author: BEETT, J.

text:
    Ex parte VINCENT MATTHEWS.
    No. A-10919.
    Nov. 12, 1947.
    (186 P. 2d 840.)

      George Hill, of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BEETT, J.

This is a proceeding in habeas corpus in which the petitioner, Vincent Matthews, seeks to be discharged from the custody-of C. P. Burford, warden of the State Penitentiary. The said custody, as the record discloses, is based upon the facts that the petitioner was charged on January 10, 1931, with the crime of robbery with firearms of J. C. Butler; tried and convicted on January 21, 1931, and sentenced on January 23, 1931, to 50 years in the penitentiary. In the robbery, Butler was shot by the petitioner. From this judgment and sentence, no appeal was taken nor has the judgment and sentence been attacked in any manner for more than 16 years.

The petitioner alleges that he was denied the aid of counsel, time to confer with counsel and prepare for trial, and that he was not served with a list of the witnesses two days before the trial, as provided by article 2, § 20, of the Constitution of the State of Oklahoma, and that he was arraigned without the aid of counsel. Attached to the petition is the transcript of testimony of the petitioner taken before Honorable W. A. Lackey, judge of the district court of Pittsburg county, Okla., the information, the judgment and sentence complained of, and the minutes of the trial court in the trial on the merits had before Honorable Enloe Vernor, judge of the district court of Wagoner county, Oklahoma. This constitutes the substantial part of the record before us in this habeas corpus proceeding. The court minutes cover the proceedings from the time the information was filed until after the petitioner was delivered to the warden of the penitentiary, the pertinent part of which is in words and figures, as follows, to wit:

“Jan. 17,1931 Enter Record: Leave given W. T. Drake to withdraw as atty. for Defendant.
“Jan. 21, 1931 Enter Record: All parties present, defendant duly arraigned, defendant pleads not guilty. J. B. Campbell appointed attorney for Defendant. Jury drawn and sworn evidence introduced, instructions given, arguments made. Jury retires and returns verdict finding defendant guilty, but leave sentence up to Court. Jury Discharged.”

To the petition, Warden C. P. Burford made response denying the allegations of the petition and contended the petitioner was held under a valid commitment which had not been discharged.

Nowhere in the record does the petitioner question the jurisdiction of the court of the crime committed, of his person, or whether the judgment and sentence pronounced by the court was within the court’s power, as authorized by law. Ordinarily these are the only matters that may be raised by habeas corpus. In Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550, 554, this court said:

“Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the persons of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment.
“The writ of habeas corpus may not be used as a substitute for an appeal.”

See, also, Ex parte Williams, 70 Okla. Cr. 377, 106 P. 2d 524; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41; Ex parte Pennington, 71 Okla. Cr. 263, 110 P. 2d 923; 39 C. J. S., Habeas Corpus, § 26, note 26, citing numerous cases from this and other courts so holding.

In habeas corpus proceedings, “the court generally will pursue its inquiry only through the record of 'the proceedings and the judgment or sentence, and unless it is affirmatively shown by the record, or the face of the judgment or sentence, under which the petitioner is confined, that the judgment or sentence is void he is not entitled to his discharge and the writ will be denied.” 39 C. J. S., Habeas Corpus, § 26; Ex parte Barrett, 75 Okla. Cr. 414, 132 P. 2d 657, 658, wherein the court said:

“Where the record does not reveal that the judgment and sentence by reason of which a defendant is serving a term in the penitentiary was rendered by a court that did not have jurisdiction, and that the judgment and sentence is void, petitioner will not be released by habeas corpus.”

See, also, Ex parte Seale, 75 Okla. Cr. 183, 129 P. 2d 862, wherein this court said:

“Where a petition for a writ of habeas corpus is filed, the burden is upon petitioner to sustain the allegations thereof. It is only when the record and the evidence reveals that the judgment and sentence under which petitioner is being held is void will relief be granted by habeas corpus.”

The record here discloses that the court had jurisdiction of the crime, of the person, and was authorized by law to pronounce the judgment and sentence rendered herein.

The attack herein is based upon the petitioner’s own testimony tending to impeach the validity of the record. In this testimony he seeks to show he was denied the aid of counsel, time to prepare, that he was not served with a list of witnesses at least two days before the trial, and, that he was arraigned without the aid of counsel. He further testified that the attorney who was appointed for him did not properly represent him. That he demanded additional time to prepare and this was denied him. This testimony is the sole support of his contentions. By it, he seeks, after almost 17 years of quiescence, to impeach tlie record by supplying in testimony given by himself and in favor of himself, to meet omissions of steps in the proceedings that do not appear in the record herein on habeas corpus. Contrary to these contentions, the testimony of the petitioner discloses that he was represented by counsel, a Mr. W. T. Drake, for a period of time 40 or 50 days before the case came on for trial. That on January 17, 1931, four days before trial, said attorney withdrew. That on the day of trial the court appointed J. B. Campbell to represent the petitioner, that Mr. Campbell continued to represent the petitioner until after the motion for new trial was overruled. The record before us fails to disclose any objection to the appointment was made the day of the trial or at any time prior to the institution of these habeas corpus proceedings. Neither does the record disclose that any objection was made to proceeding to trial without a list of the witnesses being served upon the petitioner nor does the record disclose that objection was made to such witnesses testifying. Where the accused fails to object to going to trial on the ground that he was not served'with a list of witnesses two days before trial, as required by law, he cannot afterwards avail himself of this objection and the constitutional right given him by this provision will be waived. Robbins v. State, 12 Okla. Cr. 294, 155 P. 491; State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Stouse v. State, 6 Okla. Cr. 415, 119 P. 271; Addington v. State, 8 Okla. Cr. 703, 130 P. 311; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183. The presumption is that he did not object to going to trial or to the testimony offered by said witnesses. The rule is the same as applied in either case.

In regard to his contention that he was arraigned without the aid of counsel, this court will take judicial notice of the fact that the clerk does not always record the court minutes in their chronological order. Since the attorney was appointed on the day of arraignment and trial, the presumption is that the attorney was present and acted in behalf of the petitioner in all the proceedings that occurred on that day. Such an attack as is sought to be made herein is unavailing in habeas corpus. As was said in Hall v. Johnston, 9 Cir., 86 F. 2d 820, 821:

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

See, also, Archer v. Heath, 9 Cir., 30 F. 2d 932. Every presumption favors regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record; it is never presumed. Robbins v. State, supra. To follow the petitioner’s contention would require us to presume irregularity in matters omitted from the record and particularly the court minutes, based entirely upon his testimony. Public policy will not permit the petitioner, in a habeas corpus proceeding,- to supply the missing links, by his testimony standing alone, in a record. His release must be based upon something more substantial. In any event, his testimony should be corroborated by clear and convincing proof. No such proof is before us in this proceeding. As Judge Jones of this court so aptly said in Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 147:

“A great proportion of those who are incarcerated in the Penitentiary would be willing to swear to almost anything to secure their release.”

Moreover, the record shows the judge who tried the instant case and the prosecuting attorney who prosecuted the same are both dead. The attorney who defended the case has no distinct recollection as to what transpired to enable him to make affidavit or give testimony in the premises. The petitioner was the only witness in this proceeding. As was said in Ex parte Kermit Snow, 84 Okla. Cr. 423, 183 P. 2d 594:

“If the foregoing facts and conclusions were not sufficient grounds upon which to deny a writ of habeas corpus, we do not believe that we would be justified in granting the writ in any event, due to the lapse of fifteen (15) years of time.”
“Timely relief, however, should be given to a right timely asserted but when permitted to become clouded by time, with attendant lapse of memory, dislocation of witnesses, the loss of records and the grim hand of death, justice may require the denial of such rights; because under such circumstances, the rights sought to be asserted may become mere matters of speculation based upon faulty recollection or figments of imagination, if not out right falsification. For that reason, the doctrine of laches should apply to one who thus delays the assertion of his rights. See, in this connection, 39 C. J. S., Habeas Corpus, § 76, page 620, wherein it is said:
“ ‘* * * where as a result of such delay the judge who presided at the trial has no recollection of what occurred with respect to the relator’s representation by counsel, and witnesses for the prosecution are either dead or not to be found, and there are no note's of the testimony, it has been held that a petitioner will be barred from seeking discharge from imprisonment by habeas corpus on the ground that he was not informed of his right to have counsel and was not so represented.’
“In Commonwealth ex rel. Quinn v. Smith, 144 Pa. Super. 160, 19 A. 2d 504, 506, it is said:
“ ‘But in any event, we are of the opinion that his delay in making this application until such a great length of time had elapsed that the Judge who presided at the trial has no recollection of what occurred there, as respects the relator being represented by counsel, or requesting the appointment of counsel, or refusing or waiving the appointment of counsel for him, and five of the six witnesses for the prosecution at the trial have died or cannot be found, and the sixth has no recollection of the trial of the case, there being no stenographic notes or notes of testimony of the trial, convicts him of such laches as to call for a refusal of the prayer of his petition, and prevents his discharge from confinement.’
“To say the least, we are of the opinion that after fifteen (15) years delay, such a case to form a basis for relief by habeas corpus must be founded upon proof that is clear and convincing.”

