text:
    STATE ex rel. A. E. ROTHROCK v. HAYNES.
    No. A-10837.
    Feb. 19, 1947.
    (177 P. 2d 515.)

      Raymond A. Trapp, of Blackwell, for plaintiff.
    Raymond O. Craig, of Newkirk, for defendant.
   JONES, J.

This is original proceeding instituted by the petitioner, John Rothrock, in which he seeks a writ of mandamus directed to the Honorable Ralph C. Haynes, judge of the county court of Kay county, ordering said respondent to dismiss a criminal action against him pending in the county court of Kay county, for the reason that several terms of court have passed since an information was filed against petitioner, charging him with the offense of driving an automobile on the public highways while under the influence of intoxicating liquor; and that the petitioner had been denied his right to a speedy trial, as guaranteed to him by the Constitution and statutes of Oklahoma.

At the time of the filing of the verified petition, counsel for petitioner presented what is termed a “Return of Alternative Writ”, signed by the county judge and county attorney of Kay county, to which there is attached a stipulation of facts upon which it is agreed that the case might be submitted, if this court assumed original jurisdiction.

After argument of counsel and due consideration, this court assumed original jurisdiction to determine this matter, and directed the filing of the return of the respondent.

The material facts which determine the disposition of this cause are as follows:

1. Defendant was charged by information in the county court of Kay county on June 21, 1944, with the offense of driving a motor vehicle upon the public highways of Kay county while under the influence of intoxicating liquor.
2. Defendant was arraigned, entered his plea of not guilty to the charge, his bond was fixed in the sum of $500 for his appearance, and on June 27, 1944, a good and sufficient bond was filed by defendant and he was released from custody.
3. No order of any kind was made or entered in said cause following the filing of said information and the making of bond, setting the same for trial, or granting a continuance thereof until the present county judge took the oath of office on January 13, 1947, when he made an order setting the case for trial on February 25, 1947.
4. Ample funds were available during all of the time that the information was pending against defendant, from June 21, 1944, until the present time, and there were sufficient cases on file to justify the calling of a jury session of court, but no trial assignments were made or jury summoned until the present term of court, which commenced in January, 1947.

It has been held that the writ of mandamus is the proper remedy to compel a trial court to dismiss a cause where defendant has been denied his right to a speedy trial. Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P. 2d 922; McLeod v. Graham, 6 Okla. Cr. 197,118 P. 160.

The Bill of Rights of the Oklahoma Constitution provides: “Right and justice shall be administered without sale, denial, delay, or prejudice,” art. 2, § 6; and, further, “in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Art. 2 § 20. '

Tit. 22, O. S. 1941 § 812 provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

In the case of Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419, 427, it is stated:

“The term ‘speedy,’ as employed in the constitutional provisions under consideration, being a word of indeterminate meaning, permits legislative definition to some extent; and the authorities generally hold that statutes providing for a discharge of accused unless trial is had within a stated time after indictment, information, or commitment, or which require an indictment or information within a stated'time, are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision, and must be construed fairly to the accomplishment of that end. 22 C. J. S., Criminal Law, § 467, p. 716.
“See, also, Ex parte Leathers, 66 Okla. Cr. 172, 90 P. 2d 450; Ex parte Menner, 35 Okla. Cr. 252, 250 P. 541; Ex parte Munger, 29 Okla. Cr. 407, 234 P. 219.”

And, also:

“As there is no hard and fast rule for determining the question as to what is meant by the term ‘unless good cause to the contrary be shown,’ § 2872, supra [22 O. S. 1941 § 812], it becomes a matter for judicial determination under the facts and circumstances in each particular case.”

It has been held that where the defendant is on bail the presumption is that the delay was caused by or with the consent of the defendant and the record must affirmatively show that he demanded a trial or resisted the continuance of the case. However, if the defendant is not on bail, the law makes the demand for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause. State ex rel. Davis v. Bayless, 38 Okla. Cr. 129, 259 P. 606; Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Bowes v. State, 7 Okla. Cr. 316, 126 P. 580.

In State ex rel. Davis v. Bayless, supra [38 Okla. Cr. 129, 259 P. 607], this court stated:

“A defendant [on bail] who has never demanded or been refused trial is not entitled to a discharge, under constitutional provisions (article 2, § 20) and the statutory provisions (22 O. S. 1941 § 812).”

This court has held in numerous cases that the constitutional guaranty of a speedy trial may be waived by consenting to continuances, and by the failure of a defendant enlarged on bail to present himself as required by the conditions of his bond, and demand a trial. Francis et al. v. State, supra; Weeks v. State, 16 Okla. Cr. 443, 183 P. 932; Head v. State, 9 Okla. Cr. 356, 131 P. 937, 44 L. R. A., N. S., 871.

Counsel for petitioner asks this court to apply a different rule where the trial court has failed to have a trial assignment during several terms of court, from those cases where a trial assignment was issued by the trial court, but the case of accused would not be upon the assignment, and the accused nor his counsel appeared and demanded a trial.

We cannot see how the slight difference in the factual situation in the instant case would require the application of a different rule of law from that which we have applied without exception to those cases where the defendant is at liberty on bail and has never demanded a trial.

As has been hereinbefore pointed out, the question as to whether an accused has been denied his right to a speedy trial is a matter for judicial determination under the facts and circumstances in each particular case.

Although not determinative in the matter, it would at least have been persuasive if counsel for petitioner had made a showing that the unusual delay in bringing the petitioner to trial had caused him to be prejudiced in some way. There is no allegation in the petition, and no statement in the stipulation of facts wherein it is contended that the delay in assigning the petitioner’s case for trial has materially prejudiced him in preparing his defense.

For the reasons hereinabove stated, the petition for writ of mandamus is denied.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author:
BRETT, J.
      BAREFOOT, P. J.

license: Public Domain

text:
    GEORGE SMITH v. STATE.
    No. A-10497.
    Feb. 19, 1947.
    (177 P. 2d 523.)

      For former opinions, see 81 Okla. Cr. 412, 165 P. 2d 381,167 P. 2d 83.

      Amos T. Hall, of Tulsa, and James K. Eaton, of Pitcher, for plaintiff in error.
    Randall S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for defendant in error.
   BRETT, J.

The record in this case discloses, beyond doubt, that the defendant, George Smith, a negro, made an unprovoked attack on H. O. Crane, a white man, with premeditated design to injure Crane. The facts, however, are not involved in the appeal. For those who may be interested in the facts, see Smith v. State, 81 Okla. Cr. 412, 165 P. 2d 381, wherein Judge Barefoot gives a full and complete statement of the facts.

