text:
    Ex parte COVELL GILBERT.
    No. A-9963.
    Feb. 26, 1941.
    (111 P. 2d 205.)

      Hulsey & Hulsey and W. N. Redwine, all of McAles-ter, for petitioner.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Petitioner, Coyell Gilbert, filed

petition for writ of habeas corpus in this court on the 8th day of November, 1940. A hearing has been had thereon and evidence taken, oral argument had, and briefs have been filed, supplemental reply brief of petitioner having been filed on the 24th day of January, 1941.

It is alleged that petitioner is confined in the Penitentiary at McAlester by reason of three commitments issued by the district court of Tulsa county on the 20th day of February, 1936, in cases Nos. 7571, 7575, and 7576. In case No. 7571 he was charged with the crime of murder on the 2nd day of July, 1935, for which he received a sentence of life imprisonment. In case No. 7575 he was charged with robbery with firearms in connection with the larceny of an automobile from I-I. S. Hensley on the 25th day of June, 1935. In case No. 7576 he was charged with the crime of robbery with firearms in connection with the larceny of an automobile from Don Williams on the 30th day of June, 1935. In the last two cases he was sentenced for a term of 15 years in each case, both sentenced to' run concurrent with case No-. 7571.

It is further alleged that at the time the petitioner was sentenced in the above cases on the 20th day of February, 1936, he was an escaped person from the Eastern Oklahoma Hospital for Insane at Yinita, he having been committed to said hospital from Osage county during the year 1933, and had not been legally discharged therefrom. It is further alleged that, by reason of said judgments and sentences having been rendered against petitioner under the above circumstances, they were null and void and that petitioner should be discharged.

It is further alleged that said petitioner, at the time judgment and sentence was rendered against him, “refused to enter any of the pleas or to waive any of his constitutional or statutory rights and all such waivers and pleas were made by his attorney, with his knowledge but without his consent.” In this connection, petitioner contends that he did not “waive the 48 hours’ time after the plea for sentence to be pronounced, and the court did not advise petitioner of his right to have the sentence postponed for at least 48 hours, but the court pronounced the judgment and sentence immediately * * in violation of constitutional and statutory rights of petitioner.”

The record reveals that petitioner was arrested on case No. 7571 and placed in jail on the 22nd day of January, 1936; that on this date he was brought before the judge of the court- of common pleas of Tulsa county. He was represented by counsel, waived the reading of the information, and entered a plea of not guilty. Preliminary examination was set for January 29, 1936. On that date the minutes of the court state:

“Defendant Covell Gilbert represented by Tillman & Tillman of Pawhuska, Okla. announce ready at the preliminary. One witness sworn. Eeporter Bell. State introduces testimony and rested. Defendant Gilbert demurs Demurrer overruled. Defendant stands mute. Defendant Gilbert ordered held for trial in District Court on charge of Murder. Defendant ordered held without bond. Commitment issued. Defendant Gilbert in open court requests of Co. Atty. a copy of purported written statement of defendant Gilbert to police. Co. Atty. requests time to submit authorities. Hearing to be set at request.”

An information ivas filed in the district court of Tulsa county on the 18th day of February, 1936. The minutes of the court are not full, but among them the following appears:

“2/20/36. Defendant Coveil Gilbert present in open court and by Counsel Fred. Tillman State represented by Holly L. Anderson County Atty. Defendant Coveil Gilbert withdraws his plea of not guilty and enters a plea of guilty. And upon such plea and the recommendation of Holly L. Anderson County Atty. said defendant is hereby sentenced to imprisonment in the State penitentiary at McAlester Oklahoma for the rest of his natural life. Commitment issued.”

Defendant was received at the penitentiary on February 21, 1936.

With reference to. petitioner’s commitment in the Eastern Oklahoma Hospital for Insane, petitioner’s father, C. H. Gilbert, who. testified at the hearing before this court, stated that he was sent there from Osage county sometime in the year 1933 for treatment of syphilis. That he remained there about ten months and got away and came home; that he telephoned Dr. Adams, and he told him to let him stay there, but to1 bring him back for his treatments; that petitioner remained at home after that time and worked in a drugstore at Bartlesville and a tailoring shop at Hominy; that he had not been entirely cured; that the crimes with which he stood charged were committed over a year after he returned from the hospital, to- wit: On June 25,1935, June 30, 1935, and July 2, 1935. That after these crimes were committed and petitioner was in jail, he talked with the county attorney; that he employed Fred Tillman, a lawyer of Pawhuska, to. represent petitioner, and that he represented him when he was arraigned in the preliminary trial and when he pleaded guilty before the district judge in each of said cases; that in his discussion with the county attorney, he would not agree to a plea of guilty unless he would be sent to where he could receive treatment for syphilis; that the county attorney informed him he could receive this treatment in the penitentiary, and he told him he would guarantee that the boy would be sent “to some place where he could get the treatments.” He further testified that he had received word from the doctors in the penitentiary who had treated petitioner since he had been there and that he had now been cured and no longer had this disease.

The county attorney testified at the hearing, stating that because of the length of time he did not remember all that occurred at the time petitioner pleaded guilty and was sentenced. He did not recall making any promise to anyone at that time, and it was not his custom to make any promises to one guilty of murder. He said that he made no promise to get the petitioner out of the Penitentiary if he was guilty. He stated he has told persons that they would be treated for syphilis in the Penitentiary and might have told the father of the petitioner so. in this case. He further stated:

“A. We handled about 1,600 cases a year while I was in the county attorney’s office, but I don’t really just recall it. But I just say this to the court, that I had m> authority to promise to get him out, and I didn’t do. that, because I didn’t have the authority.”

It is provided by Oklahoma Statutes 1931, sections 3211, 3212, and 3213, Oklahoma Statutes Annotated, title 22, §§ 1161, 1162, and 1163, as follows:

(1) “An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he or she, as the case may be, is insane. * * *”
(2) “When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who. may be summoned by direction of the court, to. inquire into, the fact.”
(3) “The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.”

The construction of these statutes has been before this court on many occasions, and reference to some of these cases will hereafter be made. The question of whether a writ of habeas corpus may be maintained under the facts as they appear here has also been considered.

In the early case of In re Maas, 10 Okla. 302, 61 P. 1057, 1058, the territorial court had under consideration a case similar in many respects to the case at bar. In that case, after reviewing the facts, Judge Burwell said:

“ * * * If the trial court committed error in pronouncing judgment and sentence upon the defendant, his only remedy is by an appeal to- this court. Such matters cannot be reviewed in this- action.”

In the case of Ex parte Yandell, 54 Okla. Cr. 357, 22 P. 2d 114, 115, this court had before it the exact question here raised, and in an opinion by Judge Edwards, where the petitioner had been adjudged an insane person by the county court of Seminole county, and a copy of the order was attached to the petition, and it was further alleged that he appeared without counsel and none was appointed for him, after review of the cases relied upon by petitioner of In re Wright, 74 Kan. 406, 86 P. 460, 89 P. 678, and Mabry v. Hoye, 124 Miss. 144, 87 So. 4, said:

“It is fundamental that habeas corpus cannot be invoked for the release of one imprisoned under a judgment and commitment by a court of competent jurisdiction unless the judgment and sentence is clearly void. After a judgment of conviction has become final, the question of defendant’s insanity at the time o-f the commission of the offense or at the time of trial cannot be raised on habeas corpus. Ex parte Stevenson, 187 Cal. 773, 204 P. 216. See, also, In re Selowsky, 189 Gal. 331, 208 P. 99; People ex rel. Cassidy v. Lawes, Warden, 112 Misc. 257, 182 N. Y. S. 545, 546; Winslow v. Green, 155 Ind. 368, 58 N. E. 259; Ex parte Heytz, 17 Okla. Cr. 698 192 P. 698.
“In the Cassidy Case, supra, wherein it was sought by habeas corpus to release one convicted of a felony because of his imbecility at all times, the court said:
“ ‘ “Want of jurisdiction is want of power to proceed.” But there was no want of power to proceed. The Supreme Court had jurisdiction of the offense in this case and of the prisoner; this is conceded. It also had the power and it was its duty to proceed, unless the mental defect of the prisoner was brought to the attention of the court and established by competent proof. The naked assertion of the prisoner’s imbecility at this time, or the mere admission of it by the Attorney General in this proceeding, is not sufficient to undermine the jurisdiction of the trial court and render the trial a nullity. People ex rel. Scharff v. Frost, 198 N. Y. 110, 91 N. E. 376, 139 Am. St. Sep. 801.’ ”

See, also, In re McNaught, 1 Okla. Cr. 528, 99 P. 241; Ex parte Cranford, 3 Okla, Cr. 189, 105 P. 367; Ex parte Stevenson, 187 Cal. 773, 204 P. 216; In re McWilliams, 254 Mo. 512, 164 S. W. 221; In re Selowsky, 189 Cal. 331, 208 P. 99; Ex parte Shaffer, 70 Mont. 609, 227 P. 37; Smith v. Roach (Wyo.) 106 P. 2d 536.

