source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Ex parte McKINLEY OLDEN.
    No. A-11097.
    Nov. 3, 1948.
    (199 P. 2d 228.)

      Milton Keen, of Clinton, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner, McKinley Olden, complains that he is illegally restrained of his liberty in the Oklahoma State Reformatory at Granite.

In the verified petition, it is alleged:

“That on or about the 25th day of September, 1945, your petitioner was convicted of the offense of Robbery in Cause No. 17258 in the District Court of Oklahoma County, Oklahoma, and was thereupon sentenced to serve a term of seven years in the Oklahoma State Penitentiary at McAlester, Oklahoma; that on or about the 25th day of September, 1945, your petitioner was convicted of the offense of Attempted Burglary in the First Degree in Cause No. 17245 in the District Court of Oklahoma County, Oklahoma and was thereupon sentenced to serve the term of two years in the Oklahoma State Penitentiary at McAlester, Oklahoma; that on or about the 25th day of September, 1945 your petitioner was convicted of the offense of Attempted Burglary in the First Degree in Cause No. 17257 in the District Court of Oklahoma County, Oklahoma and was thereupon sentenced to serve the term of two years in the Oklahoma State Penitentiary at Mc-Alester, Oklahoma; that on or about the 25th day of September, 1945, your petitioner was convicted of the offense of Grand Larceny in the First Degree in Cause No. 17244 in the District Court of Oklahoma County, Oklahoma and was thereupon sentenced to serve the term of two years in the Oklahoma State Penittentiary at Mc-Alester, Oklahoma; that your petitioner was thereafter transported to and was received by the Oklahoma State Penitentiary at McAlester, Oklahoma on the 3rd day of October, 1945. That several months thereafter, the exact day being unknown to your petitioner, he was convicted of the offense of Escape From the Sub-Prison in Cause No. 2572 in the District Court of Atoka County, Oklahoma and was thereupon sentenced to serve a term of two years in the Oklahoma State Penitentiary at Mc-Alester, Oklahoma. That thereafter and just immediately prior to the 31st day of December, 1946, the State Board of Affairs, made an illegal order transferring your petitioner from the Penitentiary at McAlester to said Reformatory at Granite.”

The petitioner contends that under the statutes of Oklahoma and by reason of the judgments and sentences pronounced against him, he being a confirmed criminal, may not be kept at the said Oklahoma State Reformatory, but should be returned to the penitentiary at Mc-Alester.

At the hearing before this court, the facts showed that the petitioner, in addition to having been convicted of the various offenses hereinabove set forth, had served •a term of imprisonment in a United States Penitentiary by reason of a conviction for a felony by a General Court Martial of the Navy.

Petitioner cites and relies as his authority, the case of Ex parte Neighbors, 85 Okla. Cr. 183, 187 P. 2d 276. The Attorney General in his brief asks this court to re: consider the opinion rendered in Ex parte Neighbors, supra, and contends the State Board of Public Affairs, as the administrative agency created by law to handle the custody of prisoners convicted of crime, may make such transfer of prisoners as was made in the instant case under the statutes so as to effectively handle the large prison population of the state.

We assumed original jurisdiction because of the public importance of the question involved and for the reason that the Attorney General contended that considerable confusion had arisen over the administration of the affairs of the two penitentiaries since the decision in Ex parte Neighbors, supra.

It is the contention of the Attorney General that section 105, Tit. 57 O.S. 1941, had been repealed prior to the preparation of the revised code in 1941, and that its inclusion in the 1941 code was erroneous and to treat said section as being in effect was contrary to the decision of this court in the case of Thomas v. State, 83 Okla. Cr. 25, 172 P. 2d 651, wherein it was held that a statute that had been held unconstitutional or repealed was not reenacted or validated by its inclusion in the 1941 code.

To properly understand the question presented, it is necessary to make a complete review of the statutes pertaining to the creation, management, and control of our penal institutions.

By House Bill 715, Session Laws 1907, P. 264, the Legislature established a Board of Control, composed of the Governor, the Attorney General and the President of the Board of Agriculture, who should be vested with authority to arrange for the removal and transfer back to the State of Oklahoma of prisoners from this state who were serving terms in the Kansas State Penitentiary at Lansing, Kansas. By sections 1 and 2 of the act the board was vested with authority to arrange for the custody and imprisonment of such prisoners “at such place or places as said board of control may deem to the best interest of the State.”

In 1909, the Legislature adopted two bills establishing, respectively, the State Reformatory and the State Penitentiary. House Bill 150 established the reformatory. It was introduced on January 18, 1909, and as finally enacted it appears as Article 2, Chapter 31, Session Laws 1909. Section 1, as later revised by the 1910 Code, now appears as Section 281, Title 57 Oklahoma Statutes 1941. As originally enacted this section read:

“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 in the Oklahoma State Reformatory; Provided, the persons between said ages heretofore convicted of crime shall be confined at either the Oklahoma State Reformatory or the State Penitentiary in the discretion of the State Board of Prison Control; and that 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, at 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.”

It is apparent at once that the section begins with two exactly conflicting provisions. One providing that all persons between the ages of 16 and 25 years theretofore convicted should be confined in the reformatory, while the immediately following proviso authorized said prisoners to be confined at either the reformatory or the penitentiary in the discretion of the board of control. The first provision was stricken by the revisers in 1910 and the matter left in the discretion of the board. With reference to all persons between said ages thereafter convicted and whose sentence be not to exceed five years, the discretion was left with the court sentencing such persons to imprisonment. Such continues to be the language as it appears in the 1941 Code. It will thus be noted that the confinement of the persons described in said section was left to the discretion of either the board of control or the court pronouncing the sentence.

Further evidencing the intent of the Legislature to make the place of confinement discretionary, we find that section 4 of the act provides:

“It shall be the duty of the courts of Oklahoma to sentence all persons who shall be convicted of crime and whose punishment is imprisonment, to the Penitentiary at McAlester or to the Oklahoma State Reformatory at Granite, as herein provided, and in the discretion of the court.”

Section 5 of said House Bill 150 provides:

“It shall be the duty of the Board of Control of the State Reformatory when necessary to transfer any prisoners who are now or who may hereafter be under its charge in the State Penitentiary located at McAlester, Oklahoma, to the Oklahoma State Reformatory at Granite, Oklahoma, or from the Oklahoma State Reformatory at Granite, Oklahoma, to the State Penitentiary at MeAles-ter, Oklahoma.”

It thus appears that a final determination as to the place of confinement of prisoners was left to the board of control, no restriction being placed upon the discretion of said board in transferring prisoners from the penitentiary to the reformatory or from the reformatory to the penitentiary. All the authority of the said board of control was later transferred to the State Board of Public Affairs. Tit. 57 O.S. 1941 § 143.

In the same Legislature, House Bill 373 was introduced on February 5, 1909. This bill created the penitentiary at McAlester. It appeared as Article 1, Chapter 31, Session Laws 1909. Section 1 established the penitentiary and provided:

“All persons heretofore or hereafter 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.”

Section 7 of said act provided that all persons theretofore convicted and sentenced to Lansing, Kansas, and not yet removed to Lansing “and all other persons who have heretofore or may be hereafter convicted of any crime whose punishment is by imprisonment in the penitentiary may by order of said Board of Control, be confined in the penitentiary at McAlester, Oklahoma, or such other place in the state as said Board of Control may designate.”

The acts creating these two penal institutions were approved the same day. It would appear from a reading of all the provisions that the Legislature intended to leave in the hands of the board of control the final decision as to the place of confinement of all persons sentenced to a penal institution.

In 1913 the Legislature passed a comprehensive act relating to the control of our penitentiaries which appears as Chapter 217 Session Laws 1913.

In 1915 the Legislature passed an act relating to penal institutions, Chapter 57 Session Laws 1915, which 1915 act was comprehensive and replaced most of the previous acts.