The only question herein involved is one of law, as set forth in assignment of error No. 2, “that'the verdict of the jury is contrary to law.” This error was based upon the verdict which reads as follows:

We the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant George Smith guilty of maiming * * * as charged in the Information herein, and assess his punishment at imprisonment in the State penitentiary for Seven (7) * * * John T. Cole, Foreman.”

This verdict was returned in open court and was read. We are mindful that the defendant and his counsel had the right to examine it and to raise any objection to the verdict that they might desire to lodge against it. We are also aware of the fact that no objection was raised to the verdict in the motion for new trial and that no motion in the arrest of judgment was filed. We also realize that by this course of conduct, the defendant and his counsel could have been said to have waived the right to object at the trial and, being raised for the first time on appeal, that the objection would be too late. Notwithstanding all of this, the conduct on the part of the defendant’s counsel can readily be understood, when reference is had to the usual and accepted trial procedure, and as the matter is presented herein. The jury herein returned their verdict to the trial judge and the judge read it to himself and handed it to the clerk to read in open court. The court clerk, in reading the verdict, added the words “years” to it. Under these circumstances, it is easy to perceive how the defendant’s attorney was completely disarmed and misled. It would be a harsh rule that would hold that under such circumstances this error was waived by failure to object. It would be particularly harsh where the error complained of is fundamental and one of substance and not just a matter of form. The verdict in this instance is the very essence of the conclusion of the trial, so far as this defendant was concerned. He was entitled to know when found guilty what penalty the jury imposed. Upon being found guilty, and the jury fixing the punishment by confinement in the penitentiary, the defendant was certainly entitled to know the length of time he would be required to serve. Verdicts should not be returned in such form as to be left dangling in the realm of speculation. The verdict should be in such form that the judgment and sentence, in a criminal case, should never become a matter of guesswork on the part of the court. Courts dealing with life and liberty have no right to dispense what might be termed speculative, or “bucket shop justice”.

The fact is, that, whatever the jury had in their minds in this case, they did not express it with that degree of certainty required in so serious a matter as a verdict fixing punishment. Who are we to invade the unfathomed recesses of mental process and say the jury intended to inflict the maximum penalty of seven years? If their intention had been clearly expressed, it might just as easily have been for a shorter period of time. As one member of this court so aptly put it in the dissenting opinion filed on January 16, 1946, Smith v. State, 81 Okla. Cr. 412, 165 P. 2d 381, 386, “as the verdict is written, it could have meant 7 months, 7 weeks, 7 days, or even 7 hours, and still have been within the limitations of the statute fixing the punishment for this offense.” Suppose the jury had intended to fix the punishment at seven months. Would the court have been justified in fixing the judgment and sentence at seven years? Obviously not. Suppose the jury -had fixed the time at ten. Would the court say that the jury intended the punishment to be confinement in the penitentiary for ten years, or ten days, or ten months? If the verdict is to stand in this case, it is clear that we must enter the realm of speculation to sustain it. Even a casual examination of the verdict nowhere discloses by any indication that the jury intended to fix the punishment at seven years, seven months, seven weeks, or seven days. It is no more the right of this court than it was the right of the trial court to interpret what we think the jury had in their minds. Particularly is this true, where a conclusion cannot be reached with a fair degree of certainty, but must be resolved by speculative practice. It is still inescapable that whatever the jury had in their minds was not expressed, with that degree of certainty to which the defendant was entitled under the law.

In following the foregoing process of reasoning, we are not unmindful that this court has held that verdicts are to be liberally construed, and where irregular as to form and not objected to at the time the verdict is returned and the court given an opportunity to have the jury correct it, that every intendment and effort will be indulged to uphold it, and where from an examination of the verdiet and the entire record the intention and purpose of the jury, as expressed in the verdict, might be clearly ascertained, the verdict will be upheld. Dunbar v. State, 75 Okla. Or. 275, 131 P. 2d 116. Nor are we unmindful that this court has repeatedly held that a verdict will not be void if its meaning can be determined by reference to the record proper. Bowlegs v. State, 9 Okla. Cr. 69,130 P. 824; Walker v. State, 11 Okla. Cr. 339, 127 P. 895; Simmons v. State, 15 Okla. Cr. 442, 177 P. 626; Coleman v. State, 16 Okla. Cr. 579, 194 P. 282; Gidens v. State, 31 Okla Cr. 137, 236 P. 912; Nelson v. State, 34 Okla. Cr. 187, 245 P. 1009; Horton v. State, 44 Okla. Cr. 318, 280 P. 857; Bayne v. State, 72 Okla. Cr. 52, 112 P. 2d 1113. Here, we have indulged every intendment and inference, have examined the pleadings, the evidence, and the instructions and still, though we may believe we know what the jury had in mind, we are at a loss to say with certainty what the jury'actually had in their minds because they did not say it, whatever it was. It is apparent that because of the patent uncertainty of the verdict, it was insufficient upon which the court could base its judgment and sentence.

This court has repeatedly held that the question of the lower courts’ 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 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 has held it 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 our view, the verdict was too indefinite to support a judgment and sentence, and being so, the court was without jurisdiction to predicate upon it the punishment pronounced.

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.”

We have searched diligently for a case where the facts are parallel to the situation herein involved. So far as we have been able to ascertain, only one, Cooper v. State, 136 Tex. Cr. R. 498, 126 S. W. 2d 974, 975, from the Court of Criminal Appeals of the State of Texas, wherein the jury returned a verdict in form as follows, to wit:

“We, the jury, find defendant guilty as charged and assess the punished at 7 — Seven confinement in the State peneterry. Forman, J. D. Davis.” (Spelling not ours.)

The court held the facts in that case to be sufficient to warrant a conviction, but held the verdict insufficient upon which to predicate judgment and sentence and in so holding, said:

“While familiar with the doctrine of ‘That is certain which can be made certain,’ we confess we are at a loss to know just what punishment this jury actually gave the appellant. They might have intended to give him 77 days, weeks, months or years, or 7 days, weeks, months or years. Probably they intended the punishment to have beén 7 years, and thus the court interpreted their verdict, but such verdict does not say 7 years, or any term of years.
“Verdicts of juries should receive a liberal rather than a strict construction, and if the finding of the jury can be reasonably ascertained, the verdict should be held to be good as to form, and bad spelling or bad grammar should not of necessity vitiate such verdicts, see Branch’s Penal Code, p. 331, but we must confess that this verdict is so unintelligible that we have to indulge in various presumptions in order to ascertain what punishment is to be meted out to appellant. This verdict should not have been received by the trial court, but should have been corrected in the presence of the jury relative to the punishment assessed therein.”