The record before us does not present a situation which would entitle the petitioner to be released on habeas corpus. The writ is therefore denied.

BABEFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    WILLIAM (BILL) HUDSON v. STATE.
    No. A-10767.
    Nov. 12, 1947.
    (187 P. 2d 275.)

      Wade Arends and Mathers & Mathers, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

This is an appeal from a conviction sustained in the court of common pleas of Oklahoma county for the offense of illegal possession of intoxicating liquor.

No brief has been filed on behalf of defendant and no appearance was made at the time the case was assigned for oral argument.

In examining the record to see whether there is any fundamental error which would require a reversal of the judgment of conviction we have found that the only question involved is the alleged error of the court in overruling the motion to suppress evidence.

In the motion to suppress evidence, counsel for the defendant contended and put on proof to show that the number on the defendant’s house which was searched by the officer was 1330 East Reno whereas the search warrant was directed to search a frame dwelling house bearing the number 1332 on East Reno. At the hearing on the motion to suppress evidence, the officer who executed the search warrant swore that he went to the premises of the defendant the day before the search warrant was issued and at that time the house bore the number 1332. The witness further testified that at the request of the counsel for defendant he went to the premises again the day before the hearing and at that time he saw the number 1330 painted on a small board 10 or 12 inches long and tacked to the porch of defendant’s house. The officer stated that that was not the number that was on the house at the time the search was made. The proof further showed that the only house in the block was east of defendant’s dwelling and it bore the number 1312.

Under the circumstances the issue raised by the defendant called for a finding of the court on a disputed question of fact as to whether the search warrant sufficiently described the premises of defendant so as to enable the officer to make the search without resort to any other evidence than that contained in the warrant. Tipton v. State, 76 Okla. Cr. 77, 134 P. 2d 154.

The trial court made its finding adverse to defendant’s contention and upholding the correctness of the description set forth in the warrant. There is competent evidence in the record to sustain this finding.

The judgment and sentence of the court of common pleas of Oklahoma county/is accordingly affirmed.

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


author: BRETT, J.

text:
    Ex parte ALVIN NEIGHBORS.
    No. A-10904.
    Nov. 19, 1947.
    (187 P. 2d 276.)

      See, also, 83 Okla. Cr. 331, 177 P. 2d 133.
    W. O. Moffett, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original action in habeas corpus brought by petitioner, Alvin Neighbors, alleging that he is unlawfully restrained and imprisoned by Claude Moore, warden of the Granite Reformatory, located at Granite, Okla. The cause of said restraint he alleges is based on a judgment and sentence and commitment of 20 years in the State Penitentiary at McAlester, Okla., entered against the petitioner in Tulsa county, Okla., on August 15, 1944, on the charge of first degree manslaughter. His complaint, however, is based upon the proposition that on December 23, 1946, the State Board of Public Affairs made an order transferring the petitioner from the State Penitentiary at McAlester, to the State Reformatory at Granite. The petitioner contends that said order is void and his restraint and confinement at Granite is without authority of law, for the reason that, under the judgment and sentence of the trial court, he was specifically sentenced to the penitentiary at McAlester and said order of transfer is in conflict with the judgment and sentence of the trial court. He further contends that the provisions of Title 57 O. S. A. § 132 are unconstitutional and in conflict with the provisions of Title 57 O. S. A. § 105.

The judgment and sentence, omitting the caption, is in words and figures as follows, to wit:

“The court does now hereby adjudge and sentence the said: Alvin Neighbors to be imprisoned in the state Penitentiary at McAlester, Oklahoma, at hard labor for the period of Twenty (20) Years for the offense. It is therefore hereby considered, ordered and adjudged by the Court that the said Alvin Neighbors who upon his oath in open court states his age to be 32 years be imprisoned in the state Penitentiary at McAlester in the State of Oklahoma and confined in said Penitentiary for a term of Twenty (20) years for said offense of First Degree Manslaughter said term of sentence to begin from the date of his delivery to the warden of said Penitentiary.”

It is Avell that Ave note that the petitioner had served a sentence in the Federal Penitentiary at Leavenworth, Kan., prior to imposition of the foregoing sentence he is noAV serving.

The petitioner bases his contention of wrongful imprisonment at the Granite Reformatory upon the provisions of 'Title 57 O. S. A. § 105, which reads as follows:

“All persons now convicted, or Avho may hereafter •be convicted of a felony in this state, shall be by the trial judge sentenced to serve such term for which he may be convicted or sentenced at either the State Penitentiary located at McAlester, Oklahoma, or the Oklahoma State Reformatory located at Granite, Oklahoma, in the discretion of the trial judge passing the sentence; provided, that the trial judge shall sentence confirmed criminals or persons who have theretofore been convicted of a felony and served a term in any penitentiary either state or federal, to the State Penitentiary at McAlester, Oklahoma, together with all persons whose term of confinement is for life or a term of ninety-nine years, and those who are convicted for manslaughter in the first degree, or of an assault with intent to kill when the offense was committed in a cruel or inhumane manner, and persons convicted for rape in the first degree; provided, further, that all other persons who are now or may hereafter be convicted of a felony may, in the discretion of the court passing sentence, be sentenced to the Oklahoma State Reformatory at Granite, Oklahoma. And the trial judge may, in determining whether the person convicted should be confined in the State Penitentiary or at the Oklahoma State Reformatory, take testimony for that purpose. However, no such testimony shall be taken until after conviction.”

He contends that the determination of the place of confinement under section 105 is a judicial and not an administrative act.

The state contends that the transfer of the petitioner from the penitentiary at McAlester to the Reformatory at Granite is under the authority of Title 57 O. S. A. § 132, reading as follows, to wit:

“The State Board of Public Affairs shall have the management and control of the penal institutions of this State, located at McAlester and Granite, and may prescribe rules and regulations for the conduct and management thereof. * * * Said State Board of Public Affairs may, in its discretion, transfer prisoners from the State Penitentiary at McAlester to the reformatory at Granite, and may likewise transfer prisoners from the reformatory at Granite to the penitentiary at McAlester, when in its judgment it is necessary so to do; to separate the confirmed and incorrigible criminals from those who do not require the restrictions placed around them that the confirmed criminal requires; * * *.”

In determining the power of the Board of Affairs to make such transfers, as herein involved, it is necessary that we also consider the provision of Title 57 O. S. A. § 231, establishing the State Penitentiary, which reads as follows, to wit:

“There is hereby established at the city of McAlester, in the county of Pittsburg, Oklahoma, a State Penitentiary. All persons convicted of any crime whose punishment is by imprisonment in the penitentiary shall be confined in the said State Penitentiary at McAlester, except as otherwise provided by law.”

And, likewise, the provisions of Title 57 O. S. A. § 281, establishing the State Reformatory at Granite, which read as follows, to wit:

“There is hereby created, located and established within one mile of the corporate limits of the town of Granite, Greer county, the Oklahoma State Reformatory. All persons between the ages of sixteen and twenty-five years heretofore convicted of any crime whose punishment is by imprisonment shall be confined at either the Oklahoma State Reformatory or the State Penitentiary in the discretion of the State Board of Prison Control; and all persons between said ages hereafter convicted of crime, whose sentence to imprisonment shall be not to exceed five years, shall be confined at either the Oklahoma State Reformatory or the State Penitentiary, in the discretion of the court sentencing said persons to imprisonment. The Oklahoma State Reformatory shall be under the general charge and management of the said board of control.”

