Greenwood v. State

375 P.2d 661 (1962)

G.D. GREENWOOD, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.

No. A-13194.

Court of Criminal Appeals of Oklahoma.

October 17, 1962. As Corrected October 22, 1962. Rehearing Denied November 7, 1962.

J.C. Drennan and John L. Pollard, Medford, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

G.D. Greenwood was charged, tried and convicted of the offense of Obtaining Property Under False Pretenses by use of a False and Fraudulent Check in the District Court of Dewey County. Defendant seeks to appeal to this Court by casemade.

The Attorney General has filed a Motion to Dismiss said appeal on the ground and for the reason that the casemade does not contain a copy of the formal judgment and sentence as required by law.

The plaintiff in error relies upon an instrument denominated, "Journal Entry", found at Page 125 of the casemade, and argues that although it is not a model to be followed in the future, it is sufficient in form and substance to be treated as a formal judgment and sentence. The instrument in question reads as follows:

"Now to-wit, on this 31st day of October, 1961, this cause comes on to be heard upon the issues joined herein and for trial.

"The State of Oklahoma appears by Tom J. Ruble, Acting County Attorney, and E. Blumhagen, special prosecutor, and the defendant, G.D. Greenwood appears in person and by his attorneys, J.C. Drennan and John L. Pollard.

"Thereupon parties announce ready for trial and a jury is duly drawn, impanelled, and sworn to try the said cause.

"The prosecution thereupon makes their opening statement to the jury and the defendant reserves his opening statement until the close of the testimony offered by the prosecution.

"Thereupon prosecution proceeds to introduce their evidence and conclude their testimony and rest their case in chief, and the defendant demurs to the evidence as offered by the prosecution which demurrer is argued and considered by the Court, and overruled by the Court, to which ruling of the Court the defendant objects and excepts, and exception is allowed by the Court.

"Thereupon the defendant introduces his evidence and rests his case, and the prosecution introduces their rebuttal and both plaintiff and defendant having rested their case, the defendant moves the Court for an instructed verdict and ask the Court to instruct the jury to return a verdict of not guilty in favor of the defendant, the same being argued to the Court, and considered by the Court and thereupon overruled, to which ruling the defendant objects and excepts, and exception is allowed.

"Thereupon the Court instructs the jury as to the law and the case is argued to the jury by counsel, by the prosecution and by the defense, and thereupon the jury is sworn and placed in charge of the bailiff and on the same day returned into Court the following verdict:

We, the jury drawn, empaneled and sworn in the above entitled cause do upon our oaths find the defendant guilty as charged in the information herein and fix his punishment at imprisonment in the penitentiary for a period of 1 year and 1 day.

"M.W. Hendrix, Foreman"

to all of which the defendant, G.D. Greenwood objects and excepts.

"Thereupon and on the 7th day of December, 1961, at the hour of 1:30 o'clock P.M., the said prosecution appears by the same counsel and the defendant appears in person and by the same counsel and the said defendant, G.D. Greenwood presents his Motion for New Trial which is considered by the Court, and thereupon overruled and denied to which ruling of the Court the said defendant excepts; and thereupon said defendant offers his Motion in Arrest of Judgment, which motion is considered by the Court and overruled and denied to which the defendant excepts; and thereupon the said defendant, G.D. Greenwood is called to stand up for sentence and to have the judgment of the Court pronounced upon him; and thereupon judgment is pronounced against the said G.D. Greenwood by the Court, and the said G.D. Greenwood is sentenced to be imprisoned in the Oklahoma State Penitentiary at McAlester, Oklahoma, for a period of one year and one day to which the said defendant excepts and gives notice of his intention in open Court, to appeal to the Court of Criminal Appeals of the State of Oklahoma, and which notice the Court orders spread upon the records of this Court, as provided by law, and which is done.

"Thereupon for good cause shown the time to make and serve a case made is extended and the said defendant is given sixty (60) days from this date to-wit, the 5th day of February, 1962, to make and serve a case made to the Court of Criminal Appeals and the prosecution is given five (5) days after the service of the case made to suggest amendments thereto and the same is to be settled and signed on three (3) days written notice by either party and the Court fixes the supersedeas bond of said defendant at $1,000.00 and the said defendant is given five (5) days in which to execute said supersedeas bond and said judgment is stayed for such period.