In the case of In re Maas, supra, the court discusses fully the statutes above quoted, and after review as to the proper action to be taken by the court thereunder, says:

“But who is to determine as to whether such doubt exists in the mind of the court? In reason only one answer can be given. The court alone must say if such doubt exists. The trial judge sees the defendant, and is necessarily more or less familiar with the circumstances surrounding him and his case; and the fact that the county board of insanity may have adjudged him insane prior to the time fixed for his sentence, even if the order of such adjudication was admitted in evidence or considered by the
trial court, would not necessarily control its action, because such order is not an adjudication of finding of any court, and is not admissible upon a trial to prove the insanity of such person. Such an order amounts to no more than the expression of an opinion by any other person or persons out of court as to the mental condition of a defendant’s mind, except where the right of the officers of the asylum to' confine and treat such person is called in question, or in other cases of a kindred character which fall within the spirit of the law authorizing such finding by the board of insanity. See Dewey v. Allgire, 37 Neb. 6, 55 Am. St. Rep. 276, 40 Am. St. Rep. 468; Knox v. Haug, 48 Minn. 58, 50 N. W. 934; Leggate v. Clark, 111 Mass. 308.
“The boards of insanity are special boards created by law for a special purpose. It was only intended to clothe them with the power to determine who' should be confined, in the territorial asylum for treatment, and they have not the power to fix one’s legal status (that is, to' declare one tO' be, in law, sane or insane), and the fact that probate judges are made members of these respective boards changes not the rule. When a probate judge acts in this capacity, he acts as any other member of the board, and not as a probate judge or as a probate court.
“Under the laws of this territory, the power to adjudge one legally insane is vested in the judge of the probate court by sections 1517, 1518, and other sections of article 14 of chapter 18 of the Statutes of Oklahoma of1 1893, 58 Okla. St. Ann. §§ 851, 852, and § 761 et seq., and under these sections a guardian can only be appointed when it is made to appear to the judge of the probate court, after a full hearing, that such person is incapable of taking care of himself and managing his property; and this hearing can only be had after due notice as provided by the statutes, and the person sought to' have adjudged insane, if able to' attend, must be produced at the hearing. It is this kind of an order adjudging one to' be insane that the authorities refer to' as being entitled to faith and credit, and not to the orders of ordinary boards of insanity. Therefore the order of the board of insanity adjudging Maas to be insane, which was introduced in evidence in support of the motion in arrest of judgment, was not controlling upon the trial court.”

This court has since its creation had occasion to have before it' the construction of these statutes many times. Some of the cases are as follows: Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139; Maas v. Territory, 10 Okla. 714, 63 P. 960, 53 L. R. A. 814; Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136; Weiland v. State, 58 Okla. Cr. 108, 50 P. 2d 741; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Alexander v. State, 66 Okla. Cr. 219, 90 P. 2d 949; Lee v. State, 30 Okla. Cr. 14, 234 P. 654.

It has also had before it in many illustrions cases the question of insanity as a defense in criminal cases. Judge Doyle, in his long experience upon the bench, has had occasion to write many opinions dealing with this question, and he has exhausted the subject in the following early day opinions of this court in which the rule to be followed in testing criminal responsibility is announced as follows:

“The true test of criminal responsibility, where the defense of insanity is interposed, is whether the defendant had sufficient reason to know right from wrong.” Smith v. State, 12 Okla. Cr. 307, 155 P. 699; Adair v. State, 6 Okla. Cr. 284, 118 P. 416, 44 L. R. A., N. S., 119; Alberty v. State, 10 Okla. Cr. 616, 140 P. 1025; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Roe v. State, 17 Okla. Cr. 587, 191 P. 1048.

And this is the rule that has been followed in this state to the present time, where the issue of insanity has been presented to the jury.

Counsel for petitioner in his brief says:

“We are mindful of the law when the question of insanity at the time of trial, has been presented to the trial court and the trial court has made the proper investigation and decided whether or not there is doubt as to sanity, and has not abused its discretion, and has proceeded to trial, and the defendant has been convicted, the judgment and sentence is not subject to collateral attack and the case is put beyond consideration of the trial court except on appeal and a reversal, and that where the appellate court affirms the judgment the question of sanity is not a question to be raised in habeas corpus proceedings, as held in the case Ex parte Stevenson first and second syllabus [Cal.] 204 P. 216, as follows:
“ ‘1. The defense of insanity having been presented, as it must be, to the court having jurisdiction of the cause, such court’s decision is final against collateral attack, and the case put beyond further consideration by any court if the appellate court affirms the judgment.
‘2. As respects the court’s authority to proceed with the trial of a criminal charge against one claimed to be of unsound mind and the legality of a sentence against him, habeas corpus does not lie, unless lack of jurisdiction appears on the face of the record.’ ”

But he contends that there was no1 judicial determination of the question of insanity by the court and that there was abuse of discretion in not ordering a jury trial when attention was called that petitioner had. been an inmate of the Eastern Oklahoma Hospital for Insane at Vinita, and that he had not been legally discharged therefrom.

In the first place, the record does not disclose that the court was so informed, but it may be presumed, for the sake of argument, that he did have this information, as he had talked with the father and the attorney representing the defendant. There was no motion filed, no request made, and no' evidence offered to raise any doubt in the mind of the court as to the sanity of defendant, either at the time of the commission of the offense or at the time he entered his plea of guilty and was sentenced by the court. It was never at any time considered by anyone that petitioner was insane. Prom the record and the evidence of the father of petitioner it Avas evidently considered by all that his confinement in the hospital at Yinita Avas for the purpose of receiving treatment for syphilis, and not because he Avas insane. In all of the cases and authorities' cited by petitioners, which are: Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139; Fralick v. State, 24 Ariz. 4, 212 P. 377; People v. West, 25 Cal. App. 369, 143 P. 793; Freeman v. People, 4 Denio, N. Y., 9, 47 Am. Dec. 216; Youtsey v. United States, 6 Cir., 97 F. 937; Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136, there Avas a request or motion for a hearing upon the question of insanity, either before the trial of the party or after conviction and before sentence, and testimony taken thereon, and in all of the authorities the question arose on appeal and not on habeas corpus. The evidence in each case Avas such that Avould cause a doubt to arise in the mind of the court as to the sanity of the defendant.

In the case of Marshall v. Territory, supra, cited by petitioner, the application Avas presented on motion for new trial and in arrest of judgment, and the court heard evidence thereon and it Avas held that the testimony was sufficient to raise a doubt in the mind of the court, and that the court erred in refusing to impanel a jury to pass upon the question of insanity before sentencing defendant. .The court recognized the well-founded rule that this question may be presented upon application for a continuance, motion for new trial, motion in arrest of judgment, by ex parte affidavit or declaration of bystander, or the court of its oAvn motion, and while the court cannot act arbitrarily in the matter, it has the right to look to the source of the information and the motive, and come to a proper conclusion as to whether there is a doubt in his mind as to the sanity of the defendant. This is in harmony with the rule announced in Re Maas, supra, heretofore cited.

The facts in the instant case reveal that petitioner was sent to the Eastern Oklahoma Hospital for Insane at Yinita not because he was insane, but because he could receive treatment for the disease which he had, and while he was not discharged from the hospital at Yinita, his disappearance and whereabouts were known to1 the managers of that institution, and no effort was made to have him returned. They informed the father of petitioner that he could remain at home, but for him to return for treatments for the disease with which he was afflicted, and this he did. The crimes of murder and robbery with firearms were committed by him long after he had left the hospital and after he had worked in a drugstore in Bartlesville and a cleaning establishment in Hominy. The record does not reveal at any time that the petitioner was insane, or that he committed any acts of violence which in the least tend to show that he was insane. The only testimony of his father was that he was obstinate and did not want to> do as he told him, as he had in the past. Certainly this was not proof of insanity, such as contemplated by the statutes of this state and as interpreted by the decisions of this court as above cited.

Petitioner was arrested on the 21st day of January, 1936. A preliminary information was filed against him in the court of common pleas of Tulsa county on the 22nd day of January, 1936. He was arraigned thereon and was represented by Hon. Fred Tillman, a prominent member of the Oklahoma bar, and one well skilled in criminal practice and procedure. His father was also present. He waived the reading of the information and entered a plea of not guilty. He was ordered held for trial in the district court, and an information was filed on February 18, 1936, charging him with the crime of murder. On February 20, 1936, he appeared before the district judge. He was represented by tbe same counsel who represented Mm in the preliminary examination. His father was present and had consulted with the county attorney. His plea of not guilty was withdrawn and a plea of guilty entered, and sentence was passed upon him in case No. 7571, in which he was charged with murder. He was given a life sentence. At the same time, informations having been filed against Mm in cases Nos. 7575 and 7576, in which he was charged with robbery with firearms, he entered his pleas of guilty in each of these cases and was given a 15-year sentence in each case to run concurrently with case No. 7571.

Under these circumstances it cannot be said that petitioner was denied any right which he had under the statutes and Constitution of this state. He had the benefit of able counsel at every step of the proceedings, and had the advice of his father. The county attorney had no authority, as he stated, to make any promise that he would be released from the penitentiary at any time, and stated that he made no such promise. The fact that his father stated he would not have advised him to plead guilty unless he could get treatment for the disease which he had is in no way binding, upon the court. He stood charged with the crime of murder, and the court, with full knowledge of the facts, as revealed by the record, passed sentence upon him. While the record does not affirmatively show he had a preliminary trial in cases No. 7575 and 7576, it does show that a preliminary complaint was filed against him in the court of common pleas in each of these cases on January 22, 1936. The law, in the absence of proof to the contrary, presumes that he did have a preliminary examination or waived the same in the manner provided by law.

Under the decisions of this court in many cases under circumstances above stated, one has been held to waive the right to. be furnished with a copy of the information and 48 hours in which sentence should be passed. Blair v. State, 4 Okla. Cr. 359, 111 P. 1003; Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Canard et al. v. State, 2 Okla. Cr. 505, 103 P. 737, 881, 139 Am. St. Rep. 949; State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Starr v. State, 5 Okla. Cr. 440, 115 P. 356, 367.

