text:
    MILLARD C. GEYMAN v. STATE.
    No. A-10793.
    March 10, 1948.
    Rehearing Denied May 5, 1948.
    (192 P. 2d 707.)

      H. B. King, of Oklahoma City, and Falkenstine & Fisher, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Millard C. Geyman, was charged by information filed in the district court of Blaine county with the crime of embezzlement of public funds, was tried and convicted with the punishment left to the court. Whereupon the court sentenced the defendant to serve three years5 imprisonment in the State Penitentiary, and pay a fine of $4,000.

The information, in substance, alleged that between the dates of September 1, 1940, and January 21, 1943, the defendant, as city clerk of the city of Geary, was entrusted with and had in his possession and under his control by virtue of his trust as such official, the sum of $8,-275.02 in money which belonged to the city of Geary, and that the defendant embezzled and appropriated said money to his own use and benefit and to a use and purpose not in the lawful execution of his trust as such city clerk.

It is agreed by all parties concerned that the prosecution was brought under the provisions of Tit. 19, § 641, O. S. 1941. Under proposition one of defendant’s brief it is contended that in order to sustain a charge of embezzlement under Tit. 19, § 641, O. S. 1941, the state must prove by competent evidence a fraudulent conversion of the fund; and such conversion must be shown by proof that the defendant appropriated the money to his own private use or to some other use inconsistent with Ms trust, that the evidence wholly fails to establish beyond a reasonable doubt these essential elements of the offense charged and is therefore insufficient to sustain the conviction.

The evidence shows that the defendant as city clerk of Geary had charge of making collections for the city of Geary of light and water bills, occupation license taxes, dog taxes, tbe sale of cemetery lots, and miscellaneous items; and that as these items were collected, a daily cash sheet was kept upon which the collections were entered by the party making the collections at the time the collection was made and in turn the amount shown on the collection sheet was deposited to the credit of the city treasurer. The state was unable to prove any shortage in the accounts of the defendant as city treasurer in so far as it pertained to any of the various collections he made other than the collection of the light and water bills. The proof showed that the light and water accounts were kept by the city clerk. The city clerk made up statements in triplicate from meter readings. These statements were bound in permanent book, form. The first copy was torn out and mailed to the customer as a statement of his bill; the second copy was left permanently in the book; and the third copy was retained in the book until the consumer came in and paid his bill, at which time the third copy was stamped “Paid” with a rubber stamp and given the consumer as a receipt; and at the same time the copy remaining in the book was stamped “Paid” with the rubber stamp. The accounting system of the city of Geary did not include a permanent record of the individual light and water accounts, and the only record kept was the receipt books. As stated above, a daily collection sheet was kept upon which collections, from all sources, were entered at the time of making the collection. The deposit slips showing the funds deposited to the account of the city treasurer were made up from the daily collection sheets.

The proof further showed that the defendant took offfice as city clerk of Geary on May 1, 1933, and continuously served in that capacity until January 23, 1943, when he resigned to accept a job with an oil company in Oklahoma City. After the resignation of the defendant and before his successor took office, an accountant was employed by the city to make an audit of the books and records kept by the defendant as city clerk. The auditor thus employed by the city was the individual who had prepared the annual budget for the city council, and one of the facts relied upon as part of the defense was that this auditor had written the city council in July of 1941, and again in July, 1942, advising them in substance that he had made a check of the records of the city and that they were in good shape and that he found nothing in the records of the city clerk and city treasurer that was subject to criticism. The auditor explained this letter in his testimony by stating that he did not attempt to check the money received by the city clerk from the time of its inception, but only made a routine check of the daily collection sheet with the corresponding deposit slips for the purpose of determining the funds on hand in order to enable him to prepare a budget for each fiscal year.

The auditor testified that he found a discrepancy between the total of the receipts stamped paid in the light and water account in the permanent book kept for that purpose, and the total amount of money entered on the daily collection sheets and deposited to the credit of the town treasurer. He testified that the amount shown on the daily collection sheets and the amount deposited daily to the credit of the town treasurer tallied exactly.

The evidence further showed that the defendant received the sum of $65 per month as a salary for his work, and that the city council in addition set aside the sum of $10 each month to pay for the employment of additional help to assist the defendant during the rush period of collections the first of each month. The proof showed that three different women had been employed by the defendant at different periods during the time covered by the audit. That only one of these women was employed at a time and her work was generally limited to a period of four or five days work in each month, or not to exceed seven days at $1.50 per day. That the receipts were stamped by the person making the collection which would be the defendant or one of the women who assisted him.

The Eock Island Bailway Company was one of the largest water users of the city. The evidence showed that they paid their bills each month and took a receipt on a form prepared by their auditor which showed the amount of water consumed by the company in detail, and that this receipt of the company was presented by their agent at the time their bill was paid, and that in addition to stamping the receipt in the permanent light and water account book kept by the city, that the clerk would also sign the receipt presented by the railroad company. In order to show how a part of the shortage had been covered by the defendant, the state’s evidence disclosed that most of the light and water statements presented by the railroad company during the two year period were receipted in the handwriting of the defendant. These checks by the railroad company in payment of their monthly bills varied from approximately $50 to $150 per month. None of these checks were listed as collections on the daily collection sheet, but all of them were deposited to the credit of the city treasurer and it was the contention of the state that the defendant, having received the check in person from the railroad company, omitted the entry of that collection on his daily collection sheet, but then later deposited it to the credit of the city and took currency which was part of the collections as shown upon the daily collection sheets and appropriated it to Ms own use. In that way, the amount of the daily collections, as shown by the collection sheet, tallied exactly with the amount of funds deposited to the credit of the city treasurer. In the report of the auditor it was shown that there were four large light and water accounts each month, to wit: R. A. Young & Company, Conoco Service Station, CCC Camp, and the Chicago-Rock-Island & Pacific Railway Company, and that these large accounts during the period covered by the audit from September, 1940, to January 31, 1942, were paid by the consumer but were not entered on the daily reports on the cash collection book although they were deposited to the credit of the city treasurer.

On behalf of the defendant, he offered many witnesses to show his good reputation and offered abundant evidence that he was leading a frugal life, and that nowhere could it be shown that he had expended any sums of money which would have been considered extraordinary by a person in circumstances similar to defendant in an ordinary town. The defendant made such an excellent showing of his exemplary character and frugal manner of living that this court has very carefully examined each bit of evidence offered by the state to see whether there was any competent evidence upon which the jury could base their verdict of guilt. The auditor testified that when he commenced to check the records of the city clerk at the time of the resignation of defendant, he found that there were irregularities consisting of a difference in the total amount of the stamped light and water receipts from the amount shown on the daily cash book. That when he discovered these irregularities, he spoke to the defendant about it before reporting to the governing board of the city, and that when he advised the defendant what he had found, the defendant said “ I was afraid of that”. The defendant testified in Ms own behalf and when asked to state whether he thought the audit was correct, stated that he thought that it was, and he was unable to point out in any particular where the audit was incorrect or wrong. In this connection he testified:

“Q. Who got this much money that is short here? A. I don’t know who got that money. Q. You don’t mean to tell the court and jury that any of these girls that worked for you got it? A. I don’t know whether they got it. I don’t know. Q. And if the money is gone, and the girls didn’t get it, there is only one other person that could have got it? Isn’t that true? A. No, that isn’t true. Q. Well, who else could have got it? A. I don’t know where the money went. Q. You know the girls didn’t get it? A. No, I don’t know that they didn’t get it. Q. But do you say they did? A. I said I would not say that they got it.”

The evidence further showed that the defendant employed an auditor to audit his books and records as city clerk after the audit made by the witness Lowry had disclosed considerable shortage. This auditor employed by the defendant testified as a witness for the state and said that his audit showed a shortage of $8,734.36, which was in excess of the shortage disclosed by the accountant employed by the city. The auditor employed by the city explained this discrepancy by saying that in every instance where there was the least bit of doubt, he gave the benefit of the doubt to the defendant and did not set up the item as part of the shortage, whereas the auditor employed by the defendant included in his statement of the shortage all funds traced to the office of the city clerk whether received by the defendant or one of the women who assisted him, but which were not accounted for by being deposited to the credit of the city.

The evidence further showed tnat when the audit was presented to the city council, they notified the defendant of the alleged shortage and asked if he could meet with them at a special meeting of the city council and go over the audit, to which the defendant agreed; but that on the date set for the special meeting of defendant with the city council, the defendant did not appear but did have a representative at the meeting in the person of his attorney who stated that the defendant had nothing to say.

The chief contention of the defendant is based upon the proposition that the state did not show by direct evidence that he personally appropriated one cent of the city’s money, and that since other persons than himself received a part of the money paid into the clerk’s office during the period of time in controversy, that there is just as much inference that they appropriated the money to their own use and benefit as there is that the defendant had appropriated it to his own use and benefit. The defendant relies chiefly upon the rule of law laid down by this court in the case of Severn v. State, 72 Okla. Cr. 141, 114 P. 2d 181, wherein this court stated :

“Under the terms of the above statute, Oklahoma Statutes 1931, Section 7761, 19 Okla. St. Ann. § 641, it must be shown that there was a private appropriation of the fund as charged in the information, and the mere failure to report and pay over the fund, without any private appropriation or conversion, would not be sufficient.”