To illustrate that the 1915 act was intended to cover substantially the matter found in the 1913 act, we set forth the two titles to said act:

1913 Act
/An act to define and regulate the penal institutions of the State of Oklahoma; to provide for the transfer of prisoners from the State Penitentiary at Me-Alester to the Oklahoma State Reformatory ; to provide for the transfer of prisoners confined at the Oklahoma State Reformatory to the State Penitentiary; to create a Board of Prison control for said institutions; to create a Board of Pardons; to provide for the appointment of the warden, deputy wardens and such other officers and employees as may be necessary for said institutions; to fix the compensation for the wardens, deputy wardens and other officers and employees for said institutions; repealing sections 1, 2, 3, 4, 5 and 6 of chapter 22, article 1, of the Session Laws of 1907-08; repealing sections 2, 3, 4, 5, 6 and 7, chapter 31, article 1 of the Session Laws of 1909; and declaring an emergency.”
1915 Act
“An Act conferring upon the State Board of Public Affairs additional powers, duties and authority; to define and regulate the penal institutions of the State of Oklahoma; to provide for the transfer of prisoners from the State Penitentiary at McAlester to the Oklahoma State Reformatory at Granite to provide for the transfer of prisoners confined in the Oklahoma State Reformatory to the State Penitentiary; to create the office of Pardon and Parole Officer and stenographer thereto; and providing for their compensation and duties; to provide for the appointment of the Wardens, Deputy Wardens, and such other officers and employees as may be necessary for said institutions ; to fix the compensation for the Wardens, Deputy Wardens, and other officers and employees for said institutions ; and abolishing the Board of Prison Control now provided for, and transferring1 certain of its duties to the State Board of Public Affairs, and declaring an emergency.”

Section 6 of the 1913 act used the following language:

“Said Board of Control may, in their discretion, transfer prisoners from the State Penitentiary at Mc-Alester, Oklahoma, to the Oklahoma State Reformatory at Granite, Oklahoma, and may likewise transfer prisoners from the Oklahoma State Reformatory at Granite, Oklahoma, to the State Penitentiary at McAlester, Oklahoma, when in their judgment it is necessary so to do, to separate the confirmed and incorrigible criminal from those who do not require the restrictions placed around them that the confirmed criminal requires; provided, that the authority to transfer prisoners herein given shall never be used to impair the efficiency of or to destroy either of said penal institutions.”

The 1915 act, section 7, makes no reference to said Section 6, but incorporates the subject matter and in almost identical language vests the same authority in the Board of Affairs.

Section 7 of the 1913 Act
“All persons now convicted, or who 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 terms 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.”
Section 8 of the 1915 Act
“All persons now convicted or who 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 Mc-Alester, or at the Oklahoma State Reformatory, located at Granite.”

Section 7 of the 1913 act now appears as Section 105, Tit. 57 O.S. 1911, and is the statute which is in controversy in the instant case.

However, in the 1915 act, Section 8 was directed to the same matter as Section 7 of the 1913 act. These two sections are set forth to illustrate the intention of the Legislature when they passed the subsequent act in 1915.

The enactment of Section 8 of the 1915 act, supra, re-enacted a portion of the law as set forth in Section 7, but it omitted the words contained in the 1913 law which has created so much difficulty' in the administering of the law and which has caused many developments to arise in the administration of the act which were not foreseen at the time of the rendition of the opinion in Ex parte Neighbors, supra. It appears that the omission of the proviso in Section 7 of the 1913 act when the 1915 act was adopted was deliberate and intentional on the part of the Legislature because such classifications were impractical and under its cases would arise which were almost impossible of classification. The Attorney General has directed our attention to several instances which have arisen where men would plead guilty to various charges and conceal their prior criminal records from the trial court in order to obtain a lesser sentence where sentence was pronounced by the court upon the theory that they were first offenders. When they entered the penitentiary, they stated they had no prior record. Later, after being transferred to the penal institution at Granite, they filed habeas corpus proceedings in the district court of Greer county, contending that they had prior records or were hardened criminals. Some of them presented the contention raised by the petitioner herein, that while serving in the armed forces, they were subjected to court martial and sentenced to serve a term in a Federal penitentiary.

One of the provisos in Section 7 of the 1913 act, which is now Section 105, Tit. 57 O.S. 1941, supra, prohibits the incarceration at Granite of a person who is convicted of assault with intent to kill when the offense was committed in a cruel or inhumane manner. The question arises then as to whether if a defendant pleads guilty to the charge of assault with intent to kill and is sentenced to the Granite institution or later is transferred from the McAlester penitentiary to the Granite institution, does he have the right to come into the district court, or this court, and raise the issue that the crime to which he pleaded guilty was committed in a cruel or inhumane manner? Would this court then be required to take testimony in an effort to determine such question? In our experience on the bench, we have observed that most of the serious crimes that are being committed are by young men from the ages of 18 to 25. Many of these young men are the most vicious criminals that we have today. Most of the time, the trial court does not have the information upon which to make a classification under Section 105, supra. We believe that cases of this sort had been called to the attention of the Legislature in 1915, and that their action in omitting the troublesome words from the 1915 act which were set forth in the 1913 act, and now appearing as section 105, supra, was deliberate and intentional, and for the purpose of avoiding difficult situations that would arise to hamper officials in the administration of the act.

We find further evidence that the Legislature considered that Section 7 of the 1913 act had been repealed by Section 8 of the 1915 act when we read Chapter 211 of the 1917 act. The title to that act reads:

“An Act to amend section 8, 9, and 10, of chapter 57 Session Laws of 1915 relating to penitentiaries the sentencing of prisoners after conviction to serve terms therein and relating to the officers of the penitentiary making this act effective July 1st, 1917.”

The 1917 act of the Legislature was the last act of the Legislature upon the subject matter herein involved. Section 1 of said act which now appears as Section 133, Tit. 57 O.S. 1941, provides:

“All persons now convicted or who may hereafter be convicted, of a felony in this State shall be by the trial judge sentenced to serve such term for which he shall have been convicted or sentenced to the nearest State Penitentiary, the distance to be computed in accordance with the usual traveled route.”

This section seems plain and unambiguous and by its term requires the trial judge to sentence a prisoner to the nearest penitentiary. Probably the Legislature had in mind the expense incurred by counties in the transportation of prisoners to the penal institutions. But, if this section means what it plainly states, it would be unreasonable to read into it exceptions and classifications which would prevent the trial judge from committing the convicted person to the nearest penitentiary.

In the case of In re Application of Jackson et al., 179 Okla. 577, 66 P. 2d 1101, 1103, the Supreme Court of this state said in part:

“The petitioners do not contend that there is any conflict between the 1909 and the 1915 laws, but they contend that the later repeals the former by substitution, in that the 1915 law completely covers the subject of the conservation of natural gas. We think this reasoning is' sound. Both acts were intended to prevent waste of natural gas. The 1909 act referred to waste by escape, requiring it to be shut in and confined until it shall be ‘utilized for lights, fuel or power purposes.’ The 1915 act refers to waste by (a) escape into the open air, (b) drowning with water of the gas stratum, (c) underground waste, (d) permitting a well to wastefully burn, and (e) wasteful utilization of such gas; and section 3 (52 Okla. St. Ann. § 238) requires that ‘such gas shall be confined to its original stratum until such time as the same can be produced and utilized without waste.’
“It is well settled that where two legislative acts are not in express terms repugnant, yet, if the later act covers the whole subject of the first and embraces new provisions plainly showing that it was intended as a substitute for the first act, it will be construed to repeal the first act by implication, although it makes no reference to it. Hine v. Gokey, 1909, 23 Okla. 870, 102 P. 77; Board of Education v. McCracken, 1917, 62 Okla. 173, 162 P. 782; 25 R.C.L. 915; City of Ardmore v. Chicago, R. I. & P. R. Co., 1935, 172 Okla. 373, 45 P. 2d 540. It does not follow, as contended by appellants, that if section 1 of the 1909 act (52 Okla. St. Ann. § 291) was so repealed by the act of the 1915, the remaining sections were also repealed. For the repeal only affects those shown to have been substituted by later and more comprehensive provisions and the remaining provisions can be construed in harmony to effect the intention of the Legislature on the subject of conservation.”

