author: BAEEPOOT, P. J.

text:
    Ex parte HOWARD A. TUCKER.
    No. A-9916.
    Feb. 4, 1942.
    (122 P. 2d 174.)

      Hall & Gotten, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis E. Morris, Go. Atty., and Walter Marlin, Asst. Go. Atty., both of Oklahoma City, for the State.
   BAEEPOOT, P. J.

Petitioner has filed in this court his petition for writ of habeas corpus alleging that he is unlawfully imprisoned and restrained of his liberty in the county jail of Oklahoma county by George Goff, sheriff of said county. He alleges that such imprisonment is by reason of the following facts:

“That according to the best of the knowledge and! belief of your petitioner, he was taken into custody and is now being held in said jail by said sheriff, George Goff, under and by virtue of a purported commitment issued by the court clerk of Oklahoma county, State of Oklahoma, and placed in the hands of said sheriff. A true and correct copy of said commitment is hereto attached, marked Exhibit ‘A’ and made a part hereof. That said commitment was issued on the 5th day of August, 1940, in cause No; 6603, filed in the county court of Oklahoma county, Oklahoma, entitled ‘The State of Oklahoma, Plaintiff, vs. Howard A. Tucker, Defendant,’ in which said cause the said defendant was charged by information filed by the county attorney of Oklahoma county, Oklahoma, on July 8, 1924, with the offense of libel. A true and correct copy of the said information, together with the proceedings thereon, the verdict of the jury and the judgment of the court, are contained in the case-made filed in this Honorable Court on September 14, 1925, in cause No. A-5806 entitled ‘Howard A. Tucker, Plaintiff in Error, vs. The State of Oklahoma, Defendant in Error,’ which record and case-made is hereby referred to and by reference made a part of this application.
“That your petitioner is not held or incarcerated by said sheriff under any other actual or purported warrant, commitment, or authority, except as hereinbefore stated.
“Your petitioner alleges that said restraint and imprisonment of petitioner is illegal, unjust and unauthorized for the following reasons, to' wit:
“1. Said commitment is insufficient in law to' authorize the arrest or incarceration of your petitioner thereunder.
“2. The purported judgment and sentence of the court upon which said commitment was issued does not provide for imprisonment, and your petitioner cannot, therefore, be legally placed in custody or incarcerated thereunder.
“3. The sentence upon which said commitment was issued, as shown by said case-made and as shown by the copy of the commitment attached hereto', was as follows: ‘Judgment and sentence that you pay a fine of $100.00 and costs’ and was pronounced by the county court of Oklahoma county, State of Oklahoma, on the 18th day of May, 1925. Thereafter, your petitioner appealed therefrom to the Criminal Court of Appeals of the State of Oklahoma, and said appeal was docketed as hereinbefore stated as No. A-5806. That thereafter, said conviction was affirmed by said Criminal Court of Appeals, and on the 27th day of March, 1929, the mandate of said Criminal Court of Appeals, showing such affirmance, was returned to' the county court of Oklahoma county, State of Oklahoma, and filed in said cause in the office of the court clerk of said county.
“That thereafter, and on the said 27th day of March, 1929, a commitment was issued by the said court clerk in said cause committing this defendant to the county jail of Oklahoma county, State of Oklahoma, until said fine and costs should be satisfied, and said commitment was thereupon placed in the hands of the sheriff of Oklahoma county, Oklahoma. Your petitioner says that by operation of the law, service of the sentence of imprisonment, if any there he, commenced on said 27th day of March, 1929, and that the time for service for such sentence and the period in which petitioner might be imprisoned under said sentence, if any existed, has long since expired.
“4. That shortly after the issuance of said commitment on March 27, 1929, and its receipt by the Sheriff of Oklahoma county, Oklahoma, to wit, on or about June, 1929, this petitioner went to the office of the Sheriff of Oklahoma county, Oklahoma, and placed himself in the control and custody of the said sheriff of Oklahoma county, Oklahoma, under the said commitment; that he was allowed by said sheriff, acting, by and through one of his duly commissioned deputies, to return to liis home at 1715 Northwest 21st street in Oklahoma City, and to go about his daily affairs. That petitioner thereafter and during all the period of time in which he might legally, if at all, have been imprisoned in satisfaction of or in connection with said judgment of conviction and sentence, finé and costs, was in Oklahoma City, Oklahoma county, Oklahoma, and at the command and call of the said sheriff.
“That by reason of the foregoing, the imprisonment, which could legally have been imposed, if any, has been served and the fine and costs thereby satisfied many years ago-, and the time in which such imprisonment might have been imposed, if any could have been imposed, has long since expired.
“5. That ever since the mandate hereinbefore mentioned was returned and filed in this cause and the commitment issued on March 27, 1929, this petitioner has been a resident and citizen of Oklahoma City, Oklahoma, and has at all times resided at No. 1715 Northwest 21st street in said city; that he has at all times during said period resided and been within the jurisdiction of the county court of Oklahoma county, Oklahoma, and within the call and reach of the sheriff of said county; that such residence has at all times been open and public, and known to the public and to the officials of Oklahoma county, State of Oklahoma; that he has maintained a telephone at said residence in his own name and same has been shown in the various telephone directories; that his name and place of residence have continuously, during said period, been shown in the annual city directories ; that during said period his family has resided with him at said residence and his son has grown up there and attended the public schools of Oklahoma City; that during all of said period, and except as stated in paragraph 3 hereof, no> effort has been made until August 5, 1940, as aforesaid, to take this petitioner into custody or to incarcerate him in connection with, or in satisfaction of said sentence, fine and costs. That in connection with the appeal hereinbefore mentioned, your petitioner executed a supersedeas bond with good and sufficient sureties, which was duly approved and filed in said cause. Said bond is shown at pages 77 and 78 of the case-made filed in this court and heretofore referred to and made a part hereof. That for several years after the said 27th day of March, 1939, the sureties on said bond were entirely solvent and said fine and costs could have been collected in full by civil proceedings thereon.
“That it would be and is against public policy to at this time incarcerate, or attempt to incarcerate, this petitioner under said judgment and sentence for failure to pay said fine and costs, or for any other reason connected therewith.”

To this petition the state has filed a response in which is set out the facts as alleged in the petition with these additional allegations:

“Respondent specifically denies:
“First: That said commitment is insufficient in law to authorize the arrest or incarceration of the petitioner, Howard A. Tucker.
‘‘Second: That the judgment and sentence of the county court, in cause No. 6603, upon which said commitment was issued, does not provide for imprisonment, but in this connection alleges that the judgment and sentence in said cause expressly provides, among other things, that:
“It is therefore considered, ordered and adjudged by the court that the defendant, Howard Tucker, pay a fine of One Hundred Dollars ($100.00) and be imprisoned in the county jail of the county of Oklahoma, upon failure to- pay said fine, from Jan. 5th, 1925, and that he pay the costs herein, taxed at $-, and in default of the payment of the costs and fine herein, he be further imprisoned in said county jail for a period not exceeding one day for every $1.00 of costs and fine herein, or the said time to be served on the county roads of Oklahoma county.’
“Third: Respondent specifically denies that shortly after the issuance of the commitment on March 27, 1927, and its receipt by the sheriff of Oklahoma county, Oklahoma, that on or about June 19, 1929, the petitioner went to the office of the sheriff of Oklahoma county, Oklahoma, and placed himself in the control and custody of said sheriff of Oklahoma county, State of Oklahoma,, under said commitment, and respondent further denies that petitioner was allowed by said sheriff, or anyone acting by or through him, to return to his home at 1715 Northwest 21st street, in Oklahoma City, or any place else, and to go about his daily affairs.
“Your respondent further denying that said petitioner was taken into custody on or about June 19, 1929, states, that the imprisonment which should have been legally imposed at the time he was taken in custody, has not been served, and the fine and costs have not been satisfied, and that the time in which such imprisonment might have been imposed has not expired, but in this connection alleges that petitioner was rightfully and lawfully taken into custody on August 5, 1940, by the sheriff of Oklahoma county, Oklahoma, by reason of commitment issued out of the county court of Oklahoma county, Oklahoma.
“Fourth: Respondent is not informed, therefore, cannot deny that this defendant has resided at 1715 Northwest 21st street, in Oklahoma City, Oklahoma, since the time the mandate came down from the Criminal Court of Appeals, but is informed, and therefore, does specifically deny, that during this period of time petitioner was a citizen of Oklahoma county, State of Oklahoma, and the United States of America, and in this connection says that in 1937, defendant was convicted, in the Federal Court, for the Western District of Oklahoma, on the charge of using the mails to defraud, on sixteen counts, and ivas sentenced to serve tAvo years on each count, to run concurrently, and petitioner was put on probation for a period of three years, the probation period expiring May 17, 1940.
“Respondent is not advised as to> whether or not defendant’s citizenship has been restored since his conviction in the federal court, and in this connection respondent further states that the question of public policy could not be involved in the execution of the judgment and sentence in cause No1. 6603, under the facts and circumstances alleged in said petition, but that the county court has jurisdiction in said cause, to imprison the defendant upon his failure to pay the fine assessed against him, and that he is at this time being lawfully held by the sheriff of Oklahoma county, under the commitment issued August 6, 1940.”