Reliance is also had upon the case of Hays v. State, 22 Okla. Cr. 99, 210 P. 728, and Blake v. State, 12 Okla. Cr. 549, 160 P. 30, L. R. A. 1917B, 1261.

The facts in each of the above cases relied upon by the defendant are quite different from the facts proved by the state in the instant case. We think the facts in the instant case more nearly conform to the facts in the case of Smith v. State, 61 Okla. Cr. 427, 69 P. 2d 394. In that case, this court reiterated the rule of law that under a prosecution for embezzlement under § 641, Tit. 19, O. S. 1941, there must be an appropriation to the defendant’s own use. However, the conviction was upheld on a state of facts similar to those here proven.

In the syllabus of that case it is stated:

“Under section 7761, O. S. 1931 (19 Okla. St. Ann. § 641), in a charge of embezzlement against a public official, there must be an appropriation to his own use. Evidence examined and held to show an appropriation of public funds by the defendant.”
“The inference that one has embezzled property by fraudulently converting it to his own use may be drawn from the fact that he has not paid the money in due course to the owner, or from the fact that he has not accounted for the money which he has received. This is especially true of public officials in the handling of public funds.”
“A public officer charged with the safekeeping and disbursement of public money may, by a. series of personal appropriations of small sums of such public fund, render himself liable to prosecution for the embezzlement of a particular gross amount, as constituting but one offense, under the provisions of our statutes defining embezzlement of funds willfully appropriated to uses not in keeping with his official trust.”

In the body of the opinion it is stated:

“In order to appropriate the public funds to one’s private use it is not necessary for the state to show by direct evidence the actual securing of the funds and the spending of the same. Often this would be impossible. When the funds were shown to have come into the actual possession of the defendant and they were not deposited in the office of the county treasurer, or turned over to the county in the manner provided by laAV, the jury has a right to infer that they have been misappropriated under the statute above indicated. The cases draw a close distinction as to the duty devolving upon public officials and those devolving upon individuals and especially when they are acting under a special statute, adopted for the purpose of protecting public funds which have come into the possession of public officers.
“In the case of O’Brien v. United States, 27 App. D. C. 263, the court says:
“ * * the inference that a prisoner has embezzled property by fraudulently converting it to his own use may be drawn from the fact that he has not paid the money in due course to the owner, or from the fact that lie has not accounted for the money which he has received. Stephens’ Digest Crim. Law, art. 312.’
“And in the case of Reynolds v. State, 65 N. J. L. 424, 47 A. 644, 646, the court says:
“ ‘A demand is only one class of evidence for proving fraudulent conversion. Other classes are: (1) Where, by statute, a public officer is required to pay over funds at a definite time, and fails to do so, and there is proof that he has not done so, and that he has applied the same to his own use, that is evidence from which a jury may find a fraudulent conversion, even without a demand; or (2) where, by the rules and regulations or agreement under which the defendant is employed, and to which he is required to conform, a time is definitely fixed for him to account for moneys received, and it appears that he has lawfully received moneys of his employer, but has not paid over the same in accordance with such rules, regulations, or agreement, but has converted the same to his own use, this is also evidence from which the jury may find that there was a fraudulent conversion of such funds without formal demand.’ ”

For other cases upholding this view, see Casselman v. State, 58 Okla. Cr. 371, 54 P. 2d 678; Griswold v. State, 23 Okla. Cr. 136, 212 P. 1018; Abernathy v. State, 69 Okla. Cr. 142, 101 P. 2d. 634; Liddell v. State, 61 Okla. Cr. 306, 68 P. 2d 432; Hutchman v. State, 61 Okla. Cr. 117, 66 P. 2d 99; Sawyer v. State, 73 Okla. Cr. 186, 119 P. 2d 256.

In the instant case the state showed that a large number of light and water payments were receipted personally by the defendant, but that these collections were not reported on the daily cash book. This was an evident falsification of the official records for the purpose of concealing the shortage. When the defendant was called upon to attend a meeting of the council, he failed to appear and explain the shortage.

In American Jurisprudence, 18, Embezzlement, § 40, P. 596, it is stated:

“In order to authorize the conviction of a public officer for embezzlement, it must usually be shown : (1) That the accused is a public officer or occupies a fiduciary relation; (2) that the money or property which he is charged with appropriating to his own use came into Ms possession by virtue of his office or employment; and (3) that he embezzled or fraudulently converted it to his own use. A public officer cannot be legally convicted of embezzlement upon evidence of a mere refusal or neglect to pay over funds in his hands. There must be some evidence in addition thereto from which it may be clearly inferable that the neglect to turn over the funds was either in contemplation of a misappropriation or the consequence of the misappropriation. When, however, there is in addition proof that the officer falsified accounts, that he was guilty of evasions in explaining defaults, that he fled, or that he committed other acts indicating guilt, a case is sufficiently made to put the officer upon explanation. If he proffers no satisfactory explanation, a conviction for embezzlement may be upheld.5'

In the case of Smith v. State, supra, one of the defenses relied upon was that some one else besides the defendant had access to the funds in controversy. It is similar to the defense here interposed. In the Smith case, this court said:

“The contention of defendant that some one else could have misappropriated the funds is merely a conjecture. The evidence showed that he was the one who had charge of them, and he was the one who failed to account for them, according to the verdict of the jury.”

A similar contention was made in the case of Abernathy v. State, supra, [69 Okla. Cr. 142, 101 P. 2d 635], wherein this court stated:

“The undisputed evidence leaves no doubt that defendant had complete charge of the collection of delinquent personal tax warrants sent to the sheriff’s office by the County Treasurer, and also the collection of delinquent sales taxes sent to the office by the Oklahoma Tax Commission. The evidence also reveals that other deputies at times assisted him and especially when he was not in the office at the time parties came to pay their delinquent taxes, but he was the one who had charge of the books and the money collected, and made the reports and deposits, as his duty required.
“The method adopted for the collection of these delinquent tax warrants was simple, and if carried out in a lawful manner there was no chance or reason for a mistake or mishandling of the funds to be made. If any error was committed the defendant, under the system adopted, should have known it at once, and could have corrected it forthwith and made the error known to his superior officer, the Sheriff of Oklahoma County.”

The evidence against the defendant is wholly circumstantial. In other words, there was no direct proof by the state that the defendant took any particular money belonging to the city and used it for his own benefit. We think the circumstances which were shown were sufficient, if credited by the jury, to show a personal appropriation of the funds by the accused. There could be no other reasonable or logical deduction based upon the proven method of operation by the defendant. The audit showed that there was a systematic misappropriation of funds each month during the period of the audit. It is true that the women employed could have embezzled these funds. They, however, were employed at different times and two of them for only a short period of time. It is reasonable to conclude that the systematic monthly misappropriation of funds was conducted by the defendant, who was the head of the office, had supervisory control of the records, and was the only individual who was employed during all of the period of time covered by the audit.

It is contended that the court erred in refusing certain instructions requested by the defendant, and that the instructions which were given were erroneous as to the law of the case. The requested instructions in substance would have told the jury that the state must prove by evidence beyond a reasonable doubt that the money in question came into the defendant’s hands or under his control while acting in his capacity as city clerk, and that defendant converted it to his own use and benefit or appropriated the money for some other purpose not in keeping with his trust, and that proof of a shortage alone or mere failure to pay over the money would not warrant a conviction.

These instructions represent substantially correct statements of the law and set out the essential elements of the offense defined by the statute under which this prosecution was instituted, and the construction placed upon the statute by this court as shown by the cases here-inabove cited. However, the record shows that all of the three requested instructions were substantially covered by the instructions which were given. The court gave a full and comprehensive set of instructions. Among the instructions so given were the following:

Instruction No. 6.

“You are instructed that the material allegations in the information contained are as follows:
“1. That the defendant, Millard C. Geyman, was the duly elected, qualified and acting city clerk of the city of Geary during the time alleged in the information;
“2. That as such city clerk he was charged and entrusted with, and had in his possession and under his control, by virtue of his trust as such city clerk, the sum of $8,275.02 or some part thereof, which came into his possession in the exercise of his official duties as such city clerk of the city of Geary, and that said money was then and there the property of the city of Geary;
“3. That the defendant, while so entrusted with said sum of money or some part thereof, did then and there, between the first day of September, 1940, and the 31st day of January, 1943, wrongfully, fraudulently and fel-oniously embezzle, convert and appropriate the said sum of $8,275.02, or some part thereof, to his own use and benefit and to a use not in the due and lawful execution of his trust as city clerk of the city of Geary.”

Instruction No. 8.

“You are instructed that before you would be justified in returning a verdict of guilty in this case, you must find from the evidence beyond a reasonable doubt that between September 1, 1940, and January 31, 1943, the sum of $8,275.02 or some part or portion thereof was the property of the city of Geary and that the said sum of $8,275.02 or some part thereof so belonging to the city of Geary came into the hands of the defendant as city clerk of said city of Geary, and that between September 1, 1940, and January 31, 1943, the defendant converted said snm or some part thereof to his own use and benefit or to the use and benefit of some other person, body corporate, or other association; and unless you find the same from the evidence beyond a reasonable doubt, it will be your duty to acquit the defendant of the crime charged in the information.”