In Brockman v. Board of Directors, 188 Ark. 396, 66 S. W. 2d 619, 621, the court said in part:

“ ‘There are two ways of repealing a statute or part thereof; one is by express terms, the other by necessary implication. The question of repeal is one of intent and must be solved by determining as near as may be the intent of the legislature.
“ ‘An express repeal is the abrogation or annulment of a previously existing law by the enactment of a subsequent statute which declared that the former law shall be revoked or abrogated.’ 59 C.J. § 502.
“The Constitution provides the method for amending a law and requires that whatever part thereof is to be retained ‘shall be re-enacted and published at length.’ Article 5, § 23. It is invariably held all of the section or law that is omitted and not re-enacted in the provisions of the amendatory act as proposed is repealed. Ap-pelgate’s Constitution of Arkansas Annotated, art. 5, § 23, p. 47, and cases cited.
“This court has already held, construing Amendment No. 14 to the Constitution, that the Legislature has the right to repeal a local act entirely or only some particular part of it. Gregory v. Cockrell, 179 Ark. 719, 18 S. W. 2d 362.
“The method adopted here by re-enacting the particular part of the act proposed to be retained effected only the repeal of that part omitted, and was within the competency of the Legislature as correctly held by the chancellor herein.”

In Hauserman v. Board of Com’rs of Clay County, 89 Kan. 555, 132 P. 212, 213, the court said in part:

“It seems quite clear that the striking out of the sentence in question either deprived the commissioners of the power to review the award of damages made by the viewers, or it had no practical effect whatever. The question for determination therefore is whether the words explicitly conferring a right of revision upon the commissioners were omitted from the new act because of a change in legislative policy, or because they were regarded as surplusage. Ordinarily there is a presumption that a change in the language of a statute results from a purpose to change its effect, but this presumption may be strong or weak according to circumstances, and may be wanting altogether in a particular case. The accepted rule and its limitations have been thus stated: ‘It will be presumed that the Legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment. A change of phraseology from that of the original act will raise the presumption that a change of meaning was also intended. This presumption is fairly strong in the case of an isolated, independent amendment, but is of little force in the case Of amendments adopted- in a general revision or codification of the laws, as in such case the change of phraseol-bgy may'be due to the rearrangement of the statutes or to a desire to improve the style’ 36 Cyc. 1165, 1166.
“The act of 1903 cannot be regarded as a general revision of the act of 1874. Clnly seven sections out of 33 were affected. But even in:a revision, the dropping out of a material provision is deemed equivalent to its express repeal. ,
“ ‘It is a well-settled rule thht when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are. not to be revived by construction, but are to be considered as annulled’. Ellis v. Paige, 1 Pick. 43, 45, 18 Mass. 43, 45; Lyon v. Smith, 11 Barb. N.Y. 124, 126; Pingree v. Snell, 42 Me. 53, 55.
“If. the new statute were to be considered alone, as an original enactment, without regard to its history, there would be little difficulty in inferring, from the reference to an appeal from the decision of the commissioners, that the Legislature intended them to revise the award of the viewers, but we think such an inference should not prevail here, because a stronger evidence of the purpose of the Legislature is afforded. For years the statute contained a sentence which in clear and express terms granted to the commissioners the power of revision. The striking out of this sentence shows that the attention of the Legislature was particularly drawn to the matter, and has almost the force of a declaration that the power should no longer exist. The part of the statute conferring upon the commissioners the power of revision is expressly repealed. 1 Lewis’ Sutherland on Statutory Construction (2d Ed.) pp. 442, 459. Of a similar situation it has been said: ‘Where the legislative body, in amending an act, omits certain limitations expressed in the original act in simple language, plain in its meaning, the presumption of law is that the limitation no longer exists, at least in the absence of other express words showing that it was intended to continue. Neither ambiguous nor uncertain language will prevail against such an express omission.’ United States v. Prentis, D.C., 182 F. 894, 897.”

In Lawyer v. Carpenter, 80 Ark. 411, 97 S.W. 662, paragraphs 2 and 3 of the syllabus read:

“2. Re-enactment of the substance of part of a section of a statute and omission of the remainder evidences an intention to repeal all not re-enacted.”

In the body of the opinion the court said in part:

“The established canon of statutory construction on this subject is: ‘Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject-matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.’ Pulaski County v. Downer, 10 Ark. 588; Dowell v. Tucker, 46 Ark. 438; Wood v. State, 47 Ark. 488, 1 S.W. 709; Inman v. State, 65 Ark. 508, 47 S.W. 558; Wilson v. Massie, 70 Ark. 25, 65 S.W. 942.”

See, also, National Bank of the Republic v. Current et al., 142 Ky. 353, 134 S.W. 479; Gill v. Goldfield Consolidated Mines Co., 43 Nev. 1, 176 P. 784, 184 P. 309; In re Ferdon, 35 Or. 171, 57 P. 376; Edson v. State, 134 Ala. 50, 32 So. 308; State v. Webster Parish School Board, 126 La. 392, 52 So. 553; Grieb v. Jefferson County Fiscal Court, 249 Ky. 659, 61 S.W. 2d 285.

In the case of Roche v. Mayor et al., 40 N.J.L. 257, the court said:

“The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that, when the Legislature makes a revision of a particular statute, and' frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the Legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act as the only ones on that subject which shall be obligatory. Sacramento v. Bird, 15 Cal. 294; State v. Conkling, 19 Cal. 501.”

Our attention has been directed by the Attorney General to the fact that the Attorney General, since the passage of the 1915 and 1917 laws, -has construed those acts as having repealed section 7 of the 1913 act, which appears as section 105, supra, of Tit. 57 of the 1941 Statutes. Under this administrative construction of the statutes, the State Board of Public Affairs has been transferring prisoners from the reformatory to the penitentiary and from the penitentiary to the reformatory in their discretion. Such administrative construction has existed for over thirty years. Many sessions of the Legislature have met during this period of time and no attempt was made to pass any legislation limiting the authority of the State Board of Public Affairs under which they were acting pursuant to the opinion of the Attorney General.

In the case of Ex parte White, 75 Okla. Cr. 204, 130 P. 2d 103, it is held:

“The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.”

In the body of the opinion it is stated:

“There is another reason why the contention of counsel for defendant may not be sustained. The statute herein involved became a law in 1910. Session Laws 1910, chap. 69, § 13. The Attorney General has directed the attention of this court to the fact that the administrative construction placed upon said statute by the Attorney General soon after its enactment was in accordance with the definition hereinabove set forth and included an ascertainment of the guilt of the party by a judgment and sentence on the verdict or by a plea of guilty. The court clerks of this state, acting on the advice of the Attorney General, have uniformly followed this administrative construction of said statute.
“This is the first time this issue has been raised in the Criminal Court of Appeals. The Legislature, with a full knowledge of the administrative construction placed on said statute, has allowed it to remain a part of our code without change since its adoption in 1910. For thirty years these fees have been changed as costs without questioning said statute.

“In the case of League v. Town of Taloga, 35 Okla. 277, 129 P. 702, 705, it is stated as follows:

“ ‘The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.’
“And see Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L.R.A., N.S., 1036; Foote v. Town of Watonga, 37 Okla. 43, 130 P. 597; Missouri, O. & G. [R. Co.] v. State, 29 Okla. 640, 119 P. 117; State v. Hooker, 26 Okla. 460, 109 P. 527; City of Tulsa et al. v. Weston et al., 102 Okla. 222, 229 P. 108; Leininger et al. v. H. L. Cannady Co., 139 Okla. 301, 282 P. 474.

At the time of the opinion of this court in Ex parte Neighbors, supra, nothing had been called to our attention pertaining to the administrative construction placed on the statutes in question. The Attorney General, in his brief, and counsel for petitioner in that case, assumed that the statutes of 1941 because of the validating provisions of the legislative act of 1943* Laws 1943, p. 252, § 1, 75 O. S. Supp. § 114, were in full force and effect.

The Neighbors opinion was written after a great deal of study of the various statutes by Judge Brett, and it was an excellent opinion based upon the theory submitted by both the state and defendant that all the various sections now appearing in Title 57 O.S. 1941, were in full force and effect. The author of that opinion did an excellent job in attempting to harmonize and apply the various provisions of those several statutes. However, since the rendition of that opinion, a large number of habeas corpus actions have been instituted by prisoners in which said actions the difficulty and almost impossibility of applying the exceptions set forth in section 105, supra, were brought to light. 'In view of the legislative history of the various statutes here involved, it is apparent that section 105, supra,. Section 7 of the 1913 act, had been repealed and superseded by the 1915 and 1917 acts. With this conclusion established, the sole question to determine is the effect of the inclusion of such section in the 1941 Statutes and the adoption of such statutes by the Legislature in 1943.