Elaborate briefs have been filed both by the petitioner and by the state, and the questions raised are both interesting and important. In addition to the pleadings aboAre referred to, evidence has been heard by this court which substantially sustains the allegations of the petition. There is very little dispute betAveen the defendant and the deputy sheriff to Avhom petitioner says he surrendered himself on June 10, 1929.

The contention of the state which will first be considered is that by reason of certain former decisions of this court and the applicable facts, the defendant cannot at this time be released by habeas corpus. The cases relied upon are: Ex parte Barnes, 67 Okla. Cr. 235, 93 P. 2d 765; Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993; Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A., N. S., 625, 139 Am. St. Rep. 967; Ex parte Holden, 31 Okla. Cr. 133, 237 P. 622; Ex parte Porter, 60 Okla. Cr. 327, 64 P. 2d 1235. Also, Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313.

We have carefully- considered these cases, and while they may be distinguished U> a certain extent from the facts in the case at bar, they announce a principle of law which, to a great extent, upholds the contention of the state in . this case when they say that the exact time of the commencement of the term of imprisonment is directory only, and that the time fixed for the execution of a sentence is not one of its essential elements, and that where the penalty is imprisonment, the sentence may be satisfied only by the actual serving of the imprisonment imposed unless prevented by death or some legal authority, and further that where a defendant has not served his sentence he may be arrested and ordered into> custody on the unexecuted judgment. They assert principles which, if applied to the facts of a given case, would uphold the contention that one has to actually serve the imprisonment or pay the fine assessed before he can he released.

We have also examined the Oklahoma cases relied upon by petitioner to support his contention: Willard v. State, 67 Okla. Cr. 192, 94 P. 2d 13; Collins v. State, 24 Okla. Cr. 117, 217 P. 896; White v. State, 45 Okla. Cr. 289, 283 P. 581; Ex parte Coley, 67 Okla. Cr. 482, 94 P. 2d 968; Ex parte Clendenning, 22 Okla. 108, 1 Okla. Cr. 227, 97 P. 650, 19 L. R. A., N. S., 1041, 132 Am. St. Rep. 628; Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821; Ex parte Wilkerson, 38 Okla. Cr. 86, 258 P. 1069.

In the Willard Case, supra, the facts were that the defendant entered a plea of guilty on the 20th day of January, 1936, and he was to report on May 1, 1936, to begin his sentence of a fine of $50 and 30 days' in jail, which he did. A few days thereafter he was injured while at work on the road and spent 36 days in the hospital. When released, he was told by the sheriff to go home and forget all about it, which he did. On February 18, 1938, it was contended defendant should be sentenced in conformity with the original judgment, and which order and sentence was entered. Defendant excepted and appealed to' this court. It was here held in an opinion by Judge Doyle that the case should be reversed. It was there said [67 Okla. Cr. 192, 94 P. 2d 17] :

“In the case at bar all the record shows is that after defendant pleaded guilty no further order was made in the case for some twenty-five months and in the meantime four terms of court had passed before judgment was rendered.
‘‘It is suggested that the delay which occurred between the plea and the judgment must be deemed to have occurred with the consent of the defendant, and that he may not complain.
“We think that Avhen judgment is postponed indefinitely, without any order of continuance, for some four terms, then no question of consent can be of aid in the case even if it be conceded that what took place Avasi tantamount to> defendant’s consent to the initial deferment of judgment and sentence.
“When it appears that judgment and. sentence was not deferred to a day certain or to a term certain; it was in effect deferred indefinitely,. because the trial court omitted to make any order deferring' judgment and sentence.
“It follows from the foregoing review and Avhat is said, that the judgment must be reversed and the cause remanded to the county court of Greer county with direction to- dismiss, and so it is ordered.”

In the above case, quoting from the case of Collins v. State, 24 Okla. Cr. 117, 217 P. 896, it was said:

“Under the foregoing provisions it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a. reasonable time. However, there can be no doubt that a court has the right to delay the pronouncement of judgment for the purpose of hearing and determining motions for a new trial or in arrest of judgment, or for other proper causes; but to suspend indefinitely the pronouncing of judgment and sentence after conviction is not within the power of the court. Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75; People ex rel. Smith v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L. R. A. 473; Smith v. State, 188 Ind. 64, 121 N. E. 829, 3 A. L. R. 999; Com. v. Maloney, 145 Mass. 205, 13 N. E. 482; People v. Kennedy, 58 Mich. 372, 25 N. W. 318; State v. Hockett, 129 Mo. App. 639, 108 S. W. 599; State ex rel. Dawson v. Sapp. 87 Kan. 740, 125 P. 78, 42 L. R. A., N. S., 249; United States v. Wilson, C. C., 46 F. 748.”

It is true that in these cases the judgment and sentence was not entered by the trial court, but in the Willard Case, supra, the court quotes approvingly from the case of People v. Barrett, 202 Ill. 287, 67 N. E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230, as follows:

“There can be no' doubt that a court has the right, in a criminal cause, to delay pronouncing judgment for a reasonable time, for the purpose of hearing and determining motionsi for a new trial or in arrest of judgment, or to give the defendant time to* perfect an appeal or writ of error, or for other proper causes; but to suspend indefinitely the pronouncing of the sentence after conviction, or to suspend indefinitely the execution of the judgment after sentence pronounced, is not within the power of the court. To allow such a power would place the criminal at the caprice of the judge. If the judge can delay the sentence one year, he could delay it for 15 years, or any length of time. * * *
“The foregoing’ cases are quoted with approval by the Supreme Court- of Georgia in Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175, where the court says: ‘The power to indefinitely postpone the punishment prescribed by the law, whether exercised by suspending the imposition or by suspending the execution of a sentence, is the power to perpetually prevent punishment — a power which, under1 such provisions as are found in the Constitution of this state, does not exist in the courts.’ * * * In People ex rel. Smith v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L. R. A. 473. * * * It was held, after a review of the authorities, that it was the duty of the courts, in criminal cases, ‘upon a conviction or plea of guilty, to pronounce judgment at that time, unless, upon motion for new trial, in arrest of judgment, or for other cause, the case is- continued for further adjudication, and the defendant, by recognizance or being held in custody, required to continue to answer the charge, and if they fail to perform that duty, but discharge the prisoner or permit him to go indefinitely, their power and jurisdiction over him cease, and a subsequent- sentence is without judicial authority.’ * * *
“Long and unreasonable delays in passing upon motions for new trials or in arrest of judgment are calculated to obstruct the administration of public justice, and to operate as a denial of the right of the citizen to a speedy trial. It is said, however, in this case, that all the delay was with the consent of the relator, and that he cannot now be heard to complain. It cannot, of course, be contended that the doctrine of estoppel has any application here; nor can it be held that the relator could Avaive any requirement respecting the jurisdiction of the court to' enter judgment and pronounce the sentence. If the court had no power thus indirectly to suspend sentence and to permit the relator to go at large upon his own recognizance or upon parole, such power could not be conferred by his consent, nor by his express request. Harris v. People, 128 Ill. 585, 21 N. E. 563, 15 Am. St. Rep. 153; Morgan, v. People, 136 Ill. 161, 26 N. E. 651. The rendering- of judgment and the final sentencing of the defendant cannot be made a mere matter of discretion with the judge or the public prosecutor, nor to depend upon the subsequent conduct of the convicted person. If it were so; what subsequent conduct would demand or justify the pronouncing or the withholding of the sentence? And who would determine its character? Such conduct might be innocent in itself, yet offensive to those in whom the power to apprehend or to punish resided. The liberty of the citizen cannot, in a free country, be made to depend for its security on the arbitrary will of any public officer. It can be taken from him by due process of law only.”

