be pronounced at any definite time. The only statutory limitation upon the authority of the court is that the judgment and sentence cannot be pronounced for at least two days after the verdict. 22 O. S. 1941, § 962.

This provision of the statute is intended to fix the minimum and not the maximum limit for the pronouncement of judgment. It is intended to prevent hasty and ill considered judgments, and to give defendants time for such further proceedings as they may deem necessary to protect their rights, including their right to file a motion for new trial, or in arrest of judgment. Dalton v. State, 6 Okla. Crim. 368, 118 P. 1001.

There is a decided conflict in the reported cases, as to whether a trial court loses jurisdiction to pronounce sentence against an accused where there has been an unreasonable delay in the pronouncement of sentence after conviction. This conflict is noted in 24 C.J.S., Criminal Law, § 1564, wherein it is stated:

"In some jurisdictions, if the court does not pronounce sentence within a reasonable time after the conviction and no sufficient cause for the delay appears, if the court, in other words, without justification indefinitely postpones the imposition of sentence, it loses jurisdiction to do so. In other jurisdictions, however, mere delay even beyond the term at which conviction was had does not deprive the court of jurisdiction to impose sentence subsequently or at a subsequent term, at least in the absence of a request by accused for earlier sentence, and the general rule has been laid down thatwhere there is a valid conviction the power of the court is notexhausted nor its duty completed until sentence is pronounced,and the cause remains pending, and stands continued with theunfinished business from term to term."

One of the best reasoned cases in support of the general rule is the case of Ex parte Dunn, 50 S.D. 48, 208 N.W. 224, 225. In that case, the defendant entered a plea of guilty to a charge of embezzlement. The trial court indefinitely postponed the pronouncement of sentence on a plea of guilty on condition that defendant repay the sum which had been embezzled at the rate of $50 per month. No date was ever fixed for pronouncing sentence until about eighteen months had passed. In disposing of the defendant's contention that the court had lost jurisdiction to enter the judgment by reason of the indefinite postponement of the time for pronouncing sentence, the Supreme Court of South Dakota stated:

"Applicant's further contention is that by an indefinite postponement of sentence the court loses jurisdiction over the defendant, and has no jurisdiction to enter judgment. On this question there is considerable conflict of authority, and applicant's counsel cite authorities so holding. Some of these decisions are from states having no statutes giving courts the power to suspend sentences. Others are cases in which the question is the converse of that involved in the instant case; that is, cases in which the trial courts are sought to be required to proceed with the enforcing or pronouncing of judgment, as in State ex rel. Callahan v. Hughes, 48 S.D. 95,202 N.W. 285; State ex rel. Payne v. Anderson, 43 S.D. [630], 631, 181 N.W. 839. * * *

"It is apparent that the circuit court was in error in allowing its powers to be used, in a criminal action, for the enforcing of a collection from a defendant. It also exceeded its authority, and infringed upon the pardoning power of the executive department in suspending the pronouncing of judgment, with the evident intent of never pronouncing such judgment in case the defendant complied with certain agreements, including the payment of money.

"But what is the effect of such errors upon the issues now before this court? Habeas corpus goes to the question of jurisdiction, and to that question only. Did the erroneous acts of the circuit court of Minnehaha county cause it to lose its jurisdiction over the applicant? That is the ultimate question in this proceeding. If jurisdiction was lost, it is because the court sought to exercise pardoning power by an unreasonable and unauthorized postponement of the fixing of time for pronouncing of sentence and of the pronouncing of sentence.

"There are respectable authorities holding that jurisdiction is lost by such procedure, but the weakness of that view seems apparent. It amounts to saying that the court may not infringe upon the prerogative of the Governor by attempting to pardon one convicted of crime, but, if a court postpones pronouncing of judgment in such manner as to be equivalent to a pardon, the court loses jurisdiction to sentence, and the defendant must go free; thus allowing the court to accomplish by mere error what it is denied the power to do by direct act.