In the case of Thomas v. State, supra, this court laid down the following rules of law as shown by the syllabus:

“3. Sec. 2, Chap. 4, Tit. 75, p. 457, Oklahoma Session Laws of 1941 [75 O.S. 1941 § 102], instructs the codifiers of the 1941 statutes to not include in their compilation laws held unconstitutional by the highest courts,’ and to ‘eliminate’ all repealed laws.
“4. The Act of the Legislature in 1933, Chap. 153, sec. 3, O.S. 1941, Tit. 37, sec. 82, repealed and superseded the act of the Legislature of 1910-11, O.S. 1941, Tit. 37, §§ 31 and 32.
“5. Where one was authorized to codify existing laws but the authority was expressly withheld to include any statute which had been ‘repealed’ or ‘held unconstitutional by the highest courts,’ and such a statute was inadvertently included, adoption of statutes did not have effect of validating the statute inadvertently included.”

The Supreme Court of Oklahoma, in the case of School Board of Consol. School Dist. No. 47, Stephens County, et al. v. Monsey, 198 Okla. 41, 175 P. 2d 76, 78, stated:

“By House Bill No. 519 of the Eighteenth Legislature, S.L..1941, page 457, Section 2, 75 O.S. 1941 § 102, the West Publishing Company, as compiler of the Oklahoma Statutes 1941, was required to eliminate ‘All repealed laws and those held unconstitutional by the highest courts.’ But instead of eliminating the repealed portion of Section 251, the compiler included it with the footnote above quoted showing its repeal.
“By Senate Bill No. 99 of the Nineteenth Legislature, S.L. 1943, page 252, 75 O. S. Supp. §§ 114, 115, the Oklahoma Statutes 1941 so ‘Compiled, codified and annotated and indexed’ was ‘adopted and made of force as the Code and Revised Statutes’.
“In view of the history of Section 251, was it the intention of the Legislature to put in force the proviso that had been previously repealed and which was so left in Section 251 when the statutes were compiled? We think not. The Montana Court so decided under a similar state of facts in State ex rel. Urton v. American Bank & Trust Co., 75 Mont. 369, 243 P. 1093. See also 59 C.J. 893.
“We think the Legislature, in adopting the Code, intended that all future annexations should be governed by the 1941 annexation law, Senate Bill No. 81, 70 O.S. 1941 §§ 890.1-890.8.”

It is therefore our opinion, in view of the above authorities that section 105, Tit. 57, O.S. 1941, is not in effect by virtue of its inclusion in the 1941 Statutes; that the 1917 act, section 8, which now appears as Tit. 57 O.S. 1941 § 133, is the statute governing the commitment by the trial court of prisoners to the two state penal institutions, and requires that such prisoners be sent to the nearest prison; that the State Board of Public Affairs is thereafter vested with authority to transfer such prisoners from one institution to another in performance of their duties under Tit. 57, O.S. 1941 § 132.

It follows that the case of Ex parte Neighbors, supra, is hereby overruled in so far as it is inconsistent with this opinion.

The writ of habeas corpus is therefore denied.

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


text:
    Ex parte LAFAYETTE NARON HIMES.
    No. A-11105.
    Nov. 3, 1948.
    (199 P. 2d 226.)

      Judd L. Black, of Oklahoma City, for petitioner.

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

This is an original action instituted by the petitioner, Lafayette Naron Himes, in which he alleges that he is illegally restrained of his liberty in the Oklahoma State Reformatory at Granite.

The petitioner does not contend that he is entitled to his unqualified discharge from such institution, but rather contends that he is being illegally restrained at Granite because he is an habitual criminal, and under the law should be incarcerated in the State Penitentiary at Mc-Alester.

At the hearing before this court, the evidence showed that the petitioner was an habitual criminal and in addition to two convictions for robbery with firearms and a conviction for larceny of an automobile in the state court, the petitioner had been convicted by a General Court Martial at Fort Leavenworth, Kan., for the crimes of larceny, escape, and desertion from the United States Army, and had been sentenced to serve a term of imprisonment in the Federal Penitentiary, and had further been convicted by a General Court Martial at Fort Sill, Okla., for violation of the 61st Articles of War and sentenced to serve two years and six months in the Federal Penitentiary.

The question raised in this proceeding has been fully discussed in the case of Ex parte Olden, 88 Okla. Cr. 56, 199 P. 2d 228. In view of the conclusions reached in that opinion, it is apparent that the petitioner is not being illegally restrained of his liberty at Granite and that the writ of habeas corpus should be denied.

It is so ordered.

BAREFOOT, P. J., and BRETT, J., concurs.


author: BAREFOOT, P. J.

text:
    Ex parte JAKE HINLEY.
    No. A-11147.
    Nov. 10, 1948.
    (199 P. 2d 613.)
    Jake Hinley, petitioner, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Jake Hinley, has filed in this court a petition for habeas corpus, seeking his release from the State Penitentiary, at McAlester, where he is now serving a term of life imprisónment by reason of a judgment and sentence of the district court of Jefferson county.

The judgment and sentence was entered on November 27, 1988, and no appeal was taken therefrom. The petitioner herein has on two prior occasions filed petitions for writ of habeas corpus in this court, one of which was denied on January 17, 1945 (Ex parte Hinley, 79 Okla. Cr. 382, 155 P. 2d 265) ; and the other denied on July 30, 1947 (Ex parte Hinley, 84 Okla. Cr. 437, 183 P. 2d 602).

It is a rule of this court that where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ on the same grounds or facts existing when the first application was made, whether then presented or not. Ex parte Gray, 74 Okla. Cr. 200, 124 P. 2d 430; Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88; Denton v. Hunt, Warden, 79 Okla. Cr. 166, 152 P. 2d 698; Ex parte Edwards, 79 Okla. Cr. 259, 154 P. 2d 105.

The same questions raised in the two previous cases are presented here, and it is unnecessary to again discuss them. In one of these cases this court stated [84 Okla. Cr. 437, 183 P. 2d 603] :

“The only relief for this petitioner would be through an application for pardon or parole, before the State Pardon and Parole Board/’

For the reasons above stated, the petition for writ of habeas corpus is denied.

JONES and BRETT, JJ., concur.


text:
    TILSON O’DANE RUSHING v. STATE.
    No. A-10778.
    Nov. 10. 1948.
    (199 P. 2d 614.)

      See, also, 88 Okla. Cr. 95, 199 P. 2d 620.
    Butherford H. Brett and George Miskovsky, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Tilson O’Dane Rushing, was charged, in the district court of Oklahoma county with the crime of burglary in the second degree after a former conviction of a felony, was tried, convicted of burglary in the second degree and sentenced to serve six years in the State Penitentiary, and has appealed.

The crime charged against the defendant was alleged to have been committed at the Redskin Theatre, in Oklahoma City, on September 17, 1945. The defendant had two trials. The first trial resulted in a hung jury. At the second trial, the state presented the evidence of one Jack Toney, who, according to his testimony, was an accomplice of the defendant. Toney did not testify in the first trial.

For a reversal of the case, it is contended that there is not sufficient corroboration of the testimony of the witness Toney to sustain a conviction; and second, the court committed error in denying the motion for new trial upon the ground of newly discovered evidence.

R. Lewis Barton, owner of the Redskin Theatre, testified that he discovered his place had been burglarized about 8:00 a.m. on September 17, 1945. The closet door where his safe was kept was broken, the door was open, and a petty cash box had been removed from the closet to a desk, and papers from the box were scattered over the floor. About |130 in cash and $10 in defense stamps had been taken from the box. Barton testified that he had personally locked the office door the evening before when he closed the theatre. An examination disclosed that an entry had been made in the theatre through the mezzanine floor. A hole had been cut in the screen and the screen had been removed and was sitting on the floor. The witness further described how two slats had been removed several weeks before from tbe door panel entering into the closet where he kept his safe by reason of the fact that he had locked the key to the door on the inside of the closet and that after the slats had been removed and an entry made, he had glued the two slats back into their original position. He further testified that these two slats had been removed the night of the burglary by the person who entered the closet door in order to reach their arm through and open the door from the inside of the closet. The witness notified the officers of the burglary and when they arrived they took photographs of the interior and made an examination of the slats for fingerprints.