Instruction No. 10.

“You are instructed that proof of a shortage in the accounts of the defendant between September 1, 1940, and January 31, 1943, would not, alone and of itself, be sufficient to sustain a conviction of the defendant of the crime charged in the information.
“However, you are further instructed that if you find from the evidence beyond a reasonable doubt that between September 1, 1940, and January 31, 1943, the defendant, while city clerk of the city of Geary, became short in his accounts with the city of Geary in the sum of |8,275.02, or some part thereof, and that he failed to account for the same to the officers of the city of Geary, then and under such circumstances you may take the same into consideration, together with all other circumstances submitted in the case in order to determine whether or not the defendant during said period of time did or did not appropriate to his own use and benefit, or to use and benefit of some other person, not in keeping with his trust, the sum of $8,275.02, or some part thereof, of the funds belonging to the city of Geary.”

In Brock v. State, 39 Okla. Cr. 162, 263 P. 1115, 1116, this court stated:

“It is not error to refuse proper requested instructions, where they are substantially covered by the general charge of the court.”

This court is moved with compassion toward the condition of the defendant. He is a cripple and the record discloses that he and his wife worked hard at raising chickens and sold chickens and eggs to try to secure additional funds to meet the high cost of living. His neighbors testified to his exemplary manner of living. The trial court was evidently moved with compassion also as he gave the defendant the minimum term of three years’ imprisonment in the State Penitentiary, and instead of fining him a sum in excess of $16,000 as would have been sustained by the statute, he assessed a fine of $4,000. While we are firmly convinced of the guilt of the defendant, there are many facts which might appeal to the Pardon and Parole Board if an application is made to them for clemency. This court, however, cannot extend clemency, but is confined to the proposition of determining whether the defendant had a fair and impartial trial. Of that question there is no doubt in our mind. The judgment and sentence of the district court of Blaine county is affirmed.

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


source: Caselaw Access Project

author: BBETT, J.

license: Public Domain

text:
    STATE ex rel. BURFORD, Warden, v. SULLIVAN, District Judge, et al.
    No. A-11007.
    May 5, 1948.

      (193 P. 2d 594.)

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for petitioner.
    Ewing 0. Sadler, of Sulphur, for respondents, Sam Sullivan, Judge, and W. A. Lackey, Judge.
   BBETT, J.

The State of Oklahoma, on relation of the warden of the State Penitentiary, filed a verified petition in this court asking that the court assume original jurisdiction for the purpose of issuing a writ of prohibition directed to the respondents, Honorable Sam Sullivan,, District Judge of Atoka County, and Honorable W. A., Lackey, District Judge of Pittsburg County, prohibiting them from proceeding in connection with certain actions concerning one Harr old Lee Motley as hereinafter set forth.

The verified petition alleged, in substance, that Har-rold Lee Motley, in the year 1936, was charged with the crime of murder in Atoka county; that after a preliminary hearing, where he was represented by counsel, he was bound over for trial to the district court where an information was duly filed; that after the said Harrold Lee Motley had spent several days in the county jail of Atoka county, and on the 27th day of October, 1936, according to the appearance docket and minutes of the court, the said Motley appeared before the district court with counsel and after being advised of all of his constitutional rights and the severity of punishment, insisted upon entering his plea of guilty to the charge of murder, whereupon the court accepted the plea and sentenced the defendant to serve a term, of life imprisonment in the State Penitentiary where he is now incarcerated.

That on October 2, 1945, the Governor of the State of Oklahoma granted Motley a 60 days’ leave of absence; that thereafter said leave was extended at various times down to and including December 17, 1947, at which time the leave of absence was revoked by the Governor on account of the refusal of Motley to make the reports to the Pardon and Parole Board which were a part of the requirements agreed to by the defendant in accepting the leave of absence.

The verified petition. further alleged that prior to October 14, 1947, the said Motley filed a motion in the district court of Atoka county asking the court to set aside, vacate and hold for naught the original judgment and sentence imposing life imprisonment on the said Motley; that the respondent, Judge Sullivan, after a hearing on said motion, on October 14, 1947, entered an order captioned as follows:

“Journal Entry of Judgment Sustaining Defendant’s Motion to Vacate Void Judgment and Sentence.”

The concluding part of the above mentioned journal entry reads:

“Whereupon the Court finds that the purported judgment and sentence pronounced upon defendant herein was and is void, for the reason that said defendant was deprived and not fully advised of his constitutional and legal rights, as a result of which defendant’s plea was not entered voluntarily, thereby depriving the Court’s jurisdiction to accept said plea and enter judgment and sentence thereon.
“It is therefore ordered, adjudged and decreed by the Court that defendant’s motion to set aside, vacate and hold for naught the purported judgment and sentence herein be and the same is hereby sustained, granted and allowed and the said defendant, Harrold Lee Motley, is hereby released therefrom, subject to any further official action the County Attorney may deem necessary and proper. And it is further ordered that the Warden of the State Penitentiary, and he is hereby directed, to release said defendant, Harrold Lee Motley, No. 35002, from his care custody and jurisdiction, subject only to any further order of the Court. It is further ordered that the Court Clerk cause certified copies of this order and judgment herein to be served on the said Warden of the State Penitentiary, at McAlester, Oklahoma.”

That subsequent to the entry of the order by Judge Sullivan, the Attorney General advised the Avarden of the State Penitentiary that in his opinion the order was null and void and not to obey the same; that the Attorney General Avas never served a notice that the said Motley had filed a motion to set aside the original judgment and sentence and did not know that the same would be heard, although the said Motley was then a ward of the state and in the custody of the warden of the State Penitentiary, and neither was said warden made a party to the proceedings had before the district court of Atoka county; that the order entered by the district judge of Atoka county on October 14, 1947, is not a final order of the district court and therefore not an order that could be appealed by the State of Oklahoma under the provisions of Title 22 O. S. 1941 §§ 1052, 1053, and that the writ of prohibition should be issued to prevent the enforcement of a void and illegal order by an inferior court.

That on or about January 8, 1948, the said Motley filed a petition for Avrit of habeas corpus before the respondent, Honorable W. A. Lackey, district judge of Pittsburg county, asking for his release from the penitentiary by virtue of the above mentioned void and illegal order issued by tbe district court of Atoka county, and that oñ a hearing on this petition, the Honorable W. A. Lackey indicated that he felt bound to recognize and give legal effect to the order entered by Judge Sullivan, but that he continued the further hearing of said habeas corpus petition to January 21, 1948, but indicated that unless a writ of prohibition is issued by the Criminal Court of Appeals, that he would release the said Motley from prison pursuant to the order issued by Judge Sullivan.

The verified petition further alleged that many terms of court had expired since October 27, 1936, the date of the original judgment and sentence and that the said Motley has partially executed the original judgment and sentence by serving approximately nine years on said judgment; that the district judge of Atoka county had no jurisdiction to pass upon the custody of prisoners in the hands of the warden of the Penitentiary at McAlester, and that the attempt to secure and exercise jurisdiction in such manner and to free prisoners from the custody of the warden constitutes an usurpation of authority and jurisdiction not given to the respondent as judge of the district court of Atoka county, and is an attempt to make an unauthorized application of judicial force.

After a consideration of the verified petition, this court assumed original jurisdiction and issued an alternative writ of prohibition directed to the respondents. On the date set for hearing, a response was filed in which it was alleged:

“Respondent Sullivan further moves this Honorable Court to quash the alternative writ directed against him and moves that it be permanently denied for the reason that the matters herein are properly before the District Court of Pittsburg County on a habeas corpus proceeding and he is not a party thereto.
“Respondent Lackey further moves this Honorable Court to quash the alternative writ directed against him and moves that it be permanently denied for the reason that he retains jurisdiction over Harr old Lee Motley in a habeas corpus proceeding, his Court being a court of concurrent jurisdiction in such matters with this Honorable Court.
“Said respondents further deny they have or are about to act in any manner in the premises inconsistent with the law and ends of justice.”

At the hearing before this court, evidence was introduced and arguments of counsel were presented. Additional time was given to counsel to brief the points of law involved and able briefs have been filed.

At the time of the hearing, an order was entered denying the petition for writ of prohibition against the respondent Honorable W. A. Lackey, judge of the district court of Pittsburg county, for the reason that the district court under the Constitution has concurrent jurisdiction with the Criminal Court of Appeals in habeas corpus matters brought before them by persons allegedly restrained of their liberty in their district court judicial district and for that reason prohibition will not issue to control their action in such cases. State ex rel. Wester v. Caldwell, 84 Okla. Cr. 384, 181 P. 2d 843, 844.

The evidence disclosed that on or about September 4, 1936, the infant son of the defendant died in Atoka, allegedly from the effects of a beating administered by the defendant. The defendant was arrested and incarcerated in the county jail at Atoka and charged by preliminary complaint with the crime of murder. At the preliminary hearing he was represented by his attorney, I. L. Cook of Atoka. At tbe conclusion of tbe bearing, the defendant was ordered held to await trial in tbe district court of Atoka. Shortly after the alleged crime was committed, the wife of the defendant sued him for a divorce and Mr. Cook was also attorney for the defendant in that action. On the morning of October 27, 1936, the wife was granted a divorce from the defendant, and on the same day two or three hours after the conclusion of the divorce proceeding, the defendant entered his plea of guilty to the charge of murder and was sentenced by the district court of Atoka county to serve a term of life imprisonment in the State Penitentiary at McAlester. The minutes of the court proceedings recites that the defendant appeared in person and with his attorney I. L. Cook and after being advised of his rights entered his plea of guilty.