This case clearly supports our conclusion that the verdict in the case at bar was insufficient upon which to base judgment and sentence. This being true, the court was without power in this case to fix the penalty. Only where the jury finds the defendant guilty, and fail to agree on the punishment to be inflicted or do not declare the punishment by their verdict, the court shall assess and declare the punishment and render judgment accordingly. 22 O. S. 1941 § 927. The jury herein attempted, most inartfully, to fix the penalty. The court should have observed the error and caused the same to be corrected. It had no right to pronounce judgment and sentence on this insufficient and uncertain verdict.

The judgment is accordingly reversed and the cause remanded for a new trial.

JONES, J., concurs. BAREFOOT, P. J., dissents.

BAREFOOT, P. J.

(dissenting). A petition for rehearing was filed in this case and granted, and the same was pending when there was a change in the membership of the court.

The original opinion herein was rendered on January 16, 1946, Smith v. State, 81 Okla. Cr. 412, 165 P. 2d 381, and a dissenting opinion on the same date. A concurring opinion was rendered on March 11, 1946, reported in 81 Okla. Cr. 412,167 P. 2d 83.

On the hearing of the motion for rehearing, the majority of the court as it is now constituted, ordered the former opinions withdrawn and have filed the above opinion. I am unable to agree with the conclusion reached in the opinion this day filed. Instead of writing a dissenting opinion, I am referring to the original opinion prepared by myself in this case, 81 Okla. Cr. 412, 165 P. 2d 381, and the concurring opinion of Judge Thomas H. Doyle, 81 Okla. Cr. 412, 167 P. 2d 83, above mentioned, and asking that they be referred to in the 81 Okla. Cr. 412, as my dissenting opinion in this case.


author: BRETT, J.

text:
    Ex parte PAUL SCHRACK.
    No. A-10S32.
    Feb. 26, 1947.
    (177 P. 2d 675.)

      Judd L. Black and Sid White, both of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   BRETT, J.

The petitioner, Paul Schrack, was held by committing magistrate, Otis James, of Oklahoma county, for trial on a charge of burglary in the second degree. Upon said commitment, the county attorney of Oklahoma county caused an information to be filed against the said Paul Schrack, based upon said commitment. Application was made to this court for a writ of habeas corpus, alleging that said commitment was wholly void in that the committing magistrate had no legal and competent evidence before him to establish probable cause for believing the petitioner guilty of the offense of burglary in the second degree or of any offense. This contention was based upon the proposition that the police force of Oklahoma City, acting for and on the behalf of the State of Oklahoma, extorted and compelled said petitioner to give false evidence against himself in the form of a confession. The confession was used in the preliminary examination as a part of the evidence for the committing magistrate’s finding of probable cause and upon which he bound petitioner over to the district court.

Upon these contentions, the petitioner predicates the claim that he has been deprived of due process of law and for that reason, the district court of Oklahoma county could acquire no jurisdiction to try said petitioner on said charge of second degree burglary. It is further set forth in the petition that application was made to the district court for habeas corpus, which application was therein denied. To the application, a response was filed, denying the said contentions of the petitioner.

It has long since been established that, where an information has been filed, the office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced on the preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement, or by a motion to quash, or motion to set aside the information. Ex parte Patman, 1 Okla. Cr. 141, 95 P. 622; Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142; Ex parte Black, 37 Okla. Cr. 83, 256 P. 941; Ex parte Lansdon, 38 Okla. Cr. 59, 258 P. 1065; Ex parte Eason, 45 Okla. Cr. 211, 282 P. 684. Some of the recent cases dealing with this proposition are Ex parte Presnell, 58 Okla. Cr. 50, 49 P. 2d 232; Sparks v. State, 71 Okla. Cr. 430, 112 P. 2d 434; Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868.

We take the view that in this ease, an information having been filed in the district court of Oklahoma county, the defendant has a right to question the sufficiency of the information by following the procedure hereinbefore approved by this court.

It appearing that the petitioner, for the reasons stated, is not entitled to the writ, it will be denied.

BAREFOOT, P. J., and JONES, J., concur.


author: JONES, J.

text:
    JESSE LOVE v. STATE.
    No. A-10659.
    Feb. 26, 1947.
    (177 P. 2d 846.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Haskell A. Holloman, Asst. Atty. Gen., for defendánt in error.
   JONES, J.

This is an appeal from a conviction sustained by the defendant Jesse Love in the county court of Garfield county. -

Two propositions are presented by the appeal, to wit: First, the officers making the search did not have a legal search Avarrant, and the search made thereunder was unreasonable. Second, the evidence is insufficient to sustain a conviction.

These questions are so closely related that for the purpose of disposing of them they may be considered together.

In support of the first proposition, the record discloses that prior to the trial, counsel for defendant filed a motion to suppress the evidence on the grounds that the search warrant was invalid and insufficient, and that the seizure of the whisky in question was in violation of the constitutional rights of defendant.

A hearing Avas held on this motion to suppress evidence at which it was shown that on December 30, 1944, Ralph Tennison, a police officer of Enid, signed two affidavits for search warrants before a justice of the peace of the city of Enid. One of these affidavits sought a warrant to search room 305 in the Youngblood Hotel located at 302 North Independence street in the city of Enid, and it alleged that the property was in possession of one Jesse Love. A warrant was issued based upon this complaint, but the testimony of the officers and the endorsement on the warrant shows that it was not served. Another search warrant was issued on the same date based upon the second affidavit, which described the premises to be searched as:

“Street address 302 North Independence, City of Enid, Oklahoma, being the South 3 feet of Lot Ten (10) and all of Lots 11, 12 and 13 and 16.25 feet vacated strip on the South side of Lot 13, all in block 25, Jonesville Addition to the City of Enid, Oklahoma, said premises being also described as Youngblood Hotel, including all cloak rooms, store rooms, toilet rooms, engine rooms, employees’ lounge or locker rooms, and any and all other rooms used in the operation of said Youngblood Hotel and located therein, which are not rented nor occupied by hotel patrons; that said property is in the possession of the Enid Hotel Company, a Corporation.”

The testimony of the officers was that the whisky involved in this prosecution was seized under authority of the warrant directed to the Youngblood Hotel above described, a copy of which was served on defendant, who according to the evidence of the officers, was the chief bell boy in charge of a locker room and cabinet where the whisky was found.

