author: BRETT, J.

text:
    MONZELL BUTLER v. STATE.
    No. A-10873.
    Sept. 23, 1948.
    (198 P. 2d 221.)
    Joe Ralls, of Atoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is a case of first impression. Mon-zell Butler, the defendant below, was charged, tried by a jury, convicted in the district court of Atoka county, and sentenced to a year and a half in the State Penitentiary for the crime of fraudulent branding of cattle in violation of the provisions of Title 4 O. S. A. § 268, the material part of which reads as follows, to wit:

“Any person who shall with intent to defraud, brand or misbrand, mark or mismaxk, any neat cattle, horse, sheep, goat, ass or mule not his own; or shall intentionally brand over a previous brand or shall cut out or obliterate a previous mark or brand, on any neat cattle, horse, sheep, goat, ass or mule, shall be punished by imprisonment in the penitentiary not exceeding ten years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars.”

The charging part of the information is in words and figures as follows, to-wit:

“Comes now W. H. Parker * * * Acting County Attorney, in and for Atoka County, * * * and gives the District Court of Atoka County * * *, to know and be informed that one Monzell Butler * * * did * * *, on or about the first day of March * * * 1946 * * *, commit the crime of Fraudulent Branding in the manner and form as follows:
“That is to say, the defendant did in said county and State, * * *, commit the crime of fraudulent branding of a domestic animal; that is to say: that on the date aforesaid the said defendant, Monzell Butler, did * * * brand a certain red bald-faced horned cow, about three years old, with the brand of MB, which was defendant’s brand and that said animal was then and there owned by and the property of one Kelly Spring and at the time of said fraudulent branding bore the mark of the said Kelly Spring, to-wit: crop in right ear and un-derslope in left ear, with the intent to defraud the said Kelly Spring and to deprive the said Kelly Spring, the true owner, of said property, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

The defendant did not question the sufficiency of the information.

The record discloses that the prosecuting witness Kelly Spring, on or about March 1, 1946, was the owner of a red bald face horned cow, about three years old. Together with his hired man Bill Burgess, he had raised this cow from a calf after its mother died. She had been calved about the latter part of 1942. In the fall of 1942 Kelly Spring went away to the army, and returned in the summer of 1944. While he was away he kept his cattle in a pasture in the custody and care of Bill Burgess. Kelly Spring’s mark was recognized throughout the community, it was a crop in the right ear and underslope in the left ear. From his place down to the defendant, Monzell Butler’s, place was a distance of some six miles or more, and was open range. Kelly Spring said that he saw this calf in February, 1943,- when he was home on a furlough, and it had not been branded then. The next time he saw the calf was after she had become a cow and had had a calf, and after the defendant was arrested. There had been no change in the marking of the cow but she had been branded MB on her hip, the original mark on both of her ears was identically the same. Her calf, however, had been marked with a crop and slit in both ears and had likewise been branded MB on its hip. No one had been authorized to put the brand thereon, or to mark or brand either the cow or the calf.

Kelly Spring’s hired man, Bill Burgess, testified that in 1942 he was looking after Spring’s cattle, that together he and Kelly Spring had raised, the calf since it was born, and had custody of it until the latter part of the summer of 1943 when it got out of the pasture and strayed away. He said that the calf was marked with a crop in the right ear and an underslope in the left when it was about six months old. He said he never saw the calf again, until the defendant’s preliminary examination; that during the time the calf had strayed it had grown up to be a cow and had had the calf here-inbefore mentioned. The testimony shows that Smith Butler, a brother of the defendant, was in contact with Kelly Spring and advised him he had the animal in a pasture and for Kelly Spring and Bill Burgess to come down and inspect it, but on riding out to the pasture they were informed that the animal had gotten out of the pasture.