In the case of Ex parte Eley, supra, the facts were that the county judge pronounced judgment on the 15th day of April, 1912, and upon the judgment issued a commitment. Upon this commitment petitioner was confined in the county jail of Jackson county, and for some unknown reason was released by the county judge, sheriff and county attorney. After the time for the judgment and sentence to be served, to1 wit: on August 12, 1912, a second commitment was issued by the county court growing out of the same judgment and sentence, and petitioner was again imprisoned in the county jail, and filed his petition for writ of habeas corpus. In this court it was said [9 Okla. Cr. 76, 130 P. 823]:

“The judgment was not vacated on lawful grounds or otherwise, nor the petitioner released by the writ of habeas corpus, on the ground that the judgment against him was void. Just what prompted such action upon the part of the officers mentioned is not explained, and no effort has been made looking to< that end. When a judgment is pronounced and no> appeal taken, and a commitment issued and the prisoner delivered to the custody of the county jailor, there are only three ways for him to be released lawfully until the judgment is satisfied: First, by habeas corpus, on the ground that the judgment is void; second, by order1 of the court, when judgment is vacated or set aside upon lawful grounds; third, by parole or pardon from the Governor. Any other discharge or release is without authority of law, and officers guilty of such conduct lay themselves liable to the penalties prescribed by the statute.
“As said by this court in Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591:
“ The county court was without power or authority to- grant a parole. Under the Constitution that is the prerogative of the supreme executive po-wer1 vested in the Governor; and the only effect of the order discharging petitioner on probation, upon good behavior, was to modify the judgment imposing the fine, and directing imprisonment until such fine is satisfied, by making the fine, in effect, nothing more than a civil judgment, to- be satisfied by execution as on a judgment in a civil action. To that extent only could the court modify the judgment rendered.’
“The county attorney and the sheriff are without color of power of any kind to- release a prisoner, and what is said by the court in Ex parte McClure, supra, applies with greater force to sheriffs and county attorneys; for they cannot in the least vacate, modify, or change a judgment of the court, and the court itself can only modify, vacate, or set aside a judgment upon lawful grounds.
“We are asked by counsel for the respondent to hold that the act of the petitioner in departing from the custody of the jailor, under the circumstances heretofore set out, amounted to a technical escape. This we cannot do. The petitioner in this case did no more than any other intelligent human being, would have done under like circumstances — that is, to- go- home, when the court who had sentenced him, the county attorney who had prosecuted him, and the sheriff who had incarcerated him told him he could do- so — and a rule could not be established, technical or otherwise, holding him to- be an escape and liable to- reincarceration, without placing in the hands of county courts, sheriffs, and prosecuting attorneys the power to defeat every judgment of a court of record entered in this state, and permit them to harass and impose upon the unfortunate members of our citizenship, who happen to> be convicted and sentenced for a crime, during an endless period, by placing them in jail to-day and releasing them tomorrow, with or without cause, as their caprice might suggest. The petitioner in this case was in the custody of the sheriff and subject to his call at all times until the expiration of the prison sentence, and was in legal effect a Trusty.’ We do not suggest that the action of the .officers was prompted by corrupt motives, but it makes no difference what prompts the act; the rule of law is the same. There is no statute authorizing such conduct, and there should be none. The demurrer to the petition is overruled.”

In the case of Ex parte Wilkerson, 38 Okla. Cr. 86, 258 P. 1069, this court said:

“That petitioner was convicted on a charge that he did have intoxicating- liquor in his possession with intent to sell the same; that the judgment was pronounced June 2, 1917, from which judgment an appeal was perfected to this court, and on April 10, 1919, the judgment was affirmed for failure to prosecute the appeal. Wilkerson v. State, 15 Okla. Cr. 689, 178 P. 895. It also appears from the testimony that by agreement of the county attorney and the sheriff, and the payment of costs while said appeal was pending, said cause would be dismissed, and that agreement was to receive the approval of the Governor; that this is shown by the testimony of the then county attorney and the respondent, and that the same was approved by subsequent county attorneys and county judges.
“No sufficient reason is offered to show why, at this time, 10 years after said judgment was rendered, the same should be revived. We deem it sufficient to say, further detailing the facts of the case as shown by the evidence submitted, that the judgment and sentence has been satisfied in law, if not in fact (Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821), and that petitioner is entitled to he discharged.”

This case very much parallels the facts in the instant case. This petitioner was tried in the county court of Oklahoma county and convicted of criminal libel on March 18, 1925, and fined in the sum of $100 and costs. He executed a supersedeas bond and appealed toi this court where the judgment and sentence of the lower court was affirmed. See Tucker v. State, 42 Okla. Cr. 204, 275 P. 382. The mandate of this court was filed in the office of the court clerk of Oklahoma county on March 27, 1929, directing the sheriff of Oklahoma county to arrest petitioner and to incarcerate him in the county jail until the fine and costs should have been paid or satisfied. This commitment was placed in the hands of the sheriff of Oklahoma county on the 27th day of March, 1929.

There is a slight conflict in the evidence as shown by the record as to just what action was taken in the execution of this commitment. The petitioner says that he was in the State of Idaho at the time, but that he immediately returned to Oklahoma county and went to the sheriff’s office on June 10, 1929, for the purpose of surrendering himself to the sheriff. That he asked for the sheriff, but that the sheriff was not there. That he saw a deputy sheriff, Mr. R. Q. Melson, whom he knew, and that he told him that he was there to surrender under the commitment. That he was informed by the deputy sheriff that he could not find the commitment and that the deputy sheriff said that they would let him know later when or if they wanted him.

Deputy Sheriff Melson, testifying before this court, said that he remembered petitioner’s coming to i the sheriff’s office at the old courthouse and having a talk with, him, and saying in substance, “1 understand the sheriff has a commitment for me and I have come to surrender.” That he did not have a commitment, and when he could not find it, petitioner left the sheriff’s office.The record does reveal that this case was affirmed in this court and that the mandate was issued to the county court and placed in the hands of the sheriff of Oklahoma county on the 27th day of March, 1929. That for some unknown reason the same was never executed until the commitment was issued on the 5th day of August, 1940, eleven years and four months after the same was allegedly placed in the hands of the sheriff.

During this time defendant has lived in Oklahoma City. His home address has been listed in the telephone directory and the city directory. He has at all times been known to the various county judges, sheriffs and county attorneys who have been in office since the 27th day of March, 1929. That his family is residing here and that his son has attended the public schools, and that during all of this intervening time no' effort or attempt had ever been made by any county officer to take . him into custody or incarcerate him by reason of the judgment and sentence aforesaid.

We have carefully considered the facts as shown by the record in this case and, as above stated, the cases from this court bearing on this proposition, and also the cases cited from other jurisdictions. Some of the decisions of other courts are based upon statutes different from ours and may therefore be inapplicable here. The cases from our own court take two different lines of thought, but after a careful consideration of them as applied to the facts here presented, it may be stated that, while a definite time may not be stated as to when judgment and sentence may have to be served, yet it should not be held for an unreasonable time before one is called upon to serve it. The authorities heretofore cited and quoted from give fully the reasons for this rule. It is unnecessary to further state them. An officer would have a reasonable time under the circumstances of each individual case as the facts would justify to: serve the commitment.

In the instant case the record reveals that the mandate came into the hands of the sheriff on the 27th day of March, 1929. At this time the defendant was not in the state, but was in the State of Idaho. He returned here in June, 1929, and presented himself at the office of the sheriff on the 10th day of June, 1929. Certainly the commitment could not be executed before that time. The sheriff may not have been able to find the commitment until some time after that date and he would have had a reasonable time as the facts justify to serve the same. We do not intend to hold in this case that the time began to run immediately upon the receiving of the commitment or the attempted surrender of the petitioner on the 10th day of June, 1929. Even after this occurred, if the sheriff had acted within a reasonable time thereafter, the defendant could have been forced to comply with the commitment so< issued, but, on the other hand, the officers should not be permitted to' cause an unreasonable delay in the execution of the process which comes into his hands. Time may not be essential, as some of the Oklahoma cases say, by reason of there being no statutory enactment, but certainly a sound public policy should demand that the citizen’s right be protected by the officer’s being required to act within a reasonable time. Certainly a delay of eleven years and four months as in the instant case cannot be said to be a reasonable time. If this rule should apply to a fine it would apply to a jail or penitentiary sentence. If an officer could so act it would place in Ms hands power as great as the Constitution of this state has placed in the hands of the Governor. Officers should be alert to- see that no such unreasonable delay is had in the carrying out of the mandates and judgments of the courts in criminal cases. The present officers are not to be censured for the reason that the judgment and sentence in this case was not entered during their administrations or terms of office. We can easily see how the matter might not have been considered by them, but the facts remain that a period of eleven years and four months elapsed in which the mandate of this court was not executed. This is such an unreasonable delay that a sound public policy demands that, under the facts and circumstances of this case, the petitioner should be released, and it is so ordered.

It is the judgment of this court that the writ of habeas corpus should be granted and the petitioner discharged.

JONES, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Ex parte JERRY WILBUR BOYD.
    No. A-10107.
    Feb. 4, 1942.
    (122 P. 2d 162.)

      Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an. original proceeding, filed in* this court by the petitioner, Jerry Wilbur Boyd, to secure his release from imprisonment in the State Reformatory at Granite.