The testimony of the officers further showed that on the date in question, four policemen and a highway patrolman, armed with the two search warrants above described, went to the Youngblood Hotel in the city of Enid to conduct a search of the premises for intoxicating liquor.

Officer Tennison, the person in charge of the search and the officer to whom the warrant was directed, testified that upon entering the hotel he went directly to the check room, which was a room that the bell boys used to store their equipment such as ice trays and pitchers which they used in making service calls. Also in the room were some shelves where luggage was sometimes stored when it was checked with the bell boys by patrons of the hotel. Also in the room was a cabinet which was locked. Shortly after the officers entered the check room, the defendant appeared. Tennison gave him a copy of the search warrant and asked defendant if he had a key to the cabinet which was in the room. The defendant stated he knew nothing about it. Whereupon the officers told defendant that if he did not produce the key, they would break the door to the cabinet. The witness further testified that when this statement was made to the defendant, he produced the key from his pocket, the cabinet was opened, and 11 quarts and eight pints of tax-paid whisky were therein found. After this whisky was found, the officer asked defendant if he had any more whisky, and defendant said “no.” The officer then informed defendant that the warrant covered any place in the hotel, and that he was going to look around, and that if he had any more whisky it would probably save the management of the hotel embarrassment if he would show them where it was. That after this conversation was held, the defendant took the officers to the third floor. That he there unlocked a door to a pipe shaft and showed them eight quarts and five pints of whisky and stated that’s all there was. On cross-examination, the officer testified that he told the defendant after the whisky was found in the cabinet in the locker room, that if he had any more whisky and if he did give it to the officers it would save the management as much embarrassment as possible. The other officers’ testimony was substantially the same as that of Officer Tennison.

The defendant did not testify, but there was called as a witness in his behalf, one Joe Sisk, a bell boy at the Youngblood Hotel, who testified that the master keys to all the rooms in the hotel and other keys are kept on a ring hanging on a nail at the west end of the clerk’s desk for the use of the employees. On cross-examination in response to the question, “Is there a key on there that opens the little cabinet in the cloak room?” he stated, “No, sir, I have that key in my pocket.” Question, “Do you know where that key was on the night of December 30, 1944?” Answer, “On this ring, so far as I know.”

The ring referred to by the witness was a ring allegedly brought by the witness from the hotel, on which there were several keys. It was further brought out on cross-examination of the witness Sisk that the key to the door leading to the pipe shaft where the liquor was stored on the third floor was not kept on the key ring at the desk.

The defendant did not testify either on the motion to suppress evidence or at the trial. There was no contention made by him that he was the owner of the premises which were searched by the officers.

In Plumlee v. State, 78 Okla. Cr. 201,146 P. 2d 139, it is held:

“Constitutional provision guaranteeing one immunity from unlawful search and seizure is personal, and one accused will not be heard to object thát the search of the property or premises of some third person is a violation of his constitutional rights.”

The case of Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843, 844, is very similar to the one in controversy. In the body of the opinion it is stated:

2d 394; Rogers v. State, 72 Okla. Cr. 123, 113 P. 2d 606; Chanosky v. State, 52 Okla. 476, 153 P. 131; Hall v. State, 39 Okla. Cr. 254, 264 P. 221, 222.
“The proof showed that three state officers went to a justice of the peace at Lawton and procured two search warrants, one of the search warrants describing the home and premises of the defendant, Joe Freeman, and the other describing the house and two lots adjoining the home of the defendant, Joe Freeman. The owner of these premises was given as John Doe. * * *
“The state officers took the two warrants and, without consulting any of the local officers, went first to the home of Joe Freeman and searched it without finding any liquors. The house adjacent to Freeman’s was locked and unoccupied at that time. With reference to this place, Officer Walsh testified:
“ ‘A. Previous I had asked Mr. Freeman who was living in this place, he told me that a man working on some job rented the place in the winter time and went on the road in the summer time. I asked if he had the keys, he said, ‘No.’ All of the gates were locked, fastened up with ropes, excepting the gate leading from Freeman’s home leading to the back door of this house. This is directly north of his residence, which had a lock on the gate and on the back door. He finally gave us two keys to the place. We found that they were not the proper keys. Mr. Finley made Freeman produce the proper keys, telling him we were going to break in the place, that he might as well give us the keys anyway. Q. He gave you the keys then? A. Yes, he did. Q. What, if anything, did you find? A. We found a quantity of whisky, wine, and gin. Q. How much, if you recall? A. In a rough count, there was some place around 1,200, 1,400, maybe 1,600 bottles. I would say over 1,200 bottles.’
“It is not necessary to discuss the question raised by the defendant, as this proof shows that the defendant did not claim the ownership or possession of the house where the liquors were found. The defendant did not testify either on the motion to suppress the evidence or in the trial; but in his statement to the officers, he denied any ownership or possession of the house where the liquor was found.
“This court has many times held that the constitutional provision guaranteeing one immunity from unlawful search and seizure is personal to the occupant of the premises involved; and one accused of crime will not be heard to object that a search is unlawful where the accused denies that he owns or has possession of the property or premises searched. Tacker v. State, 72 Okla. Cr. 72,113 P..

“In this case the house where the liquor was found is not the home or within the curtilage of defendant’s home, as it is on an entirely different lot and enclosed by fence. The defendant stated that it was being rented by a man who was away for the summer; but defendant produced the keys to the house.”

We think the circumstances of the defendant being present at the locker room and producing a key to the cabinet where the whisky was found after first stating he did not have a key, and then taking the officers to a hidden cache of whisky on the third floor after they asked him if he had any more whisky are sufficient to connect the defendant with the possession of the whisky in controversy and are sufficient in the absence of any proof to the contrary to sustain his conviction.

The judgment and sentence of the county court of Garfield county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    FRANK EMMETT RICE v. STATE.
    No. A-10754.
    Feb. 26, 1947.
    (177 P. 2a 849.)

      F. E. Riddle, of Tulsá, for plaintiff in error.
    Mac Q. Williamson, Atty. Cen., Haskell A. Holloman, Asst. Atty. Gen., Dixie Gilmer, Co. Atty., and M. 5. Simms, Asst. Co. Atty., both of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant Frank Emmett Rice was charged in the district court of Tulsa county with the crime of robbery with firearms; was tried, convicted and sentenced to serve a term of 25 years in the State Penitentiary, and has appealed.

This defendant was previously convicted under this same charge, his case appealed to this court and reversed and remanded. Rice v. State, 80 Okla. Cr. 277, 158 P. 2d 912. He was again convicted, and has appealed to this court.