Robert Reeves testified, in substance, that he lived about eight miles from Monzell Butler’s place; that he picked the cow up on the range in January or December of 1944 and took her home and watered her for the purpose of finding out to whom she belonged; that he examined her ears and found a crop in the right ear and an underslope in the left ear, but at that time she had no brand on her. He was advised that the mark on her ears was that of Kelly Spring. Thereafter, the cow had a calf. Thereafter, he got word to Kelly Spring to come and look at the cow and calf, and Kelly Spring did not do so. Shortly thereafter, Clarence Butler, a brother of the defendant, came and claimed the cow and the calf as being that of Monzell Butler; that he asked Clarence Butler about the marks being Kelly Spring’s and he said Clarence Butler told him the cow had a slit in the right ear and that they went and examined her and on closer examination he found she did have a slit in the right ear, and then he asked Clarence Butler what he should do and he said to keep her lotted and “when you turn out your cattle, turn her out, too”. He testified at the preliminary hearing he examined the cow and he found that her left ear was practically gone, and she and the calf had both been branded.

John Nichols testified for the state, in substance, he had been working with cattle practically all of his life; that at the preliminary hearing he inspected the cow and the calf; that the cow was marked with a crop to the right and an underslope to the left; that she was branded MB on the left hip. He said the calf was marked with a crop and split in each ear. He further testified, the first time he saw this cow was down by the Butler sawmill in the fall of 1945; that at that time she was not branded but the calf was marked and branded; that the calf had a crop and slit in each ear and a B on its hip; that about three weeks later he saw the cow and calf again; that there had been no change in the mark; that he did not see her again until at the courthouse and the cow had been branded MB and the M had been put over the B on the calf. In other words, the M had been added to the B. He said that the M was put on the calf between the first and last time he saw it.

Oad Nichols, as a witness for the state, testified the first time he saw the cow and calf was in 1945 at Butler’s mill; that he and his brother inspected the cow and calf for identification marks and brand, that the cow was marked with an underslope to the left and crop to the right, but was not branded; that the calf was marked with a little B on the left hip with a crop and slit in each ear. He further testified he inspected the cow and the calf at the time of the preliminary hearing, and that the cow had an underslope in the left ear and a crop in the right, and that the calf had a crop and slit in each ear and was branded MB. When he saw them at the preliminary hearing, both the cow and calf had been branded MB, and the calf had been branded with an M over the top of the B. He said the B of the brand was sitting at a kind of an angle as though it might have been branded as the calf went by.

John Simpson testified for the state, in substance, as follows: He said that he saw the cow when Reeves had her penned up, that at that time neither the cow nor the calf was branded, that later on in the fall he saw the calf with a B on it; that was in 1945, as well as a crop and slit in each ear, and the cow was branded MB on the left hip. At the preliminary he again saw the cow and calf, discovered the slit in the calf’s ears and that was the first time he had ever seen it; that he was positive it was not there before when he had seen the cow and calf. That he had been associated with livestock for about 30 years for himself; that the first time he saw the cow and calf was out at Curtis Noel’s; that from an inspection . of them relative to brands and marks, the cow had a crop to the right and an underslope to the left with a slight slit. That, in substance, is the state’s case.

Defendánt, Monzell Butler, then testified in his own behalf, in substance, that he was the owner of both the cow and the calf; that he raised them from the time they were both calves; that he owned the mother of the cow; that he at no time hid the cow and calf from anybody. He admitted he had his own branding irons, and the cow and calf were branded with his brand. He positively denied that he branded the cow or calf but stated that his brother, Smith Butler, had done so in March, 1946. He gave as the reason for not branding them himself, that he had never used a branding iron and did not understand the art, that therefore he had his brother Smith do his branding. He said the cow and calf were both branded at the same time with the MB on the left hip with the M over the B.

The defendant’s brother, Smith Butler, admitted that he branded the cow and calf and he said he did so on the same day;' that at the time they were branded the cow was over two years of age and the calf was quite small; that he branded them with an MB on the left hip with the M over the B and that both letters were put on at the same time. He said he did the branding with his brother’s approval.

