construing arson as "wilful and malicious burning of a building with intent to destroy it"
How later courts described this case
- construing arson as "wilful and malicious burning of a building with intent to destroy it"
- conviction for arson in the first degree based on insufficient information modified to arson in the second degree
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Parker v. State, 1996 Okla. Crim. App. LEXIS 21 (1996)
51, ¶¶ 14-15, 947 P.2d 530, 533-34 (because all essential elements of lewd molestation were included in the rape charge, lewd molestation in this case was a lesser included offense of rape); Morris v. State, 1979 OK CR 136, V 18, 603 P.2d 1157, 1160 (an insufficient information can support conviction for any lesser offense properly alleged even if it cannot support conviction for the crime charged); Stokes v. State,…
The opinion
On Petition for Rehearing.
Judgment modified by reducing sentence from term of five years in the State Penitentiary to a term of two years in the State Penitentiary and, as so modified, affirmed.
Irvine E. Ungerman and Joe Chambers, both of Tulsa (Charles A. Whitebook, of Tulsa, of counsel), for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
BRETT, J.
It was urged by the defendant, Howard J. Stokes, on rehearing, that this court was without jurisdiction to modify and affirm the judgment and sentence of the lower court on the record as herein made. It was further contended that the modification amounted to a different sentence by this court and constituted a denial of due process in that the defendant was denied a new trial by jury. He further contended ■ that since the in
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formation charged second degree arson and that the case was tried for first degree arson and the jury so instructed, that this court, under the authority of Martin v. State, 48 Okla. Cr. 102 , 289 P. 787 , could only reverse the cause for a new trial and was without power to modify the judgment and sentence. Finally, it was contended that there was no precedent to support the action of this court.
These contentions are without merit and there is ample authority to support this action of the court. A case that is squarely in point with the procedure pursued in the court’s original opinion is Cunningham v. State, 55 Okla. Cr. 67 , 24 P. 2d 1013, 1015 , wherein the defendant was charged with rape in the second degree, but he was tried as though charged with rape in the first degree and the jury was so instructed. Upon conviction the defendant was sentenced to serve 15 years in the State Penitentiary. Therein, this court said:
“This court, under the power to modify judgments, section 3204, Okla. St. 1931 [22 O. S. 1941 § 1066], may reduce the judgment to the included offense of rape in the second degree and fix appropriate punishment. Lebo v. State, 40 Okla. Cr. 116 , 267 P. 288 ; Plaster v. State, 45 Okla. Cr. 452 , 283 P. 805 ; Brasel v. State [ 48 Okla. Cr. 403 ] 291 P. 807 .
“The judgment is therefore modified from rape in the first degree to rape in the second degree, the punishment fixed at four years in the penitentiary, and, as modified, the case is affirmed.”
In this same connection, see Randall v. State, 33 Okla. Cr. 262 , 243 P. 983 , Mayberry v. State, 44 Okla. Cr. 134 , 279 P. 934 , and the rather recent case of Kilpatrick v. State, 75 Okla. Cr. 28 , 128 P. 2d 246 , wherein the court modified the conviction from first degree rape and punishment at 15 years, to assault with intent to commit rape and punishment at two years. The foregoing au
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thorities constitute ample support of the court’s action in this matter, in addition to the provisions of Title 22 O. S. A. § 1066, 22 O. S. 1941 § 1066.
Moreover, as was said by Justice Harlan in Motes v. United States, 178 U. S. 458 , 20 S. Ct. 993, 1000 , 44 L. Ed. 1150 :
“It would be trifling with the administration of the criminal law to award him a new trial because of a particular error committed by the trial court, when in effect he has stated under oath that he was guilty of the charge preferred against him.”
A similar situation confronts us in the case at bar.. The defendant’s signed confession, and other evidence, in effect, amounts to an admission of his guilt as to the charges preferred against him.
There is, however, a matter presented in the petition for rehearing which has impressed us with its merits. That is, the contention of this defendant that this court modified the punishment imposed against the defendant to the maximum sentence which could have been meted out to him if a jury had been corrrectly instructed as to the law applicable to this case. After considering this argument of the defendant, we have come to the conclusion that in view of the fact that we are not remanding this case for another trial that it would probably be an unwarranted assumption that a jury' of twelve men would give him the maximum punishment. Moreover, in consideration of the fact that the defendant has never before been involved in any trouble and upon being informed that nothing has been done to bring Bussell Degen and George W. Jakeway, the perpetrators of this crime, to trial and justice for approximately two years, we feel that the ends of justice warrant a further modification of the judgment and sentence.
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It is therefore hereby ordered that the judgment and sentence imposed herein against Howard J. Stokes be modified to a term of two years in the penitentiary and the judgment and sentence as so modified is affirmed.
BAREFOOT, P. J., and JONES, J., concur. .