In Starr v. State, supra, the court says:

“Generally speaking, the constitutional provisions guaranteeing to every accused person in a criminal action certain rights may be separated into, two- classes. First, those in which the public generally, and as a community, is interested, as well as the accused, and which are jurisdictional as affecting the power of the court to- try the cause, second, those more in the nature of privileges which are for the benefit of the accused alone, and do not affect the general public. The former cannot be waived. Jurisdiction to try the cause is conferred by the law. Consent cannot confer jurisdiction, but the accused may waive a constitutional right or privilege designed for his protection, where no- question of public policy is involved. The public as well as the accused have an interest in every criminal trial. The life and liberty of the citizen is a matter of supreme importance to. the state, and it should not allow him to> throw either away by a failure, intentional or otherwise, to. take advantage of his constitutional safeguards. It will not do, however, to say that because the state has a peculiar interest in protecting the citizen accused of crime to the extent of his constitutional rights that he shall in no case be allowed to waive them, for in some cases it may be to his interest to. waive them, and the denial of the right to' do. so would defeat the very object in view when the rights were given, and cause them to operate to the injury rather than to' the benefit of the accused. * * *
“Where a constitutional right in a criminal cause id largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that an accused may waive such right. * * *
“ ‘His right to meet the witnesses face to face he had waived. So, while he is entitled to have counsel, he is not compelled to' have them. He has a right to a subpoena for his witnesses, but he is not obliged to have one issued. And the record need not show that these privileges or rights were formally tendered to him and formally declined, or that an express waiver was signed. It is enough if it does not appear that they were denied when he applied for them.’ ”

And in quoting from the case of State v. Mortensen, 26 Utah, 312, 73 P. 562, 633, it is said:

“It is not very unlike the right which every one accused of, and being prosecuted for, a crime, has to plead guilty, and thereby waive the production of any evidence by the prosecution, and surely all agree that in such case, where a plea of guilty is entered, a court of competent jurisdiction has power to pass judgment and authorize the penalties of the law to be executed.”

In the case of State v. Frisbee, supra [8 Okla. Cr. 406, 127 P. 1095], the court, after citing and reviewing many cases bearing upon this proposition, says :

“The principles announced in these cases meet our entire approval, and they are here reaffirmed. It is a well-settled principle of law, recognized by all appellate courts, that every one may waive a right intended for his own benefit if it can be relinquished without affecting the legal rights of others and without detriment to the community at large. See Reid v. Field, 83 Va. 26, 1 S. E. 395. The right of waiver extends to and includes all descriptions of contractional, statutory, and constitutional rights, except such as are inalienable. An examination of the following cases will show that thev fully support the preceding statement: State v. Mitchell, 119 N. C. 784, 25 S. E. 783, 1020; Butler v. State, 97 Ind. 378; Williams v. State, 61 Wis. 281, 21 N. W. 56; Allen v. State, 16 Tex. App. 237; State v. Olds, 106 Iowa, 110, 76 N. W. 644; State v. Sackett, 39 Minn. 69, 38 N. W. 773; State v. Polson, 29 Iowa, 133; People v. Murray, 52 Mich. 288, 17 N. W. 843; Commonwealth v. Dailey et al., 12 Cush. (Mass.) 80; State v. Fooks, 65 Iowa, 196, 452, 21 N. W. 561, 773; Connelly v. State, 60 Ala. 89, 31 Am. Rep. 34. * * *
“The public policy of this state as is evinced by the Constitution of the state, the legislative enactments, and the repeated decisions of this court is to the effect that the spirit and reason of the law should control rather than that the cold, technical letter of the law should be enforced. We cannot bring ourselves to believe that a provision of our Constitution which was intended solely for the purpose of assisting a defendant to' prepare for trial in order that justice might be done should be SO' construed as to' make it a means for the defeat of justice and as a refuge for criminals and a protection for crime. A little reflection will show that the construction placed upon this provision of the Constitution by the trial judge would have directly the opposite effect from that intended. A defendant and his attorneys must of necessity know, when they announce ready for trial, as to whether or not a copy of the list of witnesses with their post office addresses, intended to- be used by the state in chief, has been furnished toi the defendant or his counsel. If they were permitted, when no such list had been furnished them, not only to- remain silent on this question, but announce ready for trial, and permit a jury to' be impaneled and sworn and jeopardy to attach, and then object to' the reception of any testimony because they had not been served with a copy of the list of such witnesses, it would enable them to' take advantage of their own wrong, and it would work the rankest kind of injustice to the state. When a defendant voluntarily announces ready for trial, this operates as a waiver of all preliminary steps prescribed for preparation for trial.”

In both the Starr and Frisbee Cases the court in each instance quoted from the case of Perteet v. People, 70 Ill. 171, as follows:

“A prisoner in a capital case is not to be presumed to waive any of his rights; but that he may, by express consent, admit them all away, can be neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen — that of a trial by jury. If he can expressly admit away the whole case, then it follows that he can admit away a part of it; but he will not be presumed to have done so. The consent must be expressly shown.”

Certainly a plea of guilty with the advice and consent of counsel at every step of the proceedings, as the facts in this case reveal, the defendant had the right to enter his plea of guilty and to waive the rights guaranteed to him under the Constitution and laws of this state.

Petitioner bases his right to' have issued a writ of habeas corpus in this case upon the recent decisions of this court in the cases of Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, and Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139. A careful examination of the facts in those cases reveals that they are materially different from the facts in the case at bar. The opinions in those cases are based upon the fact that the petitioners at no time had counsel to represent them in any of the proceedings, either at the preliminary examination, or at the time they entered their plea of guilty in the district court, and were illiterate and not informed by the court of their right to counsel. The opinion of the Supreme Court upon which the Barnett Case was based of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, is also based upon the fact that the petitioner did not have counsel, either at the time of the preliminary examination or at the time he entered his plea of guilty in the federal district court. In the instant case petitioner had able counsel from the time of his preliminary trial toi the time of final sentence. Not only counsel, but his father, was also present and advised with him. In the Barnett Case, the preliminary complaint was filed against petitioner on the 11th day of June, 1934. Information was filed in the district court on the same day, and judgment and sentence was had the same day. In the Meadows Case, the crime was committed on the 29th day of April, 1932. An information was filed against the petitioner in Tillman county on the 30th day of April, 1932, and judgment and sentence was entered in Tillman county on the same date. Petitioner was on the same date delivered to. the officers of Comanche county and preliminary complaint was filed against him on the 30th day of April, 1932, and on the same date information was filed in the district court and defendant entered his plea on the same date, and he was at the same time sentenced to. the penitentiary and was placed therein on the same date. The record reveals that he was a minor at the same time he was sentenced, and that, although his father and other kinsmen lived in this state, none of them was notified of his arrest or confinement.

In the case at bar, petitioner was arrested and placed in jail and a preliminary information filed in the court of common pleas of Tulsa county on the 22nd day of January, 1936. His preliminary examination, at which time he was represented by counsel, was not had until January 29, 1936. The information was. filed against him on February 18, 1936, and he did not enter his plea of guilty until February 20, 1936, nearly 30 days after his preliminary trial. There was no rush in this case as in the cases cited, and he had the benefit of counsel at all stages. In the Barnett and Meadows Cases, it is recognized that certain principles of law have become definitely established, which it is unnecessary to- here quote, but every one of these rights was given the petitioner in this case, except such as might have been properly waived under the law. In the Meadows Case the court says [106 P. 2d 147]:

“In this connection, we wish to state that no general, abstract rules can be set forth which will apply to every case, but that the question as to whether or not the judgment and sentence has been passed in conformity with the Constitution and statutes depends upon the facts in each particular case.”

Justice Black, in the case of Johnson v. Zerbst, supra [304 U. S. 458, 58, S. Ct. 1023, 82 L. Ed. 1461], says:

“The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

As to whether or not habeas corpus is the proper remedy under the above decisions need not be considered for the reason that, even though it be held that habeas corpus is the proper remedy, the facts in the instant case do not justify the issuance of the writ, and the writ is therefore denied.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    JOHN PHILLIPS v. STATE.
    No. A-9775.
    March 5, 1941.
    (111 P. 2d 203.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, John Phillips, was by information charged in the county court of Coal county, Okla., on December 31, 1935, with the unlawful possession of intoxicating liquor; was tried on August 10, 1939, convicted, and sentenced to serve a term of 30 days in the county jail and pay a fine of $50, from which judgment and conviction he appeals to- this court.

The defendant contends that the evidence was insufficient to- support the verdict, and that the court should have granted a continuance on the motion of the defendant when it was conclusively shown that the docket furnished the attorneys at Coalgate by the court clerk failed to list the case at bar.

On August 10, 1939, when this case- was called for trial, defendant made application for continuance for the reason stated by his attorney into the record, that he was unable to- procure a necessary witness. The continuance was not granted. This motion for continuance was dictated into- the record. It was not stated by the attorney for defendant as to what the witness would testify. It appears that the witness was a resident of Coal county and had been duly subpoenaed on the 31st day of July, 1939; no attachment was sought to- compel the attendance of this witness. It further appears that Avhen the case was called for trial that both sides announced ready for trial; a jury was impaneled and sworn to try the case, and the opening statement made by both the county attorney and the attorney for the defendant before the application for continuance on account of the absent Avit-ness was ever made. There is no- error apparent from the record in refusing to grant the continuance upon the ground of the absence of this witness.