Other witnesses testified on behalf of the defendant to the effect that they viewed the cow and calf at the preliminary hearing and they were acquainted with the cow and knew it to be on the range with the defendant’s cattle. They testified it belonged to the defendant. They gave as the reason they knew that the cow was that of Monzell Butler was that its left ear was cut nearly off and the other ear had a slit in it. They also testified that they had seen the cow when the ear was filled with worms and they told Clarence Butler about it and he cut the ear off to get rid of the worms, that they saw the same animal in the truck at Atoka, which was inspected at the preliminary hearing. Among these witnesses so testifying, was Smith Butler, brother of Mon-zell Butler. The state offered no testimony to the effect that the defendant actually branded the calf.

Thus the foregoing evidence presents but one question which the defendant relies upon, Is the evidence sufficient to sustain the verdict? This question in turn may be divided into two parts, first, Is the evidence sufficient as to ownership, and, second, Is the evidence suf-ficent to show the defendant branded the cow in question? The jury resolved both of these issues in favor of the state, and against the defendant. We are bound by tbeir verdict. Where the record presents conflicting evidence as it does here, in Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638, 639, we 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.”

In Sadler v. State, 84 Okla. Cr. 97, 179 P. 2d 479, we said:

“Where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, Criminal Court of Appeals will not interfere with verdict even if there is a sharp conflict in the evidence and different inferences may be drawn therefrom since it is the exclusive province of the jury to weigh the evidence and determine the facts.”

See, also, 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 numerous other authorities to the same effect which we do not deem it necessary to cite or quote from.

It is pertinent to note that the defendant contends that the evidence does not show the defendant Monzell Butler branded the cow in question. It does show, however, that the cow was branded with his branding iron, with his knowledge and consent, by his brother, and that he claimed the cow as his own. Under the conditions herein involved, it is not necessary that the defendant should have actually branded the cow in question. Title 21 O. S. A. 1941 § 172, provides as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they direetly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

In the case of Sturgis v. State, 2 Okla. Cr. 362, at page 384, 102 P. 57, 65, this court said in relation to the foregoing statute:

“This statute abolishes all of the distinctions of the common law in criminal cases as to accessories before the fact, and as to principals in the first degree and second degree. All such persons stand before the law upon an equal footing, and must be indicted or prosecuted by information, tried, and convicted as principals.”

To the same effect is the case of Drury v. Territory, 9 Okla. 398, 60 P. 101. In Rambo v. State, 38 Okla. Cr. 192, at page 194, 259 P. 602, 603, this court said in construing the foregoing section of the statute:

“All persons concerned in the commission of an offense, whether they directly commit the act, or aid and abet in its commission, though not present, are principals.”

To the same effect is the case of Bundy v. State, 16 Okla. Cr. 481, 184 P. 795. See also: Bruning v. State, 63 Okla. Cr. 1, 72 P. 2d 393; Helms v. State, 14 Okla. Cr. 384, 171 P. 340; Etter v. State, 11 Okla. Cr. 208, 144 P. 560; Metcalf v. State, 10 Okla. Cr. 77, 133 P. 1130, 1131; Morris v. State, 4 Okla. Cr. 233, 111 P. 1096; Buchanan v. State, 4 Okla. Cr. 645, 112 P. 32, 36 L. R. A., N. S., 83; Cox v. State, 3 Okla. Cr. 129, 104 P. 1074, 105 P. 369; Drake v. State, 2 Okla. Cr. 643, 103 P. 878.

The question of whether or not the defendant was a principal was one to be resolved in the light of the facts. This issue the jury resolved against him. It was within their province so to do. As we have hereinbefore said, where the evidence is conflicting but substantial, this court will not interfere with the jury’s verdict on appeal. For all of the foregoing reasons, the conviction herein had is affirmed.