The defendant’s evidence was given by affidavit in which he stated:

“That he was represented by I. L. Cook, attorney, Atoka, Oklahoma, at his preliminary hearing; that the extent of his legal advice was not to plead guilty as he would not be given over ten or fifteen years if tried by a jury; that his wife sued him for divorce immediately after said charge of murder was filed against him and she was decreed a divorce and all his property on October 27, 1936, some two or three hours before he entered his plea of guilty to said charge of Murder; that another colored man by the name of ‘Sonny’ Hughes had made several trips to see him in jail and advised him repeatedly to plead guilty and that the court wanted him to enter such a plea and that acting upon such advice he entered such a plea; that it was late in the evening when he appeared in court to enter his plea; that neither his attorney of record nor any other attorney acting in his behalf was in the court room when he entered his plea; that upon entering the court room said ‘Sonny Hughes’ advised the Court that ‘this is the boy who wants to plead guilty;’ that the District Judge informed him that he could sentence him either to life imprisonment or death in the electric chair if he entered such a plea; that he replied that he would enter his plea of guilty and throw himself upon the mercy of the court; that thereupon the District Judge accepted his plea and sentenced him to serve a sentence of life imprisonment in the State Penitentiary at Me A tester, Oklahoma; that he does not remember the information being read to him; that he was never served with a copy or list of the witnesses in chief to be used by the State in his trial, together with a list of their respective post-office addresses; that the court did not advise him that he was entitled to the right of trial by jury and that if found guilty the jury could assess the punishment; that the court did not advise him that he was entitled to have his attorney present a.t every stage of the proceedings and that if he wanted an attorney or could not afford one the Court would appoint an attorney for him and he would be paid by the State. * * *”

The Honorable Roy Paul, who was district judge of Atoka county at the time the defendant was sentenced, stated that he could not remember much about the case due to the lapse of time but that he knew said defendant had been represented by Attorney I. L. Cook, but would not state whether Cook was personally present in the courtroom when defendant entered his plea and was sentenced.

I. L. Cook, attorney of Atoka, testified that he represented defendant in the divorce case and also represented him in the preliminary hearing on the murder charge; that he was present with the defendant in the courtroom when the divorce decree was granted; that defendant at that time wanted to enter a plea of guilty to the murder charge, but that he told the defendant that, in his opinion, if he was tried to a jury he would not receive over ten years, and he had defendant sent back to jail; that the defendant had talked to him at other times about entering a plea of guilty and had insisted on pleading guilty, but that he told the defendant he would be a fool to do so; that he was not in the courtroom at the time the defendant was sentenced; that Judge Paul called him over the telephone and told him the defendant was in the courtroom to plead guilty and that he should come over to the courtroom; that he told Judge Paul that he had advised the defendant against pleading guilty and had tried to get him not to do so and that if the defendant, contrary to his advice, was going to plead guilty, that he was washing his hands of the whole affair and would not come to court to represent defendant any further.

.To refute the statement of the defendant that he was inexperienced in court proceedings and had never been in court or charged with a crime before, the Attorney General introduced in evidence the statement given by the defendant to the record clerk at the State Penitentiary at the time of his entrance into that institution. In this statement the defendant stated that he was represented by Mr. Cook at the time he was sentenced and he further stated that he had served a term of imprisonment in the State Penitentiary of Kansas at Lansing, and in this connection, the Attorney General introduced the record of the defendant showing that he was convicted on May 5, 1923, in the State of Kansas for the crime of robbery in the first degree under the name of Charlie Johnson and was sentenced to serve a term of twenty-one years in the State Penitentiary; that he was paroled on January 23, 1932, and later discharged from said sentence on August 27, 1936, which was just one week before the alleged crime of murder was committed in Atoka county. In this statement there was further shown that the defendant spent fifty-two days in the county jail of Atoka county before he entered his plea of guilty.

The motion to vacate the judgment filed on behalf of the defendant in the district court of Atoka county in October, 1947, together with the journal entry filed by the district court sustaining said motion to vacate said judgment, were admitted as evidence on behalf of the respondents.

At the commencement of the hearing counsel for the respondents insisted that the writ of prohibition should not be issued for the reason that the petitioner had an adequate remedy at law by appeal from the order of the district court vacating the judgment; and secondly, that if he did not have the right to appeal from such order that the writ of certiorari would have been the proper remedy to be invoked by the petitioner to have the entire record of the proceedings before Judge Sullivan certified to this court for review.

In the case of State ex rel. Wester v. Caldwell, supra, the law pertaining to the prerogative writ of prohibition is stated as follows:

“A writ of prohibition is a common-law writ, as a writ of prohibition is not mentioned in Oklahoma statutes.
“The remedy under a writ of ‘prohibition’ is limited to cases where act sought to be prohibited is of a judicial nature, in absence of constitutional or valid statutory provision to the contrary, and is directed against the encroachment of jurisdiction by inferior courts, for the purpose of keeping such courts within the bounds prescribed for them by law. * * *
“Writ of ‘prohibition’ may not issue to prevent inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction, or threatens to act in excess of jurisdiction.”

In Rose v. Arnold, 183 Okla. 286, 82 P. 2d 293, the Oklahoma Supreme Court stated:

“ ‘Prohibition’ is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law, and its use in proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined to the exercise of those powers with which it has been by law intrusted. Lattimore v. Vernor, 142 Okla. 105, 288 P. 463.”

The Supreme Court of Oklahoma, in its latest expression on this matter in the case of Harris Foundation, Inc., v. District Court of Pottawatomie County, 196 Okla. 222, 163 P. 2d 976, 978, 162 A. L. R. 272, stated:

“Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force, and the writ will not be withheld because other concurrent remedies exist; it not appearing that such remedies are equally adequate and convenient.”

In 14 C. J. S., Certiorari, § 4, subdivision (e), page 126, it is stated:

“Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from prohibition by the fact that it is a corrective remedy used for the reexamination of some action of an inferior tribunal, and is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is a preventive remedy issuing to restrain future action, and is directed to the court itself. Statutory provisions changing the common-law features of prohibition sometimes create further distinctions. So, where an act beyond or in excess of jurisdiction has been done and made of record, the remedy may be by certio-rari to quash such record, but if the act is only threatened the remedy is by writ of prohibition. * * *”

The right of the state to take an appeal to the Criminal Court of Appeals is governed by statute and it may not appeal except in cases provided by the statute. Title 22 O. S. 1941 § 1053 gives the statutory authority for the taking of appeals by the state. It is there provided:

“Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:
“1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“2. Upon an order of the court arresting the judgment.
“3. Upon a question reserved by the State.”

Since the order of the respondent, Judge Sullivan, sustaining the motion to vacate the judgment was not one of the class of final orders from which an appeal would lie to the Criminal Court of Appeals as set forth in the statute, then no appeal was available to the state from such order. It was shown by the evidence that the respondent, Judge Sullivan, had directed the warden of the State Penitentiary to release Motley from the State Penitentiary in accordance with his order of October 14, 1947, and the respondent has stated that if it was within his power he was going to enforce his order of October 14, 1947, which the Attorney General contends would amount to an unauthorized application of judicial force, and an attempt to enforce an order made by the respondent Sullivan in excess of his jurisdiction.

This brings us then to the decisive question in this proceeding, to wit: Did the district court of Atoka county have jurisdiction to hear the motion to vacate the judgment filed in the district court of Atoka county, and enter an order vacating said judgment under the facts as hereinabove shown?

Counsel for the respondent states that the motion to vacate the judgment filed by Motley was based upon the principles of the ancient common-law writ of error coram nobis.

In the case of State ex rel. Attorney General v. Hurst, 59 Okla. Cr. 220, 57 P. 2d 666, this court held:

“The functions of a writ of error coram nobis are limited to an error of fact for which the statute provides no other remedy, which fact did not appear of record or was unknown to the court when judgment was pronounced, and which, if known, would have prevented the judgment, and which was unknown and could not have been known to the party by the exercise of reasonable diligence in time to have been otherwise presented to the court, unless he was prevented from so presenting them by duress, fear, or other sufficient cause.
“The remedy by a writ of error coram nobis is supplanted and excluded by statute in all cases where the statute affords a remedy by motion for new trial. * * *
“Writ of coram nobis cannot be utilized to secure new trial on ground of newly discovered evidence, although time for moving for new trial has expired.
“Á writ of error coram nobis cannot be invoked for thé purpose of revoking a judgment of conviction by showing that a certain juror, prior to having qualified as such, had formed or expressed an opinion unfavorable to the defendant.
“Only relief which can be granted under petition for writ of error coram nobis is the setting aside of judgment and the granting of a new trial.”