Construing these statutes together, it is apparent that the penitentiary was established for imprisonment of those whose crime, under the law, is prescribed to be by confinement in the penitentiary. Title 57 O. S. A. § 105 thus makes it clear that the Legislature intended the penitentiary to be the place of confinement of “confirmed criminals or persons who have theretofore been convicted of a felony and served a term in any penitentiary either state or federal,” as well as the place of confinement of persons sentenced to “confinement * * * for life,” persons “convicted for manslaughter in the first degree,” or an “assault with intent to kill * * * in a cruel and inhumane manner,” or, “persons convicted for rape in the first degree.” All of the foregoing convicted persons must under the law be confined in the penitentiary at McAlester.

All other persons under the provision of this section in the discretion of the trial court may be sentenced to the reformatory. In the exercise of its discretion, the court may conduct a hearing and take testimony as an aid in determining the place of confinement. But, this latter provision is not applicable as to that class of persons expressly designated to be confined in the penitentiary at McAlester, as defined in section 105 and as heretofore discussed.

In considering the provisions of Title 57 O. S. A. § 281, supra, it is clear that the legislative purpose in establishing the reformatory was to provide a place of confinement for persons between the ages of 16 and 25 years, and whose sentence was not in excess of five years. But, whether a person whose sentence does not exceed five years is sent to the reformatory or the penitentiary is a matter within the sentencing court’s discretion. However, all persons between the ages of 16 and 25 years who are sentenced by the court to the reformatory may not be permitted to serve their sentence there, for section 281 provides:

“All persons between the ages of sixteen and twenty-five heretofore convicted of any crime * * * shall be confined at either the Oklahoma State Reformatory or the State Penitentiary in the discretion of the State Board of Public Affairs.”

It is apparent that the latter provision was intended to empower the State Board of Public Affairs to effect the legislative intent as to the segregation of confirmed criminals, repeat violators, hardened criminals from first offenders, and persons whose crime fall within the category of penitentiary cases as defined in Title 57 O. S. A. § 105. This provision is expressly applicable where the court inadvertently sentences a penitentiary case to the reformatory or a reformatory case to the penitentiary. It is intended as an adjunct necessary to effect the intent of the Legislature with reference to classification and segregation of criminals.

Finally, we call attention to the section relied upon by the state under which transfers are effected, Title 57 O. S. A. § 132, supra. This section places control of penal institutions in the State Board of Public Affairs. Under the foregoing pertinent quotation from said statute, it is clear that this power of transfer from the reformatory to the penitentiary and vice versa is like the power of transfer under the provisions of Title 57 O. S. A. § 281; only intended as an aid to effect a legislative intent in classification and segregation of confirmed, hardened criminals, and repeat violators, regardless of age, from first offenders and young offenders between the ages of 16 and 25 years. This conclusion is made more apparent by the statutory language:

“When in its judgment it is necessary so to do; to separate the confirmed and incorrigible criminals from those who do not require the restrictions placed around them that the confirmed criminal requires.”

Neither courts nor the State Board of Public Affairs, in exercising the discretion granted under the provisions of Title 57 O. S. A. §§ 105, 132, and 281, are permitted to act arbitrarily, maliciously, or capriciously in effecting transfer; both must act within the limitations of their statutory powers. In this connection, the state contends that under the statutes, confinement is an administrative and not a judicial act. They cite in support thereof 15 Am. Jur. 187, § 155, as follows, to wit:

“Convicts are frequently transferred from one place of imprisonment to another, and it has been said that such a transfer is not such a judicial act that it cannot be performed by the Governor under authority of statute. With only little authority to the contrary, the validity of statutes authorizing administrative boards, or a court, on their petition, under certain circumstances, to transfer to the state prison or other penal institution one originally sentenced to a reformatory has been sustained, notwithstanding objections that such statutes constituted a denial of due process, conferred judicial powers on an administrative body, or authorized the infliction of cruel and unusual punishment, etc., the courts having taken the view that the power conferred on the boards was one of administrative control or discipline, as distinguished from a judicial function, and that where statutes conferring the power of transfer on the administrative boards are effective at the time of the sentence, the possibility of transfer is an incident impliedly annexed thereto.”

Cited in support of this statement is Rich v. Chamberlain, 104 Mich. 436, 62 N. W. 584, 27 L. R. A. 573, wherein the court said :

“It is contended that the transfer is a judicial act, and can only be performed by an officer clothed with judicial powersthat the determination of the circuit judge as to the prison in which the convict should be confined is a judicial determination; and that the prisoner has a right to remain in such prison for the period of his imprisonment; or, at all events, that he cannot be summarily removed without a hearing. It is said that the law discriminates between the prisons; that certain offenders cannot be sentenced to the state prison; and that the worst criminals cannot be sentenced to the house of correction, which is said to be designed for the less hardened class of criminals. The Legislature has full authority to provide prisons, and to determine where prisoners may be sent; and the courts have no discretion as to the place to which criminals may be sentenced except as the Legislature gives it. Such discretion is lodged with the circuit judges, and they act judicially in its exercise. But this doctrine is a qualified one, or rather the order of the judge is qualified by the law and such rules and regulations of the prisons as may have been lawfully adopted. Every sentence is subject to these, although it does not mention them.”

See, also, Uram v. Roach, 47 Wyo. 335, 37 P. 2d 793, 95 A. L. R. 1448 and at page 1455, annotations of cases construing similar provisions to the same effect. With these statements of the law, we agree but we must observe that while the matter of custody and confinement of one convicted of crime is an administrative matter and not a judicial act, the State Board of Public Affairs must act in fulfilling its administrative duties in a manner that accords with the power conferred in the statutes. Moreover, both the courts and the State Board of Public Affairs, in exercising the discretion as to place of confinement of convicts as conferred by the statutes, must do so with due regard to the limitations placed upon them in the statutes and both should strive to keep the exercise of such discretion within the ambit of the statute.

In a proper case, the court exercising its discretion, may sentence a person either to the State Penitentiary or to the State Beformatory, in conformity with the provisions of Title 57 O. S. A. § 133, may sentence such person to the nearest penitentiary. However, it was not the intent of the Legislature in enacting this provision that the courts give meaning to this section in such manner as to conflict with and negative the plain provisions of sections 105 and 281 in relation to classification and segregation of convicts and their place of confinement. It is clear that sections 132 and 133 must be construed as ancillary to sections 105 and 281, which may be called, “statutes of basic classification”.

In light of what has been heretofore said, the petitioner’s contention that the provisions of Title 57 O. S. A. §§ 105 and 132 are in conflict, and § 132 is unconstitutional, is without merit. We believe that the foregoing analysis of said statutes demonstrates that they can be harmonized. It is the duty of the court to construe statutes as a whole and where possible, to give meaning to the legislative intent of each of them. That can readily be done in this instance. However, the petitioner’s contention that his confinement in the reformatory is contrary to law is meritorious. The fact is, he was convicted of the crime of first degree manslaughter and was properly sentenced by the Honorable S. J. Clendinning, to 20 years in the penitentiary. Thus, he falls within the statutory classification of those persons whom the Legislature defined as subject to be confined in the penitentiary at McAlester. Moreover, the petitioner is not eligible to confinement in the State Beformatory since he is a repeat violator, which makes him ineligible under the provisions of Title 57 O. S. A. § 105. There is no discretion granted to either the courts or the State Board of Public Affairs as to the place of confinement of convicts, such as the petitioner. The statutes clearly classify him as a subject for confinement in the penitentiary. The State Board of Public Affairs, in transferring the petitioner from the State Penitentiary at McAlester to the State Reformatory at Granite, acted beyond the scope of the discretionary power conferred upon it by the statutes.

Both the courts and the State Board of Public Affairs are bound by the statutes as written by the Legislature. It is not within the power of either to give meaning to them, other than that clearly expressed or necessarily implied. In this opinion, we have endeavored to give meaning to the legislative intent and harmonize the statutes. Of course, in the event latitude is desirable, in the handling of prisoners, recourse may be had to the Legislature to obtain it. It is not ours to confer by strained interpretation.