The state introduced testimony of a Mrs. Herring and the sheriff of Coal county. Mrs. Herring testified that she Avent to the sheriff’s office to- get the sheriff to go with her to a certain house to get her husband. That they drove up to the house, and Avhen the sheriff went into- the house a man came out another door with a package and set it in a ditch beside the road. As soon as the sheriff returned, she told him what had happened. The sheriff picked up the package from its hiding place, and it contained two and one-half gallons of whisky. The man who had hidden the whisky in the ditch had not yet gone into the house; she pointed him out to the sheriff, and the sheriff arrested him at that time.

The sheriff testified that the man pointed out by Mrs. Herring, and who Avas standing outside the house and who was arrested by him, was the defendant, John Phillips.

Mrs. Herring described the man avIio hid the whisky, but was unable to identify the defendant, as she did not live in that community, but was a resident of Wyford, Tex.

The defendant in his own behalf stated that he had gone outside the house and talked with the sheriff, but denied that he had ever had possession of the whisky.

This court has held many times that a conviction should be reversed as not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so insufficient that the jury must have acted from partiality, passion or prejudice. Melton v. State, 57 Okla. Cr. 57, 47 P. 2d 195; Hicks v. State, 70 Okla. Cr. 284, 106 P. 2d 136.

The evidence in this case is sufficient.

Attached to the motion for a new trial is a copy of the clerk’s docket, furnished to attorneys, for January, 1939, term, which does not include the case at bar. There is no contention that defendant’s attorney had no notice of trial, since he was present in court and defended. If an attorney is not given sufficient time to prepare his case for trial, he should raise this fact in a motion for continuance. Defendant’s application for continuance is not made a part of this case-made, and there is no showing in the record that he had insufficient time to. prepare his defense.

It is evident from an examination of the record that the attorney for the defendant had knowledge that this case was set for trial as it appears that on July 28, 1939, the defendant had a subpoena issued for one George Dob-son to appear in that case and testify on behalf of the defendant. This was more than ten days before the trial of the case and is sufficient to show that the defendant and his counsel had actual notice that the case was set for trial.

In Garrison v. State, 57 Okla. Cr. 230, 47 P. 2d 224, 225, this court held:

“An application for continuance on the ground of want of time to prepare for trial is addressed to the sound discretion of the trial court, and the ruling of that court will not be disturbed on appeal, unless an abuse of discretion is shown.”

Finding no reversible error in the record, this case is accordingly affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    Ex parte LUTHER M. MILLER.
    No. A-9988.
    March 5, 1941.
    (111 P. 2d 203.)
   PER CURIAM.

The petitioner, Luther M. Miller, now confined in the State Penitentiary, mailed to the clerk of this court his verified petition alleging that he is unlawfully imprisoned and restrained of his liberty by the warden of the State Penitentiary at McAlester.

It appears that the petition was filed on January 16, 1941.

The Attorney General has filed- a demurrer to the petition and for grounds therefor alleges that said petition fails to state facts sufficient to constitute a cause of action in favor of said petitioner and against respondent.

It is merely alleged in said petition: “The said Luther M. Miller was sentenced in open district court without an attorney to defend him, and the court in which he was being held did refuse to appoint the said Luther M. Miller an attorney to defend him.” The petition is silent as to the court wherein petitioner was tried, or of the crime of which he was convicted.

Where the facts stated in a petition for a writ of habeas corpus fail to set forth the alleged cause of, and authority for, such detention, and do not state facts which show that the writ demanded ought to issue, the demurrer thereto' will be sustained and the writ denied.

For the reasons above stated, the demurrer to' said petition is sustained and the writ denied.


author: BAREFOOT, P. J.

text:
    VIOLA STEWART v. STATE.
    No. A-9777.
    March 5, 1941.
    (111 P. 2d 200.)

      H. M. Shirley, of Coalgate, for defendant.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, P. J.

Defendant was charged in the county court of Goal county with the crime of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $50 and serve 30 days in the county jail, and she has appealed.

This charge grew out of a search of the home of defendant, who was living with her husband, at Centrahoma, in Coal county, on the 28th day of March, 1939. The search was made by a deputy sheriff of Goal county as a result of an affidavit made by him in which the property to be searched is described as follows: “* * * the premises, outbuildings and appurtenances, residence and business house of said defendant located on lots 5 and 6 in Block 47 and Lot 5 in Block 27 in the City of Centrahoma, Coal County, Oklahoma.”

The eight and one-balf pints of liquor upon which the charge was based were found in the residence of the defendant and her husband. No liquor was found in the place of business, which was a place where beer was sold by Swanson Edwards, who was jointly charged with defendant, and as to whom there Avas a. mistrial in this case. The place of business and the residence were situated about 300 feet apart. The deputy who executed the search warrant testified to the finding of an internal revenue license of the $25 type tacked up in the place of business. This license was in the name of Chester Stewart, the husband of the defendant. There was no evidence in the record as to Avhether this was a license to sell beer or intoxicating liquor. The only evidence that defendant was connected with the place of business was that the deputy sheriff testified that her co defendant, Swanson Edwards, told him the day after the search was made that defendant, Yiola Stewart, was a partner of his. Swanson Edwards denied that he made this statement. If made, it was made in an effort by the officer to get the defendant Edwards to lay the blame on the defendant, and he refused to make an affidavit to that effect. The statement of codefendant, Edwards, if made, was not in the presence of defendant and was hearsay and not binding upon her. Bohannan v. State, 24 Okla. Cr. 108, 215 P. 1078.

Defendant testified that the whisky found did not belong to her, but was her husband’s. That he had brought the same to' their home the night before the search and had left there, and she had not seen him since that time. That she made no examination of the liquor, and only knew what her husband told her.

Under the above statement, the judgment and sentence in this case could not stand under the law and the evidence. But aside from this fact, the affidavit for the search warrant in this case did not state any of the essential facts necessary for the search of the home of the defendant. There was no statement or allegation that any part of it was used as a store, shop, hotel, boarding house, or place of storage, or that it was a place of public resort, as provided by statute. Oklahoma Statutes 1931, section 2639, Oklahoma Statutes Annotated, Title 37, section 88.

The only allegation of fact in the affidavit was: “Af-fiant states that he has seen persons go to' and from said places hereinafter described who have the reputation of being users of intoxicating liquors.” This is practically the only fact alleged in the affidavit. The other part is based upon information and belief.

It is also contended that the search warrant is illegal for the reason that it does not run in the name of the State of Oklahoma, as provided by Oklahoma Constitution, article 7, section 19, Okla. St. Ann., and Oklahoma Statutes 1931, section 19, Oklahoma Statutes Annotated, Title 12, section 51. The warrant in question was as follows:

“State of Oklahoma, Plaintiff, v. Mrs. Viola Stewart, Defendant. No. 844.
“To any Peace Officer of Coal County — Greetings

In the case of McAdoo v. State, 36 Okla. Cr. 198, 253 P. 307, a search warrant practically identical with the one in this case was held not to' run in the name of the state and was therefore void. See, also, the following cases: Bishop v. State, 47 Okla. Cr. 249, 288 P. 363; Woods v. State, 46 Okla. Cr. 288, 287 P. 769; State v. Bayliff, 59 Okla. Cr. 381, 60 P. 2d 402; Riggs v. State, 64 Okla. Cr. 255, 78 P. 2d 1075; Boydstun v. State, 64 Okla. Cr. 258, 78 P. 2d 1076; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Willard v. State, 66 Okla. Cr. 344, 92 P. 2d 600.

The defendant requested the court to instruct the jury upon the question of coverture which was raised by the evidence of the defendant. The court refused to so' instruct, and no instructions were given by the court upon this subject. This, we think, was also error. Oklahoma Statutes 1931, section 1802, Oklahoma Statutes Annotated, title 21, section 157, provides when a wife may be excused from the commission of a crime by reason of coverture. The crimes of murder and treason and 16 other crimes under certain circumstances are made exceptions. Offenses created by the prohibition enforcement laws are not excepted. The general rule is that when criminal acts are committed by a married woman in the presence of her husband, she is presumed to have acted under coercion. This rule applies to liquor law violations the same as any other law. Of course, this presumption may be overcome by evidence. This presumption is very slight and may be rebutted by slight circumstances, but there must be some evidence to rebut it. For a full discussion of this question, see the following cases: Davis v. State, 58 Okla. Cr. 85, 7 P. 2d 911; Sentell v. State, 61 Okla. Cr. 229, 67 P. 2d 466; Paris v. State, 66 Okla. Cr. 236, 90 P. 2d 1078.

For the reasons above stated, the judgment and sentence of the county court of Coal county is reversed, with directions to' dismiss.

JONES and DOYLE, JJ., concur.


text:
    MRS. JOE HODGES v. STATE.
    No. A-9778.
    March 5, 1941.
    (111 P. 2d 202.)
    H. M. Shirley, of Coalgate, for defendant.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, P. J.

Defendant was charged in the county court of Coal county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $¡50 and serve 30 days in the county jail, and has appealed.

This case is a companion case of Viola Stewart v. State, 71 Okla. Cr. 292, 111 P. 2d 200. The same question, viz., that the search warrant does not run in the name of the State of Oklahoma, is raised in this: case. An examination of the record reveals that the caption of the search warrant is identical with the search warrant cited in the Stewart Case and does not run in the name of the State of Oklahoma, as provided by the Constitution and statutes of this state. Okla. St. Ann. Constitution, article 7, section 19; Oklahoma Statutes 1931, § 19, Oklahoma Statutes Annotated, Title 12, § 51.

It therefore becomes unnecessary to pass upon any other issue involved herein, and for the reason above stated, this case is reversed with directions to the county court of Coal county to dismiss the same.