"The view of this court is that any error of a trial court in failing to do the things required by law, or any act of such court in excess of the powers conferred upon it by law, may be controlled or corrected by appropriate proceedings in mandamus or certiorari. But to hold that jurisdiction over one convicted of crime is lost by such errors would result in freeing a convicted criminal, and giving rise to wrong for which there would be no remedy. This view naturally leads to the adoption of the rule established by the line of decisions of which In re Bonner, 151 U.S. 242, 14 S. Ct. 323, 38 L. Ed. 149, cited with approval by this court in State v. Schaller [49 S.D. 398],207 N.W. 161, is representative.

"This rule, succinctly stated, is that, where the convictionis valid, the power of the trial court is exhausted only by thepronouncing of a valid judgment. In re Bonner, 151 U.S. 242,14 S. Ct. 323, 38 L. Ed. 149; 29 C.J. 57; State ex rel. Petcoff v. Reed [138 Minn. 465], 163 N.W. 984; In re Taylor, 7 S.D. 382,64 N.W. 253, 45 L. R. A. 136, 58 Am St. Rep. 843; Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L. R. A. 190,69 Am. St. Rep. 175; Ex parte Jackson, 107 Kan. 167, 190 P. 608: Ex parte Mitchell, 19 Cal. App. 567, 126 P. 856; State v. Tyree,70 Kan. 203, 78 P. 525, 3 Ann. Cas. 1020; Fuller v. State [100 Miss. 811], 57 So. 806, 39 L. R. A., N.S., 242, Ann. Cas. 1914A, 98; Ledgerwood v. State, 134 Ind. 81, 33 N.E. 631 [92 S.E. 212]; Cook v. Jenkins, 146 Ga. 704; Gehrmann v. Osborne, 79 N.J. Eq. 430, 82 A. 424, 425."

In McCall v. State, 167 Tenn. 329, 69 S.W.2d 892, 893, the Supreme Court of Tennessee adhered to the general rule that where the verdict of guilt has been returned, the jurisdiction of the trial court is not exhausted until judgment is finally rendered. In the body of the opinion it is stated:

"It is customary for a judgment to be entered upon the return of the verdict. This, however, is not necessary. The court may enter an appropriate judgment upon the verdict at any time during the term or, if the matter is overlooked, at a subsequent term. Dunn v. State, 127 Tenn. 267, 154 S.W. 969; Greenfield v. State, 66 Tenn. 18."

See, also, Carnagio v. State, 106 Fla. 209, 143 So. 162; Dilley v. Commonwealth, 243 Ky. 464, 48 S.W.2d 1070; Ex parte Hartley, 330 Mo. 338, 49 S.W.2d 119,120; Williams v. State, 99 Tex. Crim. 356, 269 S.W. 434; Beaird v. State, 217 Ala. 355, 116 So. 367; Ex parte Hardman, 131 N.J.L., 257, 36 A.2d 213; Pace v. Horton, 194 Ga. 822, 22 S.E.2d 805.

In Ex parte Hartley, supra, the Supreme Court of Missouri stated:

"Petitioner's chief claim is that the trial court has lost jurisdiction and is now powerless to bring the defendant into court at any succeeding term and sentence him on the verdict returned at the January term, 1932. In State v. Watson,95 Mo. 411, 414, 415, 8 S.W. 383, and in State v. Schierhoff,103 Mo. 47, 50, 15 S.W. 151, we have definitely ruled otherwise, on the theory that there is no final disposition of a cause until there is a final judgment, and a court does not lose jurisdiction of a case until final judgment is entered, though such be not done until a subsequent term. This is generally recognized in criminal cases."

The authorities from other jurisdictions chiefly relied upon by the defendant are the cases of Mintie v. Biddle, 8 Cir.,15 F.2d 931; State v. Sapp, 87 Kan. 740, 125 P. 78,42 L. R. A., N. S., 249; and People v. Barrett, 202 Ill. 287, 67 N.E. 23,63 L. R. A. 82, 95 Am. St. Rep. 230.

