Ivey v. State

MATSON, J.

(after stating the facts as above). It is first contended that defendant was tried for an indirect contempt of court without any written accusation having been lodged against him. In answer to this assignment of error it is sufficient to state that the record does not support the same. We find in the record a sufficient written accusation lodged against the defendant as a basis for his attachment to show cause in defense of the charge that he had violated the temporary order of injunction theretofore issued in the proceeding.

It is next contended that the demurrer to the state’s evidence should have been sustained, and that the trial court *185 should' not have permitted the state to reopen its case after having closed the same for the purpose of introducing certain pleadings.

These assignments of error are not well founded. We deem the evidence sufficient to sustain the judgment. It was discretionary with the trial court to permit the state to reopen its case for the purpose of introducing the pleadings and orders in the original proceeding for the temporary injunction. Dix v. State, 15 Okla. Cr. 559 , 179 Pac. 624 .

These were matters of which the court could properly take judicial notice; therefore no harm could have resulted. State v. Bates, 22 Utah, 65 , 61 Pac. 905 , 83 Am. St. Rep. 768 ; Atkins v. State, 16 Ark. 574 .

It is also contended that the judgment and sentence is ambiguous, in that no time is set for the beginning of it.

In Ex parte Eldridge, 3 Okla. Cr. 499 , 106 Pac. 980 , 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967 , it is held:

“The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that where the penalty is imprisonment, the sentence may be satisfied only biy the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.”

While the judgment provides that the term of sentence is to begin at and from the expiration of a former sentence, such language forms no part of the judgment itself, which is that the defendant shall be imprisoned for the period of 60 days in the county jail and pay a fine of $200. And, in order that no ambiguity may arise in enforcing the judgment, the same *186 is modified to provide that tbe imprisonment shall begin upon the delivery and reception of the defendant in the county jail of Oklahoma county. In all other respects the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.