I respectfully dissent because, as I view the record, the verdict rendered by the jury is too indefinite and uncertain to sustain the judgment pronounced against the defendant.
It is only when the jury does not attempt to fix the punishment in their verdict that the trial court may do so. 22 O. S. 1941 § 927.
Here, however, the jury attempted to fix the verdict. The punishment was not left to the court. In order for this conviction to be affirmed, this court must guess that the jury meant to fix the punishment at 7 years, as there is nothing on the face of the verdict to indicate that such was the intent of the jury. As the verdict is written, they could have meant 7 months, 7 weeks, 7 days, or even 7 hours, and still been within the limitations of the statute fixing the punishment for this offense. Suppose the jury had inserted the word "6" instead of "7". Would the trial court have been justified in fixing the punishment at 6 years instead of 6 months? What if they had inserted the figure "10?" Then, would it be said that they meant 10 months or 10 weeks? As I view the record, when this verdict was handed to the trial judge, and he read it, he should have handed it back to the foreman of the jury, advising them that it was indefinite as to form and sent them back to the jury room for further deliberation.
I do not think that, under the circumstances presented by this record, the failure of the attorney to raise the issue before the trial court is fatal to his appeal. We have many times held that the question of the lower court's lack of jurisdiction to render a particular judgment and sentence by which a person is imprisoned may be raised at any time, even by habeas corpus. Ex parte *Page 424 Alton, 38 Okla. Cr. 383, 262 P. 215; Ex parte Hightower,13 Okla. Cr. 472, 165 P. 624; Ex parte Meadows, 70 Okla. Cr. 304,106 P.2d 139. In a habeas corpus proceeding, this court would examine the record to see whether the judgment and sentence was in conformity with the verdict. Ex parte Shockley,75 Okla. Cr. 263, 130 P.2d 331; Ex parte Harris, 8 Okla. Cr. 397,128 P. 156.
In my view, if no appeal had been taken, the defendant would have been entitled to his release from confinement in the State Penitentiary by habeas corpus, on the ground that the judgment and sentence was void and contrary to the verdict of the jury and that the court was without jurisdiction to pronounce the sentence.
In the case of Wingfield v. State, 38 Okla. Cr. 435,263 P. 158, it was held:
"A verdict finding the defendant guilty as charged in the information, and fixing his punishment 'at __________ or by the court,' is insufficient as to form, and is too vague and uncertain to support a judgment and sentence."
See, also, Rea v. State, 6 Okla. Cr. 366, 118 P. 815; Campbell v. State, 14 Okla. Cr. 319, 170 P. 915; George et al. v. State, 28 Okla. Cr. 388, 231 P. 318.
In Rea v. State, supra, this court stated:
"If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury."
I do not think counsel for defendant should be charged with laches in connection with this assignment of error. As he presents the matter, it is shown that at the time the jury handed their verdict to the trial judge, the judge read it and gave it to the court clerk *Page 425 to read in open court. The court clerk in reading the verdict added the word "years" to it. Under such circumstances, one may easily see how the attorney for the defendant was misled and did not really know the indefinite nature of the verdict until he saw it as it appeared in the case-made.
Concurring Opinion, March 11, 1946.