The decision of the Circuit Court of Appeals in Mintie v. Biddle, supra, was later considered by the Supreme Court of the United States and was expressly overruled. In Miller v. Aderhold, 288 U.S. 206, 53 S. Ct. 325, 77 L. Ed. 702, it is stated:

"The decisions on the point are in conflict. The greater number support the view of petitioner; but we are of opinion that the weight of reason is the other way. Several of the cases holding with petitioner are set forth in Mintie v. Biddle, 8 Cir., 15 F.2d 931, 933. While these cases and others are emphatically to the effect that a permanent suspension of sentence is void, and that the court thereby, with the passing of the term, loses jurisdiction, we find no convincing reason in any of them for the latter conclusion. * * * Moreover, since the suspension order is void, the accused is not bound to rest under the supposed hardship. He may at any time put an end to it by requesting the court to pronounce judgment, which the court no doubt would do unless good cause to the contrary were made to appear. In the absence of such request he must be held to have consented to the indefinite delay, and cannot complain. Hoggett v. State, 101 Miss. 269, 271, 57 So. 811. Compare United States v. Mulligan, 2 Cir., 48 F.2d 93; United States v. Lecato, 2 Cir., 29 F.2d 694, 695. * * *

"We conclude, in accordance with what we regard as the better view, that in a criminal case, where verdict has been duly returned the jurisdiction of the trial court, under circumstances such as are here disclosed, is not exhausted until sentence is pronounced, either at the same or a succeeding term. Rachmil v. United States, 2 Cir., 288 F. 782,785; Ex parte Dunn, 50 S.D. 48, 52-54, 208 N.W. 224; Hoggett v. State, supra, at page 271 of 101 Miss., 57 So. 811; Hancock v. Rogers, 140 Ga. 688, 79 S.E. 558; Dilley v. Commonwealth, 243 Ky. 464, 468, 48 S.W.2d 1070; Neace v. Commonwealth, 165 Ky. 739, 742, 743, 178 S.W. 1062."

Later the Circuit Court of Appeals for the Tenth Circuit, which includes the State of Oklahoma, considered this same question in the case of Zerbst v. Nahas, 67 F.2d 742. The syllabus of that case reads:

"Defendant not requesting sentence on plea of guilty cannot complain of indefinite delay, and court retains jurisdiction until sentence is pronounced."

In the body of the opinion it is shown that the petitioner Nahas entered a plea of guilty on October 29, 1929, in the United States District Court to a charge of conspiracy to violate the prohibition law. The pronouncement of sentence upon the plea of guilty was overlooked by the court and the defendant was at liberty until the matter was called to the court's attention on March 15, 1932, at which time the court had the defendant brought before him and he was sentenced to serve eighteen months in the United States penitentiary. The petitioner sought his release from the penitentiary by habeas corpus. In disposing of this contention Judge Lewis stated:

"Appellee claims the court that sentenced him had lost jurisdiction on the facts stated, and that the sentence was void. The District Judge in issuing the writ and entering the order of discharge probably followed the rule announced in Mintie v. Biddle, 8 Cir., 15 F.2d 931. It will be observed in the opinion in that case that the authorities were not in accord at that time. Since the writ issued and the order of discharge was entered the Supreme Court in Miller v. Aderhold, Warden, 288 U.S. 206, 53 S. Ct. 325, 326, 77 L. Ed. 702, passed on the subject. Mr. Justice Sutherland, who spoke for the court in that case, said that the greater number of authorities were in accord with the ruling in the Mintie case, but that the opinion of the court was that the weight of reason is the other way; that in the absence of a request by defendant that he be sentenced 'he must be held to have consented to the indefinite delay, and cannot complain,'and the court retains jurisdiction until sentence is pronounced."

In Ellerbrake v. United States, 7 Cir., 134 F.2d 683, the Circuit Court of Appeals adhered to the decision of Miller v. Aderhold, supra, as shown by the syllabus wherein it is stated:

"Where defendant was not sentenced at term at which he pleaded guilty, the court had not lost jurisdiction to impose sentence at next succeeding term, since jurisdiction of trial court is not exhausted until sentence is pronounced."