The verified petition filed herein alleges in substance as follows:

That the petitioner is 22 years of age and has been imprisoned in the State Reformatory at Granite since July 8, 1939; that on July 20, 1935, an information was filed in the district court of Oklahoma county charging, the petitioner with larceny of an automobile; that on July 22, 1935, the petitioner entered his plea of guilty to said charge and was sentenced to serve a term of five years in the State Reformatory a,t Granite, to begin from the date of the delivery of the defendant to the warden of said reformatory; that at the same time and as a part of the same proceeding’s, the district court of Oklahoma county suspended the judgment and sentence pronounced against the defendant upon the following terms and conditions, to wit:

“(1) That said defendant shall refrain from associating with bad, lewd or vicious men or women; (2) that said defendant shall not indulge in vicious habits; (8) that said defendant shall not violate any criminal law of this state, the United States, or any state or territory of the United States of America, but shall be a quiet, peaceful and law-abiding citizen; (4) that said defendant shall refrain from loitering in or around or frequenting pool or billiard halls; (5) that said defendant shall personally appear before the undersigned judge of this court once each month, and, if required by the court or judge, prove to the satisfaction of said judge, by two citizens of the county of good reputation, that said defendant has not violated any of the terms or conditions: of this judgment and sentence; (6) that said defendant shall not depart from the jurisdiction of this court without leave.”

That subsequent to said time, and about May 1, 1939, the petitioner was again arrested and placed in the county jail of Oklahoma county upon suspicion of having committed the crime of grand larceny; that two days later, on the 3rd day of May, 1939, the petitioner was taken before the Honorable Clarence Mills, one of the judges of the district court of Oklahoma county, Oklahoma, and who was the judge who had suspended the sentence theretofore pronounced upon the petitioner; that when the petitioner was taken before the district judge, and without any formality, the judge announced that the order suspending the petitioner’s sentence would be and was revoked. A copy of which said order revoking suspended sentence is attached to the petition and made a part thereof; that on July 6, 1939, the petitioner, still being confined in the county jail of Oklahoma county, and knowing little or nothing of his legal rights, and hopeless of securing his release from imprisonment, entered his plea of guilty to two charges of grand larceny, after former conviction of a felony, in cases Nos. 13233 and 13234, respectively. That thereupon he was sentenced to serve two years in the State Reformatory at Granite upon his plea of guilty in each of said cases, with a further provision that the judgment and sentence thug pronounced in those cases should run concurrently.

The petitioner concedes in his petition, for the purpose of this proceeding, the validity of the sentences imposed in cases Nos. 13233 and 13234, hut alleges that if1 the petitioner is credited with the time served in the reformatory against the sentences imposed in those cases, his punishment is long since completed.

That when the district court of Oklahoma county entered the order revoking the suspended sentence theretofore made against the petitioner, no notice was given to the petitioner that an application had been made to revoke his suspended sentence, and no opportunity was given to the petitioner to be heard as to whether he had failed to comply with the conditions of his suspended sentence; that no- accusation of any kind was ever filed charging the petitioner with the violation of any condition imposed upon him in the order suspending the sentence aforesaid; and that under the suspended sentence the petitioner’ became and was entitled to his liberty until he had forfeited that right by a hearing, in accordance with due process of law.

The order revoking suspended sentence, attached to the petition filed herein and made a part thereof, reads as follows:

“Now, on this 3rd day of May, 1939, this cause comes on for hearing to revoke and set aside the order heretofore made on the 20th day of July, 1935, suspending the sentence of the defendant, said defendant being present in court, and it appearing; to the court that heretofore to wit: on the 20th day of July, 1935, the defendant entered his plea of guilty to- the charge of larceny of an automobile and was sentenced to serve a term of five years in the state reformatory at Granite, Oklahoma, said sentence to run from the date of delivery to the warden of the said state reformatory by the sheriff of Oklahoma, county, Oklahoma; that on said date this court made an order suspending the sentence' of said defendant pending his good behavior; thereafter; the State of Oklahoma filed herein motion to set aside and revoke said suspended sentence, the matter was properly set for hearing, the defendant being wholly and fully advised of his rights herein.
“The court finds and is satisfied from the evidence introduced that the said defendant has violated the termsi and conditions of the order heretofore made on the 20th day of July, 1985; by reason thereof the court finds that said suspension of sentence should be set aside and the sentence carried out in full according to its terms.”

The petitioner attaches to his petition a certified copy of the appearance docket of the district court of Oklahoma county, in the case wherein the petitioner received a suspended sentence, to show that no motion or petition was ever filed by any one alleging that he had violated the conditions of his suspended sentence, and to refute the recital in the order revoking the suspended sentence that a motion had been presented by the county attorney, asking that the suspended sentence be revoked for a violation of some of the conditions imposed upon the petitioner.

To this petition the warden of the State Reformatory, acting by and through the Attorney General of the State of Oklahoma, has filed a demurrer, alleging that the petition, taken in conjunction with the exhibits attached thereto, does not show facts entitling the petitioner to the relief prayed.

This case was argued at length before the court, and excellent briefs have 'been presented by both petitioner and respondent to sustain their respective theories.

We find from an examination of these authorities that the question herein presented has been decided by the courts of last resort in most of the states, and 'by the Supreme Court of the United States upon questions brought to that court involving alleged violations of sentences of probation by persons convicted in the federal courts.

It is the contention of the petitioner that when the execution of sentence is suspended, it confers a positive, substantial right upon the defendant, which he may plead in the same manner and to the same extent as his right to be considered innocent of the original crime of which he has been convicted; and that being a substantial right, the same may not be taken away from him except by due process of law, which means that he is entitled to a hearing as to whether he has violated the conditions of his parole, according to some well-recognized and established rules of judicial procedure.

In support of this position the petitioner cites the cases of State v. Zolantakis, 70 Utah, 296, 259 P. 1044, 54 A.L.R. 1463; Ex parte Lucero, 23 N. M. 433, 168 P. 713, L.R.A. 1918C, 549; State v. Gooding, 194 N.C. 271, 139 S.E. 436; Fleenor v. Hammond, 6 Cir., 116 F. 2d 982, 132 A.L.R. 1241.

On the other hand, it is contended by the respondent that the granting of a suspension of sentence is a matter resting in the sound judicial discretion of the trial judge, and that if all of the constitutional and statutory guarantees have been observed in the trial of a defendant for the crime of which he was convicted, the requirements of due process are fully satisfied, the presumption of innocence has been overcome, and future action under the statute rests solely Avithin the sound judicial discretion of the trial judge.

The respondent in support of his position, in addition to distinguishing our statute from the statutes of other states concerning this question, cites the opinion of Chief Justice Hughes of the United States Supreme Court in Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266; Varela v. Merrill, 51 Ariz. 64, 74 P. 2d 569; 16 C.J. 1335; 24 C.J.S., Criminal Law, § 1618; State v. Miller, 122 S.C. 468, 115 S.E. 742; People v. Goodrich, Sup., 149 N.Y.S. 406; Ex parte Patterson, 94 Kan. 439, 146 P. 1009, L.R.A. 1915F, 541; People v. Dudley, 173 Mich. 389, 138 N.W. 1044, and others.

This case is one of first impression in the State of Oklahoma. We have carefully read all of the cited decisions and many others in an effort to arrive at a proper conclusion concerning the interpretation which should be placed on our statute. In reading these various cases we have found that most of them concern an interpretation of statutes which either expressly provide for notice to be given to the accused and an opportunity to be heard before revocation is made or concern statutes which expressly provide for a summary hearing without notice.

The granting of a suspended sentence is regulated solely by statute. This power did not exist in the court at common law, and the language of the Oklahoma statute is therefore material in determining the procedure to be followed.

The Oklahoma Statute in question, section 2', art. 2, oh. 17, p. 20, Laws 1937, 22 Okla. St. Ann. § 992, reads:

“Any person so- released as provided in the preceding section shall be required to report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge, and prove to the satisfaction of said judge by two> citizens of said county of good reputation, that said person has not violated any law, and has been a quiet, peaceful and law-abiding citizen.. Provided, that if it shall be made to appear to said judge that said person so released has been guilty of a violation of any law after his said release, or is habitually associating with lewd or vicious persons, or is indulging in vicious habits, in that event said court shall cause a warrant to be issued for said person, and he shall be delivered forthwith to the place of confinement to which originally sentenced, and shall serve out the full term for which he had originally been sentenced.”

In considering this statute, the first question with which we are concerned is whether the statute is constitutional, i. e., whether the power conferred upon the courts to suspend sentence is an invasion of the clemency power of the Governor, and therefore unconstitutional.

Neither counsel for petitioner nor for respondent contend that the statute is unconstitutional, but on behalf of the petitioner it is insisted that if the Oklahoma act is constitutional it must be so because it confers a right upon the defendant to which he isi entitled, and is not a matter within the discretion of the trial court. For the purpose of his argument he then assumes the constitutionality of the statute and asserts that since the conferring of a suspended sentence is given to the defendant as a right to which he is entitled, the same may not be taken away except by due process of law, the same as in the original trial.

Section 10, art. 6, Oklahoma Constitution, Okla. St. Ann. provides:

“The Governor shall have power to grant, after1 conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon, granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve.”