He further testified that about 10:30 or 11:00 p.m. the night of the burglary, the defendant, Rushing, in company with the alleged accomplice, Jack Toney, came out of the theatre; that he shook hands with the defendant and the defendant introduced Toney to him and they conversed for two or three minutes.

On cross-examination Barton testified that defendant had been a patron of the theatre for about five years; that he often came into his office; that on September 14, 1945, he had cashed a $10 check for the defendant and was still holding the check at the time of the burglary.

J. M. Swofford and A. C. Myler testified to the taking of photographs of the interior and of certain fingerprints found on the slats removed from the closet door panel. Myler testified that he had compared the fingerprints removed from the slats with a print of defendant’s in the records of the Police Department, and that in his opinion, the prints found on the door slats were those of the defendant. He pointed out to the jury on an enlarged picture of the fingerprints of defendant, and the fingerprint in controversy, fifteen points of similarity which in his mind established the definiteness of the fact that the fingerprints on the door were made by the defendant.

Robert Ewing testified that he was a police detective. He arrested defendant on September 19, 1945, at 4th and Broadway in Oklahoma City, in company with one Herbert Brennan Martin; that defendant was armed with a pistol and had a box of pistol shells in his pocket; that defendant also had in his possession $120.93 in money.

Jack Toney testified that he was 20 years of age and well acquainted with the defendant; that on September 16, 1945, about 8:30 or 9:00 p.m., he saw defendant at a beer parlor on Main street in Oklahoma City; that the defendant told him that he had in mind burglarizing the Redskin Theatre on Southwest 29th street; that the two of them left the béer parlor and went to the Redskin Theatre where they saw part of the show; that about 10:30 p.m. they came out of the show and defendant introduced Toney to Mr. Barton, the owner of the theatre, on the outside of Mr. Barton’s office; that thereafter the defendant and Tony left the theatre and went across.the street where they remained for several minutes; that later they climbed up in a tree and sat there for nearly an hour watching Mr. Barton put away his money; that they then went back in the theatre and stayed a short time before coming out and going back to town; that about 2:00 a.m. they returned to the theatre and entered through the back; that they went up to the front of the theatre and on upstairs where they heard the janitor sweeping the theatre; that the defendant, Rushing, closed the door from the lobby of the theatre to the office which made a noise and attracted the janitor; that when the janitor came to the office after hearing the noise, the witness and defendant left the theatre and went outside; that they climbed on top of the building and waited, thinking maybe the janitor might have notified the officers after having heard the noise; that some time later they climbed up on a picket fence on the east side of the theatre, got up on the marquee, kicked in a screen, opened a window, and went in to the balcony; that Rushing then went to the office, removed two slats from the closet door inside the door where the money box was located; that Rushing opened the door to the closet, took some money and some war stamps; that Rushing then returned to where Toney was waiting and Toney went to the office and took some money; that they then left the theatre and caught a bus to Midwest City where they tried to break into the Sky-train Theatre, but could not effect an entry; that they then left the theatre and caught a bus back to the defendant’s home where they arrived about 7:00 a.m.

Toney further testified that on Tuesday night, September 18, 1945, he met defendant near the Trianon ballroom ; that defendant was in a car and called Toney over to the car, pulled a gun, stuck it into Toney’s side and demanded the rest of the money; that it appeared more money was taken from the theatre than the defendant and Toney had admitted to each other had been taken. Toney testified that he appeased the defendant by convincing him that the janitor got the rest of the money and blamed it on the burglars.

The defendant’s evidence was in the nature of an alibi. The proof of the defendant being that on the night in controversy, he was in his parent’s home and slept in the same bed with one Corporal Gerald Sampson, a soldier in the United States Army. The parents of the defendant and the soldier each testified to this state of facts.

Reverend W. E. Cook identified certain exhibits which he received through the mail and stated that he had delivered the money contained in the letters to Mr. Barton, owner of the theatre. Objection by the state was sustained to the admission in evidence of the letters received by Reverend Cook through the mail.

Howard K. Berry, attorney of Oklahoma City, who represented defendant at his first trial testified that in September, 1945, the defendant owed him $100 ror money advanced on a bond, the defendant having testified that the money which the officer found on him at the time of his arrest was given to him by his father to take to Mr. Berry to pay him what was owed to him.

In an effort to explain the fingerprints found on the closet door, the defendant testified that on Sunday night, he went into the Redskin Theatre office for the purpose of using the telephone and while using the telephone pushed the closet door. The defendant further testified that he attended school at Capitol Hill High School on September 17, 1945.

In rebuttal the state introduced several witnesses- who were employed .at the Redskin Theatre and they each testified that they did not see the defendant use the telephone at the Redskin Theatre on the night of September 17, 1945, as he testified.

W. C. Haller, principal of the Capitol Hill High School, testified that the school records showed that defendant was absent from high school on September 17, 1945.

Jack Toney recalled as a witness testified that he came to the courthouse during the first trial, but Mrs. Rushing told him he should not be there as Mr. Barton might recognize him.

It was the contention of the defendant throughout the trial that Herbert Brannon Martin was the man who assisted in the burglary rather than the defendant, and several witnesses testified in rebuttal for the state in an effort to establish an alibi for Martin the night of the alleged burglary.

In construing the statute which requires the corroboration of the testimony of an accomplice (Tit. 22 O.S. 1941 § 742), certain principles of law have been definitely established. It is now well settled that the evidence corroborating the testimony of an accomplice need not cover every material point testified to by the accomplice, nor need it be sufficient alone to warrant a verdict of guilty, but if the accomplice is corroborated with respect to one material fact by independent evidence tending to connect defendant with the commission of the crime, the jury may infer that the accomplice speaks the truth, though such corroborated evidence must show more than the mere commission of the offense or circumstances thereof. Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825; Howard v. State, 70 Okla. Cr. 165, 105 P. 2d 440; Blumhoff v. State, 72 Okla. Cr. 339, 116 P. 2d 212.

In Hathcoat v. State, supra, this Court stated:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only. * * *
“Where there is evidence in corroboration of an accomplice tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.
“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

It is unnecessary to make a long discussion of this point raised by the defendant. The latent fingerprints of the defendant found on the slats removed from the door panel were sufficient alone to connect the defendant with the commission of the burglary. His explanation of his fingerprints on the slats which had been removed from the door panel raised a question for the determination of the jury. It is easy to understand why the jury refused to accept the explanation made by the defendant as to the reason for the appearance of his fingerprints on the slats. The defendant in using the telephone would have had no reason to close the door leading into the closet, and he would have had to stoop to touch the slats which were removed from the door. If the defendant was not the burglar who removed the slats from the door, then the burglar did not leave his fingerprints as the fingerprints of the defendant were the only ones the police fingerprint expert was able to remove from the slats. Aside from this, the defendant’s presence with Toney at the scene of the crime shortly before its commission is a corroborative circumstance. The finding of the large amount of money on the defendant’s person, together with the gun and shells, were also circumstances corroborative of the accomplice’s testimony; but, the principal piece of evidence which alone is sufficient to corroborate the testimony of the accom-pliee is the definite establishment that the defendant’s fingerprints were on the door slats which had been removed by the burglars in the office of the theatre.

Subsequent to the filing of the appeal in this court, and after obtaining permission from the Criminal Court of Appeals, counsel for defendant filed in the district court a supplemental motion for a new trial upon the ground of newly discovered evidence. This motion was predicated upon two letters addressed to the Reverend W. E. Cook of Oklahoma City, by some unknown person at Dallas, Texas. In each of the letters a sum of money was enclosed and the writer stated he was sorry that he had robbed the Redskin Theatre and asked the Reverend Cook to take the money which was enclosed in the letters and deliver it to Mr. Barton, the owner of the Theatre.

During the trial of the case, the Reverend Cook was called as a witness on behalf of the defendant and was permitted to testify to receiving the letters and to the fact that he delivered the money enclosed in the letters to Mr. Barton. However, objection was sustained by the court to the admission of the letters in evidence upon the ground that the letters were hearsay.

