February 24, 1971.
An appeal from the District Court, Canadian County; Virgil M. Shaw, Judge.
Richard M. Fogg, El Reno, for plaintiffs in error.
Atty. Gen., Max A. Martin, Asst. Atty. Gen., for defendant in error.
The defendants, Tiffie Lackey, were charged by information in the District Court of Canadian County with the crime of Grand Larceny, After Former Conviction of a Felony. They were tried before a jury, convicted, and sentenced to serve ten years in the penitentiary. The defendants lodged their appeal in this Court within the time prescribed by law, asserting one contention of error. Defendants contend that the court erred in instructing the jury on "good time" allowed prisoners as prescribed by Title 57, O.S. 1968, Supp. § 138 [ 57-138].
In the instant case, the instruction did not apply because the defendants had a previous conviction. He was excluded by the beginning paragraph of the statute which reads as follows:
"Every convict who shall have no infraction of the rules and regulations of the prison or laws of the State recorded against him shall be allowed * * *."
This Court has held said statutes given in the form of an instruction is unconstitutional, but given in the second stage of a two-stage proceeding is not reversible error. Williams v. State, Okla. Cr. 461 P.2d 997. However, this Court has consistently held it to be grounds for modification.
Therefore, we conclude the jury could easily have been prejudiced by said instruction and in view thereof, we feel justice would be best served by modifying said sentence from Ten (10) Years to Five (5) Years in the penitentiary, and it is so ordered.
Modified and affirmed.
BUSSEY, P.J., and BRETT, J., concur.