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


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Ex parte WALTER WASHINGTON.
    No. A-10871.
    Sept. 29, 1948.
    (198 P. 2d 225.)
    Charles E. Dierker, of Oklahoma City,' for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner, Walter Washington, was charged with the crime of murder in the district court of Pottawatomie county, Okla., on August 28, 1942, alleging that he did commit the crime of murder on August 31, 1931. He was subsequently tried and convicted of manslaughter in the first degree and sentenced to serve a term of 20 years in the State Penitentiary. On appeal this court modified the sentence to a term of ten years imprisonment in the State Penitentiary and affirmed the judgment. Washington v. State, 80 Okla. Cr. 300, 159 P. 2d 278.

This action was instituted by the petitioner in which he seeks his release from confinement in the penitentiary on the grounds that the charge of manslaughter for which he was convicted was barred by the statute of limitations, and that therefore the court erred in submitting the issue of manslaughter in the first degree to the jury, and the court was without jurisdiction to sentence him for the crime of manslaughter which was barred by the statute of limitations.

Extensive briefs have been filed by counsel for the petitioner and also by the Attorney General.

Subsequent to the hearing before the Criminal Court of Appeals, the petitioner acting through his counsel, Charles E. Dierker, made application to the Pardon and Parole Board for clemency, and on the 9th day of September, 1948, pursuant to the recommendation of the Pardon and Parole Board, the Governor of the State of Oklahoma issued a parole which was accepted by the petitioner and he was accordingly released from confinement in the State Penitentiary.

The purpose of the writ of habeas corpus being to secure release from illegal imprisonment, it necessarily follows that where the petitioner is released from imprisonment, the question raised in the petition becomes moot.

By reason of the fact that the petitioner was granted and accepted a parole and was accordingly released from confinement in the State Penitentiary, it is ordered that his petition for the writ of habeas corpus be and the same is hereby dismissed.

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


text:
    Ex parte BILL CRITSER.
    No. A-11125.
    Sept. 29, 1948.
    (198 P. 2d 228.)
    Bill Critser, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding in habeas corpus brought by the petitioner Bill Critser, seeking his release from the penitentiary at McAlester, Okla.

Petitioner alleges that he was convicted in the district court of Tulsa county, Okla., on a charge of robbery by force of one Walter Mason of $30 in money, on October 4, 1947. He contends that though counsel was appointed for him by the court before arraignment, at the time of arraignment counsel was not present, but he admits that notwithstanding counsel was not present he entered a plea of not guilty. Thus, he was not injured by the absence of his counsel. Thereafter, he apparently announced ready, when the case came on for trial before a jury, apparently with the aid of counsel, at which time he was convicted, and sentenced to five years in the penitentiary. He contends that the fact he entered his plea without the aid of counsel in the preliminary stages of the proceeding is ground for relief by habeas corpus. This contention, however, is without merit under the circumstances herein involved, for it was said in Huffman v. State, 46 Okla. Cr. 377, 287 P. 1090, 1091:

“The record discloses that defendant announced ready for trial, and even if the manner of taking the plea was irregular, it was waived by such announcement. Ray v. State, [40 Okla. Cr. 413], 269 P. 509.”

In his petition he further says he was inexperienced in matters of the law. We must observe that it was not necessary that he be experienced in such matters since he had the aid and advice of counsel provided by the court.

Next he contends that the evidence upon which he was convicted was purely circumstantial and unsubstantiated. This is a matter that can be reached only on appeal, and not by habeas corpus, for it has been repeatedly held that habeas corpus is not a substitute for appeal. Ex parte Broyles, 84 Okla. Cr. 47, 178 P. 2d 652; Ex parte Barr, 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934; Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Robinson, 56 Okla. Cr. 404, 41 P. 2d 127; Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456; Ex parte Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A., N. S., 805; In re Sullivan, 82 Okla. Cr. 364, 170 P. 2d 260; Ex parte Miller, 82 Okla. Cr. 315, 169 P. 2d 574; and numerous other decisions to that effect.