The case of State v. Sapp, supra, relied upon by the defendant, was discussed in the later Kansas case of City of Lawrence v. Kagi, 105 Kan. 520, 185 P. 60, 61, where the court distinguished those cases where the trial court by its affirmative act indefinitely suspended the pronouncement of judgment from those cases where the record disclosed that a motion for new trial was pending, or that it was evident that the court at some time had the intention of pronouncing judgment in accordance with the verdict; it was therein stated:

"Defendant appears to rely on State ex rel. v. Sapp,87 Kan. 740, 125 P. 78, 42 L. R. A., N.S., 249, where the court indefinitely suspended the rendition of judgment as a disciplinary measure and with the understanding that judgment might or might not be subsequently rendered, depending on the good behavior of the defendant. This was held to be beyond the power of the court. In holding this it was declared that the court has practically unlimited discretion in the postponement of judgment so long as the rendition at some time remains in contemplation. It is true that the motion for a new trial was not determined and judgment rendered until the term succeeding the one in which the verdict was returned, but the passing of the term did not impair the power of the court to render judgment at a later term. In effect that was said in State ex rel. v. Sapp, supra, so much relied on by the defendant. While holding that an indefinite suspension of a judgment for disciplinary purposes was beyond the power of the court, it was further said:

" 'Whether a postponement is rightful depends, not upon itslength or definiteness, nor upon whether it extends beyond theterm, but upon its purpose and character.' "

The above opinion is one of the strongest authorities supporting the judgment of Judge Hunt. Oklahoma does not adhere strictly to the general rule hereinabove cited. It has been held in many cases that if the court's purpose in postponing imposition of sentence is incident to administration of justice, the court's jurisdiction to impose sentence is not lost even though the term in which the verdict or plea of guilty was entered has passed. But, in many of the same Oklahoma decisions the minority rule adopted in a few states has been followed in which it was held that where the trial court allowed several terms of court to pass and made no order fixing a definite date for pronouncing sentence, but indefinitely delayed the pronouncement for an unreasonable time, the trial court thereby lost jurisdiction to pronounce the judgement and sentence. Collins v. State, 24 Okla. Crim. 117,217 P. 896; White v. State, 45 Okla. Crim. 289, 283 P. 581; Ex parte Coley, 67 Okla. Crim. 482, 94 P.2d 968; Willard v. State,67 Okla. Crim. 192, 94 P.2d 13; Ex parte Hawkins,70 Okla. Crim. 426, 106 P.2d 1112; In re Booth, 74 Okla. Crim. 406,126 P.2d 751.

We still adhere to the rule set forth in the Oklahoma cases hereinabove cited, but we do not intend to extend the rule to those cases where a motion for new trial is pending or where it may be said from the record that the defendant by his conduct has waived his right to have the speedy imposition of the judgment and sentence.

In all of the above Oklahoma cases with the lone exception of Collins v. State, there was no motion for new trial or any other matter pending which would prevent the pronouncement of the judgment and sentence, and the case of Collins v. State was considered and later overruled by this court in the cases of Stone v. State, 55 Okla. Crim. 209, 27 P.2d 1057; and Barrett v. State, 39 Okla. Crim. 50, 263 P. 166. The case of People v. Barrett, supra, cited and relied upon by the defendant, was considered by the Supreme Court of Illinois in the later case of People v. Pilewski, 295 Ill. 58, 128 N.E. 801, in which case the Supreme Court of Illinois held that where a motion for new trial was filed and pending that the trial court retained jurisdiction to pronounce sentence during the pendency of said motion. To the same effect see the case of Beaird v. State, supra; and Davis v. Commonwealth, 230 Ky. 589, 20 S.W.2d 455.

In Ex parte Zwillman, 3 Cir., 38 F.2d 76, it is stated:

"State court could impose sentence after statutory period, delay resulting because court was considering Matters urged on defendant's rule (P. L. N.J. 1928, p. 407, § 1 [N.J.S.A. 2:190-15, 16], amending 2 Comp, St. 1910, p. 1838, § 55; P. L. N.J. 1928, p. 408, § 1 [N.J.S.A. 2:192-1])."

