Simpson v State

Simpson v State
1931 OK CR 344
1 P.2d 823
51 Okl.Cr. 362
Decided: 07/31/1931
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Trial Instruction to Jury to Assess Punishment Assessment of Punishment by Court Where Jury Fails to Agree. Under sections 2750, 2751, Comp. Stat. 1921, where the jury is unable to agree upon the punishment and the defendant demands it, the court must instruct the jury to assess the punishment. If they fail to agree on the punishment or to declare it in their verdict, the court may assess the punishment.

2. Homicide Imprisonment for 99 Years Held Excessive and Reduced to 25 Years. Upon an examination of the whole record, held: That the punishment is excessive and is reduced.

Appeal from Superior Court, Okmulgee County; J.H. Swan, Judge.

J.C. Simpson was convicted of manslaughter in the first degree, and he appeals. Modified and affirmed.

Tom Payne, for plaintiff in error.

Page 363

J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of manslaughter in the first degree, and his punishment fixed at 99 years in the penitentiary.

At the time charged, defendant lived in the country near Henryetta. He was employed by an oil company to look after some of its machinery and on Christmas Day he made a round, carrying with him a 22 rifle. As he returned to his home, he saw two persons near a peanut patch belonging to defendant; he ran in the direction of them and fired the rifle three times, one shot striking Charles Williamson, a boy of 14 years of age, inflicting a wound from which he died in a few minutes.

The evidence for the state is that at the time deceased was shot he was running from defendant. Defendant contends the shooting was accidental. One witness testified he was at the home of defendant as he started toward the two boys near the peanut patch, and that defendant said:

"Those damn boys have stole all the peanuts I aim for them to steal."

The first contention is that the court erred in refusing defendant's request to instruct the jury they must assess the punishment. Upon this point, the court instructed the jury, in substance, that in case they found defendant guilty of murder they must assess the punishment and in case they found him guilty of manslaughter in either degree, that they might assess the punishment. The verdict finds defendant guilty of manslaughter in the first degree, and that the jury is unable to agree upon the punishment. Sections 2750, 2751, Comp. Stat. 1921,

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are the applicable statutes. Under the first section, the jury had the right to declare the punishment in their verdict whether requested or not, and, upon request of defendant the jury must assess and declare the punishment, unless they fail to agree on the punishment. If they find defendant guilty and fail to agree on the punishment, or do not declare the punishment, the court shall assess and fix the punishment and render judgment accordingly. Craig v. State, 31 Okla. Cr. 19, 236 P. 909.