The Federal Constitution, art. 2, § 2, vests the power of pardon in the President; and the federal courts, without exception, in construing probationary statutes in which the federal courts were- authorized to place prisoners upon probation after their conviction, have held that such acts of Congress were not unconstitutional as being in conflict with the pardoning power of the President.

Riggs v. United States, 4 Cir., 14 F. 2d 5, certiorari denied 273 U. S. 719, 47 S. Ct. 110, 71 L. Ed. 857; Riggs v. Workman, 273 U.S. 719, 47 S. Ct. 110, 71 L. Ed. 857; Cooper v. United States, 5 Cir., 91 F. 2d 195; Hollandsworth v. United States, 4 Cir., 34 F. 2d 423.

In Cooper v. United States, supra [91 F. 2d 199], it is stated:

“The probation is not pardon, either1 absolute or conditional, for the power of pardon is vested in the President. It is an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline. The probationer is not a free man, but is subject to surveillance, and to such restrictions as the court may impose. We do not agree with appellants’ contention that probation, like pardon, may be refused by the convicted person. The act vests a discretion in the court, not a choice in the convict.”

The conclusion of the federal cases above cited is that suspension of sentences followed by probation is intended as a reforming discipline, the system having been instituted for the purpose of giving persons who come within the operation of the statute an opportunity for reformation.

This view seems to have been followed by the decisions of the courts of last resort in the states which have had occasion to consider the question. Murphy v. State, 171 Ark. 620, 286 S.W. 871, 48 A.L.R. 1189; Howe v. State, 170 Tenn. 571, 98 S.W. 2d 93; Richardson v. Commonwealth, 131 Va. 802, 109 S.E. 460; State ex rel. v. Zangerle, 136 Ohio St. 371, 26 N.E. 2d 190; In re Siraguso’s Probation, 106 Colo. 89, 101 P. 2d 26; Ex parte Eaton, 29 Okla. Cr. 275, 233 P. 781; Moore v. Thorn, 245 App. Div. 180, 281 N.Y.S. 49; State ex rel, Bottomly v. District Ct., 73 Mont. 541, 237 P. 525; Williams v. State, 162 Ga. 327, 133 S.E. 843; In re Nachnaber, 89 Cal. App. 530, 265 P. 392; In re Hall, 100 Vt. 197, 136 A. 24; Ex parte Bates, 20 N.M. 542, 151 P. 698, L.R.A. 1916A, 1285.

In the case of Ex parte Eaton, supra, this specific question was brought to the attention of our court. In a unanimous opinion the Criminal Court of Appeals, speaking through Judge Edwards., stated [29 Okla. Cr. 275, 233 P. 782]:

“We believe that the sections of the statute above set out are constitutional and do not invade the province of the Governor, or chief executive, of the state in extending executive clemency. In this particular, executive clemency is to be distinguished from judicial authority, and the question for determination is: Does the district court have power under the statute above quoted to revoke the suspended sentence after the time covered by the sentence had run?”

The constitutionality of the statute was the sole point at issue in the Eaton Case, supra, and that decision should be determinative of this question in the State of Oklahoma. Sound reasoning supports this rule; and in accordance with the decision in Ex parte Eaton, supra, it is our conclusion that the statute herein involved is not in conflict with the constitutional provisions above quoted.

The case of State v. Zolantakis, supra, is the case most often referred to and cited by those who support the contention of petitioner herein. The Supreme Court of Utah in its first opinion sustained the order of the trial court, revoking the suspended sentence of the accused and ordering him committed. Later, while the case was still pending before the court upon a petition for rehearing, the personnel of the court changed and by a three-to-two decision the earlier opinion was set aside and the action of the trial court reversed. The majority opinion held that one whose sentence is suspended during good behavior, without any limitation, has a right to a hearing as to whether or not he has complied with the conditions! imposed, according to some well-recognized and established rules of judicial procedure, and filing of an affidavit or other pleading setting forth the facts relied on for revocation, with opportunity to plead to the charge, and the right to cross-examine witnesses, before revocation can be decreed; and that one under suspension of sentence during good behavior cannot be rearrested before a citation to show cause is' served upon him, and given no notice of the charge against him until evidence is offered at the hearing.

Justice Cherry wrote a dissenting opinion, which to us seems sounder in principle than the conclusion reached by the majority. Chief Justice Hughes in his opinion in the case of Burns v. United States, supra, used language very similar to' that used by Justice Cherry in his dissenting opinion. Justice Cherry in his dissent stated, in part [70 Utah, 296, 259 P. 1047, 54 A.L.R. 1463]:

“When the execution of a sentence is suspended, it is not vacated. The judgment itself isi not impaired or limited. The time for1 its execution is merely deferred. While under a suspended sentence, a duly convicted person is1 not freed from the legal consequences of his guilt. He is merely enjoying a conditional favor, postponing his punishment, which may be withdrawn. When the suspension is revoked the convict is punished for the crime of which he was convicted, and not for violating, the terms of his parole. The suspension of a sentence can never be demanded as a matter of legal right. It is granted at the mere will of the court. When granted, it is not held as a vested right, but as a matter of favor or grace. The statute confers upon courts a discretionary power designed to aid in the reformation and reclamation of convicted persons. By impressing upon the convicted person that he is enjoying a contingent favor, which may be withdrawn or revoked at any time, it is sought to induce or coerce him to amend his ways. The whole force and virtue of the expedient lies in the reserved power of the court to revoke the favor and inflict the penalty. And if this is hedged about with limitations which substantially destroy it, the whole scheme is defeated. The suspension of the sentence is not a fixed and final adjustment amounting to a right to be revoked only upon a violation of the condition upon which it is granted, because the statute expressly declares that The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation.’ Clearly, this precludes the claim that the judgment is unenforceable until, after due process of law, it is adjudged that the condition of probation has been violated. The power of the court to revoke is not limited to when the conditions have been violated, but extends to the modification or revocation of the condition itself.
“There is nothing in the statute suggesting that the compliance with any condition, or the proof of any grounds, are necessary to authorize the revocation of an order suspending sentence. From the nature of the subject, the wholé matter of granting and revoking suspensions must rest in the discretion of the court. This view of the matter finds support in People ex rel. [Forsyth] v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386, 23 L.R.A. 856 [15 Am. Crim. Rep. 675], where O’Brien, J,, speaking for the court, says: ‘The power to suspend the judgment during good behavior, if understood as expressing a condition, upon the compliance with which the offender would be absolutely relieved from all punishment and freed from the power of the court to pass sentence, is open to more doubt. The Legislature cannot authorize the courts to abdicate their own powers and duties or to tie their own hands in such a way that after sentence has been suspended they cannot, when deemed proper, and in the interest of justice, inflict the proper punishment in the exercise of a sound discretion. Nor can the free and untrammeled exercise of this power or the right to pass sentence according; to the discretion of the court be made dependent upon compliance with some condition that would require the court to try a question of fact before it could render the judgment which the law prescribes. The statute must not be understood as conferring any new power. The court may suspend sentence as before, but it can do nothing to preclude itself or its successor from passing the proper sentence whenever such a course appears to be proper. This', we think, is all that the statute intends, and that was the only effect of the judgment. It is a power which the court should possess in furtherance of justice, to be used wisely and discreetly, and it is perhaps creditable to the administration of justice in such cases that while the power has always existed no complaint has been heard of its abuse.’ * * *
“In exercising the powers conferred by the statute in question from the nature of the subject, courts must necessarily have a large discretion not only in respect of the grounds upon which they act, but in the method or procedure by which they ascertain facts and arrive at conclusions. They are not dealing with specific legal rights and are not bound by the standards of legal procedure which usually control judicial proceedings. This is comprehended within the very generally approved rule that an order suspending sentence may be revoked without granting the defendant a trial upon the facts. It logically follows that courts may ascertain facts upon which to act in any manner they see fit, and act upon them, provided only that their proceedings and conduct on the whole are not capricious or arbitrary or a manifest abuse of discretion.”