For the foregoing reasons, the order of transfer, made by the State Board of Public Affairs on December 23, 1946, transferring the petitioner from the penitentiary at McAlester to the reformatory at Granite, is void. The writ must therefore be granted, with directions to the Oklahoma State Board of Public Affairs that the petitioner, Alvin Neighbors, be returned to the Oklahoma State Penitentiary at McAlester; to there complete the service of the sentence which he is now serving, without prejudice to the petitioner’s right to credit, upon the sentence under which he is now confined, for the time he spent in the State Reformatory at Granite. It is so ordered.

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

      Board of Prison Control is abolished and its duties are transferred to the State Board of Public Affairs by § 143, this Title.


text:
    Ex parte TOM BURK.
    No. A-10942.
    Nov. 19, 1947.
    (187 P. 2d 252.)
    Guy L. Andrews and George L. Hill, both of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Wayne Russell, Go. Atty., Bob Perdue, and Jack Bradley, all of Wilbur-ton, for respondent.
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Tom Burk, also known as Tommie Burk, for the purpose of being admitted to bail upon a charge of murder, now pending against him in the district court of Latimer county.

The verified petition alleges that the petitioner is now confined in the county jail of Latimer county, pursuant to a commitment issued by a justice of peace of Latimer county, ordering the defendant to await trial in the district court on a charge of murder. The petition further alleges that on September IT, 1917, the petitioner filed his application to be admitted to bail in the district court of Latimer county, a hearing was had on said application at which time the petitioner testified as to all matters and things within his knowledge concerning the death of Lawrence Riley, and that neither at the preliminary hearing, nor at the hearing before the district court, did the state introduce any evidence to connect the defendant in any manner whatsoever with the death of the said Lawrence Riley, but that the district court of Latimer county without any justification in the facts or the law refused to admit him to bail. A transcript of the evidence taken at the preliminary hearing, and at the hearing before the district court on the application for bail, was filed with the petition as a part thereof.

A rule to show cause was issued and a return filed by the sheriff of Latimer county in which he stated that he was holding the petitioner pursuant to the commitment of the justice of peace of Latimer county on a charge of murder.

At the hearing before this court, the evidence showed that on August 23, 1917, a criminal complaint was filed against one Leo Frey, charging him with a crime of murder allegedly committed upon one Lawrence Riley, on that day. At the same time an order was made holding the petitioner, Tommie Burk, as a material witness and his bond was fixed in the sum of $1,000, to appear on the date of the preliminary examination to testify as a witness for the state in the prosecution of the said Leo Prey. Subsequently, on September 2, 1947, the county attorney amended the complaint filed against Leo Prey, by adding the name of the petitioner, Tommie Burk, as a co-defendant on said charge of murder. A preliminary examination was held on September 9, 1947, and the petitioner, Tommie Burk, • as well as the codefendant, Leo Prey, were ordered held for trial on said charge of murder to be filed in the district court of Latimer county.

The proof showed that one Lawrence Biley and Leo Prey had an altercation on the night of August 22, 1947, during which altercation Leo Prey stabbed the said Lawrence Biley in the leg with his pocketknife severing an artery, which caused the said Lawrence Biley to bleed to death several minutes later. We shall not comment upon the evidence other than to say that in so far as it connects the petitioner, Tommie Burk, with the commission of the crime of murder, the evidence that was presented to this court fails to show that the petitioner, Burk, was involved in the altercation between Prey and Biley.

Under the evidence of the state, there was very little, if anything, which justified the justice of peace in making an order holding the defendant, Tommie Burk, for trial. He was an eyewitness and very probably should have been continued under bond as a material witness for the state. After a consideration of the record, this court at the time of the hearing made an order that the petitioner, Burk, be admitted to bail in the sum of $1,500.

It is therefore ordered that petitioner be admitted to bail in the sum of $1,500, said bond to be conditioned as provided by law, to be approved by the court clerk of Latimer county; that when said bond is given and approved by the court clerk of said county that petitioner be discharged from custody.

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


author: JONES, P. J.

text:
    Ex parte LEO FREY.
    No. A-10950.
    Nov. 19, 1947.
    (187 P. 2d 253.)
    M. O. Counts, of Hartsborne, and Clint Braden, of Wilburton, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Wayne Russell, Co. Atty., Bob Perdue and Jack Bradley, all of Wilburton, for respondent.
   JONES, P. J.

This is a companion case to the case of Ex parte Burk, 85 Okla. Cr. 195, 187 P. 2d 252, in which the petitioner, Leo Frey, seeks to be admitted to bail upon a murder charge pending against him in Latimer county.

The petitioner, Leo Frey, testified at length concerning the altercation which resulted in the death of Lawrence Riley. It is his contention that the proof of guilt is not evident, nor the presumption great that he is guilty of murder. The undisputed facts as shown by the evidence at the preliminary examination and before this court show that the deceased and the petitioner, Leo Frey, were friends and had been drinking heavily the day of the alleged homicide. They had a fuss in one of the beer taverns over a woman, but the argument subsided and nothing-further was said or done until later that evening.

Later that night while traveling in a truck together, Frey and the deceased, Lawrence Riley, had another argument ending in a fight in which Frey stuck his pocket knife into the deceased’s leg which severed an artery, causing him to bleed to death a short while later. Frey testified that Riley started the fight with him and that he cut him on the leg with his knife without intending to cause him serious bodily injury, but solely to protect himself from the deceased, who was attempting to assault him.

Without commenting on the evidence, it is our conclusion that the petitioner has sustained the burden of showing that the proof of his guilt of murder is not evident, nor the presumption thereof great, and that petitioner should be admitted to bail in the reasonable sum of $10,000.

It is therefore ordered that the petitioner be admitted to bail in the sum of $10,000, said bond to be conditimed as provided by law, to be approved by tbe court clerk of Latimer county; and that when said bond is given and approved by tbe court clerk of said county that petitioner be discharged from custody.

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


author: BAREFOOT, P. J.

text:
    MILO FOYIL v. STATE.
    No. A-10741.
    Nov. 19, 1947.
    (187 P. 2d 254.)

      J. W. Bashore, of Yinita, and Ralph Rawlings, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Frank L. Haymes, Co. Atty., of Yinita, for defendant in error.
   BAREFOOT, P. J.

Defendant, Milo Foyil, was charged in the district court of Craig county with the crime of embezzlement; was tried, convicted and sentenced to serve a term of four years in the State Penitentiary, and has appealed.

The defendant was employed as an appraiser for the Commissioners of the Land Office of the State of Oklaliorna. He was charged in the information with the embezzlement of $1,306.54 of the funds belonging to said Commissioners.

The first assignment of error presents a question as to the section of the statute under which defendant was prosecuted and found guilty. It is contended by the defendant that he was charged in the information under Tit. 21 O. S. 1941 § 341, which is as follows:

“Every public officer of the State or any county, city, town, or member or officer of the Legislature, and every deputy or clerk of any such officer and every other person receiving any money or other thing of value on behalf of or for account of this State or any department of the government of this State or any bureau or fund created by law and in which this State or the people thereof, are directly or indirectly interested, who either:
“First: Appropriates to his own use, or to the use of any person not entitled thereto, without authority of law, any money or anything of value received by him as such officer, clerk, or deputy, or otherwise, on behalf of this State, or any subdivision of this State, or the people thereof, or in which they are interested; or,
“Second: Receives, directly or indirectly, any interest, profit or perquisites, arising from the use or loan of public funds in his hands or money to be raised through his agency for State, city, town, district, or any county purposes; or
“Third: Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to any moneys so received by him, on behalf of the State, city, town, district or county, or the people thereof, or in which they are interested; or
“Fourth: Fraudulently alters, falsifies, cancels, destroys or obliterates any such account; or
“Fifth: Wilfully omits or refuses to pay over to the State, city, town, district or county, or their officers or agents authorized by law to receive the same, any money or interest, profit or perquisites arising therefrom, received by him under any duty imposed by law so to pay over the same, shall upon conviction thereof, be deemed guilty of a felony and shall be punished by a fine of not to exceed five hundred dollars, and by imprisonment in the penitentiary for a term of not less than one nor more than twenty years, and in addition thereto shall be disqualified to hold office in this State, and the court shall issue an order of such forfeiture, and should appeal be taken from the judgment of the court, the defendant may, in the discretion of the court, stand suspended from such office until such cause is finally determined.”

