In re Opinion of the Judges

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In re Opinion of the Judges
1935 OK CR 7
40 P.2d 692
56 Okl.Cr. 372
Decided: 01/25/1935
Oklahoma Court of Criminal Appeals

Opinion of the Judges of the Criminal Court of Appeals, in response to a request of Honorable E.W. Marland, Governor of the State of Oklahoma, relative to the conviction of James R. Hargus, of the crime of murder.

To His Excellency, E.W. Marland, Governor of the State of

Oklahoma - Sir:

In response to your official communication of January 17, 1935, asking for an opinion, as provided in section 2786, C. O. S. 1921, now section 3172, O.S. 1931, in the matter of the conviction of James R. Hargus, in the district court of Tulsa county, who was tried, convicted, and sentenced on the 8th day of December, 1934, to be put to death by electrocution on the 8th day of March, 1935, we hereby submit the following opinion of the judges:

DAVENPORT, P.J. The record submitted, to which is attached your request above mentioned, discloses that the said James R. Hargus was charged with murder by information, in the district court of Tulsa county, was tried and convicted. The court fixed the 8th day of December, 1934, as the sentence for the defendant, and on said 8th day of December, 1934, defendant was sentenced to death by electrocution on the 8th day of March, 1935.

Under the Constitution and the laws of this state, any person convicted of a felony may appeal within six months from the date the judgment is rendered.

Under the provisions of section 3192, O.S. 1931, the defendant, if he has taken proper steps, may perfect his appeal to this court. This court has uniformly held that the provisions of section 2786, C. O. S. 1921, now section

Page 373

3172, O.S. 1931, contemplate an advisory opinion where the appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where the time given for appeal has not yet expired, and where an appeal may be perfected, would be to prejudge the case upon an ex parte proceeding, which might be brought before the court upon an appeal.