In the body of the opinion it is stated:

“The functions of the writ of error coram nobis are strictly limited to the correction of errors of fact for which the statute provides no other remedy, and which facts do not appear of record or were unknown to the court at the time of pronouncing judgment, and which, if known, would have prevented the judgment, and which were unknown and could not, by the exercise of reasonable diligence, have been known to the defendant in time to have been otherwise presented to the court, unless he was prevented in so doing by duress or fear or other sufficient cause. Alexander v. State, 20 Wyo. 241, 123 P. 68, Ann. Cas. 1915A, 1282; State ex rel. v. Swindall, supra [33 Okla. Cr. 210, 241 P. 456]; People v. Reid, 195 Cal. 249, 232 P. 457, 36 A. L. R. 1435; People v. Paysen, 123 Cal. App. 396, 11 P. 2d 431.
“Judge Freeman, discussing the office of this writ in Freeman on Judgments, par: 94, says:
“ ‘This writ does not lie to correct any error in the judgment of the court, nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end to litigation. * * *
“ ‘The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or- negligence of the party, was not presented to the court.’
“It has been said that the writ of error coram nobis will not be granted except where it clearly appears that the petitioner had a valid defense in the facts of the case.
“In Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29, the court said:
“ ‘It is our opinion that the courts have the power to issue writs in the nature of the writ coram nobis, but that the writ can not be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law — the motion for a new trial and the right of appeal — and these very materially abridge the office and functions of the old writ. These afford an accused ample opportunity to present for review questions of fact, arising upon or prior to the trial, as well as questions of law; while at common law the writ of error allowed him to present to the appellate court only questions of law. Under our system all matters of fact reviewable by appeal, or upon motion, must be presented by motion for • a new trial, and can not be made the grounds of an application for the writ coram nobis. Within this rule must fall the defense of insanity as well as all other defenses existing at the time of commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly discovered evidence, and all like matters.’ ”

In 30 A. L. It. 686, it is stated:

“Except where expressly or impliedly abolished, or supplanted by statute, the writ of error coram nobis is a common-law remedy afforded upon application to the trial court, for the correction of errors of fact, unknown at the time of trial to the party seeking relief and to the court.”

The case of People v. Vernon, 9 Cal. App. 2d 138, 49 P. 2d 326, 327, cited in the brief of counsel for respondents, has been read with interest. In that case the writ of error coram nobis was denied upon several grounds, the principal one being that the application made four and one-half years after conviction was not within a reasonable time.

In the opinion it is stated:

“It is apparent that the remedy which the applicant sought in the lower court was inclusive of, but withal comparatively but a very small part of, a remedial relief which, in the early stage of the development of common-law procedure, ivas obtainable by means of a ‘writ of error, coram nobis'; the use of which was recognized and permitted solely because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment. In that particular situation, the writ actually issued. Not that in appropriate circumstances such a writ may not now properly issue in this state (People v. Superior Court, 4 Cal. 2d 136, 47 P. 2d 724; Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; State v. Calhoun, 50 Kan. 523, 32 P. 38, 18 L. R. A. 838, 34 Am. St. Rep. 141; mono-graphic note, 97 Am. St. Rep. 362, 372) ; but that the issuance of such a writ, as such, is unknown to the ordinary practice, is clearly indicated, if not attested, by a reference to the several cases in which a right to relief of the character of that here sought has been the subject of inquiry; from all of which it is manifest that that which remains of the relief which ordinarily was available as part of the original common-law remedy of ‘writ of error, coram nobis,’ is made equally available, not necessarily, as formerly, by the issuance of the writ, but simply by the legal machinery attendant upon a motion to vacate the judgment. It therefore results that, although the relief sought be of the nature of that included within and formerly afforded by a writ of error, coram nobis, because of its comparatively ancient origin and its correspondingly relatively recent disuse, the mystery and the magic which now apparently attach to such an appellation as applied to the proposed remedy are completely dispelled and obliterated by designating such remedy by the more simple and appropriate name of a motion to vacate the judgment. The practical result of such practice in effect and substance demonstrates that the relief that may be administered by the one form of procedure is identical with that in the other. Monographic note, 97 Am. St. Rep. 362; 2 R. C. L. 305. See also, People v. Mooney, 178 Cal. 525, 174 P. 325; People v. Reid, 195 Cal. 249, 232 P. 457, 36 A. L. R. 1435; and, generally, 5 Eneyc. P. & P. 27 et seq. * * *
“As a matter of legal principle, the rule has been frequently announced that, in order that it may be effective and within the possibility of favorable action thereon a motion to vacate a judgment must be made ‘within a reasonable time’ after such judgment has been rendered; and in this state the concrete examples of what should be construed as ‘a reasonable time’ would seem to point to the conclusion that in the instant matter the delay has been so long that the prayer of the petitioner should not be granted. 18 Cal. Jur. 651, and authorities there cited. And in proceedings of the nature of that here under consideration in jurisdictions other than this state, it likewise has been ruled that, in circumstances such as are here present, the petitioner is entitled to no relief. State v. Stanley, 225 Mo. 525, 126 S. W. 475; Alexander v. State, 20 Wyo. 241, 123 P. 68, Ann. Cas. 1915A, 1282; Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A. L. R. 205; State v. Latshaw, 291 Mo. 592, 237 S. W. 770; Washington v. State, 92 Fla. 740, 110 So. 259; monographic note, 97 Am. St. Rep. 362, 372; 5 Encyc. P. & P. 29.”

It is apparent that the facts herein involved did not meet the elemental requirements for a writ of eoram nobis for the following reasons: There is ample relief afforded by the statutes against the things complained of if those remedies had been pursued. The facts pleaded herein and relied upon are contrary to the facts that appear of record. A contradictory state of facts appearing in the record, it cannot be said that the true facts of this case were unknown to the court and that if the present contentions now made in the face of the record had been known to the court, the court would not have entered the judgment now complained of. It cannot be said the facts now sought to be established were unknown and with due diligence could not have been presented by the defendant or that the defendant was prevented from presenting the facts now relied upon by duress or force or other sufficient cause. We repeat that none of the elemental requirements for a writ of coram nobis or such as would authorize the vacation of a judgment under the law of this state are presented as revealed by the record in this case. Further, as Judge Doyle aptly said in State ex rel. v. Hurst, supra, at page 226 of 59 Okla. Cr., at page 669 of 57 P. 2d:

“The writ of coram nobis and all proceedings in the nature of that ancient writ, having in view the setting aside of a final judgment of a court of competent jurisdiction, are very much limited in efficacy in jurisdictions such as ours, having statutory provisions regulating procedure granting new trials.”

This brings us to the next question presented by the record as to whether in a proceeding for a writ of error coram nobis, or under the proceeding authorized by our statute to vacate a judgment, the district court of Atoka county had jurisdiction to vacate a judgment and sentence entered approximately eleven years before that date where the accused had served a part of the sentence. One of the most recent Oklahoma cases which has a direct bearing upon this question is the case of In re Gable, 73 Okla. Cr. 155, 118 P. 2d 1035, 1036, which is an able opinion by Judge Barefoot, wherein this court held:

“4. Where one is sentenced to the state penitentiary and in the judgment and sentence it is erroneously stated that the judgment and sentence shall run concurrently with a sentence from a different county rendered prior thereto, the trial court does not have the right or authority to vacate and set aside the judgment and sentence after the term of court at which a defendant was sentenced has expired and the defendant has begun the service of his term in the penitentiary under said sentence.”

In the body of the opinion the court quoted from Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 714, 45 L. R. A., N. S., 60, as follows in part, to-wit:

“ ‘The question presented has been fully considered and answered by this court in the case of Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 714, 45 L. R. A., N. S., 60. The language of that opinion is as follows:
“ ‘The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. Bish. New Grim. Proc. § 1288, and cases cited. This power is inherent in all courts of record. However, it would seem there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it. * * *
“ ‘ “We think this provision of the Bill of Rights, and the principle therein declared, is broad enough to mean that no person can be twice lawfully punished for the same offense. The one follows from the other, and this constitutional provision is designed and intended to protect the accused from a double punishment as much as to protect him from two trials. For this reason we think that where a judgment and sentence has been executed and satisfied that ends the prosecution, exhausts the power of the court, and terminates its jurisdiction, and the court is without power or jurisdiction to render another judgment and sentence in the case.
“ ‘ “The leading case upon this question is Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. In that case the defendant was convicted of appropriating mail bags, of the value of less than $25, the punishment for which offense, as provided by statute, was imprisonment for not more than one year or a fine of not less than $10 or more than $200. The sentence was one year’s imprisonment and $200 fine. The defendant was committed in pursuance of the sentence and paid the fine the day after his commitment. On the second day after Ms commitment he was brought by habeas corpus before the same judge who sentenced him, who vacated the former judgment and sentenced the defendant anew to one year’s imprisonment. The case came before the Supreme Court of the United States on habeas corpus, and the defendant was discharged, on the ground that, where a statute imposes as a punishment a fine or imprisonment, and the court has both fined and imprisoned the defendant, who thereupon pays the fine, the court has no power, even during the same term, to modify the judgment by imposing imprisonment instead of the former sentence. One of the alternative requirements of the statute having been satisfied, the power of the court as to the offense was at an end.” * * *’ ”

At page 165 of 73 Okla. Cr., at page 1040 of 118 P. 2d, Judge Barefoot said:

“From the above cases it will be seen that even though the judgment and sentence was null and void, inasmuch as said judgment and sentence was not vacated during term-time and before a part of the penalty imposed had been served the trial court was without authority to set aside and vacate the same.”