JONES and DOYLE, JJ., concur.


text:
    W. G. SMITH v. STATE.
    No. A-9776.
    March 5, 1941.
    (111 P. 2d 198.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, W. G. Smith, was jointly charged with Roy Hatfield and Roy Smiley by information on December 2, 1988, with cutting and injuring timber; was tried, convicted, and fined $25, from which judgment and conviction he appeals to this court.

The only contention made by the defendant is that the trial court erred in overruling his motion for a new trial for the reason the evidence was not sufficient to' support the verdict.

The prosecuting witness identified the defendant as being one of the men whom he saw cut timber from an unfenced tract on certain land owned by him. The defendant was arrested by the owner at that time. The complainant admits that the defendant told him at the time of his arrest that he was cutting* the timber for one Bud London. The defendant introduced the testimony of several witnesses who knew that the defendant had been hired by London to cut this timber. The sawmill owner testified that when the logs were brought to the mill, the defendant wonld leave part of the proceeds from the sale of the logs to his mill with him to be paid to' London.

There is no proof that the defendant was even acquainted with the prosecuting witness; and no evidence of wantonness or malice was introduced, unless it can be said that the act of defendant in cutting, the timber is sufficient to' infer wantonness or malice as the same is defined.

Defendant was charged under section 2341, O. S. 1981, 21 Okla. St. Ann. § 1769, which reads as follows:

“Every person who shall wantonly or maliciously cut, dig up, or injure any timber set out, planted, cultivated, or growing naturally * * * shall be deemed guilty of a misdemeanor. * * *”
“Wanton” is defined in Webster’s New International Dictionary (1910 Ed.) : “4. Reckless; heedless; malicious; as, wanton mischief.”

An act, to be done “wantonly,” must be done intentionally and by design, and without excuse, and under circumstances evincing a lawless and destructive spirit. Branch v. State, 41 Tex. 622.

“Wantonly” implies turpitude and such a degree of rashness as evinces total want of qare. Kaplan v. Williams, 245 Ill. App. 542.
“Wantonly” is defined as showing reckless disregard of lawful rights of the owner and heedlessness of the necessary results of the act complained of. Werner v. State, 93 Wis. 266, 67 N. W. 417.
“Wantonly,” in a criminal sense, implies that the act was done of a licentious spirit, perversely, recklessly, without regard to' propriety or the rights of others, careless of consequences, and yet without settled malice. State v. Morgan, 98 N. C. 641, 3 S. E. 927; State v. Gilligan, 23 R. I. 400, 50 A. 844.

Section 1782, O. S. 1931, 21 Okla. St. Ann. § 95, is as follows:

“The terms ‘malice’ and ‘maliciously,’ when so employed, import a wish to vex, annoy or injure another person, established either by proof or presumption of law.”
“Wantonly and maliciously” are defined as meaning an evil and unlawful purpose. Romans v. McGinnis, 156 Ky. 205, 160 S. W. 928.

In Colbert v. State, 7 Okla. Cr. 401, 124 P. 78, 79, this court said:

“In prosecutions for malicious mischief, malice toward the owner of the property injured is the gravamen of the offense, without which it would be a mere trespass. * * * The intent with which an act is done is material, and, if it be shown that the defendant acted in good faith or under a claim of right, the charge of malicious mischief cannot be sustained. * * *
“It has been repeatedly decided that in cases of malicious mischief the spirit in which the act was done must be toward the owner of the property, and not against the property itself.”

Before a defendant can be convicted under the above statute, there must be some evidence showing that he injured the timber of another with the intent to vex, annoy or injure him, or that accused’s act was done with such reckless or heedless disregard for the rights of the owner that the intent to vex, annoy or injure is inferred. This statute is not directed at a person who cuts, digs up, or injures timber of another in good faith under claim of right, but at one who does these acts Avantonly or maliciously. Wantonness or malice is an essential element of the crime and must be proven.

The defendant was charged under the wrong statute. He could have been charged under the trespass statute, sec. 2340, O. S. 1931, 21 Okla. St. Ann. § 1768; and a con-vietion might be sustained under that statute, where the commission of a willful trespass by a cutting down or destroying of timber growing on the land of another is shown. Malice is not an essential ingredient under that statute, but the act is directed against a willful trespass.

For the above reasons, this case is reversed and the trial court is ordered to discharge the defendant.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    LLOYD O. TEMPLE v. STATE.
    No. A-9849.
    March 12, 1941.
    (111 P. 2d 524.)
    Dennis Wright, of Harr ah, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, of Oklahoma County, for the State.
   BAREFOOT, P. J.

Defendant, Lloyd O. Temple, was charged in the district court of Oklahoma county with the crime of “attempted rape in the first degree,” was tried, convicted, and by the jury found guilty and his punishment assessed by the court at 25 years in the penitentiary, and he has appealed.

In the indictment filed in this case it was charged:

“ * * * did then and there willfully, unlawfully and feloniously commit the crime of attempted rape in the first degree in the manner and form as follows, to wit: * * * did then and there willfully, unlawfully, wrongfully and feloni-ously by means of force overcoming the resistance and by means of threats of immediate injury and to kill accompanied by apparent power of execution, and preventing resistance by then and there striking, beating, bruising andi maltreating' one Mary Hawkins with a certain blunt instrument, a more full and complete description of which is to your informant unknown, then and there had and held in the hands of him the said defendant, Lloyd O. Temple, then and there attempt to have and hold unlawful sexual intercourse with the said Mary Hawkins, a female person over the age of eighteen years and not the wife of the said Lloyd O. Temple, the said Lloyd O. Temple being a male person over the age of eighteen years, but the said defendant was prevented from the completion of said act by the resistance of the said Mary Hawkins. * * *”

The defendant filed general and special demurrers to the sufficiency of the indictment, which were overruled by the court and exceptions reserved. These demurrers raised the sufficiency of the indictment charging the crime by reason of the fact that there was not alleged an “intent” on the part of the defendant to commit the crime' charged, and that under the statute upon which this charge was based this ivas a necessary allegation.

Oklahoma Statutes 1931, section 2515, Oklahoma Statutes Annotated, Title 21, § 111, defines rape as follows :

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * *
“4th. Where she resists but her resistance is overcome by force and violence.
“5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution. * * *”

Oklahoma Statutes 1931, section 2518, Oklahoma Statutes Annotated, Title 21, § 1114, defines rape in the first degree. Oklahoma Statutes 1931, section 2519, Oklahoma Statutes Annotated, Title 21, § 1115, defines the punishment for rape in the first degree as follows:

“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court.”

Oklahoma Statutes 1931, section 1822, Oklahoma Statutes Annotated, Title 21, § 42, provides:

“Every person who attempts to commit any crime, and in such attempt does any act toward the commission, of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows:
“1. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted. * * * »

It is provided by Oklahoma Statutes 1931, section 1869, Oklahoma Statutes Annotated, Title 21, § 681, as follows:

“Every person who1 is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not otherwise prescribed in this Code, is punishable by imprisonment in the State Penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The indictment in the instant case was brought under Oklahoma Statutes 1931, section 1822, Oklahoma Statutes Annotated, Title 21, § 42, and not under Oklahoma Statutes 1931, section 1869, Oklahoma Statutes Annotated, Title 21, § 681. It will be noted that the punishment that may be inflicted under the former statute is much greater than the punishment under the latter statute. This probably accounts for the prosecution of defendant under the former statute. After a careful examination of the facts in the instant case, we are of the opinion that the better procedure would have been to- charge this defendant under Oklahoma Statutes 1931, section 1869, Oklahoma Statutes Annotated, Title 21, § 681. Having charged defendant under Oklahoma Statutes 1931, section 1822, Oklahoma Statutes Annotated, Title 21, § 42, it is necessary that the indictment in this case should have every ingredient necessary under the general rape statute above cited. Under this statute it has been the holding of this court that it is necessary to* allege in the indictment or information the “intent” of the person charged to' commit the crime, and also1 necessary to' prove the same. It will be noted from the indictment in the case at bar1 there is no allegation of “intent” on the part of the accused. It is alleged that he did' “willfully, unlawfully and feloniously commit the crime of attempted rape in the first degree.” There is then set out the manner of force used by the defendant, and the indictment states that he did “then and there attempt to have and hold unlawful sexual intercourse with the said Mary Hawkins.” Unless it is held that the word “attempt” meant “intent,” there is nowhere alleged an intention on the part of the defendant to have intercourse with the prosecutrix. The authorities are in conflict upon this proposition, but the early decisions of this court hold that it is necessary to allege an “intent” in the indictment or information.

This court had under consideration the construction of this identical statute in several different cases. In the case of Herrick v. Territory, 2 Okla. Cr. 74, 99 P. 1096, the court says:

“An indictment- for an attempt to rape must allege that the attempt was made with intent to rape.”

The indictment in this case was very similar to the case at bar, and alleged,

“* * did then and there unlawfully, willfully, and feloniously attempt to accomplish the act of sexual intercourse”, etc. The Attorney General, on behalf of the state, filed a confession of error, stating: “Comes now the Attorney General, and informs the court that he is of opinion that the indictment herein is fatally defective, in that it fails to allege that the overt acts charged against the accused, laid as an attempted rape, were by him committed, with the intent to commit the crime of rape.”

The court says:

“It is the opinion of the court that the indictment is fatally defective in failing to charge that the alleged attempt was made with intent to commit rape. It is true that this intent may be inferred from the facts stated in the indictment; but the strictest rule of pleading is required in indictments. They must be certain to a certain intent in every particular. Nothing must be left to. in-tendment, inference, or argument. Every element of the offense must be charged in clear, direct, and affirmative language, and every presumption of innocence must be negatived in the same manner.”