There is no fixed inflexible rule by which it may be said that any definite period of time amounts to an unusual delay in the pronouncement of sentence so as to deprive the court of jurisdiction. As to whether the court lost jurisdiction to pronounce the sentence by reason of an unusual delay by indefinitely postponing the pronouncement of sentence, will be determined by examination of the facts in each particular case. As above noted, we have no provision of the code controlling such question, but the cases supporting defendant's view depend for their conclusion upon the broad ground that public policy will not permit a court which is without the power to pardon an accused or suspend a sentence to indefinitely postpone the pronouncement of sentence, because that would be tantamount to suspending the sentence and the trial court should not be allowed to do indirectly that which it could not do directly. However, the question as to whether the court lost jurisdiction to pronounce the sentence by indefinitely postponing the imposition of sentence is not presented in this case for the reason that the court had not yet reached the point in the progress of the case where the court had the authority to pronounce sentence. A motion for new trial had been filed by counsel for defendant. Before the court could pronounce sentence, it had to dispose of the motion interposed by defendant. By the motion, the defendant complained of error in the proceedings which he claimed entitled him to a new trial. Defendant filed the motion. He had the burden of sustaining his motion. If the court had sustained his motion for new trial, even as late as September 21, 1945, no complaint would have been made by the defendant. If the court had overruled the motion for new trial at the time it was filed, or at any time subsequent thereto, there would have been nothing left but the pronouncement of the judgment and sentence. Under such a situation, the rule of law contended for in the dissenting opinion and the line of authorities set forth to sustain such rule would have been applicable.

Attention is directed to the fact that the dissenting opinion is based upon an incorrect assumption arising from a statement in defendant's brief to the effect that "on February 13, 1932, the defendant appeared in said District Court of Oklahoma County for sentence or whatever order the court might make in said cause, but no action was taken by the court on said motion for new trial and no order was made continuing said cause to any future date." This incorrect statement in defendant's brief was called to our attention in the answer brief of the Attorney General wherein such statement is shown as being contrary to the record on that point. The defendant never contended before Judge Hunt in the hearing had before him on the plea to the jurisdiction of the court and made no statement which appears at any place in the record indicating that he or his counsel appeared before Judge Clark on February 13, 1932. If defendant had contended that the record was incorrect and that he had actually appeared on that date in accordance with Judge Clark's order, he should have offered proof in the hearing before Judge Hunt on that point because it is well settled that where the court at the beginning of the case has jurisdiction of the subject matter and person of the defendant, there is a presumption of law that such jurisdiction continues, and the burden is on the defendant to show that the court had lost jurisdiction to pronounce judgment and sentence. Stuckey v. State, 47 Okla. Crim. 423, 288 P. 394; Coleman v. State,6 Okla. Crim. 252, 272, 118 P. 594; Stark v. State, 10 Okla. Crim. 177,135 P. 441; Hess v. State, 9 Okla. Crim. 516, 132 P. 505.

This court will take notice of the fact that this trial was had before the Honorable George W. Clark, who had a long and honorable service as district judge in Oklahoma county, and that it was tried during the period of illness of the said Judge Clark, which culminated in his death a few months later. The court is not advised as to what facts were in existence which caused the delay in the passing upon the motion for new trial, as no evidence was offered upon that point by counsel for the defendant, nor the present county attorney who apparently had no personal knowledge as to what did actually occur. However, it is shown by the record that defendant's counsel filed a motion for new trial on February 12, 1932; that he did not appear at any time thereafter until the said case was set at the request of the present county attorney for disposition. The defendant and his counsel knew that he had been found guilty by a jury and that unless they procured a new trial, the verdict of the jury would be carried into execution. The learned trial judge, Clark, did not hear the motion for new trial, did not pass upon it, and made no orders in connection with it at all. After his death, it is readily conceivable that his successors in the office of district judge, and the successors of the county attorney who prosecuted the defendant, did not know the status of the case of the defendant until it was discovered by the present county attorney when checking the record to determine whether the defendant had any prior convictions in connection with an investigation of an altercation had in the place of business of defendant in the summer of 1945.

Our view is sustained by the case of Stone v. State, supra. In the syllabus of the case it is stated:

"When there is jurisdiction of a party and of an offense for which he was tried, the decision of all of the questions arising in the case is an exercise of that jurisdiction.

"The trial court has a right to delay the pronouncement of judgment for the purpose of hearing and determining motions for a new trial, or in arrest of judgment or for other proper causes."