It is further contended that the court instructed the jury under Tit. 64 O. S. 1941 § 114, which provides:

“Any employee of the Commissioners of the Land Office who shall be guilty of embezzling any of the funds or monies of the Commissioners of the Land Office shall be punished by confinement in the State Penitentiary not exceeding five years, and, in addition thereto it is hereby made the mandatory duty of the Commissioners of the Land Office to immediately discharge any such employee upon the discovery of the Act or Acts of embezzlement.”

It will be noted that the first section quoted provides for a fine of not to exceed $500, and imprisonment in the State Penitentiary for a term of not less than one nor more than 20 years; while the second section fixes the punishment at confinement in the penitentiary for a term not to exceed five years, and the immediate discharge of such employee, upon the discovery of such act of embezzlement.

The information in the instant case charged:

“* * that Milo Foyil, did in Craig County, and in the State of Oklahoma, on or about the 15th day of November, in the year of our Lord One Thousand Nine Hundred and Forty-four, and anterior to the presentment hereof, commit the crime of embezzlement in the manner and form as follows, to-wit: That the said Milo Foyil, in the county and State aforesaid, on the 15th day of November, 1944, did knowingly, wilfully, unlawfully, wrongfully, fraudulently and feloniously commit the crime of embezzlement as follows, to-wit: That the said Milo Foyil then and there being the agent of and employed by the Commissioners of Land Office, of the State of Oklahoma, and while acting as such agent and employee was charged and entrusted with the collection, receipt, safekeeping and transmitting certain public money and funds belonging to said Commissioners of Land Office, a department of the State of Oklahoma, created by law, in which the people of the State of Oklahoma are directly interested, and the said Milo Foyil, while acting as such agent and employee as aforesaid did then and there receive, collect and have and hold in his possession and under his control by virtue of said agency and employment certain public money and funds belonging to the Commissioners of Land Office of the State of Oklahoma, and funds in which the State of Oklahoma, and the people thereof are directly interested in the sum of $1,306.54, and the said Milo Foyil, being then and there being charged and entrusted with said money and funds as aforesaid, did, then and there without authority of law, and not in the due and lawful execution of his trust as such agent and employee as aforesaid, did wilfully, unlawfully, wrongfully, fraudulently and feloniously convert and appropriate to his own use and benefit, and to a use and purpose not in the lawful execution of his trust, the said sum of $1,306.54, of the value of $1,306.-54, good and lawful money of the United States of America, with the wilful, unlawful, fraudulent and felonious intent on the part of him the said Milo Foyil, to embezzle the said sum of money contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

We have carefully examined and considered this information, and have reached the conclusion that it was sufficient on its face to charge a crime under either of the sections of the statute above quoted. The county attorney had the right under the law and the information to prosecute the defendant under either of the statutes. This conclusion is sustained by the case of Krause v. State, 75 Okla. Cr. 381, 132 P. 2d 179, 181. It is there said:

“The indictment properly charged an offense under either Section 2495, supra, or Section 7761, supra (1931, Tit. 21 O. S. 1941 § 341, Tit. 19 O. S. 1941 § 641), and the state could elect to maintain its prosecution under either of said statutes. In Hays v. State, supra (22 Okla. Cr. 99, 210 P. 728) it is stated:
“ ‘Where two statutes of the same class make an offense punishable in different ways, an accused may be proceeded against and punished under either of such statutes.’
“In the absence of a motion by the defendant to require the prosecution to elect under which statute he was maintaining the prosecution, it was not error for the court to construe the indictment as being filed under section 2195, supra, and proceed accordingly.”

See, also, Hays v. State, cited above.

In 42 C. J. S., Indictments and Informations, § 185, it is said:

“The prosecuting attorney is not required to state at the trial the particular section of the Code under which accused is being tried where the offenses or acts with which accused is charged are fully set out.” Citing: State v. Newman, 34 Mont. 434, 87 P. 462; People v. Fewkes, 214 Cal. 142, 4 P. 2d 538; People v. Fremont, 47 Cal. App. 2d 341, 117 P. 2d 891; People v. Scott, 66 Cal. App. 200, 225 P. 767.

In State v. Leonard, 56 Wash. 83, 105 P. 163, 165, 21 Ann. Cas. 69, it is said:

“It is also urged that, inasmuch as this information might have been filed under any one of several sections of the Code, viz., 7119, 7123, 1606, and 7213, it was error not to require the prosecuting attorney to elect and designate under which statute he would proceed. It makes no difference to the appellant that the penalty is different in the different sections. What concerns him are the acts with the commission of which he is charged. State v. Isensee, 12 Wash. 254, 40 P. 985.
“But counsel insists that, while the information was probably filed under the provisions of section 1606, the objection to the prosecution under that statute is that there is no analogy between the subject-matter of the statute and the information. But we think the analogy is very strong. Section 1606 provides that ‘any county officer who is paid a salary, who shall fail to pay to the county treasury all sums that shall have come into his hands for fees and charges in his office, or by virtue of his office, whether under the laws of this state or of the United States, shall be deemed to be guilty of embezzlement,’ etc. The information would seem to be drawn exclusively under this section, for it charges the appellant with being a county officer who receives a salary, with receiving money for fees, and for failing to pay the same over to the county treasurer. We hardly see how the information could be any more specific and certain with reference to the requirements of section 1606.”

In the case of Hughes v. State, 7 Okla. Cr. 117, 122 P. 554, 556, it is said:

“No information is insufficient by reason of any imperfection in matter or form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. It is well settled that, where one felony is set out in various ways in different counts to meet diversities in the proof, no election of counts is required. The state may be required to elect upon which count of an indictment or information it will claim conviction only when felonies not of the same character are charged in different counts in the same indictment or information.
“Whether the state should be required to elect upon which count of the information it would stand is in a case of this character in the discretion of the trial court. In this case it was all a question of intent as to whether or not the defendant was guilty of embezzlement of the apples or of the money he derived from their sale and this was for the jury to pass upon under all the proof in the case, and the court very properly left this fact to be determined by the jury under the instructions given.”

See, also, Williams v. United States, 17 Okla. 28, 87 P. 647.

In the instant case, after both parties had announced ready for trial, after the jury had been empaneled and the opening statement made to the jury by the county attorney and one witness had testified, counsel for defendant requested that the defendant be informed under what statute he was being prosecuted. The county attorney answered: “Title 21, Section 341.”

Counsel for defendant then asked that he be furnished with a bill of particulars giving him all the information with reference to the particular items he was charged with having embezzled. This request or motion was overruled.

A motion was then made by defendant to dismiss the action for the reason that the court did not have jurisdiction to try the defendant under Title 21, section 341. The court, after a hearing, overruled this motion.

Counsel for defendant then stated to the court:

“If after the election of the state to proceed under Title 21, section 341, of the 1941 statutes that if, for any reason the prosecution is charged to Title 64, section 114, (defendant) requests that he be given an opportunity of having a preliminary hearing thereunder, or waiving the same.” And the court stated: “Overruled. It is the attitude of the court to formally instruct the jury upon the information and the law governing the trial of this case.” And, continuing: “At the close of all of the evidence and after all parties have rested, the court will formally instruct the jury as to the law of the case under the proper statute.”

From the above statement we do not find that there was prejudicial error in the action of the court. In the first place, this request and action was after the trial had commenced. Much of the action of the court was within the discretion of the trial court. From the authorities above cited, it was not necessary for the county attorney at that time to make an election under which statute the charges were brought. The court, after hearing the evidence in the case, came to the conclusion that Tit. 64 O. S. 1941 § 114 was the applicable statute, and so charged the jury. As above stated, this statute provided for a maximum punishment of five years in the penitentiary, and Tit. 21, § 314, a maximum penalty of 20 years in the penitentiary. The evidence justified a conviction under either of the statutes, and there was no proof lacking on the part of the state to sustain a conviction under either statute. Certainly defendant was not prejudiced, and if any error was committed, it would be justified under the harmless error doctrine so often announced by this court.

