This Court has no power to modify a sentence unless we can conscientiously say that under all the facts and circumstances the sentence is so excessive as to shock the conscience of the Court. Johnson v. State, Okla. Cr. 386 P.2d 336 (1963); Hudson v. State, Okla. Cr. 374 P.2d 923 (1962). Title 21 O.S. 1971 § 801[ 21-801] provides that the crime of Attempted Robbery is punishable by imprisonment for life at hard labor in the State penitentiary, or for a period of time not less than five years. Under the facts and circumstances of the instant case, we are unable to find that the sentence imposed is excessive and requires modification. The contention raised in defendant's pro se brief, that there was a fatal variance between the information and the verdict, is based upon his argument that since the evidence clearly showed the completed offense of Kidnapping, but only the attempted offense of Armed Robbery, it was improper to permit the State to charge the latter crime rather than the former.
We have repeatedly held that the question of excessiveness of punishment must be determined by a study of all the facts and circumstances in each particular case, and this Court does not have the power to modify a sentence unless we can conscientiously say that under all the facts and circumstances the sentence is so excessive as to shock the conscience of the court. See LaRue v. State, Okla. Cr. 404 P.2d 73; Johnson v. State, Okla. Cr. 386 P.2d 336; Hudson v. State, Okla. Cr. 374 P.2d 923. In the instant case the jury assessed the minimum punishment provided by law, and this certainly does not shock the conscience of the Court.
Having regard for the law, we cannot do so for reasons of sentiment or sympathy; we can do so only if we can say judicially that under the entire record the punishment is too severe and that justice requires it to be modified." See also: Hudson v. State, Okla. Cr. 374 P.2d 923 (1962). But again we point out, that defendant offered nothing for this Court to consider, when he failed to offer some defense or other explanation; consequently, we are left only with conjecture concerning what the jury might have felt, coupled with sympathy for the long sentence assessed him. Relying on that conjecture, why was the defendant in a neighborhood — not his own — with a weapon at his disposal? Failing to provide an answer to such a question may have caused the jury to feel that such punishment was warranted, because of the absence of some explanation.
And Title 21 O.S.A. § 51 [ 21-51] provides for enhanced punishment where an accused is charged with having committed a crime after former conviction of a felony, as was this defendant. Hudson v. State, Okla. Cr. 374 P.2d 923; Smith v. State, Okla. Cr. 347 P.2d 232; Vassar v. State, Okla. Cr. 328 P.2d 445, certiorari denied 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548. The appeal was filed in this Court on April 4, 1967, and under Rule 6 of this Court, defendant had thirty days thereafter within which to file a brief.
We have also held that this Court does not have the power to modify a sentence unless we can conscientiously say that under all the facts and circumstances the sentence is so excessive as to shock the conscience of the Court. Hudson v. State, Okla. Cr. 374 P.2d 923; Cowling v. State, Okla. Cr. 327 P.2d 500; White v. State, 76 Okla. Cr. 147, 134 P.2d 1039. Finding nothing in the record to justify interference with the verdict of the jury, the judgment and sentence of the district court of Bryan County is affirmed.
The punishment for Reckless Driving as stated under Title 47 § 121.3 is "imprisonment for a period of not less than five (5) days nor more than ninety (90) days, or by fine of not less than Twenty-five Dollars ($25.00) nor more THAN Five Hundred Dollars ($500.00), or by both such fine and imprisonment". This Court has repeatedly held that the weighing of evidence in arriving at a verdict is within the province of the jury (Hudson v. State, Okla. Cr. 374 P.2d 923) and further, that unless we can conscientiously say that the judgment of the trial court was so excessive as to shock the conscience of this Court, the jury's verdict will be upheld. (McCluskey v. State, Okla. Cr. 372 P.2d 623.)