"Thereupon the defendant files his motion for preparation of a case made at court expense, said motion being duly supported by Affidavit and the Court being fully advised in the premises and having heard evidence in support of said motion finds that said defendant is destitute and without funds and unable to pay for a case made for the purpose of maintaining his appeal and that said defendant is entitled to have a case made made at court expense.

"IT IS THEREFORE ORDERED by the Court that a case made be made and prepared by the Court Reporter of this Court, at court expense.

"/s/ Tom R. Blaine, "Judge of the District Court."

We must therefore consider whether the instrument above cited meets the necessary requirements of a judgment and sentence under the prior decisions of this Court. If it does, the appeal was filed within the time prescribed by law, and the questions raised on appeal are properly before us. If it does not, we must sustain the motion of the attorney general to dismiss.

In this connection it will be helpful to consider the statute relating to judgment and sentence in a criminal case:

"An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment^[1] against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed." Title 22, OSA, § 1051.

In Jones v. Territory, 4 Okl. 45, 43 P. 1072, in Syllabus 4, this Court stated that:

"No particular language or form of words [are] necessary in rendering and recording a judgment of conviction in a criminal cause; and where the words `commanded by the court' are used, instead of the usual form, `considered and adjudged by the court,' it is sufficient on appeal."

In Helms v. State, 14 Okl.Cr. 384, 171 P. 340, in an opinion written by Judge Doyle, this Court set forth three requisites of a judgment and sentence. They are (1) the date when judgment was rendered, (2) against whom and for what offense, and (3) that sentence was pronounced in accordance with the verdict. Although the Helms decision was expressly overruled insofar as it purported to recognize the clerk's minutes, which were not signed by the judge, as a formal judgment and sentence within the meaning of Title 22 O.S.A. § 1051, the requirements above set forth must, nevertheless, be incorporated in the judgment and sentence.

In addition, the judgment and sentence should also be signed by the judge of said court. Smith v. State, Okl.Cr., 362 P.2d 113, and cases cited therein.

The instrument relied upon by plaintiff in error must have been prepared in accordance with the provisions of Title 12 O.S.A. § 701, relating to Journal Entry in civil proceedings, but it fails to state the crime of which the accused was found guilty, and for which he was sentenced to the term of imprisonment of one year and one day.

In order to sustain an appeal, a judgment and sentence must be sufficient in form in and of itself. 24 C.J.S. Criminal Law § 1650, page 1009.

It thus appears that under the requirements set forth, supra, the journal entry is not a judgment and sentence within the meaning of Title 22 O.S.A. § 1051; and, there being no valid judgment and sentence contained in the casemade, we follow the rule in Smith v. State, supra, (and cases cited therein):

"Where casemade does not contain formal judgment and sentence, the record cannot be considered even as a transcript, and the appeal will be dismissed."

In researching this matter, we have been unable to find any approved form of judgment which would serve as a guide for trial courts to follow. In this connection, however, the statutes relating to the imposition of judgment and sentence provide as follows:

"After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment." Title 22 O.S.A. § 961.

"The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed." Title 22 O.S.A. § 962.

"When the defendant is in custody, the court may direct the officer in whose custody he is to bring him before it for judgment, and the officer must do so accordingly." Title 22 O.S.A. § 964.

"When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." Title 22 O.S.A. § 970.

"He may show for cause against the judgment: 1. * * * 2. That he has good cause to offer, either in arrest of judgment, or for a new trial, in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment, or for a new trial." Title 22 O.S.A. § 971.

"If no sufficient cause be alleged or appear to the court why judgment should not be pronounced it must thereupon be rendered." Title 22 O.S.A. § 972.

"When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:

"1st. The indictment and a copy of the minutes of the plea or demurrer.

"2nd. A copy of the minutes of the trial.

"3rd. The Charges given or refused, and the indorsements, if any, thereon; and,

"4th. A copy of the judgment." Title 22 O.S.A. § 977.

"The fees herein provided for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison." Title 28 O.S.A. § 101.