In the supplemental motion for new trial upon the ground of newly discovered evidence, it is alleged that subsequent to the conviction of defendant, Herbert Martin, while confined in jail, wrote a letter from the county jail of Oklahoma county to a girl in Oklahoma City, and that counsel for the defendant obtained the letter and delivered the letter, together with the letters addressed to Reverend Cook, to D. C. Patterson, an alleged handwriting expert in Oklahoma City, and that Mr. Patterson had made an examination of the letters and had come to the conclusion that the same person had written all of the letters, thus establishing Herbert Martin as the writer of the letters to Reverend Cook.

Attached to the motion was an affidavit by Mr. Patterson, the alleged handwriting expert, in which he states that in his opinion the letter written by Herbert Martin to the girl friend in Oklahoma City and the letters addressed to Reverend Cook were written by the same person.

Counsel for defendant contend that the letters addressed to Reverend Cook proved a confession made by another person that they committed the Redskin Theatre burglary under circumstances which vouched for its authenticity and entitled it to admission in evidence.

This court has consistently held that such evidence is inadmissible. In the early case of Davis v. State, 8 Okla. Cr. 515, 128 P. 1097, it is held:

“When a defendant is on trial for a violation of the criminal laws of Oklahoma, confessions or admissions alleged to have been made by other persons are not admissible in evidence, either in behalf of the state or the defendant, except for the purpose of impeaching the credibility of witnesses upon proper predicates therefor.”

In the body of the opinion Judge Furman stated:

“If evidence of this kind was admissible as original testimony for a defendant, it would be impossible to convict any thief, because he could always find witnesses who would testify that they had heard some one who was absent confess to being guilty of the crime. To hold that such evidence was competent would put a premium on fraud, make perjury safe, and place the state at the mercy of criminals. This would make a mockery of the law, and will not be permitted in the courts of Oklahoma.”

In the case of Dykes v. State, 11 Okla. Cr. 602, 150 P. 84, the second syllabus reads:

“A defendant, who is being tried on a criminal charge, is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he committed the crime, and that the defendant had nothing to do therewith and was not concerned therein. For a discussion of this principle, see quotation in the opinion from Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann. Cas. 1913E, 710.”

To the same effect see State ex rel. v. Stanfield, 11 Okla. Cr. 147, 143 P. 519; Williams v. State, 13 Okla. Cr. 189, 163 P. 279; Factor v. State, 28 Okla. Cr. 78, 229 P. 154; Blackburn v. State, 28 Okla. Cr. 288, 230 P. 276; Johnson v. State, 33 Okla. Cr. 56, 242 P. 277, 278.

In Johnson v. State, supra, it is stated:

“The complaint that the court excluded material evidence offered by the defendant is based on the exclusion of certain questions asked the wife of the defendant on her examination concerning statements made by a co-defendant. Although there was no offer of proof, by this evidence it was apparently sought to be shown that a codefendant, Caldwell, had a talk with one Parr with reference to hauling certain sugar which was stolen at the time of the burglary. In legal effect this would tend to prove that the codefendant, Caldwell, had confessed that he committed the burglary. It is generally held that such evidence is not admissible.”

Under the principles of law announced in the above decisions, the letters would not be admissible in evidence except for the sole purpose of impeaching Herbert Martin if he had been a witness for the state and following the laying of a proper predicate for their introduction. The letters then would have been admissible for the purpose of affecting the credibility of Martin, but they would not be admissible for the purpose of affecting the credibility of Jack Toney, or any other witness who testified for the state that Toney and Rushing committed the crime, their admissibility being limited to impeaching the credibility of the person who wrote the letters, if he is offered as a witness to show a contrary state of facts.

The most difficult matter for this court to determine is the question of the proper amount of punishment that should be inflicted upon this young offender. My associate, Judge Barefoot, has on this date affirmed the conviction by modifying the punishment received by the defendant in a companion case to a term of four years’ imprisonment in the State Penitentiary. The punishment received by the defendant in this case will run consecutively with the term of imprisonment assessed in 88 Okla. Cr. 95, 199 P. 2d 620, decided by Judge Barefoot. We have come to the conclusion after an earnest and full consideration of all the facts and circumstances surrounding the case, including the youthfulness of the offender and other attendant circumstances, that justice would be served by modifying the sentence herein to a term of three years imprisonment in the State Penitentiary. Thus the defendant will have to serve a term of seven years’ imprisonment as a total for these two offenses, unless sooner given executive clemency.

It is therefore ordered that the judgment and sentence of the district court of Oklahoma county be modified from a term of six years’ imprisonment in the State Penitentiary to a term of three years imprisonment in the State Penitentiary and the judgment and sentence as thus modified is affirmed.

BAREFOOT, P. J., concurs. BRETT, J., not participating.


text:
    TILSON O’DANE RUSHING v. STATE.
    No. A-10787.
    Nov. 10, 1948.
    (199 P. 2d 620.)
    For former opinion, see 86 Okla. Cr. 241, 190 P. 2d 828.
    Rutherford H. Brett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Tilson O’Dane Rushing, has for some time had pending in this court an appeal in another case (88 Okla. Cr. 82, 199 P. 2d 614) where he was convicted of the crime of.burglary, and sentenced to serve a term of six years in the State Penitentiary. An opinion has this day been handed down by the court in that case (Rushing v. State) in which the judgment and sentence was modified from a term of six years to a term of three years in the State Penitentiary.

Judge Jones, in modifying the judgment and sentence in that case, stated:

“We have come to the conclusion after an earnest and full consideration of all the facts and circumstances surrounding the case, including the youthfulness of the offender and other attendant circumstances, that justice would be served by modifying the sentence herein to a term of three years imprisonment in the state¡ penitentiary. Thus the defendant will have to serve ¿ term of seven years imprisonment as a total for these two offenses, unless sooner given executive clemency.”

In considering the question of punishment to be given this young offender, we have considered the judgment and sentence given in each of the cases, and the fact that they were to run consecutively, and not concurrently. Also, the fact that this defendant escaped from the Oklahoma county jail while incarcerated there and pending the trial of his cases.

As shown by the evidence, which we reviewed in the original opinion, the case against the defendant was partially circumstantial. In the petition for rehearing counsel have been very insistent that the evidence is insufficient to corroborate the testimony of the accomplice. We reiterate that it is our opinion that the evidence was sufficient to require the trial court to submit the case to a jury.

Taking into consideration all of the facts and circumstances as presented on the motion for rehearing, coupled with the fact that this defendant entered the State Penitentiary and served some time upon these sentences and will soon be eligible for consideration for a parole by the State Pardon and Parole Board, we have come to the conclusion that the judgment and sentence in this case should be modified from ten years to a term of four years in the State Penitentiary, and as so modified, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    THOMAS JEFFERSON PEBWORTH v. STATE.
    No. A-10956.
    Nov. 10, 1948.
    (199 P. 2d 621.)

      H. M. Shirley, of Coalgate, and James H. Mathers, of Tupelo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal from the county court of Coal county, Okla., in a case wherein the defendant was charged, tried, convicted and sentenced to pay a fine of $1 and the costs for the crime of driving his automobile on the public highways of said county while under the influence of intoxicating liquor.

Two highway patrolmen testified that the defendant was under the influence of liquor. The defendant and Tom Smoot, Avho was riding with him at the time of his arrest, testified that he was not under the influence of intoxicating liquor. This issue the jury resolved against the defendant.

In the case of Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638, 639, this court said :

“Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the same and determine the facts. Where the evidence is substantial, though conflicting, the Criminal Court of Appeals will not reverse the same on the ground of insufficiency.”

See, also, Butler v. State, 87 Okla. Cr. 369, 198 P. 2d 221; Sadler v. State, 84 Okla. Cr. 97, 179 P. 2d 479, Ray v. State, 86 Okla. Cr. 68, 189 P. 2d 620, and Pooler v. State, 70 Okla. Cr. 199, 104 P. 2d 733, 105 P. 2d 553; and in Sweat v. State, 69 Okla. Cr. 229, 101 P. 2d 648, 649, wherein this court said:

“This court will not reverse a conviction upon the ground that the evidence is insufficient to sustain the same, unless there is no testimony in the record from which the jury could reasonably conclude that the defendant was guilty, there being no contention that the jury was influenced by improper motives in arriving at the verdict.”

And numerous other decisions to this effect.