In the case of Williams v. State, 10 Okla. Cr. 336, 136 P. 599, the defendant was convicted of attempted rape and the punishment was assessed by the court at 25 years in the penitentiary. The information used the word “attempt,” but did not allege an “intent” on the part of the accused. The information alleged “* * * intentionally, unlawfully, willfully, and feloniously make an assault * * * with an intent * * * to. rape,” etc. The court says in the first syllabus:

“To constitute a. good charge of attempt to commit the crime of rape under section 2803, Rev. Laws 1910, Oklahoma Statutes 1981, section 1822, Oklahoma Statutes Annotated, Title 21, section 42, some act done towards the commission of the crime and the failure must be alleged, and it is also necessary to allege an intent to feloniously have sexual intercourse by committing a rape as defined by section 2414, Rev. Laws 1910, 21 Okla. St. Ann. § 1111.”

There was no. demurrer or motion in arrest of judgment filed in this case. The court held that the information was sufficient to. charge assault with intent to. commit rape, and reduced the punishment from 25 years to five years. This was in accord with the confession of error made by the Attorney General.

In the case of Bond v. State, 12 Okla. Cr. 160, 152 P. 809, this court again said in the syllabus, as follows:

“To. constitute a good charge of attempt to commit the crime of rape under section 2803, Bev. Laws 1910, some act done towards the commission of the crime and the failure must be alleged, and it is also, necessary to. allege an intent to. feloniously have sexual intercourse by committing a rape as defined by section 2414, Bev. Laws 1910.”

In the case at bar the indictment sets out the act done towards the commission of the crime, and the actual force used, but of course does not allege an “intent” on the part of the defendant.

We have carefully read the record in this case. It is unnecessary to quote it in detail here. The evidence is revolting in its nature, and if the testimony of the prose-cutrix is true, reveals that the defendant is a moral pervert. After the prosecutrix had been on the witness stand for some time and had testified before the jury, the trial court dismissed the jury and examined her out of the presence of the jury. This examination covered ten pages of the record, in which she was questioned fully as to the facts and circumstances surrounding the attack upon her. Before examining her, the court made this statement:

“Now, gentlemen, I have read these letters that have been identified here but haven’t been offered or introduced in evidence yet. I have listened to this witness testify what she has testified to before the jury. I am not quite satisfied with her testimony, I mean in this respect: I permitted the assistant county attorney to lead her some while ago because, as a court, I don’t feel or didn’t feel like we were getting the whole story here, and now we are going to get it and it makes no difference how filthy it is and it doesn’t make any difference who has talked to' you and who' hasn’t talked to you, who may and who may not have threatened you, what knowledge you might have had of what is in these letters or anything else. We are going to get this story if you know it, and let’s not hesitate on giving it.”

After examination by the court, she was again placed upon the witness stand in the presence of the jury and once more detailed her story before the jury. She testified to some facts that she had not testified to before, and stated that the defendant had asked her to' have intercourse with him. She had not testified to this fact prior to this time. Her testimony had been mostly conclusions, and we presume this was the reason for the court examining her out of the presence of the jury.

As before stated, the court did not instruct the jury upon the question of “assault with intent to commit rape,” as provided in Oklahoma Statutes 1931, section 1869, Oklahoma Statutes Annotated, Title 21, § 681, but only instructed upon “attempt to rape” under Oklahoma Statutes 1931, section 1822, Oklahoma Statutes Annotated, Title 21, § 42. There is no1 question but that the former statute is an included statute. It has been so held by this court. Pittman v. State, 8 Okla. Cr. 58, 126 P. 696; Plaster v. State, 45 Okla. Cr. 452, 283 P. 805; Kitchen v. State, 66 Okla. Cr. 423, 92 P. 2d 860. Under the former statute, the maximum punishment is five years. Under the latter statute, any number of years may be given. The jury failed to' assess the punishment in this case, and the court, under the former statute, sentenced the defendant to 25 years in the penitentiary, which he stated at the time of the sentence he considered as half of a life sentence. After a careful consideration of this record, we are of the opinion that the court should have instructed the jury under the “assault with intent to commit rape” statute as an included offense and given the jury an opportunity to' pass upon the guilt of the defendant under that statute. We recognize the rule that it is not necessary for the court to- instruct the jury upon an included offense where the evidence in the case does not justify the giving of the instruction. But in the instant case, the evidence of the prosecuting witness was that defendant made an assault upon her. The jury should have been permitted to pass upon this question under the included statute above cited. Dubois v. State, 22 Okla. Cr. 308, 210 P. 1043; Atchison v. State, 3 Okla. Cr. 295, 105 P. 387; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; James v. State, 14 Okla. Cr. 204, 169 P. 1127; State v. Ferguson, 74 Utah, 263, 279 P. 55.

For the reasons above stated, the judgment of the district court of Oklahoma county is reversed and remanded, and the warden of the Penitentiary at McAlester is directed to deliver the defendant to the sheriff of Oklahoma county to be by him held until discharged by proper order of the district court- of Oklahoma county.

JONES and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    STATE v. J. B. GRAY.
    No. A-9718.
    March 12, 1941.
    (111 P. 2d 514.)

      Phil W. Davis, Jr., Sp. Co. Atty., of Tulsa, Mac Q. Williamson, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for plaintiff in error.
    M. A. Breckenridge, of Tulsa, for defendant in error.
   DOYLE, J.

It is well settled that no writ oí error or appeal lies on behalf of the state to review or set aside a verdict or judgment of acquittal in a criminal case, however, while the state cannot bring error or appeal to afford the state an opportunity for a new trial after acquittal, there is no constitutional limitation in this state in conflict with our statute authorizing an appeal on a question of law reserved by the state. State v. Smith, 30 Okla. Cr. 144, 235 P. 273, and cases cited.

The right of the state to appeal from any order or judgment of a trial court rests upon statutory authority which cannot be enlarged by construction.

The Code of Criminal Procedure provides:

“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.” Section 3131, Sts. 1931, 22 Okla. St. Ann. § 1053.
“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting, attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.” Section 3193, Sts. 1931, 22 Okla. St. Ann. § 1055.
“An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed.” Section 3194, Sts. 1931, 22 Okla. St. Ann. § 1056.
“Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.” Section 3198, Sts. 1931, 22 Okla. St. Ann. § 1060.
“The exceptions stated in the case shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken.” Section 3200, Sts. 1931, 22 Okla. St. Ann. § 1062.
“In case of an appeal from a question reserved on the part of the state it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal. When the question reserved is defectively stated the Criminal Court of Appeals may direct any other part of the proceedings and record to be certified to them.” Section 3201, Sts. 1931, 22 Okla. St. Ann. § 1063.

Under the statute, when the appeal is from a judgment on quashing or setting aside an indictment or information, or from an order of the court arresting a judgment, an appeal taken by the state will not stay or affect the operation of such judgment or order in favor of the defendant, until the judgment or order is reversed and the case remanded with direction to the trial court to vacate the judgment or order in favor of the defendant, and reinstate the case and proceed as though no such judgment or order had ever been entered. Section 3191, Sts. 1931, 22 Okla. St. Ann. § 1056, supra. State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

In such cases it is the right and duty of the county attorney to take an exception and perfect an appeal from 'such judgment or order to this court.

Where the trial court sustains a demurrer to an indictment or information the judgment is final unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed. Section 2952, Sts. 1931, 22 Okla. St. Ann. § 508; State v. Franks, 21 Okla. Cr. 213, 206 P. 258.

If the court do' not direct the case to be further prosecuted, the defendant, if in custody, must be discharged. Section 2953, Sts. 1931, 22 Okla. St. Ann. § 509; State v. Boston, 69 Okla. Cr. 307, 102 P. 2d 889; State v. Sowards, 64 Okla. Cr. 430, 82 P. 2d 324; State v. Graham, 38 Okla. Cr. 325, 261 P. 230; State v. Walton, 30 Okla. Cr. 416, 236 P. 629; State v. Robertson, 28 Okla. Cr. 234, 230 P. 932; State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Chappell, 12 Okla. Cr. 618, 152 P. 1199.

This court has held that while the state cannot bring error or appeal to reverse an acquittal of one accused of crime, the state has the right, under the 3rd subdivision of sec. 3191, 22 Okla. St. Ann. § 1053, subd. 3, to take an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; State v. Rule, 11 Okla. Cr. 237, 144 P. 807.

In such cases the state does not bring any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and if such question of law is decided in favor of the state, it simply settles a question of law, and does not affect the verdict of acquittal. “Section 3201, supra.”

We may state in the language of the court in United States v. Evans, 213 U.S. 297, 29 S.Ct. 507, 508, 53 L.Ed. 803:

“ ‘The appellee in such a case, having been freed from further prosecution by the verdict in his favor, has no interest in the question that may be determined in the proceedings on appeal, and may not even appear. Nor can his appearance he enforced. Without opposing argument, which is so important to the attainment of a correct conclusion, the court is called upon to lay down rules that may be of vital interest to persons who may hereafter be brought to trial. All such persons are entitled to' be heard on all questions affecting their rights, and it is a harsh rule that would bind them by decisions made in what are practically “moot” cases, where opposing views have not been presented.’ ”

In the case of State v. Miller, 14 Ariz. 440, 130 P. 891, 892, it is said:

“While the evident purpose of the statute, as shown by its language, is to establish a correct and uniform administration of the criminal law, it seems to us that it is not calculated tO' effectuate that purpose, unless the court is afforded the assistance of counsel on both sides of the question.”