Moreover, we have said that habeas corpus cannot be used to correct irregularities of procedure. Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561, certiorari denied Cannes v. State, 320 U. S. 764, 64 S. Ct. 44, 88 L. Ed. 456. Also, Ex parte Darr, supra; Ex parte Stover, 14 Okla. Cr. 120, 167 P. 1000; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549, wherein this court said:

“The Criminal Court of Appeals on habeas eorpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions over which the court has jurisdiction.”

Furthermore, this court has repeatedly held that the writ of habeas corpus is limited to cases wherein the judgment and sentence of the court attacked are clearly void. Ex parte Walker, supra; Ex parte Darr, supra; Ex parte Tollison, supra; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. It clearly appears in the case at bar that the judgment and sentence herein pronounced is not void, for the court had jurisdiction of the subject matter, robbery by force, Title 21 O. S. A. 1941 §§ 791, 792, 793; jurisdiction of the person of the defendant, and authority under the law to pronounce the sentence imposed, Title 21 O. S. A. 1941 §§ 797, 798, 799.

In his prayer, the petitioner prays that he may “be granted a reduction in the presently being served highly excessive sentence.” This contention is likewise without merit, since it does not form the basis for relief by ha-beas corpus. The judgment and sentence is for five years in the penitentiary. The minimum punishment for first degree robbery, in which classification robbery by the use of force falls, is ten years, and for second degree robbery the maximum punishment is not exceeding ten years. It is, therefore, apparent that the judgment and sentence herein imposed can in no respect be regarded as excessive and the basis for relief by habeas corpus since the judgment and sentence herein pronounced is less than the minimum for first degree robbery, and does not exceed the maximum for second degree robbery. It occurs to the court in this regard that the record discloses that the petitioner herein is more fortunate than imposed upon relative to the sentence herein imposed. Therefore, it appearing that the petition is insufficient upon which to base relief by habeas corpus, the writ prayed for therein must be denied.

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


author: BAREFOOT, P. J.

text:
    WILLIAM TRUMAN DENNEY v. STATE.
    No. A-10959.
    Sept. 29, 1948.
    (198 P. 2d 230.)

      Paul O. Simms, of Yinita, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and George Pitcher, Co. Atty., of Yinita, for defendant in error.
   BAREFOOT, P. J.

William Truman Denney was charged in the county court of Craig county with the offense of “driving a motor vehicle while under the influence of intoxicating liquor”; was tried, convicted, and a fine of $50 and 30 days in jail assessed by the jury.

No appearance was made by defendant at the time this case was set for oral argument, and no brief has been filed in his behalf. On November 21, 1947, a motion was filed by the Attorney General to dismiss the appeal for the reason that “the attempted appeal was not filed in this court until 122 days after the date of said sentence.” No response has been filed to this motion, which was served on counsel for defendant by mailing him a copy thereof on November 19, 1947.

An examination of the record sustains the facts set forth in the motion of the state to dismiss the appeal. 22 O. S. 1941, § 1054; Clasby v. State, 87 Okla. Cr. 173, 196 P. 2d 541; Loving v. State, 87 Okla. Cr. 150, 196 P. 2d 519; Butler v. State, 83 Okla. Cr. 105, 173 P. 2d 453; Jackson v. State, 86 Okla. Cr. 6, 188 P. 2d 878; Davidson v. State, 82 Okla. Cr. 152, 167 P. 2d 381.

Por the reasons above stated, the motion to dismiss the appeal is sustained, and the case remanded to the trial court, with directions to enforce its judgment and sentence.

JONES and BRETT, JJ., concur.


text:
    Ex parte WILEY MERRITT.
    No. A-11076.
    Sept. 29, 1948.
    (198 P. 2d 231.)
    Wiley Merritt, of McAlester, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, J.

This is an original action styled “Petition in Habeas Corpus for Reduction of Sentence” instituted by the petitioner, Wiley Merritt, who is now an inmate of the State Penitentiary at McAlester. The Attorney .General on behalf of the respondent, warden of the State Penitentiary, has filed a demurrer to the petition.