In the body of the opinion it is stated:

"In the case at bar, the trial court obtained jurisdiction of the subject-matter of the offense by the return of the indictment into open court charging defendant with the larceny of an automobile, a charge the district court of Oklahoma county had jurisdiction to try. The trial court obtained jurisdiction of the person of defendant by bringing him into court on a warrant of arrest issued upon said indictment. He was thereafter arraigned and pleaded to the indictment, so that, if the court had no jurisdiction to pronounce judgment and sentence in the case, it was not because it had never obtained jurisdiction of the subject-matter of the offense nor jurisdiction of the person of defendant, but only upon the ground that the court had lost jurisdiction by reason of its failure to act upon the motion for a new trial at the term of court at which the verdict was rendered.

"Section 3135, Okla. Stat. 1931 [22 O. S. 1941 § 971], in part provides:

" 'He (defendant) may show for cause against the judgment: * * * Second. That he has good cause to offer, either in arrest of judgment, or for a new trial, in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment, or for a new trial.'

"Under this section, defendant has a right to show cause against the pronouncement of judgment on the verdict of guilty by motion either in arrest of judgment or for a new trial, and, if he does so, it is discretionary with the court to defer the pronouncement of judgment and proceed to decide upon the motion either in arrest of judgment or for a new trial, or both. The defendant, by filing such motion, relieves the court of the responsibility to proceed with the pronouncement of judgment, and places it within the discretion of the court to defer action to another term of court.

"Defendant having been enlarged upon bail, he was required to be in attendance upon the court from term to term. He had a right to demand that his motion for a new trial be passed upon by the court, but, having acquiesced in the delay caused by the filing of his motions, and the hearings thereon, he is not in a position to take advantage of his own dilatory tactics and escape punishment thereby.

"In Stuckey v. State, supra, this court said:

" 'In the absence of a statute to the contrary, judgment need not be pronounced at the same term of court at which the verdict or plea of guilty was had.'

"It follows, therefore, that the mere fact that judgment in this case was not pronounced at the term of court at which the verdict of guilty was returned did not deprive or divest the trial court of jurisdiction to pronounce judgment. The action on the motion for a new trial and in arrest of judgment involved decision of a question or questions arising during the progress of the trial of the case, and in deciding such questions the court was but exercising jurisdiction in the case.

"In Stuckey v. State, supra, this court said:

" 'Where the court fixes a definite time for pronouncing judgment and sentence, and where the record shows that judgment and sentence was not pronounced on the day fixed but is silent as to what was done, the presumption of law is that a sufficient cause appeared to the court why judgment was not pronounced at that time.' "

In Barrett v. State, 39 Okla. Crim. 50, 263 P. 166, a similar contention was presented on behalf of defendant. In disposing of that question, this court adhered to the rule set forth in Collins v. State, 24 Okla. Crim. 117, 217 P. 896, which is the principal case cited and relied upon by the defendant to the effect that where the court indefinitely postpones the pronouncement of sentence for a long period of time, it loses jurisdiction to pronounce judgment. But in said opinion the court distinguished the facts in the Collins case and the other cases which have since followed that rule from those cases where a motion for a new trial was filed by counsel for defendant seeking affirmative relief from the court and which motion must necessarily be determined before sentence could be pronounced.

In the case of Butts v. Commonwealth, 145 Va. 800,133 S.E. 764, the Supreme Court of Appeals of Virginia held that the constitutional guaranty of one accused of crime to a speedy trial required the sentence of one found guilty without unnecessary delay, but they further held that where the trial court delayed the final judgment for thirty-three months after the verdict during which time motion for new trial was pending, that the defendant had the duty to demand that his motion be determined and sentence be pronounced or he is deemed to have waived his constitutional right to a speedy determination of the matter.

The case of In re Booth, supra, is the latest expression of this court which in any way pertains to the question here involved. In that case the petitioner, Booth, had been found guilty by a district court jury and the trial court set November 16, 1937, as the date for pronouncing judgment and sentence. Various postponements of the pronouncement of judgment and sentence were made until June 21, 1938, on which date the defendant failed to appear. No further time was then fixed for the pronouncement of judgment and sentence. The defendant several months later was brought into court and was sentenced on November 21, 1939, over two years after the verdict was pronounced.