The facts are entirely sufficient upon which to support the conviction, judgment and sentence, but the jury may have, been influenced by improper motives in arriving at its verdict. The defendant predicates his right to reversal on such a theory. The record reveals that in his closing argument to the jury the county attorney went outside the record in relation to the facts of a prior drunk-driving case and said:

“* * * Less than three weeks ago a man died in the gutter a short distance from this court house” * * * Objected to, overruled and exceptions allowed. “Because the man was drunk and run the man down and killed him.”

The record reveals the county attorney further said:

“I would not have to be here today prosecuting these cases, if it were not for such men as he, driving our highways, violating the laws of the land. You would not have to be on this jury. You know why the Highway Patrol was created. Because our sheriffs and constables did not have to patrol our highways, and there were too many drunken driving caused accidents on the highway. We had to do something to stop it.
“Gentlemen of the Jury, when this gentleman down here was run down and killed, the man did not even stop. He kept on going. This was radioed by operators to these patrol cars and in less than 30 minutes he was apprehended and charges filed.
“Do you believe in law enforcement or not. It is up to you. If you want to turn this man. loose to drive up and down our highways here while under the influence of intoxicating liquor, and he is likely to run over somebody and kill them — why, turn him loose, let him go. Let him run them down; I don’t care.
“Any man that drives while drunk is not entitled to a license; he is not entitled to run down women, little children and families.”

The reference to another case in which some one was killed was clearly outside the record and highly prejudicial. To this line of argument the defendant interposed his objection, which objection was overruled and to which he excepted. In addition thereto, he asked the court to admonish the jury to disregard any remarks of the county attorney with reference to other automobile accidents in the county, whereupon the county judge stated: “The jury should consider the facts in this case. Overruled and exceptions allowed”. This court held in Donaho v. State, 58 Okla. Cr. 198, 51 P. 2d 348:

“Argument of counsel outside of the evidence, which is highly improper and intended or calculated to influence the minds of the jury against the defendant, should be properly checked upon objection made, and where the trial court overrules the defendant’s objections and refuses to instruct the jury to disregard such statements, and it appears that such improper argument may have determined the verdict, the judgment will be reversed.”

In Holcomb v. State, 16 Okla. Cr. 1, 166 P. 755, 758, this court said where in his closing argument to the jury:

“* * * counsel for the prosecution abuses his privilege and makes statements of material or prejudicial facts outside the evidence, or appeals to prejudices irrelevant to the case, it is the duty of the court to stop him then and there, and it is error for the court not to instruct the jury to disregard such statements. It is the duty of trial courts to see that no injustice is done to a person accused of crime on trial therefor by the improper conduct of counsel for the state, and to see that such person is tried according to the law and the evidence, * *

In view of the record and the verdict rendered in the case, it is our opinion the impropriety indulged in may have been such as to have influenced the verdict. Had the county attorney not gone outside the record and called to the jury’s attention another case resulting in death, it is altogether probable that the jury might have rendered a verdict of not guilty. In Brower v. State, 26 Okla. Cr. 49, 221 P. 1050, 1051, this court said in relation to the county attorney’s duty in the trial of a criminal case:

“It is well established in this and other courts that a prosecuting attorney in a criminal case represents the public; that he is a quasi judicial officer, charged as much with the duty of seeing that no innocent man suffers as of seeing that no guilty man escapes. It is his duty to see that nothing but competent evidence is submitted to the jury, and it is a grave breach of duty to seek by innuendo or artifice to procure a conviction by injecting into the case any material facts or conclusions not based upon the evidence adduced at the trial. Ewing v. State, 17 Okla. Cr. 690, 190 P. 274; Childs v. State, 13 Okla. Cr. 461, 165 P. 622; Gamblin v. State, 12 Okla. Cr. 381, 157 P. 367; Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Mulkey v. State, 5 Okla. Cr. [75] 76, 113 P. 532; 22 R.C.L. 104.’’

Moreover, in Kizer v. State, 67 Okla. Cr. 16, 93 P. 2d 58, 60, this court said:

“Where the record shows that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to inflame the minds of the jury or prevent the accused from having a fair and impartial trial, convictions will be set aside, and a new trial granted.”

To the same effect is the case of Bainum v. State, 45 Okla. Cr. 330, 282 P. 903, and Wallace v. State, 57 Okla. Cr. 50, 45 P. 2d 164.

It clearly appears that the statements made by the county attorney outside the record in the instant ease may have inflamed the minds of the jury and influenced it to render a verdict of guilty and to assess the penalty of $1.00 and costs, which otherwise they may not have done. In any event when the county attorney went outside the record and attempted to inject into the case highly prejudicial facts in relation to another case, designed to inflame the minds of the jury, it was the duty of the court to admonish the jury not to consider such matter, and his failure so to do in the instant case constitutes reversible error. This case is therefore reversed and remanded for a new trial.

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


text:
    J. E. STUBBS v. STATE.
    No. A-10929.
    Nov. 17, 1948.
    (200 P. 2d 456.)

      David Tant and Thad L. Klutts, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, J. E. Stubbs, was charged by information filed in the district court of Oklahoma county with the crime of murder, was tried, found guilty of the included offense of manslaughter in the first degree, with the punishment left to the court. After overruling the motion for new trial, defendant was sentenced to serve a term of seven years imprisonment in the State Penitentiary and has appealed.

No brief has been filed on behalf of the defendant and no appearance was made at the time the case was assigned for oral argument. Under the rules of this court, where no briefs are filed, nor argument presented, the court will examine the evidence to ascertain if it supports the verdict, and examine the pleadings, instructions of the court, and the judgment; and if no material error is apparent, the judgment will be affirmed. Smith v. State, 81 Okla. Cr. 203, 162 P. 2d 331.

We have examined the record. The evidence showed that the defendant was the floor manager or “bouncer” at Chief Jim’s Tavern in Oklahoma City.

On the night of June 29, 1946, the deceased, Homer Hardy, a nineteen year old youth, and his brother, rode their horses to the tavern. They were partially intoxicated and created a disturbance. Tbe defendant ordered the brothers to leave and a fight occurred between the deceased and defendant at the rear of the tavern. The Hardy brothers then mounted their horses and started for home in a gallop. The defendant, together with three or four other men, pursued them. The deceased tried to flee at the Hardy home but was caught and struck several times by the defendant with a flat blackjack, from which injuries the deceased died several hours later. The defendant denied that he struck the deceased with a blackjack or with any other instrument, but stated that he was struck by one of the other men who accompanied the defendant in the defendant’s automobile when they went to the Hardy home.

The evidence was conflicting on the issue as to whether the defendant struck the blows that killed the deceased. Such conflict of testimony raised an issue for the determination of the jury and we are bound by their finding. Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401; Salisbury v. State, 80 Okla. Cr. 13, 156 P. 2d 149.

The trial court gave all of the instructions which were requested by counsel for the defendant and no objection or exception was saved to the giving of any instruction. We can find no material error in the record, and the judgment of the district court of Oklahoma county is affirmed.

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


text:
    Ex parte ELMER MOORE.
    No. A-11108.
    Nov. 17, 1948.
    (200 P. 2d 454.)
    Elmer Moore, No. 48417, petitioner, pro se.
    Mac Q. Williamson, Atty Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Elmer Moore has filed petition in this court for writ of habeas corpus, seeking his release from the State Penitentiary at McAlester, where he is now confined by reason of a judgment and sentence of the district court of LeFlore county, sentencing him to serve a period of two years for the crime of burglary in the second degree.

A response was filed by the Attorney General on behalf of the respondent, Warden C. P. Burford, denying all of the allegations of the petition, and setting np the judgment and sentence under which petitioner is being held.

At the time this case was submitted, no appearance was made by petitioner, and no proof was offered to sustain the allegations of his petition.

Petitioner’s contention is that he was denied a preliminary examination. There is no proof in the record before us to support this contention, and in the absence of such proof, it will be presumed that petitioner was given every right to which he was entitled under the law. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L.R.A., N.S., 113; Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868.

Petitioner was sentenced upon a plea of guilty. No appeal was taken from the judgment and sentence, and the time for appeal has expired. We have often held that the writ of habeas corpus cannot be substituted for an appeal. Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561; Ex parte Hummingbird, 78 Okla. Cr. 33, 143 P. 2d 166; Ex parte Noble, 78 Okla. Cr. 105, 144 P. 2d 122; Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 521.