In the case of Burns v. United States, supra [287 U. S. 216, 53 S. Ct. 155, 77 L. Ed. 266], Chief Justice Hughes said:

“First. Petitioner objects to the summary character of the proceeding. He urges that he was. entitled to previous notice of specific charges of violation of the terms of probation and to a hearing upon such charges according' to the established rules of judicial procedure. As opposed to the action sanctioned below he invokes principles announced in Hollandsworth v. United States [4 Cir.], 34 F. 2d 423, 428, and in certain decisions of state courts! dealing with procedure under state probation laws. See State v. Zolantakis, 70 Utah 296, 259 P. 1044, 54 A.L.R. 1463, 1471, note.
“The Federal Probation Act (March 4, 1925, c. 521, 43 Stat. 1259, U.S.C., tit, 18, §§ 724-727, 18 U.S.C A §§724-727), confers an authority commensurate with its object. It was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. United States v. Murray, 275 U.S. 347, 357, 358, 48 S. Ct. 146, 72 L. Ed. 309; H.R. Rep. No. 423, 68th Cong. 1st Sess. Probation is thus conferred as a privilege and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment, and cannot insist on terms or strike a bargain. To accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion. The provisions of the act are adapted to this end. It authorizes courts of original jurisdiction, when satisfied That the ends of justice and the best interests of the public, as well as the defendant, will be subserved,’ to suspend the imposition or execution of sentence and To place the defendant upon probation for such period and upon such terms and conditions as they may deem best.’
“There is no suggestion in the statute that the scope of the discretion conferred for the purpose of making the grant is narrowed in providing for its modification or revocation. The authority for the latter purpose immediately follows that given for the former, and is in terms equally broad. ‘The court may revoke or modify any condition of probation, or may change the period of probation.’ There are no limiting requirements as to the formulation of charges, notice of charges, or manner of hearing or determination. No criteria for modification or revocation are suggested which are in addition to, or1 different from, those which pertain to the original grant. The question in both cases is whether the court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant. The only limitation, and this applies to both the grant and any modification of it, is that the total period of proba,tion shall not exceed five years. Act of March 4, 1925, § 1 -A* * *
“Such procedural provisions as the act contains harmonize Avith the view that the continuance of the probation, as well as the grant of it, rests in the court’s discretion. The probation officer, when directed by the court, must report to- the court with a statement of the conduct of the probationer. ‘The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.’ Id., § 2 * * *. The broad authority of the court remains unimpaired. At any time within the probation period, the probationer may be arrested, either with or without warrant, and thereupon he ‘shall forthwith be taken before the court.’ Also, after the probation period has expired, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before it. ‘Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.’ Id.
“The duty placed upon the probation officer to furnish to each probationer under his supervision ‘a written statement of the conditions of probation’ and to' ‘instruct him regarding the same’ (Id., § 4 * * *) cannot be deemed to restrict the court’s discretion in modifying the terms of probation or in revoking it. The evident purpose is to give appropriate admonition to the probationer, not to change his position from the possession of a privilege to the enjoyment of a right. He is still a person convicted of an offense, and the suspension of his sentence remains within the control of the court. The continuance of that control, apparent from the terms of the statute, is essential to the accomplishment of its beneficent purpose, as otherwise probation might be more reluctantly granted, or, when granted, might be made the occasion of delays and obstruction which would bring reproach upon the administration of justice. See Campbell v. Aderhold, D.C., 36 F. 2d 366, 367; United States v. Mulligan, [2 Cir.], 48 F. 2d 93, 94; Jianole v. United States, [8 Cir.], 58 F. 2d 115, 117; Commonwealth v. McGovern, 183 Mass. 238, 66 N.E. 805; People ex rel. Pasco v. Trombly, 173 App. Div. 497, 499, 160 N.Y.S. 67; Richardson v. Commonwealth, 131 Va. 802, 810, 811, 109 S.E. 460; People v. Dudley, 173 Mich. 389, 392, 395, 138 N. W. 1044; People v. Sanders, 64 Cal. App. 1, 220 P. 24.
“The question, then, in the case of the revocation of probation, is not one of formal procedure either with respect to notice or specification of charges or a trial upon charges. The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. The Styria v. Morgan, 186 U.S. 1, 9, 22 S. Ct. 731, 46 L. Ed. 1027. It takes account of the law and the particular circumstances of the case and is ‘directed by the reason and conscience of the judge to a just result-’ Langnes v. Green, 282 U. S. 531, 541, 51 S. Ct. 243, 247, 75 L. Ed. 520. While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice.”

For further discussion of the federal probation law, see Escoe v. Zerbst, 295 U. S. 490, 55 S. Ct. 818, 79 L. Ed. 1566.

It should be noted that the broad term' “suspended sentence” is used quite generally by the text writers and the various opinions to apply both to the case where the imposition of the sentence itself is suspended and to those cases where the sentence is pronounced, but the execution of the sentence is suspended. In Oklahoma, in accordance with our statute, the sentence is pronounced, and at the same time and as a part of the sentence the court may in its own discretion make provision that the execution of the sentence be suspended upon the conditions set forth in the statute.

A consideration of our statute shows that it requires the defendant to report to the judge at each subsequent term during- the pendency of the judgment “or when required by the court or judge,” and prove to the satisfaction of said judge that defendant has not violated any law and has been a quiet, peaceful, and law-abiding citizen. The statute further provides that if it be made to appear to- said judge that said person so released has been guilty of a violation of any law after his release or is habitually associating- with lewd or vicious persons or is indulging in vicious habits, “in that event said court shall cause a warrant to be issued for said person, and he shall be delivered forthwith to the place of confinement to¡ which originally sentenced.”

Only those persons coming within the terms of the statute are eligible for a suspended sentence, but they have no right to demand the same, and it may not be granted to them except a.t the discretion of the court. Martin v. State, 67 Okla. Cr. 390, 94 P. 2d 270.

Nowhere in the statute appears any provision for notice to be given to the accused or for the filing' of an accusation or for a hearing. The statute itself authorizes the court, when he is satisfied that the defendant has violated the conditions of the suspended sentence, to forthwith cause the defendant to be delivered to the place of confinement to which originally sentenced.

As hereinabove noted, the power to suspend the execution of a sentence did not exist at common law, but the authority so> conferred must be governed exclusively by the statute involved. There is no ambiguity in our statute. The hearing may be of a summary character. We suggest, however, that the better practice would be for the trial judges to require county attorneys to file a written accusation against accused, setting forth the conditions of the suspended sentence which are alleged to have been violated. The statute does not require this, however, but to avoid arbitrary action such a procedure should be followed. The trial judge, however, may find instances in which the accused fails to make the reports which are required under the terms of the suspended sentence, and a literal interpretation of the statute in such instance would authorize the court forthwith, without a hearing, to issue a bench warrant for the defendant and direct the sheriff to commit him to imprisonment.

We are not inclined to go as far as some of the courts of last resort have gone in sustaining the power of the trial court to revoke a suspended sentence. We do, however, follow the reasoning of Chief Justice Hughes in which he states that the revocation of probation, or in our case of suspension of a sentence, should be a matter addressed to the sound judicial discretion of the trial judge. We quote from Judge Hughes, iu Burns v. United States, supra, as follows:

“The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action.”

The case of Varela v. Merrill, supra, reviews the various authorities from other jurisdictions, including many of the cases hereinabove cited, and the Arizona Supreme Court denied the petition for writ of habeas corpus. The syllabus, as set out in the Pacific Reporter, is as follows:

“1. The language of statute empowering court to suspend sentences is important in determining extent of court’s power, since such power did not exist at common law. * * *
“2. Where all constitutional and statutory guarantees have been observed in criminal prosecution, requirements of due process are fully satisfied, presumption of innocence is overcome, and hence suspension of sentence is not a matter of right but purely within trial court’s discretion as respects both form and substance. * * *
“3. When suspension of convicted defendant’s sentence is revoked under statute, he need not be brought before court nor given hearing, though he must appear when new sentence is pronounced. * * *
“4. Where record shows affirmatively that trial judge has ordered revocation of suspension of sentence and has pronounced sentence in defendant’s presence, there is a conclusive presumption that trial judge had reason to' believe, as required by statute, that defendant was violating conditions of probation, was engaging in criminal practices, or- had become abandoned to' improper associates or a vicious life. * * *
“5. In habeas corpus proceeding by prisoner, attacking trial court’s revocation of suspension of his sentence, record showing that court revoked suspension of sentence and that prisoner was present when he was sentenced is sufficient to sustain trial court’s action. * * *
“6: On appeal from order denying habeas corpus, sought on ground of alleged impropriety of trial court’sl revocation of suspension of prisoner’s sentence, reviewing court would not consider objections to- conditions imposed at time of suspension of sentence, in absence of showing of trial court’s specific grounds for revocation. * * *
“7. A prisoner who failed to ask permission to be heard or to present evidence when suspension of his sentence was revoked, though prisoner was then present, thereby-waived alleged right thereto-. * * *
“8. Where trial court, at time of revoking suspension of prisoner’s sentence, informed prisoner that he had violated conditions of his probation and asked prisoner if he had anything to say why sentence should not be pronounced, prisoner was thereby given sufficient opportunity to be heard.”

If it is shown to this court that a trial judge acts in an arbitrary manner in revoking a suspended sentence or through mere whim or caprice of the judge, we would unhesitatingly set aside such order of revocation.

The Arizona statute is similar to our statute in that no provision is made for an application to be filed to revoke the suspended sentence, or notice to be given, or for a hearing of any kind.