Counsel for defendant in his brief states:

“The' writer of this brief feels, that notwithstanding the tendencies of the courts to divest the defendant, of what we used to call technical defenses and to -make it easier to secure convictions; that this defendant never had a chance in a trial of his case.”

We do not find from this record that defendant has been deprived of any right by technicalities. This court in recent years has been unusually careful in not deciding cases by the application of technicalities, and has applied this rule both to the state and the defendant. No appeal has been dismissed by this court by reason of a technical defect unless it affected-the jurisdiction of the court. The evidence disclosed that this defendant had been employed as an “appraiser” for the Commissioners of the Land Office of this State, whose duty it is to administer and protect the funds of the school children of this state. It was defendant’s duty under the law to rent and collect rents from lands owned by the Commission. He was furnished with a book of blank receipts, and it was his duty when money, checks or drafts were received by him from those who had leased lands, to prepare three receipts, and to give one to the party from whom he had received the money or check; one was to be sent immediately to the Commissioners of the Land Office, and one was to be retained by defendant. It was his duty to immediately send any money, checks or drafts to the treasurer of the Commissioners of the Land Office. Numerous witnesses testified to the payment of money and checks to defendant over a number of years in payment of lease money, and receipts were exhibited showing payment of this money, or the checks, to defendant; and the record reveals that this money, in an amount of approximately $1,306.54, was never sent to the Commissioners of the Land Office, but was appropriated by the defendant to his own use and benefit. Many of these payments had been made to defendant long before the filing of the information in this case. The record discloses that defendant had at different times given different receipts than those furnished him by the Commissioners, and this was not in compliance with the rules and regulations of the Department. In many instances, the receipts were not sent by defendant to the office of the Commissioners. The original books of the Commission were exhibited and introduced in evidence, and an auditor from the office of the State Examiner and Inspector testified and submitted as evidence a complete audit which showed the defalcation of defendant, as above stated.

Just as the trial commenced, counsel for ■ defendant exhibited several personal checks from a number of parties and tendered the checks to the county attorney. These checks were not offered in evidence, and they were not in an amount nearly sufficient to cover the amount the evidence revealed had been appropriated by defendant to his own use and benefit. The only effect these checks could have had, if introduced, would have been for the consideration of the jury in fixing the amount of punishment to be given defendant.

It is provided by Tit. 21 O. S. 1941 § 1461:

“Whenever it is made to appear that prior to any information laid before a magistrate charging the commission of embezzlement, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been embezzled, or any part thereof, such is not a ground of defense to the indictment, but it authorizes the court to mitigate punishment in its discretion.”

When the state rested its case, the defendant offered a number of witnesses as to his good character and reputation. This was proper. He did not take the witness stand to deny or explain any of the evidence. This was his right under the law. The jury of his home county considered all of the testimony, and returned a verdict of guilty. This verdict, and the judgment and sentence rendered thereon, will not be set aside where the evidence was sufficient to sustain the same, as it was in this case. Abernathy v. State, 69 Okla. Cr. 142, 101 P. 2d 634; Lyon v. State, 68 Okla. Cr. 396, 100 P. 2d 287.

In the case of Miller v. State, 75 Okla. Cr. 428, 133 P. 2d 223, recently decided by this court, we passed upon the question of one being charged under one statute, and the court instructing the jury under another statute. The distinction between that case and the one here under consideration is that in the Miller case the statute under which the court instructed the jury provided for a greater degree of punishment than the one under which the information was drawn, while in the instant case, just the reverse is true. It may be readily seen that the instruction in the Miller case would be prejudicial to the defendant, and would not come within the rule of harmless error. In the Miller case, the rule is also followed that “where there exists a statute making a specific act criminal, one should be charged under this statute and not under the terms of a general statute, which provides for a greater punishment.” But the court further states:

“This does not mean that one may not be charged under different statutes when both are applicable, and the state has the right to elect under which it may proceed.” Griswold v. State, 23 Okla. Cr. 136, 212 P. 1018.

In the instant case both of the statutes above quoted were special statutes, as distinguished from the general embezzlement statute. Hays v. State, supra.

The contention of defendant that under the terms of the information it was necessary that the state prove that defendant had embezzled the sum of $1,306.54 in a lump sum cannot be sustained.

In the case of State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093, 1094, it is said:

“In this regard section 7437 (Tit. 69 O. S. 1941 § 263) is broader and more comprehensive than section 3213 (Tit. 22 O. S. 1941 § 1163). The thing prohibited by the provisions of section 7437 is not the misappropriation of any particular item or fund, but the misappropriation of any and all funds, in violation of his trust as a public officer. In this case the embezzlement charged, in the amount of $5,845.61, was probably made up of a multitude of items derived from various sources. But one offense is stated, and it is not necessary in such a ease to plead specifically a description of the individual items composing the aggregate. The manifest purpose of this statute was to make a blanket provision covering any or all such delinquencies, constituting but one offense. Otherwise there is no excuse for this statute. If each item constituted a separate offense, to be separately pleaded and proved, then the provisions of section 2671, R. L. 1910 (Tit. 21 O. S. 1941 § 1452), a section of the general Penal Code, would have been sufficient. The difficulty and sometimes utter impossibility of making specific allegations and proof in such cases was doubtless recognized by the Legislature, which enacted section 7437 to meet this apparent defect inherent in the general embezzlement statutes of the Criminal Code.”

The reasoning in this case has special application to the facts here presented. See, also, Abernathy v. State, supra; Lyon v. State, supra; Griswold v. State, supra; Casselman v. State, 58 Okla. Cr. 371, 54 P. 2d 678.

We have carefully examined the record with reference to defendant’s contention that incompetent and improper evidence was admitted. This has special reference to the testimony of the auditor from the office of the State Examiner and Inspector, and the records offered in evidence. We do not find any error justifying a reversal of this case. The original records from the office of the Commissioners of the Land Office were offered in evidence, and the auditor testified as to his examination and inspection of those books and explained them to the jury from the original entries in the records of the Commission. It is unnecessary to go into detailed discussion of this evidence. We cite the cases of Hutchman v. State, 61 Okla. Cr. 117, 66 P. 2d 99, and Hays v. State, supra, which discuss this proposition more fully.

This defendant had a fair and impartial trial. The record here reveals that one who had been entrusted with the responsibility of collecting the funds belonging to the school children of the state failed in this duty and responsibility and not only failed to protect these funds, but appropriated them to his own use and benefit. The laws of this state provide, as above noted, that one who violates this trust and duty shall be punished.

The judgment of the district court of Craig county is affirmed.

JONES and BRETT, JJ., concur.


text:
    SIMON SCOTT v. STATE.
    No. A-10761.
    Oct. 29, 1947.
    Rehearing Denied Nov. 26, 1947.
    (186 P. 2d 336.)

      J. G. Clift, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Simon Scott, was charged by information filed in the district court of Stephens county, Oklahoma, with the crime of abduction of a female under the age of 15 years, a fourth and subsequent offense, was tried, convicted and sentenced to serve seven years imprisonment in the State Penitentiary and has appealed.

The information filed against the defendant, omitting formal parts and also omitting that part of the information which alleges the former convictions, is as follows:

“That thereafter to-wit; on the 5th day of June, 1945, the said Simon Scott, alias Lester Scott, did commit the crime of Abduction of a Female Under the Age of Fifteen years, A Fourth and Subsequent Offense, in the manner and form as follows; to wit: That the said Simon Scott, Alias Lester Scott, late of Stephens County, Oklahoma and within the jurisdiction of this Court, in the County and State aforesaid, did then and there unlawfully, wilfully, wrongfully and feloniously, take and entice away one Neva Rosé Anglley, a female under the age of fifteen years, to-wit; of the age of Fourteen years; from the custody of her mother, Pauline Anglley, she, Pauline Anglley having the legal charge, custody and control of the person of the said Neva Rose Anglley, for the purpose of marriage, or concubinage and for the purpose of having illicit sexual intercourse with the said Neva Rose Anglley, by and on the part of him the said Simon Scott, alias Lester Scott; contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

On November 5, 1945, the district court entered an ' order requiring all defendants in criminal cases to appear in said court on Monday, November 19, 1945, at 9:00 a.m. for arraignment. In the same order the instant case against the defendant was set for trial on Tuesday, November 20, 1945. On November 17, 1945, the defendant appeared before the court with his counsel and on his motion, according to the minutes of the court clerk, the trial of his case was continued to November 30, 1945. The defendant did not appear for arraignment on November 19, 1945, as directed by the court.