The defendant in this case, tried on an indictment, before a competent court and jury, on the issue of his guilt or innocence, was acquitted. That ended the case SO' far as he was concerned. The trial court had exhausted its jurisdiction both of the person and the subject matter. The judgment of acquittal was final.

Chapter 35 of article 14, § 7615 et seq., 19 Okla. St. Ann. § 181 et seq., which creates the office of county attorney and prescribes the duties, further provides (sec. 7621, Sts. 1931, 19 Okla. St. Ann. § 187) :

“The district court, whenever there shall be no' county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to' act may, appoint, by an order to' be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers o'f such county attorney for that purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed.”

The Code of Criminal Procedure provides (sec. 3056, Sts. 1931, 22 Okla. St. Ann. § 859) :

“If the county attorney fails, or is unable to attend at the trial or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.”

The first statute was intended to give the district court the power and authority to appoint temporarily a county attorney to act in the place and stead of the regular county attorney, under the circumstances enumerated in the statute.

In the case of Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636, 640, it is said:

“Independent of the statute, however, the court would have the inherent power to appoint a special county attorney under any of the circumstances therein enumerated. * * *
“The latter statute permits the court to appoint a special county attorney for the trial of any particular case where the regular county attorney is disqualified.
“These statutes are merely expressive of the inherent powers of a court of general jurisdiction, and when it is made to appear, as it does in this case, that a contingency arose under which it was proper for the court to appoint a substitute for the county attorney, although the appointment be made in vacation, if afterwards in open court the same judge recognizes the appointment and permits a qualified person to' act upon the trial in the place and stead of the disqualified county attorney, there has been, a sufficient compliance with the statutory requirements to validate said appointment.”

And see Nowlin v. State, 65 Okla. Cr. 165, 83 P. 2d 601; Hayes v. State, 41 Okla. Cr. 302, 274 P. 41; Nance v. State, 41 Okla. Cr. 379, 273 P. 369; Baggett v. State, 35 Okla. Cr. 119, 248 P. 875.

In the instant case, it appears that Dixie Gilmer, county attorney of Tulsa county, having disqualified in this case, Harry L. S. Halley, a judge of the district court, entered an order appointing Phil W. Davis, Jr., as special county attorney.

It is the right of a county attorney or the Attorney General to reserve exceptions and to- perfect an appeal from an order setting aside an indictment or information or from an order arresting a judgment or from a judgment sustaining a demurrer to an indictment or information, where the trial court directs the case to be resubmitted to- the same or another grand jury, or that a new information be filed. In other words, where the trial court retains jurisdiction in such cases- pending the decision or opinion of this court. State v. Franks, supra.

In such cases we may only decide the questions of law involved for the future guidance of the trial court. Where by the judgment of the trial court a defendant is discharged or a judgment of acquittal entered, the prosecution is at an end and the case must be dismissed. In such a case, where an appeal on behalf of the state from a question reserved is desired, the county attorney, or if the Attorney General, on inspecting the record is satisfied that error has been committed to the prejudice of the state, and upon which it is important to the correct and uniform administration of the criminal law that this court should decide, a “bill of exceptions” or case-made and the judgment of acquittal duly certified by the court clerk may be filed in the trial court clerk’s office, with proof of service of written notice of appeal upon the clerk of the trial court and upon the defendant as required by section 3193, Sts. 1931, 22 Okla. St. Ann. § 1055, supra. The same to- be filed in the office of the clerk of this court. This is a method afforded the law officers of the state to take the opinion of the Criminal Court of Appeals upon questions which they consider important to the correct and uniform administration of the criminal law.

It may therefore he considered that in such cases the duties of a special county attorney have terminated and he is without authority to take an appeal for the state.

The record further shows the successive steps taken by the special county attorney to take an appeal on behalf of the state. It appears that on March 7th, Judge Halley entered an order allowing the state 60 days from this date in which to malee and serve a case-made on appeal to this court. Thereafter, on March 10th, the trial judge entered an order overruling the state’s motion for a new trial, and on the same day Judge Halley granted the special county attorney leave to file exceptions “to each and all the rulings of the court upon the trial of this case before Hon. Prentiss F. Eowe, Judge Presiding.”, and that the state’s notice of appeal be entered on the trial docket. Thereafter, on May 8th, Judge Halley entered an order allowing the state 60 days in addition to the time heretofore allowed, in which to make and serve its case-made. Thereafter, on the 3rd day of July Judge Halley allowed 30 days additional to the time heretofore allowed in which to make and serve a case-made. Thereafter, on July 8, 1939, Judge Halley made and entered an order directing court reporter to “make out a proper case-made in this cause for the purpose of appeal to the Criminal Court of Appeals from such judgment and questions reserved by the state, and furnish the same to said special county attorney for service and filing in the Criminal Court of Appeals, and that the expense of the preparation of said case-made shall be paid by Tulsa county.”

The record shows that when the trial judge denied the state’s motion for a new trial, he allowed exceptions as follows: “To the said decision, order and judgment of the court, the State of Oklahoma objects and its exceptions are allowed.”

The statute provides (sec. 3201, Sts. 1931, 22 Okla. St. Ann. § 1063, supra) :

“In the case of an appeal from a question reserved on the part of the state it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal.”

When an appeal on behalf of the state from a verdict or a judgment of acquittal, where the county attorney or the Attorney General believes that error has been committed on the trial of the case to the prejudice of the state, and upon which it is important to the correct and uniform administration of the criminal law that the Criminal Court of Appeals should decide, the proper procedure of pointing out errors in the proceedings and by so doing obtain an authoritative exposition of the law to be followed by the courts, is by a bill of exceptions allowed as being true and correct, which must be signed and duly authenticated by the trial judge according to law, with such qualification or explanation as the trial judge may elect to state, the same to be duly certified by the court clerk and filed with proof of service of notice of appeal. The law officers of the state may then take the appeal by filing the bill of exceptions in the clerk’s office of the Criminal Court of Appeals.

Such a construction of the statute accords it a meaning in line with its purpose and legislative intend.

After a careful examination of the record, we are not disposed to place our decision in this case upon the grounds hereinbefore stated alone. It affirmatively appears from the record that no written notice of appeal was ever served upon the defendant either in person or “by posting up a notice three weeks in the office of the clerk of the district court”, as required by section 3193, Sts. 1931, 22 Okla. St. Ann. § 1055, supra. Neither of these methods was complied with by the special county attorney, or counsel representing the state.

This question of jurisdiction for want of proper notice was not alluded to in the state’s briefs, nor referred to by the special county attorney in his oral argument.

Under this section notice of appeal and proof thereof, given and made in the manner and within the time prescribed for perfecting an appeal, is jurisdictional.

Under repeated decisions of this court it is held that the state attempting to appeal under this section must serve notice of appeal on the defendant personally, or must post such notice in office of court clerk if the defendant cannot be found in the county; service of notice on defendant’s attorney of record being insufficient. State v. Stone, 56 Okla. Cr. 239, 37 P. 2d 320.

In State v. Foster, 55 Okla. Cr. 450, 32 P. 2d 750, this court held:

“When the state attempts to appeal in a criminal case under section 3193, Okla. St. 1931, 22 Okla. St. Ann. § 1055, in order to give this court jurisdiction, it is incumbent upon the state to serve its written notice of appeal upon the defendant personally, or, in the alternative, to show that the defendant cannot be found in the county and to post notice for three weeks in the office of the court •clerk. When this is not done, this court does not acquire jurisdiction, and the attempted appeal will be dismissed”

And see State v. Simmons, 43 Okla. Cr. 404, 279 P. 524; State v. Hudson, 21 Okla. Cr. 475, 204 P. 133; Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; State v. Childers, 17 Okla. Cr. 627, 191 P. 1043; State v. McElroy, 14 Okla. Cr. 314, 170 P. 915; Sharer v. State, 40 Okla. Cr. 420, 269 P. 511; Patton v. State, 60 Okla. Cr. 409, 64 P. 2d 1245.

Under the statute the notice to.' the clerk of the trial court stating that the appellant appeals from the order or judgment and a similar notice to the defendant, given and made in the manner and within the time prescribed for perfecting an appeal, are the prerequisite steps to conferring on this court jurisdiction to hear and determine the question reserved by the state. When the record in this court fails to. show notice and proof of service made in the manner required by the statute, the purported appeal will be dismissed for want of jurisdiction.

Prom the foregoing review of the record, the authorities cited, and the reasons stated, we are of the opinion that this court is without jurisdiction to entertain the attempted appeal in this case.

It is therefore considered and adjudged that the purported appeal from the district court of Tulsa county herein be dismissed.

It is so ordered.

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


text:
    In re DONALD FLOWERS.
    No. A-9990.
    March 12, 1941.
    (111 P. 2d 509.)