The verified petition alleges that the petitioner was convicted in the district court of Comanche county of the crime of robbery with firearms and sentenced to serve 15 years’ imprisonment in the State Penitentiary. There are set forth in the petition, numerous allegations of fact supported by written statements of individuals attached to the petition for the purpose of showing that on the date of the alleged crime the petitioner was in the State of Texas working at a cafe in Dallas, and was therefore not guilty of the crime. It was also shown by the record that this defense was presented to the jury and disregarded. by them. There is a strong showing, including a letter from the county attorney from Comanche county, indicating a belief that the petitioner was innocent of the crime. The county attorney who wrote the letter, however, was the attorney who represented the defendant at the trial and was not the county official who conducted the prosecution.

It is established law that on application for writ of habeas corpus, the Criminal Court of Appeals is without jurisdiction to modify the petitioner’s sentence. Ex parte Wright, 73 Okla. Cr. 167, 119 P. 2d 97; Ex parte Cassidy, 83 Okla. Cr. 159, 174 P. 2d 271.

This court is limited in habeas corpus cases, brought by an inmate of the penitentiary seeking release from custody, to an examination of the record to determine whether the judgment and sentence under which the inmate of the penitentiary is serving is void. In the instant case the punishment assessed in accordance with the verdict of the jury was within the limitations fixed by statute upon a conviction for a crime of robbery with firearms. Tit. 21 O. S. 1941 § 801.

Since the relief sought is for a reduction of sentence based upon the alleged innocence of the petitioner so that with the reduced sentence he would be eligible for release from the State Penitentiary, it is evident that the relief sought cannot be granted.

The writ of habeas corpus is therefore denied.

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


text:
    VIRGIL PINKSTON McCANN v. STATE.
    No. A-10896.
    Oct. 6, 1948.
    (198 P. 2d 436.)

      Lee Williams, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defenaant, Virgil Pinkston McCann, was charged in the court of common pleas of Oklahoma county with the illegal possession of intoxicating liquor; a jury was waived, the defendant was tried, found guilty and sentenced to serve 30 days in the county jail, and pay a fine of $300, and has appealed.

The single proposition presented by the appeal is that the court erred in overruling the motion to suppress evidence.

The affidavit for search warrant and the warrant used by the police officer in making a search of the premises described by the search warrant were introduced in evidence. The premises as described in the search warrant were as follows:

“A parking lot and all buildings, located at 127 N. W. 5th Street, in Oklahoma City, Oklahoma.”

The search warrant is what is commonly known as a John Doe warrant and recites that “John Doe, whose more full, true and correct name is not known, etc., occupied the premises.” Counsel contend that the defendant was known to the policeman making the affidavit .for the warrant, and where the name of owner or occupant of the premises to be searched is known, it is essential to the particular description of the premises to set forth his name in the affidavit and warrant. Mason v. State, 63 Okla. Cr. 153, 73 P. 2d 468.

The affidavit was executed by Ray Peddicord, a. policeman of Oklahoma City. He was not called as a witness on the motion to suppress evidence. There is nothing in the record to indicate that he knew that the defendant was the person who had charge of the premises described in the warrant. There is a distinction in the decided cases between those cases where a warrant is issued for the search of property and for the search of a person.

In Chronister v. State, 73 Okla. Cr. 367, 121 P. 2d 616, this court held:

“Where a search warrant is issued for the purpose of searching a person, such person should be particularly described, and if his name is known it should be stated in the warrant. If a search warrant is issued for the search of a place, the place must in like manner be particularly described in the affidavit and warrant, and the name of the owner should be set out, or he should be described as unknown, according to the facts. If the place is particularly described, it is not absolutely essential that the name of the owner or occupant be stated.”