And then at page 166 of 73 Okla. Cr., at page 1040 of 118 P. 2d, he further said:

“Of course, we do not mean to hold that, if a judgment and sentence is actually null and void, a court of competent jurisdiction in a proper habeas corpus action cannot vacate the same and order the defendant released, but we do hold that a judgment and sentence in a criminal case cannot be vacated after term-time by the trial court, especially where a part of the penalty imposed therein has been served and satisfied.”

Moreover, in Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419, this court cited and quoted with approval from Yoder v. State, 66 Okla. Cr. 178, 90 P. 2d 669, which quoted the hereinbefore referred to case of Rupert v. State.

In the case of Ex parte Pruitt, 41 Old a. Cr. 318, 273 P. 288, this court said:

“When a court pronounced judgment and sentence upon the verdict of a jury, and such judgment has been carried into execution, the power of the court as to that offense is at an end, and the court is without jurisdiction to render a second judgment and sentence upon the same.”

In the body of the opinion the court said:

“The rule is well settled that, when a court has rendered judgment and imposed sentence upon a verdict of guilty or a plea of guilty, and such judgment and sentence has been carried into' execution, the power of the court as to that offense is at an end, and the court is without jurisdiction to render a second judgment and sentence upon the same, Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A., N. S., 60; Ex parte Myers, 12 Okla. Cr. 575, 160 P. 939. On these authorities the trial court was without jurisdiction to render the second judgment and sentence, or to correct the original judgment after such judgment had been executed, as in this respect the power of the court must be exercised when the original judgment is rendered.”

In Tracy v. State, 24 Okla. Cr. 144, 216 P. 941, 943, the rule is clearly stated:

“Where judgment has been rendered and the defendant has suffered the penalty pronounced in the judgment in whole or in some substantial part, even during the term, the authority of the court rendering the judgment is at an end and the trial court is without jurisdiction to modify, suspend, or otherwise alter the judgment, except to set aside a judgment void on its face as shown by the record.”

In no sense can the judgment and sentence herein involved be said to be void upon its face. The court had jurisdiction of tbe subject matter, jurisdiction of tbe person of tbe defendant, and jurisdiction to render tbe judgment and sentence pronounced. Tbe state of tbis record being sucli as it is and the defendant having suffered a substantial part of tbe penalty pronounced in the judgment herein involved, tbe authority of the trial court Avas at an end, and said court was without jurisdiction to vacate, modify, suspend or otherwise alter the judgment.

For this additional reason the relief herein sought by motion to vacate and set aside the original judgment and sentence herein imposed must be denied.

Moreover, this court can readily see why the district court of Atoka county entered the order vacating the judgment. There was no contest on the part of the county attorney to the motion. On the contrary, the county attorney appeared and told the court that he thought the court had jurisdiction to entertain the motion. Therefore, the court was not properly advised as to the legal reasons why the relief sought should not be granted. Under such conditions courts can very easily be misled. Secondly, it is equally apparent that the accused committed perjury in his testimony before Judge Sullivan where he testified that he was inexperienced in court proceedings and that he had never before that date been before any court. As hereinabove pointed out, the Attorney General proved that the defendant not only had been in court before but had been tried and convicted and served nine years’ imprisonment in the State Penitentiary in Kansas. This situation, therefore, presents a picture of imposition on the trial court as well as counsel for petitioner. If the true facts of. the picture of the petitioner’s record had been known to either the trial judge or his counsel, the unreliable nature of his claim would not have been made the basis of this attempt to effect his release upon a fabrication of ignorance and inexperience. This court would be subject to censure if it granted relief founded primarily on perjured testimony. In such a situation we shall follow the ancient maxim of “falsus in uno, falsus in omnibus” — false in one thing, to be disbelieved in all things.

Lastly, the record reveals that the defendant was ably represented, counselled and advised by I. L. Cook of Atoka, an able and respected member of the bar, not to enter a plea of guilty, but notwithstanding the defendant persisted in voluntarily entering a plea of guilty after having been protected in his rights, as revealed by this record.

We are therefore of the opinion that the prayer of the petitioner for a writ of prohibition directed against Honorable Sam Sullivan, district judge of Atoka county, prohibiting him from proceeding to enforce the order of October 14, 1947, hereinabove set forth, should be and the same is hereby granted, and said Honorable Sam Sullivan is hereby ordered and directed to refrain from proceeding further in said action.

The writ of prohibition as to the Honorable W. A. Lackey, for the reasons herein stated, is denied.

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


author: BAREFOOT, P. J.

text:
    CLARK JOHN PARKER v. STATE.
    No. A-10857.
    May 5, 1948.
    (193 P. 2d 607.)

      Amos J. Nichols, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Elmer Adams, County Atty., Tulsa County, of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Clark John Parker was charged in the district court of Tulsa county with the crime of burglary in the second degree; was tried, convicted and sentenced to serve a term of seven years in the. State Penitentiary, and has appealed.

Six assignments of error are set out in the petition, • and the same errors are listed in the brief of the defendant. Defendant then states that the case can be argued under one proposition, and that “the most important error is that of the misconduct upon the part of the bailiff.” This is assignment No. 6, and is as follows:

“That the jury bailiff was guilty of misconduct in that the jury received the case around 12:00 o’clock noon, and asked to be allowed to go to lunch, and was informed by the bailiff that the county did not provide for feeding the jurors except in a murder or rape case, and that the jury thereupon rendered a hasty and unjust verdict.”

The jury returned a verdict of guilty “as charged in the information herein” and fixed defendant's punishment at seven years in the State Penitentiary at McAles-ter, the maximum provided by the statute for the offense charged.

Defendant filed a motion for new trial in which he urged the action of the bailiff as grounds for a new trial. Upon hearing the motion, defendant offered the testimony of the bailiff and of the minute clerk. The bailiff testified that he took the jury to the room about 12 o’clock, and shortly thereafter some one knocked on the door, and stated: “We are ready to go to lunch”; and that: “I told him we wasn’t ready to go to dinner yet.” He testified that this was all that was said. He was asked by the attorney for defendant:

“Q. Did you instruct that juror, or say to that juror at that time that you did not provide meals or allow the jurors to go to dinner except in murder cases? A. Oh, no. Q. And the rape cases? A. Oh, no, never said anything like that.”

He then testified that he thought he made the statement to the attorney for defendant and the clerk that it ivas his understanding that the county did not furnish lunch except in murder or rape cases, but that he did not say that to the jurors.

The minute clerk testified:

“Mr. Welch (the bailiff) stated that they asked to go to lunch and I don’t — I am not sure whether he told them they could not go to lunch except on murder or rape cases, or whether he told [us] that was his understanding.”

It is the contention of the defendant that the members of the jury were “most eager to go to lunch at the noon hour,” and for that reason proper consideration was not given by them in this case.

We think it just as logical to assume that the jury had reached a verdict, considered their work completed, and decided to go to lunch before court reconvened after the lunch hour. It takes a considerable quantity of refined and circuitous reasoning to convince one that the remark complained of amounted to an attempt on the part of the bailiff to coerce the jury into returning a verdict immediately, or that it had such effect. As above stated, the trial court heard testimony on the motion for new trial, and had all the matters before it, and concluded that the defendant’s rights had not been invaded, and with this we agree.

It is of the utmost importance that jurors and court officials should at all times be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having acted in a manner prejudicial to the accused, or in his favor. However, this court will not set aside a verdict because of comments between jurors and the officers, which, even though improper, are not of a character calculated to prejudice accused, or to influence the verdict. We deem it sufficient to say that there was no prejudice to the substantial rights of the defendant resulting from the irregularity complained of, and that the trial court did not err in refusing a new trial upon this ground.

Defendant in his brief states:

“The plaintiff in error does not contend that the case should .be reversed, but seriously urges and earnestly requests the court to view the record and the briefs in this case for the purpose of modifying the sentence imposed.”

There can be no question of the right of this court to reverse, affirm or modify the judgment appealed from, 22 O. S. 1941 § 1066, and it will do so when the facts justify. This is a power given this court by statute, and not allowed to all appellate courts in criminal cases. However, a jury’s verdict of conviction and court’s judgment thereon will not be modified on appeal unless some action in the trial of the case causes the jury to render a verdict under passion or prejudice, or the sentence imposed by the judgment is excessive under the facts. Jones v. State, 84 Okla. Cr. 81, 179 P. 2d 484, 485.

The defendant here was charged with breaking and entering the apartment of Mr. and Mrs. Carl Buerbaum, in the James Chapman Apartment house, 720 South Denver, in Tulsa. The state offered four witnesses, Mr. John McConnell, who lived in the apartment directly across the hall from the one entered; Stephen Petratis, the manager of the apartment house, and Mr. and Mrs. Buerbaum.

Mrs. McConnell testified that she was in her living room reading, and that the door of her apartment was open, but the louvers door closed. Shortly before 5 o’clock in the afternoon on the date charged, she heard a knock on the door across the hall. She knew the occupants were not at home. She then heard a slight noise, as of metal scraping on metal, and after listening five minutes or so, looked through the louvers of her door, and could see the legs of a man at the Buerbaum door. She waited until he went inside, and then telephoned the manager of the apartment house.