On November 30, 1945, the case came on for trial and the following proceedings occurred according to the record:

“By Mr. Clift: Comes now the defendant and shows to the court that there has been no arraignment on the charge in this cause and asks the court for 24 hours in which to plead to the information. By Mr. Marshall: Comes now the county attorney and shows the court that the setting of this cause required the defendant to be here on the 19th of November for arraignment; that the defendant appeared before the court on the 16th day of November, 1945, with counsel, and asked for further time in which to prepare for trial, and did not appear on the 19th as required by- the order of court for arraignment, and therefore is not entitled to further time to be arraigned. By the Court: Let the motion of the defendant be denied. By Mr. Clift: Exceptions. Comes now the defendant, after, arraignment herein and asks for time in which to plead to the information. By the Court: Denied. By Mr. Clift: Exceptions. By the Court: What is the plea? By Mr. Clift: I plead my motion and demurrer. Comes now the defendant and moves the court to strike from the information herein the charge of more than one prior conviction of the defendant, and also the allegation in the information that the defendant abducted the female for the purpose of illicit sexual intercourse. The defendant further moves the court to require the state to elect whether the purpose of the abduction was for marriage or concubinage-By the Court: Overruled. By Mr. Clift: Exceptions. By the Court: Let the record show the defendant refused to enter a plea, and a plea of not guilty is entered for the defendant by the court.”

It is first contended by the defendant that the trial court committed reversible error in refusing to allow him 24 hours time in which to plead to the information after he was arraigned.

It is provided by statute:

“If on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.” 22 O. S. 1941 § 491.
“If the defendant do not require time, as provided in the last section, or if he do, then on the next day, or at such further day as the court may have allowed him, he may, in answer to the arraignment, either move the court to set aside the indictment, or information or may demur or plead thereto.” 22 O. S. 1941 § 492.

In the case of Wood v. State, 4 Okla. Cr. 436, 112 P. 11, 12, 45 L. R. A., N. S., 673, it is stated:

“Our statutes provide for an arraignment, and specifically direct what should be done upon arraignment, and thereby shoAV Avhy an arraignment is required. They provide that if the defendant be without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and he must be asked if he desires the aid of counsel. If- he desires and is unable to employ counsel, the court is required to assign counsel to defend him. He must also be asked Avhen he is arraigned if the name by which he is indicted is his true name. He must then declare his true name, or be proceeded against in the name of the indictment. If, on arraignment, the defendant requires it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the arraignment. In answering the arraignment the defendant may either move the court to set aside the indictment or may demur or plead thereto. * * * It is seen from this that the object and purpose of an arraignment is to obtain issues either of fact or of law for trial and to inform the defendant of his right to be represented by counsel, either of his own choice or under appointment from the court; and also to inform him of the precise offense charged against him in order that he may be able to prepare for trial, and to enable the defendant to obtain such time as will be necessary to make such preparation. These are the purposes for which a defendant is arraigned and are the substantial rights which an arraignment is intended to secure to a defendant. * * * Therefore, under our statute, which requires this court to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of a defendant, this conviction cannot be set aside because the record fails to show that the defendant was arraigned, when it does show that all of the rights secured by an arraignment were exercised by him. Where there is no injury the law allows no remedy.”

The case of Ross v. State, 78 Okla. Cr. 293, 147 P. 2d 797, 798, presented facts which are similar to those here presented. In that case, the defendant was temporarily out of the state and did not appear on the date set for arraignment. Upon defendant’s arraignment, the day before his case was set for trial, his counsel filed a demurrer to the information and when it was overruled asked for 24 hours time in which to plead further, which was denied, and defendant was ordered to trial the next day. The law of that case-as shown by the syllabus, reads:

“Where defendant does not appear on date set for arraignment because of his temporary absence from state which prevented his counsel from notifying him, but is arraigned the day before date of trial, court did not err in proceeding to trial where no showing is made that defendant was prejudiced.”

The record discloses that counsel dictated a motion to strike certain allegations from the information at the time he was arraigned. In addition, he had prepared a motion to quash and set aside the information and a demurrer which were presented to the court. While the record is not exactly clear as to whether the motion to quash the information and the demurrer were filed before or after the arraignment of the defendant, it would seem to indicate that they were on file at the time defendant was arraigned. Whether they had been filed before arraignment is disputed, but there is no dispute that these pleadings had been prepared and counsel was ready to present them at the time of arraignment.

In the case of Price v. State, 53 Okla. Cr. 353, 12 P. 2d 249, 250, this court said:

“Motion to set aside an information or demurrer thereto are such pleas as may be entered on an arraignment, and are such as defendant may be allowed 24 hours in which to file. Sections 2595 and 2596, C. O. S. 1921 [22 O. S. 1941 §§ 491, 492], After such pleadings are filed, there is no necessity to grant another twenty-four hours for a plea of not guilty. Section 2602, C. O. S. 1921; section 2615, C. O. S. 1921 [22 O. S. 1941 §§ 498, 511]. Interposing a motion to quash or a demurrer to the information constitutes a waiver of the right to have twenty-four hours additional in which to plead. Schlumbohm v. State, 5 Okla. Cr. 36, 113 P. 235; Clark v. State, 29 Okla. Cr. 243, 232 P. 953.”

It is established law that the defendant’s right to be arraigned on the indictment or information filed against him may be waived. Price v. State, supra; Thomas v. State, 17 Okla. Cr. 550, 190 P. 711; Brown v. State, 33 Okla. Cr. 217, 242 P. 1065.

It is our conclusion that when defendant appeared in court with his counsel on November 17, and by his motion secured a continuance of the trial of his case from the date it was set on November 20, 1945, to November 30, 1945, and then did not appear on November 19, 1945, which was the day he had been ordered to appear for arraignment that such affirmative action on his part constituted a waiver of his right to demand additional time to plead to the information. It would appear that the court was lenient with the accused when he did not order the bond forfeited on account of his failure to appear for arraignment on November 19th. The court would have been justified in treating the appearance of defendant and his counsel on November 17th, and their request that the case be set for trial on the specific date of November 30th, and his nonappearance on November 19th, as a waiver of formal arraignment. Furthermore, the contention presented fails to show where the defendant was prejudiced in any particular by reason of the action that was taken.

It is next contended that the court erred in overruling the demurrer to the information. It is urged that the information is duplicitous because of the allegation that the abduction of the female from the custody of her mother was “for the purpose of marriage or concubinage, and for the purpose of having illicit sexual intercourse with the said Neva Rose Anglley.”

The statute under which this prosecution was instituted provides:

“Every person who takes away any female under the age of 15 years, from her father, mother, guardian or other person having the legal charge of her person, without their consent, for the purpose of marriage or concubinage * * *21 O. S. 1941 § 1119.

It is to be noted that the abduction of a female under said statute is punishable only when the abduction is for the purpose of marriage or concubinage and does not cover the allegation in the information “and for the purpose of having illicit sexual intercourse.”

In Black’s Law Dictionary, Third Edition, concubinage is defined as:

“Living together and having sexual relations as husband and wife; State v. Tucker, 72 Kan. 481, 84 P. 126. The words concubinage and prostitution have no common law meaning, but in their popular sense cover all cases of lewd intercourse; People v. Cummons, 56 Mich. 544, 23 N. W. 215.”

22 O. S. 1941 § 404, provides in part:

“* * * Where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

The proof of the state established that the defendant took Neva Bose Anglley away from her parents without their knowledge or consent. That they were gone for several days and upon their return the defendant claimed that they had been married. However, .under the law of Oklahoma, 43 O. S. 1941 § 3, it was impossible for the defendant to consummate a marriage with the girl because of her immature age and there was no contention at the trial that defendant had legally married the girl. In this kind of case the proof of the reason for the abduction of the minor child, as to whether it was for marriage, or concubinage, 'is generally difficult to establish and will generally rest on circumstantial evidence. The proof, however, must show that the abduction was either for the purpose of marriage, or concubinage or both, and if there is no evidence to show that it is for either of these purposes, there would be lacking one of the essential elements of guilt. In this case the defendant might have had the purpose of marrying the minor child, but because of her age could not legally do so and because of that he intended to live with her as his concubine.