We can find no reversible error in the record. The punishment assessed the defendant was severe, but he is an old offender, having been before this court on appeal in many other cases, several of which were affirmed. McCann v. State, 74 Okla. Cr. 388, 126 P. 2d 559; McCann v. State, 75 Okla. Cr. 216, 130 P. 2d 108, 109; McCann v. State, 82 Okla. Cr. 297, 169 P. 2d 219; McCann v. State, 82 Okla. Cr. 301, 169 P. 2d 221; McCann v. State (first case), 82 Okla. Cr. 203, 169 P. 2d 222; McCann v. State (second case), 82 Okla. Cr. 304, 169 P. 2d 222; McCann v. State, 82 Okla. Cr. 377, 170 P. 2d 561; McCann v. State, 82 Okla. Cr. 374, 170 P. 2d 562; McCann v. State, 83 Okla. Cr. 206, 174 P. 2d 855.

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

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


text:
    Ex parte BOBBY BLUEJACKET.
    No. A-11137.
    Oct. 6, 1948.
    (198 P. 2d 438.)
    Bobby Bluejacket, pro se.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Elmer W. Adams, Co. Atty., of Tulsa, for respondent.
   BRETT, J.

This is an original proceeding in which the petitioner, Bobby Bluejacket, alleges he is illegally restrained of his liberty by C. P. Burford, warden of the Oklahoma State Penitentiary at McAlester, Okla.; that the cause of his restraint to the best of his knowledge, information and belief is as follows: That on June 23, 1948, upon being convicted of the crime of manslaughter in the first degree he was sentenced by the court to serve 99 years in the State Penitentiary at McAlester, Okla., and the defendant was held to bail and is now confined in the State Penitentiary at McAlester in default of making bond fixed by the district court of Tulsa county, Okla., at $40,000.

Petitioner avers that said bail in the case at bar is excessive, and he is unable to make it. It appears that the district court refuses to make a reduction in the amount of said appearance bond. Rule to show cause was made returnable on September 23, 1948. A hearing was had, and after hearing the facts, the court is of the opinion that the petitioner is not entitled to the relief prayed for.

The writ is denied, and the court refuses to reduce the amount of bond as fixed by the trial court in the amount of §40,000.

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


author: BAREOOT, P. J.

text:
    DICK PASSMORE v. STATE.
    No. A-10900.
    Oct. 6, 1948.
    (198 P. 2d 439.)

      H. Tom Night, Jr., of Claremore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and H. P. Daugherty, County Atty., Rogers County, of Claremore, for defendant in error.
   BAREOOT, P. J.

Defendant, Dick Passmore, was charged in the county court of Rogers county with the offense of having unlawful possession of intoxicating liquor, to-wit: nine pints of whisky; was tried, convicted and sentenced to pay a fine of $500 and to serve 30 days in the county jail, and has appealed.

The assignments of error will be considered in their order.

The facts revealed by the record are that defendant was operating a place known as the Veterans’ Club, located about one and three-quarters mile south of Clare-more, on U. S. Highway 66. On October 21, 1946, Roy Carver, the sheriff of Rogers county, procured a search warrant for the purpose of searching said premises. He was accompanied by his jailor, Lot Langley; and J. C. Busby and Ralph Thompson who were members of the State Highway Patrol.

The evidence of Sheriff Carver was that on the date in question he entered the Veterans’ Club, which was a public place. A large number of people were present. There was a bar and the sheriff observed the defendant behind the bar. A number of people were dancing, others were sitting at tables with “high ball” glasses. The sheriff smelled the glasses, and detected the odor of whisky. He testified:

“Q. In his place of business, where did you find the nine pints of whisky? A. Hick had one in his hand and he was mixing a high ball for a boy at the bar. Another pint was sitting on the counter they had for chopped ice and stuff, and the rest of the whisky was in a carton down by the back bar of the place. * * * Q. Where did you find the nine pints of whisky you say you found? A. Hick (the defendant) had one in his hand when I went in. A couple on the bar, and the rest in a cupboard behind the bar.”

Joe C. Busby and Ralph Thompson, members of the State Highway Patrol, who were present with Sheriff Carver, both testified and corroborated the evidence of Sheriff Carver.

