holding statute similar to art. 37.07, § 4 unconstitutional because it violates separation of powers provision virtually identical to the Texas constitution’s separation of powers provision
How later courts described this case
- holding statute similar to art. 37.07, § 4 unconstitutional because it violates separation of powers provision virtually identical to the Texas constitution’s separation of powers provision
Written by the judges who cited it.
The opinion
NIX, Judge
(specially concurring):
Had the instruction complained of been given in a one-stage proceeding, I think it would have clearly constituted reversible error, but in the case at bar it was given after defendant had been found guilty and could only have resulted in prejudice as far as the sentence imposed was concerned. I agree that the judgment and sentence should be modified.
ORDER DENYING PETITION FOR REHEARING
The State of Oklahoma, by and through its Attorney General, has filed a Petition for Rehearing in the above styled and numbered cause on the grounds that this Court, in its opinion, failed to pass on the constitutionality of 57 O.S.Supp.1969, § 138. In this contention the Attorney General is correct, and to make it crystal clear that an instruction should not be given under the provisions of 57 O.S.Supp. 1969, § 138, nor should the District Attorney argue it as a part of his closing remarks to the jury, we specifically hold that the provisions of the statute making it mandatory for the court to give such an instruction is in violation of Article 4, Section 1, of the Constitution of the State of Oklahoma, the some providing:
“The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.”
Since the determination of the propriety of instructions to be given and the scope of argument of counsel are exclusively powers *1002 exercised by the Judicial department of government, we hold that the provisions of 57 O.S.Supp.1969, § 138, making it mandatory for the courts to instruct the jury as to its provisions, and providing “that the provisions of this section may be commented upon in the argument of any such trial” are an unconstitutional encroachment by the Legislature upon the Judicial powers of the State.
The Petition for Rehearing is denied, and the Clerk of this Court is directed to forthwith issue the mandate.