In the body of the opinion, this court in denying the contention of the petitioner that the trial court had lost jurisdiction, stated [74 Okla. Crim. 406, 126 P.2d 752]:

"It is the contention of petitioner that the court lost jurisdiction to pronounce judgment and sentence by reason of the failure of the court to pronounce judgment and sentence on June 21, 1938, or to continue the pronouncement of the judgment and sentence at that time to a definite date.

"With this contention we cannot agree. It is doubtful if the court could have made an order postponing the pronouncement of the judgment and sentence to a definite date without the defendant being personally present, as this was a felony case. On that date the court did all that it was authorized to do under the facts. The defendant failed to appear for sentencing and a bench warrant was issued. It is well settled that the court may postpone the imposition of sentence as an incident to the administration of justice within its conceded powers, even after the term at which the conviction is had. Ex parte Coley,67 Okla. Crim. 482, 94 P.2d 968.

"To sustain petitioner's contention would place it within the power of every person convicted of crime to absent himself on the date that sentence is to be pronounced and thus, through the fault of the accused, cause the court to lose jurisdiction to pronounce the sentence. This position is untenable. The authorities cited by petitioner in support of his contention are all cases where the delays in pronouncing sentence were through no fault of the accused."

In view of the fact that the record fails to disclose the appearance of either defendant or his counsel on the date set for the pronouncement of judgment and sentence, the above case is almost parallel to the facts and being the latest expression of our court on the matter is entitled to great weight.

Prior to 1937, courts of record in Oklahoma had no authority to suspend the sentence of an adult. Since 1937, there has been a statute authorizing such suspension of sentence,22 Ohio St. 1941 §§ 991[22-991], 992.

In Collins v. State and the cases from other jurisdictions cited in said opinion, the appellate courts took the view that trial courts in indefinitely postponing the pronouncement of sentence, were attempting indirectly to suspend the execution of the judgment and sentence which they were not authorized to do directly by the statutes or the Constitution of the respective states, including the State of Oklahoma at that time. In said opinions, the vice of allowing a trial court to do indirectly that which it was not authorized to do directly was emphasized. Such reasoning would not now be applicable to the State of Oklahoma, since a trial court, if he so desires, may suspend the execution of the sentence, and it is not necessary for him to indefinitely postpone the pronouncement of sentence in order to effect a suspension of sentence. He does not have to resort to a subterfuge to accomplish this purpose.

The authorities cited by the defendant and adopted in the dissent are the following: People v. Reilly, 53 Mich. 260,18 N.W. 849; People v. Barrett, supra; Collins v. State, supra; White v. State, supra; Ex parte Coley, supra; and Mintie v. Biddle, supra.

With the lone exception of Collins v. State, supra, all of the other Oklahoma cases cited in the dissent are not in point for the reason that they arose in cases where pleas of guilty had been entered and the trial court by his affirmative act indefinitely postponed for an unreasonable time the pronouncement of judgment and sentence.

In People v. Barrett, supra, and People v. Reilly, supra, the trial court in each instance released the defendant on his own recognizance, and indefinitely postponed his sentence and each of those respective appellate courts stated that these affirmative acts on the part of the trial court constituted a suspension of a sentence and since the trial courts were not authorized to suspend sentences, they were attempting to do indirectly that which they were prohibited from doing directly. The case of Collins v. State, supra, was specifically overruled in the later Oklahoma cases we have hereinabove cited. We think the reasoning of Judge Chappell in Stone v. State, supra, and the other opinions hereinabove cited which he wrote and which were handed down by unanimous court, have better reasoning and stand on a more solid foundation than the reasoning set forth in the dissent.

As hereinabove noted, the case of Mintie v. Biddle, supra, by the Circuit Court of Appeals, was criticized by the U.S. Supreme Court in Miller v. Aderhold, supra, in which they stated that they could find no convincing reason for the conclusion reached by the Circuit Court of Appeals. We choose to follow the U.S. Supreme Court, our Tenth Circuit Court of Appeals, and the other decisions herein cited as a basis for our opinion rather than the opinion of the Eighth Circuit Court of Appeals, even though the writer of the dissent by his own admission states "it is beyond" him.