Petitioner in his brief attached to his petition refers to certain documents on file with the Pardon and Parole Board, and asks that the same be produced and considered by this court. Such evidence can only be considered by the Pardon and Parole Board, and would not be considered by this court, unless properly admitted in evidence.

In his petition, petitioner asks that if this court “does not see fit to issue an order for his outright release, that the court will instruct that his time be reduced to time served.”

It lias repeatedly been held by this court that the power of the Criminal Court of Appeals to modify a sentence is limited to appealed cases, and cannot be exercised in an original proceeding in habeas corpus. Okla. Const. Art. 6, § 10; 22 O.S. 1941 § 1066; Ex parte Cavers, 79 Okla. Cr. 262, 154 P. 2d 106; Ex parte Boots, 81 Okla. Cr. 273, 163 P. 2d 856; Ex parte Walker, 84 Okla. Cr. 190, 180. P. 2d 670.

For the reasons above stated, the petition for writ of habeas corpus is denied.

JONES and BRETT, JJ., concur.


text:
    LEONARD ARGO v. STATE.
    No. A-10955.
    Nov. 17, 1948.
    (200 P. 2d 449.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mae Q. Williamson, Atty Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Defendant below, Leonard Argo, appellant herein, was charged, tried, convicted and sentenced to pay a fine of $50 on January 5, 1947, for driving a motor vehicle on the highway in Coal county, Okla., while under the influence of intoxicating liquor. The defendant attacks the sufficiency of the information, contending that it is. defective because it does not describe the automobile being driven with sufficient particularity, the charging part of the information being in words and figures as follows, to-wit:

“That the said Leonard Argo in the County and State aforesaid, on the day and year aforesaid, did, then and there unlawfully, wilfully, wrongfully, while under the influence of intoxicating liquor, drive, operate and propel an automobile on the public streets of Coalgate, Oklahoma, to-wit: from a point to your informant unknown, to another point in Coal County, State of Oklahoma, to-wit: a point on Main Street in the City of Coalgate, due east of the Palace Drug making a U-turn, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State.”

To this information the defendant demurred, which demurrer was overruled, upon the overruling of which this contention is based. The statute upon which the charge as laid in the information is predicated is section 93, Title 47, O.S.A. 1941, the pertinent portion of which reads as follows, to wit:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, * * * to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act (10322) and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine of not more than Five Hundred ($500.-00) Dollars or by both such fine and imprisonment. * * *”

Title 47, O.S. 1941, § 91 defines motor vehicles in the following language, to wit:

“(1) ‘Motor Vehicle’ shall mean all vehicles propelled otherwise than by muscular power, except vehicles operating upon stationary rails or tracks.”

The foregoing statutes are parts of the same Act, and bear direct relationship one to another, and since an automobile falls within the definition of a motor vehicle as defined in section 91, Title 47, O.S.A. 1941, the information cannot be attacked upon the ground that the vehicle was described as an automobile and not as a motor vehicle. Moreover, this court has repeatedly held that in charging a public offense it is not necessary that the words in the statute to define the same be strictly pursued in the information and it has been expressly held that words of similar import may be used. Martin v. State, 35 Okla. Cr. 248, 250 P. 552. To the same effect see: Gault v. State, 42 Okla. Cr. 89, 274 P. 687; King v. State, 73 Okla. Cr. 404, 121 P. 2d 1017. In this same connection the defendant contends that the information is defective because it does not sufficiently and accurately describe the automobile by make, tag number or anything by which the automobile might be identified. In this connection, it is pertinent to note that the gist of the offense was driving while intoxicated a motor vehicle upon any highway in the State of Oklahoma. The information clearly charges that the defendant did “drive operate and propel an automobile on the public streets of Coalgate, Oklahoma, to-wit: from a point to your informant unknown to another point in Coal County, State of Oklahoma, to-wit: a point on Main Street in the City of Coalgate, due east of the Palace Drug * * Therein the information completely alleged all of the essential elements of the offense. This court has repeatedly held that the gist of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises' the defendant of what he must be prepared to meet. Moreover, an information that informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient. Dunham v. State, 78 Okla. Cr. 54, 143 P. 2d 834. Furthermore, as to when an information is sufficient, it has been held that an information is sufficient which states the offense clearly and distinctly in ordinary and concise language, without repetition, in such manner as to enable a person of common understanding to know what was intended. Hancock v. State, 80 Okla. Cr. 1, 156 P. 2d 155; Sparks v. State, 72 Okla. Cr. 283, 115 P. 2d 277; Norris v. State, 68 Okla. Cr. 172, 96 P. 2d 540; Simpson v. State, 67 Okla. Cr. 152, 93 P. 2d 541; Harry v. State, 59 Okla. Cr. 302, 58 P. 2d 340; Hulsey v. State, 86 Okla. Cr. 272, 192 P. 2d 301. In a case of this character, where the ownership and title to the automobile is not necessarily involved and since the gist of the offense is driving a motor vehicle on any highway in the State of Oklahoma while under the influence of intoxicating liquor, we are of the opinion that the information alleges all of the essential elements of the statutes herein involved making it an offense to propel or operate a motor vehicle on a highway while under the influence of intoxicating liquor.

The next contention of the defendant is that the court erred in overruling his motion for a continuance on the ground that Walter Singleton and his wife, J. B. Hart and Dale Farley who had been subpoenaed as witnesses on behalf of the defendant, were absent from the county and could not be found. The defendant did not interpose his motion for a continuance until the case was called for trial on July 15, 1947. In the motion he contends that the witnesses, if present, would testify “* * * that they were in the cafe with Leonard Argo in the restaurant just north of the postoffiee, and that he had not been in the car which he is alleged to have been driving for more than an hour before he was arrested, and that he was not in the car or truck at the time of his arrest”. In this connection it is pertinent to note that highway patrolmen, Hamilton and Bailey, testified that they saw the defendant driving the motor vehicle at the time alleged in the information on Main street in Coalgate while under the influence of intoxicating liquor. Alfred Morrison testified to the same effect. William E. Larecy testified that he saw the defendant ten or fifteen minutes after he was arrested, and that at that time the defendant was drunk. The evidence of guilt was so conclusive that the defendant did not demur thereto or request a directed verdict; neither did he testify in his own behalf. It appears, therefore, that the testimony of the absent witnesses might have been material had the defendant interposed the defense of alibi, but the record does not disclose such a defense was interposed. Moreover, the record does not disclose any material evidence by way of defense to the charge as alleged in the information, and as established by the state’s witnesses. Furthermore, the motion fails to allege that the testimony of the absent witnesses would be material in the trial of the case. Moreover, no showing was made as to the whereabouts of the witnesses or the probability of their availability at the next term of court. Under these conditions we are of the opinion the court was justified in overruling the motion, and his action in so doing did not constitute an abuse of discretion. In Simmons v. State, 68 Okla. Cr. 337, 98 P. 2d 623, this court said:

“The granting or refusing of an application for continuance on account of the absence of a witness is a matter within the judicial discretion of the trial court.
“In reviewing the refusal of an application for continuance on account of absence of a witness, the testimony taken at the trial is considered by this court for the purpose of determining whether the absent testimony was probably true, as well as whether it was material, if true.”

Applying the foregoing rule to the case at bar, and after consideration of the testimony taken at the trial, and its conclusiveness against the defendant, we are of the opinion that the overruling of the motion for continuance was not an abuse of judicial discretion.

" Finally, it is contended that the inflammatory remarks of the county attorney covering matters outside the record tended to prejudice the jury. In this connection this court has said, in the case of Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646, 648:

“The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for the state is grossly improper and unwarranted upon some point which may have affected defendant’s rights that a reversal can be based on improper argument.”

See, also, Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d. 289; Orrell v. State, 79 Okla. Cr. 300, 154 P. 2d 779. We have carefully examined the argument made by the county attorney as the same appears both in the case-made and in the brief of the defendant in support of his contention. It is sufficient to say that, in our opinion, the same is not inflammatory and does not extend beyond the bounds of propriety when measured by the foregoing rule in relation to argumentation. In arguing the case the county attorney did not exceed the bounds of reasonable inference and deduction arising from the evidence, and the argument was not of such a nature as to injuriously affect tbe accused’s rights, and does not, therefore, constitute error. In view of the foregoing conclusions, the judgment and sentence is accordingly affirmed.

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