Mr. Petratis testified that when he reached the Buer-baum apartment, in response to Mrs. McConnell’s telephone call, the door was slightly ajar, and he went in. He found the defendant in the bedroom, standing by a chair upon which there was a zipper bag, open. He could see a fur coat, which he recognized as one worn by Mrs. Buer-baum, in the bag, and the radio from the bedside table on the coat, in the bag. On being questioned about his presence in the apartment, the defendant stated that he was there to visit some one, giving the name. Witness told him there was no one by that name living in the apartment building, and took the defendant down to his office, and called the police. He testified that Mr. Buer-baum, who was in the oil business, told witness when he left town, and that he had checked the apartment to see that it was locked.

Mr. and Mrs. Buerbaum testified that they were very careful about locking their apartment when they left, and were out of Tulsa on the date their apartment was entered. That when they left the coat was hanging in the closet, and the radio connected on the table by the bedside. They did not know the defendant, and did not give him permission to enter their apartment.

The defendant did not take the Avitness stand, and offered no evidence.

Our analysis and study of the entire record satisfies us that the defendant had a fair trial; that the conviction is a. just one, and the errors complained of are not such as to deprive defendant of any constitutional or statutory right. There is nothing in the record which would justify a modification of the judgment and sentence.

The judgment of the district court of Tulsa county is therefore affirmed.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    RAY THORNTON v. STATE.
    No. A-10762.
    May 5, 1948.
    (193 P. 2d 609.)

      -John Ward, Jr., of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ray Thornton, was charged by an information filed in the municipal criminal court of the city of Tulsa, by the city attorney of Tulsa, with the unlawful possession of intoxicating liquor as a violation of the statutes of Oklahoma, was tried and convicted by a jury which fixed his punishment at imprisonment in the county jail of Tulsa county for a period of 90 days arid to pay a fine of $250. Thereafter, a motion for a new trial was filed and the same was overruled on February 4, 1946. On June 3, 1946, the case-made with petition in error attached was filed in the office of the Clerk of the Criminal Court of Appeals.

On November 21, 1947, the state filed a motion to dismiss the appeal upon three grounds, to wit: First, the appeal was not taken within sixty days after the judgment was rendered and no extension of time in which to perfect his appeal was entered by the court; second, the case-made contains no copy of the judgment and sentence of the trial court; third, there is no law which authorizes an appeal from the municipal criminal court of the city of Tulsa to the Criminal Court of Appeals.

It has been held that where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and sneb appeal will be dismissed. Patton v. State, 60 Okla. Cr. 409, 64 P. 2d 1245; Fowler v. State, 11 Okla. Cr. 157, 143 P. 658; Loyd v. State, 12 Okla. Cr. 82, 151 P. 1190; Harjoe v. State, 14 Okla. Cr. 187, 169 P. 659.

In the brief in support of the response to the motion to dismiss tbe appeal, counsel for defendant states:

“We agree that the defendant’s appeal to this Court is premature and that the court at this time has no jurisdiction to entertain his appeal, as no time had ever been appointed by the honorable trial court to enter judgment upon the verdict of the jury, and that no judgment and sentence has ever been rendered in this cause, and that there is no journal entry of judgment in the ■ records of this cause; and that because of these omissions upon the part of the honorable trial court this court has no jurisdiction at this time of this appeal.”

An examination of the record discloses that when the jury returned its verdict of guilty, that the Clerk of the court entered the verdict on the docket. No time was fixed by the court for the pronouncement of judgment and sentence in accordance with the verdict of the jury, and no judgment and sentence has ever been pronounced upon the verdict. It has apparently been the practice in the municipal criminal court to treat the verdict of the jury as the judgment and according to statements of counsel the practice has been to issue commitments in criminal cases based upon the verdict of the jury. Such procedure in prosecutions instituted in said court for violations of the laws of the state is not a compliance with the laws of our state pertaining to the pronouncement of judgment and sentence pursuant to the verdict of a jury.

By statute it is provided:

“After a plea or verdict of guilty, or after a verdict against tbe defendant on a plea of a former conviction or acquittal, if tbe judgment is not arrested or a new trial granted, tbe court must appoint a time for pronouncing judgment.” Tit. 22 O.'S. 1941 § 961.
“Tbe time appointed must be at least two days after tbe verdict, if tbe court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.” Tit. 22 O. S. 1941 § 962.
“For tbe purpose of judgment, if the conviction is for misdemeanor judgment may be pronounced in tbe defendant’s absence.” Tit. 22 O. S. 1941 § 963.

In criminal cases tbe appeal is from the judgment imposing tbe sentence and tbe time for perfecting tbe appeal runs from tbe date tbe judgment and sentence is imposed, and not from tbe date of tbe overruling of tbe motion for new trial. Wyatt v. State, 81 Okla. Cr. 248, 162 P. 2d 884; Johnson v. State, 70 Okla,. Cr. 322, 106 P. 2d 128; Easterwood v. State, 38 Okla. Cr. 298, 260 P. 789. Upon tbe remanding of this case with directions for tbe trial court to proceed to pronounce judgment and sentence in accordance with tbe verdict of the jury, tbe time for taking tbe appeal will run from tbe date tbe judgment is entered.

Counsel for tbe defendant, while conceding that tbe appeal should be dismissed for the reason that no judgment and sentence has been pronounced upon tbe verdict of tbe jury, asks this court to bold that the verdict of the jury is unenforceable at this time because of tbe failure of tbe court to pronounce the judgment within a reasonable time after tbe verdict of tbe jury was rendered.

In the recent case of Boykin, v. State, 86 Okla Cr. 175, 190 P. 2d 471, this court, in a lengthy opinion, reviewed the statutes pertaining to this question and the decisions of this court and of many other states on the question involved. In view of our holding in the Boykin case, this contention now presented by the defendant will not be sustained. It appears that the counsel for defendant as well as the court treated the verdict of the jury as the judgment of the court and this purported appeal was filed. The pendency of this appeal therefore constitutes sufficient cause for the court not pronouncing judgment and sentence during the pendency of the appeal. If the municipal criminal court without further delay fixes a definite time for pronouncing judgment and sentence and proceeds to pronounce judgment and sentence upon the verdict of the jury without undue delay, then it cannot be said to have lost jurisdiction to pronounce judgment and sentence by reason of an unusual delay in the pronouncement of said judgment and sentence.

One other proposition was presented in the motion to dismiss the appeal which we shall not decide, but which we wish to again direct attention to the parties concerned. Counsel for the state stated that there was no law which authorized an appeal from a conviction in the municipal criminal court to the Criminal Court of Appeals. This question was not briefed either by the state or defendant. For that reason, we shall not express an opinion on said question. Attention is directed, however, specifically to Tit. 11 O. S. 1941 § 807, which provides for an appeal to the district court from the judgment of the municipal criminal court in certain cases.

Said statute provides:

“Appeals may be taken from any order or judgment of such municipal criminal court made by virtue of any of the provisions of this Act to the District Court of the County in which such municipal court is located in the same manner and with the same effect as is now or may hereafter be provided for County Courts of the State of Oklahoma in like cases.” Tit. 11 O. S. 1941 § 807.

This statute is ambiguous but if it is intended to limit the appeal to the district court only to those judgments where an appeal would lie from the county court to the district court in like cases, then it would not authorize an appeal to the district court from convictions under the state law for violations of the liquor laws as such appeals to the district court do not lie from a conviction in the county court for a violation of the said liquor laws.

The act creating the municipal criminal court of the city of Tulsa, and providing the procedure to be followed in prosecutions before said court, further provided for an appeal to the Criminal Court of Appeals in the same manner and to the same extent that appeals are taken from the county court to the Criminal Court of Appeals in criminal matters. Tit 11 O. S. 1941 § 802.

However, this provision of the statute was specifically repealed during the 1941 Session of the Legislature. Laws, 1941, p. 464, § 7.

The above-quoted provision of the statute providing for an appeal to the district court was adopted in 1929 (Laws, 1929, Ch. 7, p. 7, § 3) and remained in effect under the limitations therein written after the repeal in 1941 of that section of the statute which authorized an appeal to the Criminal Court of Appeals.

However, the determination of the question as to whether an appeal may be taken to this court is not necessary to a disposition of the motion to dismiss the appeal, and our view on this matter will not become fixed until the question is properly presented by the filing of briefs. It is doubtful, however, that this court would uphold a conviction sustained before any court of record for a violation of the laws of the state where the statute prescribing the procedure before the inferior court did not provide the accused some method for review of the judgment of conviction.

The city attorney of Tulsa realized that the legislative repeal of Tit. 11 O. S. 1941 § 802, supra, by the Oklahoma Legislature created some confusion as to the correct procedure to be followed in prosecutions instituted in said court, and prepared a bill which was introduced in the 1947 Session of the Oklahoma Legislature to correct and remedy the questions raised in the attacks on said court. However, said bill became bogged down in the morass of legislative detail and was buried. Until some clarifying statute is passed by the Legislature relative to the criminal procedure before the municipal criminal court of the city of Tulsa, in state prosecutions, it is suggested that prosecutions for alleged violations of the laws of the state be instituted in the proper state courts having jurisdiction of said alleged offenses. To attempt to prosecute in the municipal criminal court of the city of Tulsa under the law as it is now written might jeopardize the success of every prosecution which is instituted. Nothing herein said, however, is to be construed as pertaining to the trial of alleged violations of the municipal ordinances of the city of Tulsa in said municipal criminal court.

