Kidd v. Territory of Oklahoma

Supreme Court of Oklahoma

Kidd v. Territory of Oklahoma

1900 OK 28, 60 P. 114, 9 Okla. 450, 1900 Okla. LEXIS 75

DecidedFebruary 8, 1900

StatusPublished

This text of 1900 OK 28 (Kidd v. Territory of Oklahoma) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kidd v. Territory of Oklahoma, 1900 OK 28, 60 P. 114, 9 Okla. 450, 1900 Okla. LEXIS 75 (Okla. 1900).

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Opinion

Opinion by the court by

Irwin, J.:

In this case there are nineteen assignments of error, but we think it only necessary to refer to one. That is the error assigned that the court, in pronouncing sentence, found the defendant guilty of a different and higher degree of offense then that authorized by the verdict of the jury. A reference to the verdict of the jury will be found on page 72 of the record. The verdict reads as follows):

*452 “We, the jury, duly selected, impaneled and sworn in the above entitled cause, find the defendant guilty of assault and battery.

“F. L. BoliNG, Foreman.”

A reference to the sentence of the court, page 77 of the record, will show the following:

“October 22, 1898. Twelfth Judicial Day. . Criminal cause No. 711. (Territory of Oklahoma v. James W. Kidd.) Judgment and sentence. Comes now defendant into- open court for judgment and sentence on the verdict of guilty heretofore rendered in said cause; and now defendant, giving no good reason why the judgment and sentence of the court should not at this time be pronounced upon him, on the verdict herein, the court finds that the said defendant, is, on the verdict herein, guilty of assault with intent to kill. It is therefore considered ordered and adjudged that the defendant, James W. Kidd, be and hereby is fined in the sum of one hundred ($100) dollars, and the costs of this action, taxed at $-, and that he be- imprisoned in the county jail for a period of thirty days; and now the court informs defendant of his right of appeal, and bail pending said appeal is fixed at $800 and ten days given to take appeal, sixty days to prepare and serve case-made, ten days to suggest amendments thereto-, to be .signed antd settled on five days’ notice. To the rendition of which said judgment -and sentence the defendant excepts at the time.”

By this record it clearly appears that while the jury have found the defendant guilty of simple assault and battery, which, under our statute is a misdemeanor, the court has found the defendant guilty of a felony, to-wit, an assault with intent to kill, which, we have no doubt, is clearly reversible error.

While the punishment inflicted is the maximum punishment for assault and battery, it is also the minimum pun *453 ishment for the crime of assault with intent to kill, as provided by our statute. Now is seems to us that the law never intended that the court should pass sentence and judgment upon a defendant, finding him guilty of a greater or more serious offense than that which the jury by their verdict had convicted him. In this case, if allowed to stand, the record would show that the jury had found the defendant guilty of a misdemeanor, and the court, passing sentence upon that verdict, had increased the degree of the offense to make it a felony.

This, we think, is error, for which the judgment is reversed, and the cause remanded for sentence in accordance with the verdict of the jury, and costs assessed to Kingfisher county.

All of the Justices concurring.

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Opinion by the court by

Irwin, J.:

In this case there are nineteen assignments of error, but we think it only necessary to refer to one. That is the error assigned that the court, in pronouncing sentence, found the defendant guilty of a different and higher degree of offense then that authorized by the verdict of the jury. A reference to the verdict of the jury will be found on page 72 of the record. The verdict reads as follows):

*452 “We, the jury, duly selected, impaneled and sworn in the above entitled cause, find the defendant guilty of assault and battery.

“F. L. BoliNG, Foreman.”

A reference to the sentence of the court, page 77 of the record, will show the following:

“October 22, 1898. Twelfth Judicial Day. . Criminal cause No. 711. (Territory of Oklahoma v. James W. Kidd.) Judgment and sentence. Comes now defendant into- open court for judgment and sentence on the verdict of guilty heretofore rendered in said cause; and now defendant, giving no good reason why the judgment and sentence of the court should not at this time be pronounced upon him, on the verdict herein, the court finds that the said defendant, is, on the verdict herein, guilty of assault with intent to kill. It is therefore considered ordered and adjudged that the defendant, James W. Kidd, be and hereby is fined in the sum of one hundred ($100) dollars, and the costs of this action, taxed at $-, and that he be- imprisoned in the county jail for a period of thirty days; and now the court informs defendant of his right of appeal, and bail pending said appeal is fixed at $800 and ten days given to take appeal, sixty days to prepare and serve case-made, ten days to suggest amendments thereto-, to be .signed antd settled on five days’ notice. To the rendition of which said judgment -and sentence the defendant excepts at the time.”

By this record it clearly appears that while the jury have found the defendant guilty of simple assault and battery, which, under our statute is a misdemeanor, the court has found the defendant guilty of a felony, to-wit, an assault with intent to kill, which, we have no doubt, is clearly reversible error.

While the punishment inflicted is the maximum punishment for assault and battery, it is also the minimum pun *453 ishment for the crime of assault with intent to kill, as provided by our statute. Now is seems to us that the law never intended that the court should pass sentence and judgment upon a defendant, finding him guilty of a greater or more serious offense than that which the jury by their verdict had convicted him. In this case, if allowed to stand, the record would show that the jury had found the defendant guilty of a misdemeanor, and the court, passing sentence upon that verdict, had increased the degree of the offense to make it a felony.

This, we think, is error, for which the judgment is reversed, and the cause remanded for sentence in accordance with the verdict of the jury, and costs assessed to Kingfisher county.

All of the Justices concurring.

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Bluebook (online)

1900 OK 28, 60 P. 114, 9 Okla. 450, 1900 Okla. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kidd-v-territory-of-oklahoma-okla-1900.