Subsequent to Ms present conviction, and on June 8, 1946, defendant filed in tMs court a petition for writ of habeas corpus, seeking his release from the State Penitentiary, where he is now confined. Both cases have been briefed and submitted on oral argument. As the same issue is presented in both cases, and by agreement, they are considered together.

A detailed statement of the facts surrounding this charge is set out in the former opinion of this court. We shall not repeat the facts, but only refer to them when necessary to decide the issue here involved.

The assignments of error here presented are:

“1. Where defendant is charged in a state court with a serious offense, and is unable to employ counsel, a refusal or failure to assign counsel to represent the defendant, whether requested or not, is a violation of the State Constitution, and likewise a violation of the 14th Amendment to the Federal Constitution, making any judgment rendered absolutely void.
“2. Where a defendant is forced by the state court to trial with undue haste, is equivalent to a denial of the use of counsel in his defense, and voids any judgment which may be rendered therein.
“3. That under all the facts and circumstances of this case, the punishment of twenty-five years in the State Penitentiary is excessive.”

With reference to the first and second assignments of error, the record reveals that when the former case was reversed and remanded, defendant remained in the State Penitentiary and in the Tulsa county jail until he was tried the second time, for the reason that he was unable to make bond. While defendant was in the Tulsa county jail, having been returned there from the State Penitentiary, the court on January 17, 1946, entered an order setting his case for trial on the jury docket for January 31, 1946. The record reveals that this order was made at the personal request of defendant, who stated that he desired that his case be set and tried.

On the date the case was called for trial, the following proceedings are noted in the record:

“Case called for trial. Both sides ready. Defendant present in open court with counsel, Walter Henneberry. Walter Henneberry given leave to withdraw as counsel for the defendant. The court appoints public defenders, Harry Dyer and W. C. Peters as counsel for the defendant. Jury called and sworn on voir dire.”

Preceding the trial, the record discloses the following proceedings:

“The Court: All right, proceed. — Mr. Dyer: Comes now the defendant, Frank Rice, through his counsel, public defender appointed at 1:50 p.m.— The Court: No, you were appointed this morning. All, the records and information was ordered given you this morning. Mr. Dyer: I want to do this exactly right. The Court: Let’s get it understood here, you are an officer of this court. Mr. Dyer: Yes, sir. The Court: And the court is asking you to try this case, because the defendant himself personally has requested that his case be tried at this time, and there is no burden on you except as an officer of this court, to try this lawsuit. Do the best you can. Mr. Dyer: Well, the only thing I am thinking is that somebody else may come in this case later on— The Court: All right. Mr. Dyer: Comes now the defendant and moves the court to continue this case until such time as the court may deem fit, to give counsel time to prepare this ease. The Court: All right. The request is granted to this extent, that this case will be passed until 2:30 to give counsel an opportunity to consult with his client and be ready for trial'at that time. (2:30. p.m., January 31, 1946, parties present and presiding as before. Defendant present in open court.) Whereupon a jury was duly drawn, impaneled and sworn to try the issues in said cause, at 2:30 p.m., after which the following proceedings were had: The Court: You may make your opening statement.”

The case then proceeded to trial and a verdict of guilty was returned by the jury at 5:30 p.m. on the same date, and defendant’s punishment was assessed at 25 years in the State Penitentiary.

While it is not disclosed by the record, at the time of the hearing on the petition for habeas corpus, it was agreed by counsel for petitioner and the assistant county attorney appearing for the respondent, that at the time the case was called for trial and counsel who had been appointed by the court to defend Rice asked for a continuance of the case to enable them to prepare for trial, the defendant Rice arose in the courtroom and objected to a continuance, and told the court that he was demanding that he be tried at once, and that he was ready for the trial to proceed.

It is revealed by the record that the prosecuting witnesses, Mr. and Mrs. W. B. Dossey, were not residing in Tulsa county at the time of the second trial, and the testimony given by them at the former trial was read to the jury. The only other witnesses who testified were two city police officers who testified to arresting defendant on the night of the robbery, and one of the officers stated that defendant admitted robbing Mr. and Mrs. Dossey that night.

The record also reveals that defendant was not placed upon the witness stand, nor was any evidence produced in his behalf. The testimony of the doctors and defendant’s mother, who testified in his behalf at the former trial as to his mental incapacity, was never presented to the jury.

There is attached to the petition for habeas corpus, filed in this court on June 8, 1946, an affidavit of Harry Dyer, one of the public defenders of Tulsa county who was appointed by the court to represent defendant on the date his case was called for trial and after the attorney he had employed was permitted to withdraw from the case. This affidavit is as follows:

“Personally appeared before me the undersigned authority, Harry Dyer, who on oath states that on the 31st day of January, 1946 and between the hours of 10:30 and 11 o’clock, the case of State of Oklahoma vs. Frank Rice was called for trial in Division No. 1 of the District Court.
“Affiant states that Walter Henneberry had been employed to represent Frank Rice, and after the case was called for trial the said Walter Henneberry asked leave of the court to withdraw as attorney for Frank Rice; that the court entered an order permitting the said Walter Henneberry to withdraw as such attorney.
“Affiant further states that he was informed some time during the morning that R. R. Linker had been employed to assist the said Walter Henneberry in representing the said Frank Rice in his trial; that it was reported by some one at the court room that Mr. Linker was home ill and not able to be present in Court and to participate in the trial of Frank Rice; that some inquiry and investigation wás made as to the condition of Mr.- Linker, and that it was ascertained that he was home confined to his bed on account of illness. That at this time it was getting up toward the noon hour. That affiant and one W. C. Peters, were the two public defenders in Tulsa County; that the court suggested their services were needed to defend Frank Rice, who was charged with robbery with fire arms, wherein the death penalty could be inflicted; that after the court reconvened at 1:30 affiant and the said W. C. Peters appeared in court, having been requested by the trial judge to defend the said Frank Rice; that after the said Walter Henneberry had withdrawn from the case and until this affiant and W- C. Peters were appointed by the Court, the said Prank Rice had no attorney.
“That affiant and the said W. C. Peters at the time the court reconvened at 1:30, had no knowledge or information about the evidence and facts in said case, and had not had an opportunity to consult with and advise with defendant in regard to his defense and was not acquainted with any of the facts. That they were informed and knew that the said Prank Rice had been tried and convicted in said court about two years prior thereto and was given a life sentence upon said ^charge which conviction had been reversed by the Criminal Court of Appeals; that affiant nor the said W. C. Peters had ever seen or read the transcript of the former trial, and knew nothing about the testimony introduced on the part of the State and the defense in the former trial including the testimony of the doctors; that both affiant and the said W. C. Peters were wholly unprepared to intelligently conduct said defense for said defendant at 1:30 p.m., when the court reconvened.
“That affiant and the said W. C. Peters requested the court at 1:30 p.m. to grant them a reasonable time to consult and advise with the said defendant in order to familiarize themselves with testimony and to examine and read the testimony of the former trial; that the court thereupon granted them one hour, until 2:30 to consult the defendant and to prepare for trial; that the State intended to and did use the testimony in the transcript of the former trial, which the county attorney used and introduced in evidence against the defendant.
“Affiant states that when the trial started at 2:30 p. m. they still had not had access to the transcript of the proceedings and the evidence on the former trial and did not have a copy of the same and were still unfamiliar with the testimony in said transcript including that of the doctors, nor did they have time to ascertain if other witnesses could be had for the defendant outside of the transcript and were still unprepared to enter upon the defense of said defendant in justice to themselves or to the defendant, all of which was known, or should have been known to the court, and the court declined to give them further time.
“Affiant states that under the direction of the court to the clerk, the clerk began to draw and call a jury from the box, to sit in the case. That the jury was drawn and sworn and opening statements of the county attorney made, and the state introduced its evidence, and the court charged the jury, and the arguments on the part of the state and of the defendant were made, the case submitted to the jury for consideration, and a verdict returned in open court about 5:30 p.m., between 5:30 and 6 p.m. of said day, convicting the defendant, giving him twenty-five years in the State Penitentiary. Affiant and the said W. C. Peters did not introduce the transcript of the evidence of the two doctors nor said doctors, and of the cross-examination of the state’s witnesses because they had not had time to examine and read the same, nor did they have time to talk with the doctors and ascertain what their testimony would be. Affiant makes this affidavit solely in the interest of justice and he has stated the facts just as he understands them; the said W. C. Peters has passed away in the last few days.
“Dated this 5th day of June, 1946.
“ (Signed) Harry Dyer
“Subscribed and sworn to before me this 5th day of June, 1946.
“ (Signed) Ruth Kelch.
“Notary Public
“My commission expires March 7, 1950.”

We desire to consider this case in the light of some early and recent decisions of this court, and the facts as stated in the prior decision in this case. These cases are: Prescott v. State, 56 Okla. Cr. 259, 37 P. 2d 830; Ex parte Cannis, 83 Okla. Cr. 113, 173 P. 2d 586; Neighbors v. State, 83 Okla. Cr. 331, 177 P. 2d 133, and Rice v. State, supra.

The state relies upon the following general rule, often announced by this court:

“It is a well settled and established rule in this state that an application for continuance in a felony case is addressed to the sound discretion of the trial court, and unless an abuse of such discretion clearly appears, this court will not reverse the judgment for a refusal to grant a continuance.”

The Prescott case is very similar in many respects to the case at bar. The facts in that case are not as strong as in the instant case, however, as we shall hereinafter point out. Under the decision in that case, we would be justified in refusing to reverse this case. Likes v. State, 54 Okla. Cr. 444, 23 P. 2d 394; Hall v. State, 11 Okla. Cr. 57, 142 P. 1044; Brewer v. State, 13 Okla. Cr. 514, 165 P. 634; Scott v. State, 29 Okla. Cr. 324, 233 P. 776; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Killion v. State, 19 Okla. Cr. 215,198 P. 625; Smith v. State, 16 Okla. Cr. 684, 181 P. 942.

In the case of Likes v. State, supra [54 Okla. Cr. 444, 23 P. 2d 395], it is said:

“Defendant in a criminal case is entitled to a reasonable time to prepare for trial; the time allowed for trial after plea is largely discretionary. What is a reasonable time depends on the facts and circumstances in each case. What might be a reasonable time to prepare for trial in one case might be wholly inadequate in another.”

And in the Scott case, supra, it was stated:

“A defendant charged with crime is entitled to a reasonable time to prepare for trial, and what is a reasonable time will depend upon the circumstances surrounding a particular case.”

In the Cannis case, supra, we held that there was an abuse of discretion and the petition for writ of habeas corpus was granted and the petitioner was ordered returned to Tulsa county for a new trial. The facts there presented were much stronger than in the instant case. In that case, it was held that the petitioner, by reason of the facts, had not received a fair and impartial trial, as guaranteed by the laws and Constitution of this state. The decision in that case rested largely upon the case of Goben v. State, 20 Okla. Cr. 220, 201 P. 812.

In the Neighbors case, supra, we have referred to the Cannis case and the Prescott case. Many of the facts in the Neighbors case and the instant case are very similar. That judgment was affirmed. We held that defendant had had ample time to prepare for trial. When the public defenders were appointed to defend him, his case was continued for a period of 64 days.

What are the facts here presented? Defendant was arrested in the early morning of April 28, 1941, for crime of robbery with firearms on the night of April 27,1941. After an information had been filed against him in the district court of Tulsa county, and on May 15, 1941, insanity proceedings were instituted in the county court of Tulsa county, and defendant was sent to the asylum at Yinita for treatment. He was kept there for a period of nine months, then turned by the superintendent of the asylum to the sheriff of Tulsa county. He was then tried on the charge of robbery with firearms which had been pending against him in Tulsa county during the time he was in the asylum. This case was tried October 8, 1942, and defendant was represented by attorneys R. R. Linker and F. E. Riddle. The case was reversed on May 16, 1945, defendant being represented on appeal by the same attorneys who represented him in the trial of his case. On January 17, 1946, an order was entered assigning defendant’s case for trial on January 31, 1946, at Ms request. He had theretofore employed Mr. Walter C. Henneberry of the Tulsa Bar as his attorney. Mr. F. E. Riddle was not re-employed to represent the defendant until after his second conviction and for the purpose of appealing his case, and filing the petition for writ of habeas corpus. Mr. Linker had been retained, but was sick and unable to he present when the case was called for trial on January 31,1946. This was the day Mr. Henneberry was permitted to withdraw and the public defenders, Mr. Dyer and Mr. Peters, were appointed to defend him. The case was tried on that date. The record does not disclose the reason for Mr. Henneberry’s withdrawal from the case, but at the time of oral argument and in the briefs it was stated that defendant refused to follow his adyice and enter a plea of guilty, and this was the reason for counsel’s action. It was stated by the assistant county attorney at the time that they had agreed to a sentence of seven years in the State Penitentiary, if defendant would plead guilty.