Concerning the question of the failure to- file an accusation against the accused and have a hearing, the- Arizona -court quoted from the case of People v. Dudley, supra, as follows:

“2. * * * It is here claimed that the statute is unconstitutional because in the matter of the termination and revocation of the probation no- provision is made for benefit of counsel, for the right to- be confronted with witnesses, and the right of trial by jury. These rights are only given by the Constitution in criminal proceedings. The violation of the terms of probation is not a crime necessarily, and is not treated as a crime:, but is rather in the nature of a breach of contract. As Ave have already said, the respondent Avas all of the time in the care and custody of the probation officer, acting under the direction of the court. When probation Avas granted, respondent agreed to its terms, and fully understood that, for certain misconduct, his probation would be revoked andi terminated. This is of the very essence of the plan. When brought before the court for sentence, he is not charged with a new crime, but merely with the violation of his agreement with the court. In no sense can this be said to he a criminal prosecution. The respondent was granted his probation subject to this liability. A similar feature appears in the Iuav of other states, and has, in so far as we have been able to find, been sustained Avhen questioned.”

For other cases sustaining this vieAV reference is made to Brozosky v. State, 197 Wis. 446, 222 N.W. 311; Calloway v. State, 201 Ark. 542, 145 S.W. 2d 353; People v. Lippner, 219 Cal. 395, 26 P. 2d 457; People v. Wheeler, 349 Ill. 230, 181 N.E. 623; People ex rel. Pasco v. Trombly, 173 App. Div. 497, 160 N.Y.S. 67; State ex rel. v. Wall, 189 Minn. 265, 249 N. W. 37; McLemore v. State, 170 Miss. 641, 155 So. 415.

The cases cited by petitioner are based upon the theory that the grant of a suspended sentence confers upon the defendant a positive, substantial right which he may plead in the same manner and to the same extent as his right to: be considered innocent of the original crime of which he has been convicted until a jury has passed upon the matter by all of the forms prescribed by law.

We follow what we consider the better rule in the interpretation of our statute, that the suspension of the execution of the sentence is a matter of grace, expressly ordered by the Legislature, to be in the discretion of the trial judge, with the revocation of such suspension equally within his discretion, subject to the right of the accused to apply to this court for relief if it can be shown that the court’s action was arbitrary or governed solely by whim or caprice of the judge, without a legal foundation.

Beneficent results could not be secured under our suspended sentence law if every accused was entitled to a trial to determine whether his suspended sentence should be revoked. Without doubt, a conscientious judge in many instances would be deterred in his desire to aid in the rehabilitation of a convicted person if we were to hinge the statute with technicalities and difficulties incident to a revocation. The Legislature has wisely charged the court with the duty of determining in the first instance whether a defendant shall be given a suspended sentence, and by the same statute it clearly vests in the court the power to determine in his own sound judicial discretion when such suspension of execution of sentence should be terminated. The vesting of such power in the court does not deprive the defendant of any of his constitutional rights. No convicted person has a constitutional right to' produce proof to try out the issue of what his punishment shall be. That question must be determined by society, which in turn has vested that power in the courts.

Applying the conclusions above to the case at bar, we find that the order revoking the suspended sentence recites that the state had filed a motion to set aside and: revoke such suspended sentence, that the matter was properly set for hearing, the defendant being present and fully advised of his rights therein. The order further recites that the court was advised and is satisfied from the evidence that the defendant has violated the terms and conditions of the order of suspension made on the 20th day of July, 1935. There are no allegations of fact in the petition filed herein sufficient in law to overthrow the presumption of regularity carried with this order, and for that reason we are of the opinion that the demurrer of the Attorney General to the petition for writ of habeas corpus should be sustained and the petition denied.

It is so ordered.

BAREFOOT, P. J., concurs. DOYLE, J., absent and not participating.


text:
    Ex parte OLLIE BANKS.
    No. A-10160.
    Feb. 4, 1942.
    (122 P. 2d 181.)

      Sigler & Jackson, of Ardmore, for petitioner.
    Alvin C. Bruce, Co. Atty., and R. H. Brett, Asst. Co. Atty., both of Ardmore, for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner, Ollie Banks, seeks his release from imprisonment in the county jail of Carter county.

On April 13, 1940, the petitioner was sentenced by the district court of Carter county to serve a term of imprisonment of one year in the county jail upon a plea of guilty to the charge of assault with a dangerous weapon. The journal entry of judgment and sentence contains this recitation: “It is the further order of the court that this sentence be suspended upon good behavior and payment of costs.”

On April 3, 1941, just ten days prior to the expiration of the sentence pronounced against the petitioner, the district judge of Carter county entered the following order:

“Now, on this third day of April, 1941, it appearing to the court that the defendant has wholly failed to comply with the orders of this Court heretofore made herein on April 13, 1940, granting him a suspended sentence.
“It Is Ordered that the order granting said defendant a suspended sentence, be, and the same is hereby set aside and the sheriff of Carter county, Oklahoma, is directed to take said defendant into1 his custody and enforce the judgment and sentence herein imposed.”

The petitioner was incarcerated in the county jail by the sheriff of Carter county, pursuant to the order of revocation above set forth, and subsequent thereto made application to the district court of Carter county for his release by habeas corpus. Upon denial of his petition, this action was then instituted. Pending the disposition of this cause, petitioner was released from custody upon the execution of a bond in the sum of $500 conditioned that he would appear and abide by the order of this court herein.

It appears without dispute that the order of revocation was made in the absence of both petitioner and his counsel, without notice to them, and was issued by the court for the reason the petitioner had failed to comply with that part of the order of the court requiring the petitioner, as a condition of the suspension of his sentence, to pay the costs of the proceeding.

For a full discussion of the rights of an accused who is at liberty under suspended sentence, see the case of Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, this day decided.

So far as said opinion is applicable to the facts herein, it was therein held:

“Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court. * * *
“One brought before court accused of violating conditions of suspended sentence isi not entitled to- benefit of counsel nor to- a jury trial as a matter of right. * * *
“When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to- being withdrawn by the court for a violation of some of the conditions named in statute. * * *
“The revocation of a suspended sentence is a matter addressed to- the sound judicial discretion of trial judge, and the hearing in connection therewith may be of a summary character.”

The statute in question, sec. 2, art. 2, ch. 17, p. 20, Laws 1937, 22 Okla. St. Ann. § 992, so far as is material to the disposition of this cause, reads:

“Any person so- released as provided in the preceding section shall be required to report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge, and prove to- the satisfaction of said judge by two citizens of said county of good reputation, that said person has not violated any law, and has been a quiet, peaceful and law-abiding citizen. Provided, that if it shall be made to- appear to said judge that said person so released has been guilty of a. violation of any law after his said release, or is habitually associating with lewd or vicious persons, or is indulging in vicious habits, in that event said court shall cause a warrant to- be issued for said person, and he shall be delivered forthwith to the place of confinement to- which originally sentenced, and shall serve out the full term for which he had originally been sentenced.”

The matter of the granting of a suspension of the execution of a sentence is governed solely by statute; only those parties coming, within the terms of the statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to- them except at the discretion of the court. Ex parte Boyd, supra; Todd v. State, 73 Okla. Cr. 18, 117 P. 2d 170; Martin v. State, 67 Okla. Cr. 390, 94 P. 2d 270.

The suspension of the execution of a sentence having once been granted, the suspension may not be revoked except for one of the conditions named in the statute. The conduct of the accused after receiving the suspended sentence is regulated by statute. The nonpayment of costs is not properly one of the conditions upon which the revocation of a suspension of sentence may be used.

When an accused is convicted of an offense which carries with it imprisonment in the county jail and the payment of costs, the payment of costs of the prosecution is made a part of the punishment, and payment shall be enforced by imprisonment in the county jail until the same shall be satisfied. Section 3166, O. S. 1931, 28' Okla. St. Ann. § 101; Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239.

The payment of costs being a part of the punishment and a part of the sentence imposed against the defendant, the suspension of the execution of sentence carries with it the suspension of the entire sentence, which suspends not only the sentence to confinement in the county jail but the payment of costs.

No doubt, there will be cases arising wherein the trial courts will view with favor the fact that a prisoner convicted of crime has paid the costs of the prosecution before applying for a suspended sentence. But where the accused does not voluntarily pay the costs before making application for suspended sentence, the court may not arbitrarily impose the payment of costs as one of the conditions in an order granting a. suspended sentence.

The purpose of the granting of a suspended sentence is to aid in the reformation of the prisoner and to< rehabilitate him so that he may make a useful citizen. To extend the terms of the statute so as to confer authority on the court to' revoke a suspended sentence upon the failure of the accused to- pay costs would place an unfair penalty upon a poor person. It would deprive a pauper of the equal protection of our laws and would punish him because of his poverty.

It is our conclusion that the order of the court revoking the suspended sentence granted to the petitioner, upon the sole ground that the petitioner had failed to pay the costs of the prosecution, was arbitrary and constituted an abuse of judicial discretion.