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus filed in this court, in which the petitioner seeks his release from the State Penitentiary at McAlester. In the verified petition, filed herein, it is alleged:

“That on July 5, 1930, petitioner stood charged in the District Court of Kay County, State of Oklahoma, of the crime of robbery with firearms in case No, 2281.
“That on July 15, 1930, he also stood charged in the District Court of Kay County, State of Oklahoma, of the crime of forgery in the second degree.
“That on September 26, 1930, and on September 27, 1930, this petitioner was tried by jury and found guilty and assessed a punishment of a term of fifteen years imprisonment in the Oklahoma State Penitentiary at Mc-Alester, Oklahoma, in said case No. 2281.
“That formal judgment and sentence was passed by the court on September 29, 1930, confirming the verdict of the jury in said case No. 2281.
“That on September 27, 1930, the petitioner entered his plea of guilty to the forgery charge; and on October 1, 1930, after a recommendation of the county attorney, the court sentenced the petitioner in said case No. 2306 to be confined in the Stale Penitentiary for a period of five years, and provided that said sentence should run concurrently with the sentence of fifteen years imposed on the petitioner on the 29th day of September, 1930, in case No. 2281.
“That the petitioner commenced serving on said sentences on October 3, 1930.
“That on May 3, 1938, he was discharged in case No, 2281 and registered in to- serve a term of five years in case No, 2306.
“That the then District Judge of the District Court of Kay County wrote a letter to the Governor, excerpts from which are quoted in the petition as follows:
“‘On October 1, 1930, he (the petitioner, Donald Flowers) pleaded guilty in case No, 2306 to forgery in the second degree, and was sentenced to McAlester for five years, the sentence tO' run concurrently with the sentence of fifteen years in case No, 2281.
“ ‘As be was not convicted in tbe last case until after be bad been sentenced in tbe first case, the trial court was without power or authority to allow tbe sentence in tbe second case to run concurrently with tbe sentence in the first case.
“ ‘While my court cannot terminate tbe sentence in tbe second case (No-. 2306), I wish to keep faith with this defendant.
“ ‘I, therefore, ask and recommend that clemency be granted tbe above named defendant in case No'. 2306.’
“That on June 2, 1938, tbe petitioner was paroled from said imprisonment in case No. 2306 on order of tbe Governor of tbe State of Oklahoma; but that subsequently to his release on parole, he was convicted of another felony; tbe parole was revoked, and tbe petitioner re-incarcerated in tbe penitentiary.
“That tbe petitioner relied upon tbe promise of bis counsel and statement of tbe county attorney that said sentence in case No. 2306 would run concurrently with said sentence in case No. 2281, and entered bis plea of guilty in said cause in reliance upon said statements.”

Copies of tbe judgments and sentences in each of tbe said cases are attached to the petition, together with a certified copy of tbe prison record of said petitioner in each of tbe cases.

Tbe warden of the State Penitentiary, acting through tbe Attorney General, filed a demurrer to said petition for tbe reason that tbe same does not state facts sufficient to entitle tbe petitioner to relief.

Tbe scope of review on habeas corpus is limited to an examination of the jurisdiction of tbe court whose judgment of conviction is challenged. Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645, 647.

It is further held in the above cases that:

“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is court’s duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly before it, and, if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody. * * *
“The remedy of habeas corpus is available whenever it is found that the court in which the petitioner was tried had no jurisdiction to try him, or that in its proceedings his constitutional rights were denied.”

The petitioner contends that the facts in his case are controlled by the opinion of this court in Ex parte Rob-nett, supra. However, there are these distinguishing features in the two' cases:

In the Robnett Case, the defendant was a minor, uneducated and inexperienced in law, and did not have the advice of counsel. The trial judge in that case filed an affidavit with this court, in which he stated that he discussed the matter of Robnett pleading guilty before he entered his plea of guilty, and told him that if he entered his plea of guilty in the second case, his sentence would run concurrently with that in a former case, in which sentence was suspended during good behavior, but which suspension was being revoked.

In the instant case, Flowers had able counsel at every step of the proceedings in both of the cases against him. He first entered his plea of not guilty in each of said cases; and was tried by a jury in the robbery case, and his punishment fixed at 15 years in the State Penitentiary. According to the exhibits attached to the petition, the journal entry of judgment pronouncing sentence in that case had been filed two days before the plea of guilty was entered in the second case.

This court has held in many cases that under sections 3144 and 3145, O. S. 1931, 22 Okla. St. Ann. 976, 21 Okla. St. Ann. 61, where a defendant is convicted of two or more crimes before sentence has been pronounced for either, the judgments and sentences shall run consecutively, unless the judgment and sentence in the second or subsequent conviction shall specifically designate that it shall run concurrently with the judgment and sentence of the first or prior conviction or convictions; and when so specifically stated, it shall run concurrently.

Before the court has jurisdiction to provide that the sentences shall run concurrently, the convictions must have been sustained in both cases before sentence has been pronounced in either. The only authority for concurrent sentences under our law must be derived from sections 3144 and 3145, supra. The power is granted to trial courts on the conditions there named. In all other cases, the sentences are consecutive.

See Ex parte Bell, 34 Okla. Cr. 354, 246 P. 893; Ex parte Hudson, 44 Okla. Cr. 14, 279 P. 711; Ex parte Strader, 37 Okla. Cr. 285, 257 P. 1112; Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478; Ex parte Gilbert, 52 Okla, Cr. 260, 4 P. 2d 695; In re Johnson, 58 Okla. Cr. 209, 52 P. 2d 107.

Although the petitioner alleges in his petition that he entered his plea of guilty on September 27, 1930, he attaches to his petition and makes a part thereof the journal entry of judgment in connection with his plea of guilty to said charge; and it recites that the plea of guilty was entered on October 1, 1930, which was two days after the judgment and sentence had been pronounced in case No. 2281.

In the case of Ex parte Hudson, supra, this court stated:

“Where any person is convicted of two or-more crimes, before sentence is pronounced upon him for either, the trial court, under the provisions of sections 2303 and 2774, Comp. Stat. 1921 [Sections 3144 and 3145, 22 Okla. St. Ann. § 976, 21 Okla. St. Ann. § 61, supra], may provide in the sentences that they shall run concurrently. Where a defendant has been sentenced upon one conviction and a suspension or judicial parole given under the provisions of section 2803, Comp. Stat. 1921 [sec. 3148, O. S. 1931, 22 Okla. St. Ann. 991], and thereafter he is convicted for another offense, and the trial court then revokes the suspension given, the court is without authority to- adjudge that the sentences run concurrently.”

The district court has shown by his letter to- the Governor recommending clemency that he had later learned he was under the erroneous impression as to- the law, when he provided the sentence in case No. 2306 could run concurrently with the sentence pronounced in the robbery with firearms case.

This case is different from the Robnett Case for the reason that in the Robnett Case the trial judge and county attorney incorrectly represented to- the defendant, who was without counsel, and before his plea of guilty was entered, that the court had the power and authority to provide that said sentences could and would run concurrently; and the petitioner in that case would not have entered his plea of guilty but for the representation and inducement of the trial court and county attorney.

Where the defendant has the benefit of counsel to advise with him as to- his rights, the fact that he may be incorrectly advised as to some of his rights will not be sufficient grounds to- deprive the court of jurisdiction to render the judgment.

The district judge of Kay county had the correct view of the matter as set forth in his letter to the Governor, in which he stated that the petitioner’s only recourse was to seek clemency from the Governor, which the trial judge respectfully recommended. The Governor evidently acting upon the recommendation of the trial court, did issue a parole. If the petitioner was so eager to have his freedom, he could have continued at liberty by abiding by the terms of his parole. Unable to conduct himself as a law-abiding citizen, he was later convicted of another felony, and his parole revoked.

It is not stated in the petition the nature of the last felony conviction, the term of imprisonment pronounced upon his conviction in said case, nor the court in which the conviction was sustained; and it is not stated in the petition as to whether the sentence has been served. For those reasons, if for no other, the demurrer of the Attorney General would have to' be sustained; bnt owing to the fact that certain questions have been raised in this case, which would probably be raised again in another proceeding as quickly as the sentence in the third cause had been served, we have deemed it best to set forth our opinion upon the facts, based upon the assumption that the petitioner had legally served his time under the third conviction.

.Since the rendition of this court’s opinion in Ex parte Robnett, supra, there have been several similar cases filed in this court. With the exception of the case of Ex parte Pennington, 71 Okla. Cr. 263, 110 P. 2d 923, decided by this court on February 26, 1941, none of those cases were in point with the Robnett Case. The distinctions to be drawn are .these: If the petitioner appears with counsel, no statements made by the county attorney in connection with his plea will avail, as he has the benefit of the advice of counsel of his own choosing, and will not be allowed to take advantage of any statement by the county attorney based upon an erroneous impression of the law. If the prisoner appears without counsel, and after being advised of his right to the assistance of counsel and of his other rights under the statutes and Constitution, and being fully acquainted with these rights, proceeds to waive the same and enters his plea of guilty, and the court in pronouncing sentence feels inclined to' extenuate and cover the misdeeds of the defendant with a cloak of charity and erroneously provides in the judgment that the sentence should run concurrently with the sentence pronounced on a former day upon a conviction in another case, then clearly the action of the trial court in inserting this provision in the judgment could not be said to have deprived the defendant of any of his constitutional or statutory rights to the extent that it can be said that the judgment is void; in that case no statement that the sentences would run concurrently is held out to the prisoner as an inducement to procure a plea of guilty. The prisoner’s only relief under those circumstances is to apply for executive clemency.

However, if the petitioner appears without counsel, and is illiterate and depends upon the advice of the court for his knowledge of the case, and the court, before the petitioner enters his plea, malees an erroneous representation as to the law, without which erroneous representation the petitioner would not have entered his plea of guilty, then under those circumstances, the petitioner’s constitutional rights to he fully advised of the nature of the charge against him and the consequences of his plea have been violated. Ex parte Robnett, supra.

The instant case must be determined under sections 3144 and 3145, supra, and the cases hereinabove cited construing the same. Under the terms of these statutes, the sentences pronounced in the two cases of petitioner must run consecutively. Tbe demurrer of tbe respondent is sustained, and tbe writ denied.

BAREFOOT, P. J., and DOYLE, J., concur.