It appears that in disposing of the question here presented, the reasoning of this court in passing upon questions raised in connection with the alleged failure to grant the accused in criminal cases a speedy trial in accordance with the statute,22 O. S. 1941 § 812, and the Constitution, art. 2, § 20, should be applicable. By the terms of the Constitution, the accused in every criminal case is guaranteed the right to a speedy trial. By statute it is provided that the defendant shall be brought to trial at the next term of court in which the indictment or information is triable after it is filed, unless good cause to the contrary be shown. This court in construing the Constitution and statute above mentioned has held that a defendant has the burden of showing that delay in affording him a speedy trial was due to laches on the part of the state. Ex parte Wilkerson,73 Okla. Crim. 32, 117 P.2d 172, Certiorari denied Wilkerson v. Barefoot,314 U.S. 697, 62 S. Ct. 480, 86 L. Ed. 557; Ex parte Meadows,71 Okla. Crim. 353, 112 P.2d 419. This court has further held that before a defendant may have his case dismissed under the statute above mentioned for failure to try him at the next term of court after the information is filed, if at liberty on bail, he must appear and affirmatively demand a trial and have the same refused. Davidson v. State, 82 Okla. Crim. 402,171 P.2d 640, 645, wherein it is held:

"Where defendant is on bail, the presumption is that a delay in the trial is caused by or with the consent of defendant, and the record must affirmatively show that he demanded trial or resisted continuance of the case. However, if defendant is not on bail, the law makes the demand for trial for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause."

In Burns v. State, 52 Okla. Crim. 234, 4 P.2d 115; Stearns v. State, 45 Okla. Crim. 438, 283 P. 1028; State v. McGhee,50 Okla. Crim. 393, 298 P. 896, this court held a defendant seeking dismissal of a prosecution because not given speedy trial, if on bail, must show he demanded trial and resisted continuance from term to term, and in Seitsinger v. State,50 Okla. Crim. 299, 297 P. 312, it is held that in absence of a proper record affirmatively showing to the contrary, the presumption exists that the trial court continued a criminal case for lawful cause.

In this connection, as emphasized by Judge Hunt in passing upon the objection to the jurisdiction of the court in the instant case, it is shown that the defendant throughout all of the time was at liberty on bond.

We cannot conclude under the state of the record that the responsibility for the delay should be placed solely upon the trial court. In the first place, the delay originated with the defendant by the filing of the motion for the new trial. The court should have set the same for a hearing within a reasonable time. When, however, the defendant saw that because of inability of the trial court to act, or for some reason objectionable to the defendant, the hearing on the motion for new trial was delayed, the defendant had the duty to make a demand that the motion for new trial be set for hearing. In case of such a demand, then the responsibility for further delay would be squarely up to the court. If no such demand is made for a hearing, the most that can be said in behalf of defendant is that the responsibility for further delay is a divided one due to the court's inaction and the defendant's acquiescence. Had the motion for a new trial been overruled, then the responsibility for pronouncement of judgment and sentence, and the delays incident thereto would have been single and alone that of the trial court. The duty for action would become that of the court alone when the motion for new trial, the instrument of obstacle motivated by defendant himself, had been overruled, and when all that remained to be done was the pronouncement of judgment and sentence by the court. Certainly, as was said in the cases hereinabove quoted, where the defendant was at liberty on bail, he is deemed to have acquiesced in any delay in the speedy disposition of his motion for a new trial. To so hold will guarantee the rights of defendant without violence to the rights of the state. It provides justice for the defendant and does not open the door to the possibility of fraud and collusion to permit a convicted person to go at large without paying the penalty for his crime. The defendant by his acquiescence in the long delay in passing upon his motion, no doubt silently hoped that he would never have to account for his misdeed, but justice though long delayed should be meted out to him by requiring him to serve the penalty provided as punishment for his misdeed.

The judgment and sentence of the district court of Oklahoma county is affirmed.

BRETT, J., concurs.