For the reasons above stated, the writ of habeas corpus is granted; the petitioner being illegally restrained of his liberty at the time of the filing of the petition herein, it is ordered that he be discharged from custody.

BAREFOOT, P. J., concurs. DOYLE, J., absent and not participating.


author: BAREFOOT, P. J.

text:
    WAYMON DOWELL v. STATE.
    No. A-9898.
    Feb. 11, 1942.
    (122 P. 2d 406.)

      W. M. Hall, of Claremore, and Frank Hickman, of Tulsa, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and D. M. Battenfield, Co. Atty., of Claremore, for the State.
   BAREFOOT, P. J.

Defendant, Waymon Dowell, was charged in the district court of Rogers county with the crime of falsely altering a public record with intent to defraud, was tried, convicted and found guilty by the jury and his punishment assessed at two and one-half years in the penitentiary, and he has appealed.

Defendant has assigned numerous errors for reversal of this case, but in his brief they are submitted under three assignments. They are:

“I. The evidence is insufficient to sustain the verdict and judgment, and the court erred in overruling defendant’s demurrer to the evidence and motion to advise the jury to acquit the defendant.
“II. The court erred in not instructing the jury on, all of the law in the case, and in failing tc submit to the jury the question of defendant’s guilt or innocence of a lesser but included offense.
“III. The trial court erred in overruling defendant’s motion for new trial and motion in arrest of judgment.”

The first assignment necessitates a brief review of the evidence. This charge was based upon Oklahoma Statutes 131, section 2531, O. S. A., Title 21, § 1572, which is as follows:

“Every person who, with intent to defraud, falsely alters, destroys, corrupts or falsifies :
“1. Any record of any will, codicil, conveyance or other instrument, the record of which is, by law, evidence; or,
”2. Any record of any judgment in a court of record, or any enrollment of any decree of a court of equity; or,
“3. The return of any officer, court or tribunal to any process of any court,
“Is guilty of forgery in the second degree.”

Defendant was charged with altering a warranty deed that had been filed and recorded in the office of the county clerk of Rogers county on the 28th day of March, 1938, and which was recorded in book 236 at page 312. This deed was executed by Mary Ella Davis and her husband, Evan L. Davis, in which they conveyed to “Grady W. Dowell, of Claremore, Rogers County, State of Oklahoma * * * the following- described real property * * * to-wit: Lots Seven (7), Eight (8), Nine (9), Ten (10), Eleven (11), Twelve (12), Thirteen (13), Fourteen (14) and Fifteen (15), in Block 27, of the Bayless Addition to the City of Claremore, Rogers County, Oklahoma.” This deed was dated March 21, 1938.

It is charged that defendant on or about the 18th day of January, 1939, “willfully, unlawfully, feloniously * * * falsely altered and changed” said above described deed by adding after the name “Grady W. Dowell” the word “Jr.” and of erasing the words “of Claremore” so that the word “Jr.” could be placed therein and the words “of Claremore” again written therein, thus changing the name of the grantee in said deed from “Grady W. Dowell” to “Grady W. Dowell, Jr.”, who was the eight-year-old son of the defendant (Grady W. Dowell and Waymon Dowell are one and the same person). It was the contention of the state that this change was made for the purpose of defeating certain parties who through contract with defendant on July 21, 1938, had furnished labor and material in the amount of $1,469.25 for the purpose of building a house upon said premises. Evidence was offered by the state to substantiate this contention and revealed that the materials had been furnished, the house had been erected and suits had been filed in the district court for the foreclosure of liens thereon.

As to the fact that the defendant made the change in the record, the state offered evidence to show that defendant some days prior to January 18, 1939, was frequently seen in the office of the county clerk of Rogers county and that the books in question were on tables easily accessible to the defendant. That upon one of these occasions he had made inquiry of Clarice Stanberry, a deputy county clerk, with reference to the record which contained the deed above referred to, and that she had given him record book 236 and opened it at page 312, where the deed was recorded. That after he examined the same and left, she went to the record and examined it carefully to see whether a change had been made in the “grantee’s” name in the déed. Her reason for doing this was that sometime prior thereto defendant ha.d spoken to her about changing this deed and offering her “a fine Christmas present” if she would do so. That she told him she would not change it unless directed by Mr. Oliver Hause, the county clerk, and she also told him it would not be changed unless, all the parties were present and agreed thereto. The evidence also' revealed that defendant had talked to Hugh Stanberry, the brother of Clarice Stanberry, and had inquired of him as. to- whether or not he would assist the defendant in getting his sister to make the chang’e. He testified as follows:

“Q. Yes, tell that jury over there what he said to you and what you said to him. A. Well, he asked me if I could get the records changed down here, and I told him I would see, and he said if I could he would appreciate it and he would make it. right.”

W. M. Eaton, who was also- a deputy in the county clerk’s office, testified to defendant’s appearance at the office at numerous times and of his examining, the record before referred to. That he was present on two occasions on the day of January 18, 1939. That on the afternoon of this date he observed defendant examining record No. 236 and that there was a page protruding therefrom. This was a loose leaf record, and he inquired of the defendant what was the matter, and was. informed that he was trying to put leaf 312 (this being the leaf upon which the deed in question was recorded) back into' said deed record book 236. The defendant soon left, and he examined the record and found that this leaf had been freshly folded, and he immediately called the attention of Clarice Stanberry to the condition of the record and the changes that had been made in the record. That the word “Jr.” had been placed immediately after the name “Grady W. Dowell”, and the words “of Ola,remore” had been erased so that the word “Jr.” could be placed therein and the words “of Claremore” had been rewritten therein. A photostatic copy of the recorded deed is shown in the record, and the evidence of the change is easily detected therefrom. The evidence also reveals that the defendant returned to the office in about one hour and told deputy clerk Eaton not to think he had anything to do1 with the taking of this page out of the book. This same afternoon defendant went to the home of the county clerk, Oliver Hause, who lived in the country and who> on account of sickness was not at the office on that date. He told Mr. Hause of the incident and of Mr. Eaton’s seeing him with the record and loose leaf, and that he hoped that neither he nor the deputy would think he had anything to do with taking the leaf out of the record or making the change therein. The evidence also revealed that the whole of the office force soon came to the home of Mr. Hause with reference to the matter, but it is unnecessary to further refer to the record.

The defendant testified in his own behalf and denied making any change in the record. It will thus be noted that there was a direct conflict in the evidence. It is true that no one actually saAv the defendant make the change in the record, but the circumstances as above stated, together with the proof of “motive” on the part of defendant to make the change, Avere amply sufficient for the submission to the jury of this question of fact. The court fully instructed the jury upon the question of circumstantial evidence, and the jury after considering} the same found defendant guilty and assessed his punishment. It is true that the corpus delicti must be established as an independent fact, beyond a reasonable doubt, but it is not necessary that this proof be made by direct and positive testimony, but it may be established by circumstantial evidence, and certainly the evidence in this case was sufficient for the consideration of the jury and to' cause them to find beyond a reasonable doubt that the change in the record was made by the defendant. Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Frye v. State, 25 Okla. Cr. 273, 219 P. 722; Coppler v. State, 52 Okla. Cr. 275, 4 P. 2d 700. This was a question of fact for the jury to decide, and we are of the opinion that the court did not err in overruling the demurrer to1 the evidence and in refusing the motion of the defendant for a directed verdict.

It is also contended by defendant that the evidence was insufficient to prove the venue. An examina,tioin of the record does not justify this contention. The witness W. M. Eaton testified that he was the deputy county clerk of Rogers county, Okla., and that the records of the county were kept in the county clerk’s office, and that he saw defendant there, as heretofore related. This, with other evidence in the record, clearly establishes the fact that the crime, if committed, was committed in Rogers county, Okla.., and was sufficient to establish the venue in this case.

The contention that the court did not instruct the jury on all of the law of the case cannot be upheld. In the first place, no exceptions were taken by defendant to any of the instructions given by the court and no requested instructions were asked by the defendant. We have carefully examined the instructions given by the court, and they were in every way proper and fully presented the issues involved for the determination by the jury.

The contenton, for the first time urged on appeal, that the court should have instructed the jury under the terms of Oklahoma Statutes 1931, sections 2527 and 2528, O. S. A., Title 21, §§ 461 and 462, as included offenses, and which provide a lower penalty than the statute under which the defendant was charged, is clearly untenable. These statutes clearly show two entirely different offenses. It has often been held that the mere fact that the defendant might have been charged and tried under either of two distinct statutes would give the state the right to choose under which of the two statutes the prosecution should be maintained. State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093; Severn v. State, 72 Okla. Cr. 141, 114 P. 2d 181.

We do not think that the crime charged under the above-cited statutes would be an included offense under the statute under which defendant was charged and tried.

For the reasons above stated, we are of the opinion, that the judgment and sentence of the district court of Rogers county should be affirmed.

JONES and DOYLE, JJ., concur.