In order to meet the directive of the statutes above cited, it is recommended that the following forms of judgment and sentence be followed:^[2]

JUDGMENT AND SENTENCE (MISDEMEANOR) In the ___________________ Court of ___________ County, State of Oklahoma. The State of Oklahoma, Plaintiff, | JUDGMENT & SENTENCE | (Misdemeanor) vs. > _______________________________ | Defendant. | No. _________________ Now, on this ____ day of ____, 19__, the same being a juridical day of the above Court, and the time appointed for judgment in the above entitled cause, and said cause coming on for judgment, and the prisoner, _________, being personally present in open court, and having been legally charged with the offense of _____________________________ and having been duly arraigned thereon, and having pleaded _________ guilty and having been duly and legally tried and convicted of said offense, in said Court, the prisoner is now informed of the nature of the charge, of his plea and of the verdict, and is asked by the Court whether he has any legal cause to show why judgment and sentence should not be pronounced against him, and alleging no sufficient cause why judgment and sentence should not be pronounced against him, and none appearing in the Court, the Court does now hereby adjudge and sentence the said _________________ for the said offense by him committed. It is therefore considered, ordered and adjudged by the Court that the defendant, ___________________ pay a fine of _______ (Dollars) ($____), and be imprisoned in the County Jail of the County of _________, for a period of ____ days from ___________________________________ and that he pay the costs herein, taxed at $____, and in default of the payment of the costs and fine herein, he be further imprisoned in said County Jail for a period not exceeding one day for every $1.00 of costs and fine herein, or the said time to be served on the County Roads of ____________ County. It is further ordered by the Court that the Sheriff of said County immediately proceed to transport the defendant from the court room to the County Jail as aforesaid, and safely keep this defendant confined or on the roads as herein set forth, and the Clerk of this Court make and deliver immediately to said Sheriff, a certified copy of this judgment and sentence, which will be sufficient warrant and authority for the confinement and detention of said defendant, until the expiration of imprisonment of said judgment and sentence. (SEAL) ___________________________________ Judge of Above Court Attest: __________________________ , Court Clerk By ___________________________ , Deputy Court Clerk THE STATE OF OKLAHOMA, | ss. In the ______________ Court of > ________ COUNTY, | said County and State. I, ____________, Court Clerk in and for said County and State, do hereby certify that the above and foregoing is a true and correct copy of the Judgment and Sentence in the case of The State of Oklahoma vs. __________, No. ________, as the same appears of record in my office. Witness my hand and the seal of this Court, this ____ day of ____. 19__. _________________, Court Clerk. By ________________________________ Deputy Court Clerk (Side 2) No. ____________________________________________________________________ ========================================================================== In _________________________________________________________________ Court _____________ County, Oklahoma ========================================================================== THE STATE OF OKLAHOMA vs. __________________________________________________________________________ __________________________________________________________________________ Defendants, ========================================================================== JUDGMENT & SENTENCE ========================================================================== ========================================================================== (Side 1) THE STATE OF OKLAHOMA | > SS. _______ COUNTY | In the District Court of the __________ Judicial District of the State of Oklahoma, Sitting in and for ______________ County, Oklahoma. THE STATE OF OKLAHOMA, Plaintiff, | | -vs- > No. __________ | __________________________________ | Defendant. JUDGMENT AND SENTENCE ON CONVICTION Now, on this ____ day of ____, 19__, the same being a juridical day of said court, and the time duly appointed for judgment in the above-entitled cause, and said cause coming on for judgment, and the defendant _________________ being personally present in open court, and being duly represented at all appearances before the court by h____ attorney of record, and having been legally charged with the offense of ______________________ and having been duly informed of the nature of the charge and having been duly arraigned thereon, and having duly and properly pleaded not guilty to said offense after having been duly advised of h____ rights; and having been duly and legally tried and convicted of the crime of _________________________________; and the defendant having been asked by the court whether ___ he has any legal cause to show why judgment and sentence should not be pronounced against h____, and ____he stating no sufficient cause why judgment and sentence should not be pronounced against the defendant, and none appearing to the court, it is the judgment of the court that said defendant is guilty of the crime of _________________________________; It Is Therefore, Ordered, Adjudged and Decreed by the Court that the said ________________________ be committed to and be imprisoned in the State Penitentiary at McAlester, Oklahoma, and confined in said penitentiary for the term of ___________________ for the crime of _____________________, said term of sentence to begin at and from the delivery of the defendant to the Warden of the State Penitentiary at McAlester, Oklahoma; and that said defendant pay the costs of this prosecution, taxed at $____ for which judgment is hereby rendered against the defendant; and thereupon the defendant is by the court notified of h____ right of appeal. It Is Further Ordered, Adjudged and Decreed by the court that the Sheriff of ____________ County, Oklahoma, transport said defendant to the said State Penitentiary at McAlester, Oklahoma, and that the Warden of said penitentiary detain the said defendant according to this judgment, sentence and order, and that the clerk of this court, do immediately certify, under the seal of the court, and deliver to the Sheriff of _____________ County, Oklahoma, two copies of this judgment, sentence and order, one of the copies to accompany the body of the said defendant to said penitentiary at McAlester, Oklahoma, and to be left therewith at the said penitentiary, said copy to be warrant and authority for the imprisonment of the said defendant and the other copy to be the warrant and authority of said Sheriff of _____________ County, Oklahoma, for the transportation and imprisonment of the said defendant as hereinbefore provided. Said last named copy to be returned to the Clerk of said Court with the proceedings thereunder endorsed thereon. (SEAL) ________________________________ District Judge Attest: ________________________________, Court Clerk By ___________________________, Deputy Court Clerk (Side 2) THE STATE OF OKLAHOMA | > SS. ________ COUNTY | I, __________, Court Clerk of the District Court of the ________________ Judicial District of The State of Oklahoma, sitting in and for ___________ County, Oklahoma, do hereby certify the above and foregoing to be a true, correct, full and complete copy of the original judgment sentence in the case of The State of Oklahoma -vs- _____________________, as the same appears of record in my office. WITNESS my hand and official seal ____ day of ____, 19__. (SEAL) _____________________________ , Court Clerk By __________________________ Deputy Court Clerk SHERIFF'S RETURN THE STATE OF OKLAHOMA | > SS. _______ COUNTY | I received this judgment and sentence this ____ day of ____, 19__, and the same executed by transporting the within named defendant to the State Penitentiary at McAlester, Oklahoma, and delivered h____ to the Warden thereof on the day of ____, 19__, as herein ordered. ______________________, Sheriff By ______________, Deputy Sheriff (Side 1) THE STATE OF OKLAHOMA | > SS. __________ COUNTY | In the District Court of the ___________ Judicial District of the State of Oklahoma, Sitting in and for ______________ County, Oklahoma. THE STATE OF OKLAHOMA, Plaintiff, | | -vs- > No. __________ | ________________________________, | Defendant. JUDGMENT AND SENTENCE ON PLEA OF GUILTY Now, on this ____ day of ____, 19__, the same being a juridical day of said court, and the time duly appointed for judgment in the above-entitled cause, and said cause coming on for judgment, and the defendant _____________ being personally present in open court, and being duly represented at all appearances before the court by h____ attorney of record and having been legally charged with the offense of ___________ and having been duly informed of the nature of the charge and having been duly arraigned thereon, and having duly and properly entered h____ plea of guilty to the crime of ______________ after having been fully advised of h____ rights and the effect of such plea; and the defendant having been asked by the court whether ____he has any legal cause to show why judgment and sentence should not be pronounced against h____, and ____he stating no sufficient cause why judgment and sentence should not be pronounced against the defendant, and none appearing to the court, it is the judgment of the court that said defendant is guilty of the crime of ______________; It Is Therefore Ordered, Adjudged and Decreed by the Court that the said ____________________ be committed to and be imprisoned in the State Penitentiary for a term of ________________________ for the crime of _______________________ said term of sentence to begin at and from the delivery of the defendant to the Warden of the State Penitentiary at McAlester, Oklahoma; and that said defendant pay the costs of this prosecution taxed at $____, for which judgment is hereby rendered against the defendant; and thereupon the defendant is by the court notified of h____ right of appeal. It Is Further Ordered, Adjudged and Decreed by the court that the Sheriff of ___________ County, Oklahoma, transport said defendant to the said State Penitentiary at McAlester, Oklahoma, and to be left therewith at the said penitentiary, said copy to be warrant and authority for the imprisonment of the said defendant and the other copy to be warrant and authority of said Sheriff of ____________ County, Oklahoma, for the transportation and imprisonment of said defendant as hereinbefore provided. Said last named copy to be returned to the Clerk of said Court with the proceedings thereunder endorsed thereon. (SEAL) Attest: ________________________ District Judge _______________, Court Clerk By ____________, Deputy Court Clerk (Side 2) THE STATE OF OKLAHOMA | > SS. ________ COUNTY | I, ________________, Court Clerk of the District Court of the _________ Judicial District of the State of Oklahoma, sitting in and for __________ County, Oklahoma, do hereby certify the above and foregoing to be a true, correct, full and complete copy of the original judgment and sentence in the case of The State of Oklahoma -vs- _____________________, as the same appears of record in my office. WITNESS my hand and official seal this ____________ day of ____, 19__. (SEAL) ____________________________ , Court Clerk By _________________________ Deputy Court Clerk THE STATE OF OKLAHOMA | > SS. ________ COUNTY | I received this judgment and sentence this day of ____, 19__, and the same executed by transporting the within named defendant to the State Penitentiary at McAlester, Oklahoma, and delivered h____ to the Warden thereof on the ______ day of ____, 19__, as herein ordered. _______________________, Sheriff By ______________, Deputy Sheriff Title 22 §§ 991 and 992 O.S.A. provide: "Whenever any person shall be convicted in any court of record for any crime other than murder, manslaughter or arson, the Judge trying said cause may, after sentence, suspend said judgment and sentence, and allow said person so convicted to be released upon his own recognizance. Said Judge may also suspend the judgment and sentence of a youth, twenty (20) years of age or under, who has been convicted in any court of record of the crime of arson. Provided, that no such person shall be so released, who, has not, prior thereto, borne a good reputation or who may have been prior thereto convicted of a felony in any state or territory of the United States." Title 22 § 991. "Any person so released as provided in the preceding Section shall be required to report to the Judge of the Court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the Court or Judge, and prove to the satisfaction of said Judge by two citizens of said County of good reputation, that said person has not violated any law, and has been a quiet, peaceful and law abiding citizen. Provided, that if it shall be made to appear to said Judge that said person so released has been guilty of a violation of any law after his said release, or is habitually associating with lewd or vicious persons, or is indulging in vicious habits, in that event said Court shall cause a warrant to be issued for said person, and he shall be delivered forthwith to the place of confinement to which originally sentenced, and shall serve out the full term for which he had originally been sentenced." Title 22 § 992. If a suspended sentence be granted under the provisions of Title 22 §§ 991 and 992, as set forth above, the following forms are recommended: (Side 1) THE STATE OF OKLAHOMA | > SS. _______ COUNTY | In the District Court of the ___________ Judicial District of the State of Oklahoma, Sitting in and for ____________ County, Oklahoma. THE STATE OF OKLAHOMA, Plaintiff | | -vs- > No. ___________ | ____________________________________ | Defendant. JUDGMENT AND SENTENCE SUSPENDED ON CONVICTION Now, on this ____ day of ____, 19__, the same being a juridical day of said court, and the time duly appointed for judgment in the above-entitled cause, and said cause coming on for judgment, and the defendant _________________ being personally present in open court, and being duly represented at all appearances before the court by h____ attorney of record, and having been legally charged with the offense of ________________ and having been duly informed of the nature of the charge and have been duly arraigned thereon, and having duly and properly pleaded not guilty to said offense after having been duly advised of h____ rights; and having been duly and legally tried and convicted of the crime of ___________________________ and it appearing to the court that said defendant is of the age of ____ years, that said defendant has not heretofore been convicted of a felony in any state or territory of the United States of America, and has previously borne a good reputation; and the defendant having been asked by the court whether ____he has any legal cause to show why judgment and sentence should not be pronounced against h____, and ____he stating no sufficient cause why judgment and sentence should not be pronounced against the defendant, and none appearing to the court, it is the judgment of the court that said defendant is guilty of the crime of ____________________________ It Is Therefore Ordered, Adjudged and Decreed by the court that the said _________________________ be committed to and be imprisoned in the State Penitentiary at McAlester, Oklahoma, and confined in said penitentiary for the term of ___________, for the crime of ________________________ said term of sentence to begin at and from the delivery of the defendant to the Warden of the State Penitentiary at McAlester, Oklahoma; and that said defendant pay the costs of this prosecution, taxed at $____ for which judgment is hereby rendered against the defendant; and thereupon the defendant is by the court notified of h____ right of appeal. It Is Further Ordered, Adjudged and Decreed by the court that this judgment and sentence shall be suspended so long as the said defendant shall comply with the following terms and conditions, to-wit: (1) that said defendant shall not violate any law, but shall be a quiet, peaceful and law-abiding citizen; (2) that said defendant shall refrain from habitually associating with lewd or vicious persons; (3) that said defendant shall not indulge in