For the reasons hereinabove stated, the appeal herein is dismissed and the cause is remanded to the municipal criminal court of the city of Tulsa for further proceedings consistent with the views herein expressed.

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


author: BRETT, J.

text:
    Ex parte HARROLD LEE MOTLEY.
    No. 11018.
    May 5, 1948.
    (193 P. 2d 613.)

      Ewing C. Sadler, of Sulphur, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding for writ of habeas corpus brought herein by Harrold Lee Motley wherein he seeks release from the custody of O. P. Bur-ford, warden of the State Penitentiary at McAlester, Okla. In his petition he alleges that the canse of his restraint is that on the 27th day of October, 1936, he wa.s sentenced by Honorable Roy Paul, then district judge of Atoka county, Okla., to serve a term of life imprisonment in the State Penitentiary at McAlester for the crime of murder. It is well to note at the outset that nowhere in the record does the petitioner question the jurisdiction of the court of the crime committed, of his person, or whether the judgment and sentence pronounced by the court was within the court’s power to impose. But, in his verified petition he says said restraint is unlawful for the following reasons, to wit: That the judgment and sentence was void, contrary to the statutes of the State of Oklahoma, the Constitution and Bill of Rights of Oklahoma and the United States Constitution, for the reason that he was not served with a copy of the information together with a list of the witnesses to appear against him twenty-four hours before the case was called for trial; that he was not given twenty-four hours in which to plead; that he was not advised of his right to counsel at every stage of the proceeding, nor of his right to have counsel appointed for him; that no counsel was present at his arraignment; that judgment and sentence was pronounced immediately after entering his plea of guilty without being advised of his constitutional rights; that his plea was entered on the advice of a colored man by the name of Sonnie Hughes; that the court failed to ask him if he knew of any reason why judgment and sentence should not be pronounced against him and failed to advise him of his right to wait forty-eight hours before judgment and sentence; that he was not advised as to his right to trial by jury; that he was not advised of the different degrees of homicide; that if tried by jury he could be acquitted or found guilty of the charge of murder or a lesser degree of homicide; that the jury could assess the punishment; that he was not advised of his rights nor advised of his rights or the consequences of his plea; that his plea was not free and voluntary but was induced by fear, ignorance and duress; that the court was therefore without jurisdiction to pronounce judgment and sentence and his confinement at the present time is without authority of law.

To the allegations of this petition respondent, C. P. Burford, warden of the State Penitentiary, made due response in which he alleges and states, in substance, that he denies each and every allegation in said petition except that he holds petitioner in custody pursuant to a judgment and sentence of the district court of Atoka county pronounced on October 27, 1936, whereby the petitioner Avas sentenced to serve life imprisonment upon a plea of guilty to a charge of murder; that the proceedings leading up to the judgment and sentence were in all things legal and valid; that the petitioner had the benefit of the advice of counsel of his own choosing and full knowledge of his rights; that his plea of guilty was voluntary without inducement by any representative of the state after being warned of the consequences thereof; that he was sentenced pursuant to his voluntary plea and Avas given the minimum punishment alloAved by law for said crime.

The record herein reveals that the petitioner was charged with murder based upon the demise of his infant child which he is alleged to have beaten to death. The question presented by this record is: Did the court lose jurisdiction because the defendant was denied the aid of counsel? This record does not support the petitioner’s contention as to lack of jurisdiction. It reveals that the petitioner had the aid of counsel of his oavii choosing at a preliminary hearing, Mr. I. L. Cook, an able and respected attorney of Atoka, Oklahoma. It further discloses he was represented by him in all the proceedings up to and including the pronouncement of judgment and sentence. Mr. Cook advised the petitioner not to enter a plea of guilty and told him that if he should stand trial that he would not get more than ten to fifteen years, but notwithstanding this advice from an able lawyer, petitioner still persisted in entering a plea of guilty, in response to which he was sentenced to life imprisonment.,. In Johnson v. State, 79 Okla. Cr. 383, 155 P. 2d 259, it was said:

“Where (accused) i:' * * has (been) fully advised as to his constitutional and statutory rights and as to the consequences of his plea and that with such knowledge accused deliberately entered plea of guilty, trial court is justified in accepting it even in a capital case.”

The record discloses that Mr. Cook counseled and advised him for fifty-two days up to and including the proceeding concerning which he now complains. As to whether he was represented by counsel in the proceedings in which he was sentenced the appearance docket discloses the following, to wit:

“October 27, 1936, Defendant arraigned in Open Court — After being advised of his rights, entered his plea of guilty in the presence of his Attorney, I. L. Cook. Judgment and sentence of the Court that Defendant, Harrold Motley serve a term of Life in the State Penitentiary at McAlester.”

Moreover, the court’s minutes disclose the following, to wit:

“October 27, 1936, Defendant arraigned in Open Court — After being advised of his rights, entered his plea of guilty in the presence of his attorney, I. L. Cook. Judgment and sentence of the Court that Defendant, Harrold Motley serve a term of Life in the State Penitentiary at McAlester.”

The court’s minutes are the best evidence of what took place eleven years ago. They are not like the memory of man clouded by time, hence the keeping of an appearance docket and minutes in court proceedings.

“Where a disputed question arises as to what occurred upon arraignment of one accused of a crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred.” Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141.

The minutes reveal that the petitioner had aid of counsel; that he was advised as to all of his rights; that he would not follow the advice of able counsel; that he was not denied any of the statutory or constitutional rights of which he now complains. The record further reveals that his contentions are substantially based upon evidence offered upon his own behalf. Under the authority of the case of Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840, to warrant relief on evidence of this character the same must be clear and convincing. No such proof is before us in this proceeding. As the Attorney General aptly said “any contention that the trial court should have appointed an attorney to represent the do-fendant is nothing short of absurd. The defendant had his own attorney, but refused to follow his advice. Is it sensible to say that the court should then have appointed an attorney, and upon defendant’s refusing to follow the advice of that attorney, have appointed a second one, and continued to make new appointments as long as the defendant insisted upon pleading guilty?” In our opinion, the law doesn’t require such procedure.

Moreover, this record further reveals that this petitioner was not without experience in such matters, since prior to the time he entered his plea herein involved he had been in court, had been convicted and had served nine years in the State Penitentiary of Kansas for the crime of robbery in the first degree under the name of Charlie Johnson. In addition, at the time he was sentenced he was a school teacher thirty-four years of age. The petitioner was well fortified by both advice, experience and training against pleading guilty. He made a voluntary election to not avail himself of his right to trial by jury. The proof he offers to support his claim is anything but convincing. The proof that is offered by the petitioner in this connection is contradicted by the Avritten records. Under such conditions, as was said in the case of Ex parte Matthews, supra:

“Every presumption favors regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record; it is never presumed. Robbins v. State, supra [17 Okla. Cr. 294, 155 P. 491]. To follow the petitioner’s contention would require us to presume irregularity in matters omitted from the record and particularly the court minutes, based entirely upon his testimony. Public policy will not permit the petitioner, in a habeas corpus proceeding, to supply the missing links, by his testimony standing alone, in a record. His release must be based upon something more substantial. In any event, his testimony should be corroborated- by clear and convincing proof. No such proof is before us in this proceeding. As Judge Jones, of this court, so aptly said in Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 147: ‘A great proportion of those who are incarcerated in the Penitentiary would be willing to swear to almost anything to secure their release.’ ”

The contentions made in the case at bar are very similar to those that were made in the case of Ex parte Matthews, supra, where in the syllabus this court held:

“6. As against a collateral attach the judgment is valid unless the contrary appears in the record and omission in the record of every step in the proceeding does not overcome the presumption of regularity and warrant release on writ of habeas corpus.”

This court has repeatedly held in habeas corpus proceedings that it will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions over which the court had jurisdiction. The writ of ha-beas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which the judgment and sentence of the court attacked is clearly void. In re Walker, 84 Okla. Cr. 190, 180 P. 2d 670: Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. The judgment and sentence herein sought to be vacated is not void.

If the foregoing was not sufficient reason upon which to base a denial of the writ of halbeas corpus, the fact that petitioner had permitted eleven years to elapse since this plea was entered and judgment and sentence pronounced is a strong circumstance against the validity of his present claim. Now he seeks by his own testimony, and the cloudy recollection of others, to impeach the written record. The record before us fails to disclose a single objection to the procedure now complained of or that he was denied any of Ms rights. In the Matthews case, supra, in this regard, we said:

“7. The right to relief by habeas corpus may be lost by laches, when the petition for habeas corpus is delayed for a period of time so long that the minds of the trial judge and court attendants become clouded by time and uncertain as to what happened, or due to dislocation of witnesses, the grim hand of death and the loss of records, the.rights sought to be asserted have become mere matters of speculation, based upon faulty recollection, or figments of imagination, if not out-right falsifications.”

To the same effect is the case of Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588. The facts involved and the contentions made in that case in many respects are similar to the case at bar.

Under the authority of the Snow and Matthews cases, supra, this attack on the judgment and sentence comes too late. The writ of habeas corpus must therefore be denied.

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