In Snoddy v. State, 30 Okla. Cr. 235, 235 P. 248, it is held:

“Where an offense may be committed by the use of different means, the means or methods may be alleged in the alternative in the same count.”

In Bruster v. State, 40 Okla. Cr. 25, 266 P. 486, 487, it is stated:

“It is next argued that the court should have required the state to elect on which part of the information it would stand. The information charges the homicide to have been committed by shooting with a pistol and by striking with an ax. Defendant insists that the court should have limited the proof to either one or the other of the means alleged. This contention is wholly untenable. Section 2558, Comp. St. 1921 [22 O. S. 1941 § 404], provides :
“ And where the offense may be committed by the use of different meahs, the means may be alleged in the alternative in the same count.”
“The evidence discloses that the death of deceased was caused by shooting with a pistol and by a blow on the head from an ax. It was proper to charge the crime to have been committed by means of each of the weapons named, and, under the charge, proof might be made of the death by either or both of such means alleged. It would have been error to have required the state to elect.”

In the case of Huckleberry v. State, 64 Okla. Cr. 396, 81 P. 2d 493, 495, we find the following applicable language :

“In cases of this character, the true test is, whether the act charges and the statute defines more than one crime, or whether it defines a single crime which may be committed in a number of different ways. Whether there is a readily perceived connection between the things charged. If there is no reasonable connection one with the other, and they are disconnected' transactions, the information is duplicitous, otherwise it is not. State v. Hennessy, 114 Wash. 351, 195 P. 211. Applying this test to the case at bar, it will be readily seen that only a single crime is here charged which may be accomplished in different ways, and there is a readily perceived connection between the things charged. Under the authorities and the facts in this case the allegation that ‘she was prevented from resistance by threats of immediate and great bodily harm’ might be considered as surplusage. State v. Morrison, 46 Mont. 84, 125 P. 649; Sowers v. Territory, 6 Okla. 436, 50 P. 257; Wines v. State, 7 Okla. Cr. 450, 124 P. 466; Adams v. State, 5 Okla. Cr. 347, 348, 114 P. 347; 31 C. J. 764; Dobbins v. State, 21 Okla. Cr. 403, 208 P. 1056.”

The offense charged here was abduction of a female. 'Since the girl who was involved was only 14 years of age, the defendant could not have married her if he had wished, and the county attorney could have omitted the question of intended marriage from the allegations of the information. It does charge in the alternative two means by which the felony of the abduction of a female under the age of 15 years of age could be committed, but under the provisions of the statute, 22 O. S. 1941 § 404, supra, the information will be upheld.

It is next contended that the trial court erred in not striking from the information all of .the allegations of the information which charged more than one prior conviction of the defendant. The information charged the defendant with prior conviction of three felonies.

This contention of defendant has heretofore been decided adversely to him in the case of Solomon v. State, 79 Okla. Cr. 93, 151 P. 2d 944, 945, wherein this court stated:

“Under 21 Oklahoma Statutes 1941 § 51, it is proper to charge in the information one or more offenses of prior conviction, and offer proof to sustain the same.”

It is claimed that the court erred in giving instruction number four which reads as follows:

“You are instructed, gentlemen, that under the laws of this state, a girl 14 years of age cannot legally marry, either with or without the consent of her parents, and any purported marriage of the parties in this case would be null and void.”

The defendant offered no evidence in his defense, but the testimony of the state showed that the defendant stated at the time of his arrest that he and the girl had married. The mother in her testimony said that her daughter had exhibited a marriage certificate, but that she did not know what had happened to it. Since as heretofore noted the abduction of a female to be criminal must be for the purpose of marriage, or concubinage, and without further explanation by the court in its instruction, the jury might have concluded that since marriage was accomplished no crime had been committed.

In Yeats v. State, 30 Okla. Cr. 320, 236 P. 62, this court held that an attempted common law marriage of a man to a girl under the age of 15 years is void and constitutes no defense to a prosecution for the abduction of the female child.

The trial court in instructing the jury as to the nature of the charge against him as stated in the information repeated the allegations set forth in the information, including the phrase, “and for the purpose of having illicit sexual intercourse with said Neva Rose Anglley” and it is contended that this was an erroneous instruction. The instruction complained of merely repeated the allegations of the information. Instruction number three defined the element of the offense of the crime charged against the defendant in the language of the statute. The phrase in question was surplusage in the information and could have been omitted therefrom without affecting the validity of the charge. However,, the instruction complained of does not authorize the jury to convict if they find that the defendant abducted the female for the purpose of having illicit sexual relations with her. We do not think the instructions when considered together, including the one in question, were confusing to the jury.

Lastly, it is contended that the court committed error in admitting certain evidence over objection of defendant. This assignment is directed to the admission in evidence of the original judgment and sentence pronounced against the defendant on a plea of guilty to a charge of robbery with firearms in Jefferson county, and the original judgment and sentence from the district court of Stephens county, relative to the conviction of defendant in Stephens county for the crime of burglary.

When these instruments were offered in evidence, objection was made for the reason that they were not the best evidence.

Counsel rely upon 12 O. S. 1941 § 701, which provides :

“All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.”

There is cited to support this contention the quotation from 22 C. J. 798:

“* * * when a formal or technical judgment roll has been made up, however it and not the original papers or docket entries is the legal evidence to establish what the record contains, at least in the absence of evidence that the record has been lost or destroyed.” See, also, 32 C. J. S., Evidence, § 632.

In Oklahoma, however, it is provided by statute that original papers required to be kept by the clerk of the district court, which may be recorded, are admissible as evidence. 12 O. S. 1941 § 502.

The proof of the conviction for larceny of livestock in the distinct court of Grady county did not come within the objection urged to the other two convictions for the reason that the testimony of the court clerk of that county showed that the original files could not be located and she produced and identified certified copies which were made up from the permanent record. In addition to the record evidence there was introduced oral evidence of witnesses who identified the defendant as being the person who had been convicted and served sentences for certain crimes which were described in the information. The exhibits which were admitted in evidence were part of the original files and we think the procedure which was followed was a sufficient compliance with the law to show prior convictions of the defendant in accordance with the allegations set forth in the information. The purpose of having the court clerk copy the instruments into a book provided for that purpose is to maintain a permanent record, as the original judgment or information, or warrant of arrest being on separate sheets of paper and filed loosely in jackets in the clerk’s office might become lost, displaced, or destroyed.'

We have not given a summary of the evidence for the reason that the sufficiency of the evidence to sustain the conviction is not questioned. However, the evidence showed that the defendant had some horses at the fairground, including a race horse named Josephine. That prior to the abduction of Neva, Mrs. Anglley and Neva had gone to the fairgrounds and ridden horses on several occasions, including horses of the defendant. On one occasion the mother had permitted Neva to ride the defendant’s horse in a race. Even though the defendant had a bad background of felony convictions, which was known to all of the parties, the daughter who was abducted became acquainted with the defendant through her mother taking her to the fairgrounds to ride horses. It is apparent from the record that the daughter went to the fairgrounds often without the knowledge of her mother and went horseback riding with the defendant. Neva lacked a few days being 15 years of age at the time of her abduction, but it appears from the record that she was fully matured. There was a purported marriage of the parties. After the marriage, the defendant and the daughter returned to the home of her parents posing as man and wife, by reason of the marriage supposedly performed in Oklahoma county. It was then that the mother of Neva Anglley had the defendant arrested. When all of the facts and circumstances are considered, it appears to us that the sentence is excessive and should be reduced to a term of five years imprisonment in the State Penitentiary.

It is therefore ordered that the judgment and sentence of the district court of Stephens county be modified by reducing the sentence pronounced against the defendant from seven years imprisonment in the State Penitentiary to a term of five years imprisonment in the State Penitentiary, and the judgment and sentence as thus modified is affirmed.

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