vicious habits; and it is ordered that the defendant shall be required to report to the Judge of this court as provided by law. (SEAL) Attest: ___________________________________ District Judge ___________________________________________ , Court Clerk By ___________________, Deputy Court Clerk (Side 2) THE STATE OF OKLAHOMA | > SS. ________ COUNTY | I, _______________, Court Clerk of the District Court of the __________ Judicial District of the State of Oklahoma, sitting in and for _________________ County, Oklahoma, do hereby certify the above and foregoing to be a true, correct, full and complete copy of the original judgment and sentence in the case of The State of Oklahoma -vs- _________ as the same appears of record in my office. WITNESS MY hand and official seal this ____ day of ____, 19__. (SEAL) ____________________________ , Court Clerk By _________________________ Deputy Court Clerk (Side 1) THE STATE OF OKLAHOMA | > SS. ________ COUNTY | In the District Court of the _____________ Judicial District of the State of Oklahoma Sitting in and for _______________ County, Oklahoma. STATE OF OKLAHOMA, Plaintiff, | | vs. > No. ____________ | ______________________________ | Defendant. JUDGMENT AND SENTENCE SUSPENDED ON PLEA OF GUILTY Now, on this ____ day of ____, 19__, the same being a juridical day of said court and the time duly appointed for judgment in the above entitled cause, and said cause coming on for judgment, and the defendant ____________ being personally present in open court and being duly represented at all appearances before the court by h____ attorney of record, and having been legally charged with the offense of ______________ and having been duly informed of the nature of the charge and having been duly arraigned thereon, and having duly and properly entered h____ plea of guilty to the crime of _______________________ after having been duly advised of h____ rights and the effect of such plea; and it appearing to the court that said defendant is of the age of ____ years, that said defendant has not heretofore been convicted of a felony in any state or territory of the United States of America, and has previously borne a good reputation; and the defendant having been asked by the court whether ____he has any legal cause to show why judgment and sentence should not be pronounced against h____, and ____he stating no sufficient cause why judgment and sentence should not be pronounced against the defendant, and none appearing to the court, it is the judgment of the court that said defendant is guilty of the crime of ________________ ____________________________________________________________________________________ It Is Therefore Ordered, Adjudged and Decreed by the court that the said _______________________ be committed to and be imprisoned in the State Penitentiary at McAlester, Oklahoma, and confined in said penitentiary for a term of __________________ for the crime of ______________________ said term of sentence to begin at and from the delivery of the defendant to the Warden of the State Penitentiary at McAlester, Oklahoma; and that said defendant pay the costs of this prosecution taxed at $____ for which judgment is hereby rendered against the defendant; and thereupon the defendant is by the court notified of h____ right of appeal. It Is Further Ordered, Adjudged and Decreed by the Court that this judgment and sentence shall be suspended so long as the said defendant shall comply with the following terms and conditions, to-wit: (1) that said defendant shall not violate any law, but shall be a quiet, peaceful law-abiding citizen; (2) that said defendant shall refrain from habitually associating with lewd or vicious persons; (3) that said defendant shall not indulge in vicious habits; and it is ordered that the defendant shall be required to report to the Judge of this court as provided by law. (SEAL) ____________________________________ District Judge Attest: __________________________ _____________, Court Clerk By __________________, Deputy Court Clerk (Side 2) THE STATE OF OKLAHOMA | > SS. _______ COUNTY | I, ____________, Court Clerk of the District Court of the ______________ Judicial District of the State of Oklahoma, sitting in and for ___________ County, Oklahoma, do hereby certify the above and foregoing to be a true, correct, full and complete copy of the original judgment and sentence in the case of The State of Oklahoma -vs- ___________________ as the same appears of record in my office. WITNESS my hand and official seal this ____ day of ____, 19__. (SEAL) ___________________________ ,Court Clerk By __________________________ Deputy Court Clerk

It should be noted that the forms above cited do not include judgment and sentence of death. However, ample authority exists under our Criminal Statutes, and it is suggested that these statutes be closely studied and used as a guide in preparation of judgment and sentence of death.

For the reasons set forth in this opinion, this appeal is DISMISSED.

NIX, P.J., and BRETT, J., concur.

NOTES

[1] The term "judgment" in § 1051 has been construed by this Court as "final judgment". "Appeals to Criminal Court of Appeals are from final judgment against defendant." Gibson v. State, 87 Okl.Cr. 260, 197 P.2d 310, and cases cited therein.

[2] The forms above set forth are uniform forms of judgment and sentence and were carefully prepared by the Honorable William Fogg and the Honorable Clarence Mills. District Judges in and for Oklahoma County and meet all the requirements of the law.