Roberson v. State

ON RE-HEARING

BRETT, Judge.

On October 4, 1967 this Court affirmed the conviction of the plaintiff in error, hereinafter referred to as “defendant”, wherein he had been convicted of the offense of assault with a deadly weapon, after former conviction of a felony. At the conclusion of his trial, the jury assessed punishment at confinement in the state penitentiary for a period of fifty years.

Thereafter, the matter has been submitted for reconsideration on petition for rehearing, under the rules of this Court.

The petition for rehearing alleges the punishment is excessive, and is in violation of the statutes; that the charge was laid under Title 21 O.S.A. § 645; that the record is void of any showing of “intent to kill”, on the part of the defendant; and that the sentence should be modified in accordance therewith.

In reviewing the information in this case, it appears to have been laid under § 645 of Title 21. The two sections which might be applicable are sections 645 and 652. Section 645 provides for the offense of assault with a dangerous weapon “with intent to do bodily harm”, and provides a maximum sentence of five years imprisonment. Section 652 provides for the offense of assault with any kind of firearm “with intent to kill”, and provides for maximum punishment not to exceed twenty years confinement in the state penitentiary.

The pertinent parts of the information filed in this case in part, recite:

“INFORMATION FOR ASSAULT WITH A DEADLY WEAPON.

“* * * that Jackie Eugene Roberson * * * did * * * commit an assault on one C. H. Rawlinson with a 9 mm P-38 automatic pistol, * * * which he wrongfully and intentionally pointed, aimed and attempted to shoot the said C. H. Rawlinson, with the unlawful and felonious intent then and there to do him bodily harm, * *

(Emphasis added)

The jury returned a verdict on the first stage of defendant’s trial, which reads as follows:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do *602 upon our oaths find the defendant Jackie Eugene Roberson guilty as charged in the information herein.” (Emphasis added)

Considering the charge laid in the information, which alleges intent to do bodily harm, we can only conclude that the information was drawn under the provisions of Title 21 O.S.A. § 645. Considered therewith the verdict of the jury, the verdict found defendant guilty of the charge as contained in the information. We acknowledge also that the district attorney’s office candidly admits the lack of evidence to prove defendant’s intent to kill.

On the second stage of defendant’s trial, the jury found him guilty of the charge of former convictions, and assessed his punishment at fifty years confinement in the penitentiary.

Title 21 O.S.Supp. (1963), § 51 provides authority for enhancement of punishment. That section provides in part:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable as follows:

“* * * 2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.”

We are, therefore, of the opinion insofar as the information was laid under the provisions of Section 645, supra, that the above provision of the statutes is applicable, and that defendant’s contention of excessive punishment is valid.

We are further of the opinion, in order that justice will be better served, that the sentence imposed in defendant’s case, should be and the same is modified from fifty years to ten years, this being the maximum permissible under the law.

Judgment and sentence as modified is affirmed.

BUSSEY, J., concurs.