The facts and procedure thereafter have been heretofore stated.

From the above facts, and following the Prescott case and the cases cited therein, we would not be justified under the law in reversing this case. This defendant has had able counsel represent Mm in all of the proceedings. They have presented all matters before this court in an able manner. Mr. Linker had represented him in his first trial, and had been employed to represent him in the second trial. The récord does not disclose his reason for changing attorneys in his second trial, nor of his re-employment of the same attorney after he was convicted the second time.

In tbe Prescott case, supra [56 Okla. Cr. 259, 37 P. 2d 834], this court, in considering a case in which the death penalty was upheld, said:

“The facts in this case fail to show an abuse of discretion. The crime was committed on April 22, 1933, and the defendant was given a preliminary trial June 1933; no statement is contained in the record that the defendant was a pauper and unable to employ counsel, nor is there any statement in the record showing as to what counsel representing the defendant did in preliminary trial in preparing this case for trial and from the preliminary trial in June up to November 3, 1933. The record discloses the first time it was brought to the knowledge of the trial judge that the defendant was a pauper and had no relatives able to and willing to employ counsel for him was on the 3rd day of November, 1933, the date the defendant was arraigned, and at that time counsel was appointed for him and continued to represent him until November 16, 1933, the date the case was called for trial and counsel appointed by the court was permitted to withdraw, it is shown that from the date of the preliminary up to and including the day the case was called for trial on November 16,1933, defendant had able counsel to represent him, and it is further shown that he had brothers living in the city of Muskogee where the trial was to be held. * * *
“In Brewer v. State, 13 Okla. Cr. 514, 165 P. 634, this court held:
“ ‘An application for continuance is addressed to the sound discretion of the trial court, and when such application is based upon the proposition that counsel have had insufficient time to prepare for trial, this court will review the record and consider all of the circumstances in connection with the employment of attorneys from the time the arrest was made; and when it is made to appear that capable lawyers have been employed, and have withdrawn from the case because fees were not paid, and that other capable counsel was employed, and a part of the fee paid some time prior to the calling of the case for trial, and the remainder on the date the same was called for trial, but that no effort had been made to prepare the case for presentation to the jury, a reversal will not be granted on the ground that the court abused its discretion in refusing a continuance for the term, which would amount to a delay of six months.’
“There is no showing that the defendant, his relatives or his attorney who appeared for him in the preliminary trial made any effort to prepare a defense for the defendant from June until November 3, 1933, when Attorney Brown withdrew from the case and Attorney Hudgins was appointed. The defendant, asked that he be given a new trial so he could present the defense of insanity. The showing made by the defendant in support of his motion for a continuance discloses it was insufficient to sustain that contention, and the court properly overruled the motion of the defendant for a continuance, the defendant failing to show diligence.
“It is the duty of the defendant to make an honest effort to prepare for trial. The record fails to disclose why process was not procured for the witnesses or steps taken earlier to secure the depositions or attendance of the witnesses. The defendant cannot sit idly by and wait until the day of trial before he begins to get ready for trial. He must be diligent. If any special reason exists which causes him to fail to exercise the utmost diligence, this reason must be stated in his motion for continuance as an excuse for not having exercised the utmost diligence. No such reasons are stated in.the motion, and the defendant has utterly failed to show the exercise of due diligence. He had from June, the date of the preliminary, until November 3, 1933, the date he was arraigned and counsel appointed for him; he then had thirteen days between the date of arraignment and the date the case was assigned for trial. No áction was taken during that time and the motion for continuance and notice to take depositions was filed the day the case was assigned for trial. * * *
“In determining the question as to whether or not the court abused its discretion in overruling defendant’s motion for a continuance, this court will carefully review the record and consider all of the circumstances in connection with the employment or appointment of attorneys from the time the arrest was made, and when it is made to appear that capable lawyers have been employed or appointed and .had withdrawn from the case, and other capable counsel was employed, but that no effort has been made to prepare the case for presentation to the jury, a reversal will not be granted on the ground that the court abused its discretion in refusing to grant a continuance. Brewer v. State, 13 Okla. Cr. 514, 165 P. 634.”

It will be noted from these facts that there was a space of time between the first trial of defendant and his second trial of three years, three months and 23 days. Of his own volition he had discharged, for some cause not disclosed by the record, attorneys who had represented him and had employed other attorneys. There is nothing in the record to indicate that he was unable to employ counsel, or that he had made any attempt to prepare or to have his case prepared for trial. No subpoenas had been issued for witnesses in his behalf, and no due diligence as the law demands was shown. From a purely legal standpoint, and the authorities heretofore cited, the trial court did not commit legal error in refusing to grant a continuance to defendant. It is true that during most of this time defendant had been confined in jails, the asylum, and the State Penitentiary, but he had friends and relatives who were capable and able to assist him. Courts should not permit a defendant to so conduct himself that he may voluntarily delay the hand of justice.

By reason of the facts as above stated, the conduct of the defendant, the lack of diligence on his part, and the length of time he had to prepare his case for trial, and to employ counsel, we are of the opinion that under the law and facts the court had the right to exercise his judicial discretion and refuse a further delay.

Having studied this record from the time of the first appeal and knowing the facts as presented by the record, we can draw a conclusion that satisfies our own mind and may be considered hereafter. From our knowledge of the record in this case, and of the prior trial, we do know that this case was not tried to the defendant’s best advantage. At the first trial, two able doctors who had examined defendant at the time of the insanity hearing before the county court of Tulsa county testified that after a thorough examination it was their opinion that the defendant was insane at the time the crime was committed. Another reputable physician corroborated their opinion. There was practically no evidence offered by the state to the contrary. The mother of the defendant testified as to defendant’s insanity, as stated in the former opinion of this court. At defendant’s second trial, which is being considered now on appeal, none of the witnesses above named were called by the public defenders in defendant’s behalf, nor was the testimony given by them at the former trial read to the jury. Of course, the record does not disclose why this was not done. There may have been a good reason for not doing so. But to our mind, it reveals that the public defenders were not familiar with the record and facts of the former trial, otherwise this evidence would have been presented. This conclusion is justified by the affidavit of Harry Dyer, one of the public defenders, attached to the petition for habeas corpus as part of the record, in which he says:

“That affiant and the said W. C. Peters at the time the court reconvened at 1:30, had no knowledge or information about the evidence and facts in said case, and had not had an opportunity to consult with and advise with defendant in regard to his defense and was not acquainted with any of the facts. That they were informed and knew that the said Frank Rice had been tried and convicted in said court about two years prior thereto and was given a life sentence upon said charge, which conviction had been reversed by the Criminal Court of Appeals; that affiant nor the said W. C. Peters had ever seen or read the transcript of the former trial, and knew nothing about the testimony introduced on the part of the State and the defense in the former trial, including the testimony of the Doctors * *

While this court is of the opinion that under the facts and authorities heretofore cited, we should not reverse this case, we are further of the opinion that all of the facts should be considered with reference to the question of the judgment and sentence being excessive. This defendant was arrested for this crime on April 28, 1941. Practically all of the time since that date he has been confined either in jail, the asylum, or the State Penitentiary. The facts surrounding the committing of this offense, which are fully stated in the former opinion of this court, are such that would indicate that the crime was committed at a time when defendant was not in a mental condition that would demand a life sentence as was given by the jury in the first instance, nor does the assessment of a term of 25 years in the penitentiary on the second trial seem to be justice, according to all the facts and circumstances heretofore related. Counsel who now represent defendant, in answer to a question, stated that he did not consider defendant insane at the present time.

We are of the opinion that the judgment and sentence of 25 years is excessive, and that justice demands that it be reduced to a term of ten years.

It is therefore ordered that the judgment and sentence of the district court of Tulsa county be and the same; is hereby modified from a term of 25 years in the State Penitentiary, to a term of ten years in the State Penitentiary; and the warden of the State Penitentiary is directed to enter this order upon his records, and upon the completion of said sentence, as provided by law, that defendant be discharged.

JONES and BRETT, JJ., concur.


text:
    Ex parte FRANK RICE.
    No. A-10763.
    Feb. 26, 1947.
    (177 P. 2d 857.)
    F. E. Riddle, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms, Asst. Co. Atty., both of Tulsa, for respondent.
   BAREFOOT, P. J.

Petitioner, Frank Rice, has filed his petition for a writ of habeas corpus seeking his release from the State Penitentiary at McAlester, where he is now confined by reason of a judgment of the district court of Tulsa county, entered on February V, 1946, sentencing him to serve a term of 25 years in the State Penitentiary.

Pending the hearing on this petition, a case-made with petition in error attached was filed in this court, appealing from the judgment and sentence above referred to.

Both the appeal and the petition for writ of habeas corpus were heard by this court by agreement, and an opinion has this day been rendered (Rice v. State, 84 Okla. Cr. 409, 177 P. 2d 849) in which both the appeal and the petition for writ of habeas corpus were considered. It, therefore, is unnecessary to further discuss this petition.

We are of the opinion that petitioner is not being held in the State Penitentiary in violation of the State Constitution, art. 2, § 7, or of the 14th Amendment to the Federal Constitution, and that the petition for writ of habeas corpus should be denied; and it is ordered.

JONES and BRETT, JJ., concur.


text:
    Ex parte JOHN O. STORY.
    No. A-10724.
    March 5, 1947.
    (178 P. 2d 112.)

      John O. Story, of McAlester, petitioner in pro. per.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, John O. Story, was charged with the crime of murder in Bryan county, Okla. He was tried and convicted, and sentenced to serve a term of life imprisonment in the State Penitentiary at McAlester, where he is now confined. He was charged with killing his wife by setting fire to a certain outhouse located back of his residence, and burniing her to death. He appealed to this court, and the judgment and sentence of the district court of Bryan county was affirmed. John O. Story v. State, 73 Okla. Cr. 273,120 P. 2d 387.

Petitioner has heretofore filed a petition for writ of habeas corpus (Ex parte John O. Story, 75 Okla. Cr. 367, 131 P. 2d 773); and a petition for writ of mandamus (Re Application of John O. Story, 80 Okla. Cr. 11, 156 P. 2d 154). We have in each instance permitted the filing of the petitions, and have given them due consideration, and in each instance, the petition has been denied for the reason that an attempt was being made to have the same issue reviewed which was raised on appeal. The cases above cited give the reasons for their denial, and it is unnecessary to here review them.

The petition now filed presents the same issue. Many affidavits and statements have been filed with the clerk of this court, and we have heretofore directed that these papers be filed with the Pardon and Parole Board of . this state, and this has been done. Petitioner’s case has been reviewed by that Board. Only the Pardon and Parole Board can give any relief to petitioner.

For the reasons above stated, the petition for mandamus or habeas corpus is denied.

JONES and BRETT, JJ., concur.


text:
    Ex parte VERNON DOBSON.
    No. A-10828.
    March 5, 1947.
    (178 P. 2d 113.)
    C. J. Watts, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner Vernon Dobson brought this original action in habeas corpus to secure his release from the city jail of Oklahoma City where he had been incarcerated by policemen of Oklahoma City under a warrant issued by the Governor of Oklahoma for his return to the State of Missouri upon a requisition from the Governor of Missouri alleging that he is a fugitive from justice. The charge in Missouri is the obtaining of property by means of two bogus checks in the amount of $3,800 and $2,450.

The verified petition alleges that the petitioner is not a fugitive from justice, and that the criminal proceedings pending against him in the State of Missouri are not prosecuted in good faith and with intent to punish him for any crime committed, but for the sole purpose of collection of a civil debt.

This court has held that in every extradition case the question of good faith of the prosecution is always open to inquiry on habeas corpus. Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624, 625; Ex parte Owens, 34 Okla. Cr. 128, 245 P. 68; Ex parte Maddox, 55 Okla. Cr. 114, 25 P. 2d 1111; Ex parte Johnson, 29 Okla. Cr. 41, 232 P. 452.

In Ex parte Welborn, supra, it is further stated:

“The presumption is that the prosecution is in good faith; and in order to overcome this presumption, the proof on behalf of the petitioner must be clear and convincing.”

The petitioner testified at length before this court concerning his transaction with the Auto Sales Barn of St. Louis, Mo., which was the basis for the institution of the criminal action against him. On cross-examination, however, it was brought out by counsel for the respondent that subsequent to the institution of this action in habeas corpus, the petitioner voluntarily signed a waiver of extradition and agreed to return to the State of Missouri with the Missouri officers to stand trial on the charge there pending against him. The petitioner further testified that he had signed the waiver of his own free will and accord, and that he did not care to resist the proceedings any longer, but was willing to return with the officers to Missouri.

Under such evidence, it becomes unnecessary for us to decide the question as to whether prosecution was in good faith, as the petitioner by this voluntary act has made the question presented by his petition moot.

The writ of habeas corpus is denied.

BAREFOOT, P. J., and BRETT, J., concur.