No evidence was offered by the defendant.

The first contention of defendant is that certain information obtained by the sheriff was hearsay; that the facts stated in the search warrant, and the affidavit therefor, were based upon information and belief, and that the court erred in refusing to sustain the motion of defendant to suppress the evidence.

The case-made does not contain a copy of the search warrant, or a copy of the affidavit upon which it was based. Neither does it contain the evidence, if any was offered, at the time the motion to suppress was presented. The motion to suppress was not filed until February 17, 1947, and was presented on February 18, the day before the trial of the case. A copy of the motion was not served on the county attorney until the beginning of the trial of the case. From the above statement, it was not error for the court to overrule the motion to suppress.

However, under the evidence presented in this case, it was not necessary for the sheriff to have a search warrant to lawfully search defendant’s place of business. When he entered the Club, which was open to the public and which the sheriff and other officers had the right to enter the same as any other citizen, he saw violations of the law being committed in his presence by the defendant.

37 O.S. 1941 § 89 provides:

“When a violation of any provision of this Chapter, shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant to arrest the offender and seize the liquor. * *

In construing this section of the statute, it has often been held by this court that where a misdemeanor is committed in the presence of an officer, he has the right to arrest without a warrant, and after the arrest, to search the defendant and his immediate surroundings. Overturf v. State, 69 Okla. Cr. 303, 102 P. 2d 623; Brown v. State, 74 Okla. Cr. 246, 125 P. 2d 234; Mullins v. State, 75 Okla. Cr. 417, 133 P. 2d 239; Glasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430.

It is contended that the court erred in refusing to sustain a motion to disqualify all of the jurors in this case for the reason that they were in the courtroom and heard the evidence taken on the motion to suppress. This hearing was on February 18, 1947, and the motion to disqualify the jury was made on the following morning, February 19, when the case was called for trial. No evidence was taken, and there is nothing in the record to sustain this contention.

Counsel for defendant then offered a motion to disqualify the county judge. It is unnecessary to state the contents of this motion. The contention of defendant has been passed upon in a case where the facts are almost identical with those here presented, the case of Young v. State, 74 Okla. Cr. 64, 123 P. 2d 294. In that case the facts are fully discussed and the law applicable thereto stated. In the case now before us, no attempt was made to comply with 22 O. S. 1941 § 575, which sets forth the procedure to be followed where an attempt is made to disqualify the judge of a court of record of this state.

It is next contended that the judgment and sentence is excessive under all the facts in this case, and that the argument of the county attorney before the jury was prejudicial to the defendant and in conflict with the statute which provides that when the defendant does not take the witness stand, no comment shall be made thereon. This is 22 O. S. 1941 § 701, and is as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemean- or before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.”

This section of the statute has often been under consideration by this court. We have read the cases, and especially those cited by the state and defendant in their briefs.

The case-made does not contain the argument of the county attorney. There appears in the record the following:

“Mr. Kight (counsel for defendant) : The county attorney called the attention of the jury to the fact that the defendant did not put on any testimony, to which statement the defendant objects and asks the court to admonish the county attorney that he should not make such a. statement to the jury, and the jury should not consider it, and that failure to put on testimony does not reflect on him in any manner. Judge Hall: I do not think the county attorney should refer to that again. Mr. Daugherty: To which ruling of the court the county attorney takes exception. You have nothing before you except the state’s evidence. It just settles down to a proposition of what you mean, what you want to do with this case. You can take this case as the truth or by your verdict of not guilty you can say that you do not believe the testimony of any officer that the state has offered at this time. Mr. Eight: To which defendant objects. Judge Hall: Objection noted. Mr. Daugherty: Dick Passmore is either guilty or he is not guilty and the only measuring stick is the evidence in this case. That is the yard stick, the only one you have got and it is up to you men to take that yard stick and perform your duty. I am not telling you to find this man guilty. I am not telling you to do that. That is your responsibility. I have discharged my duty and so has the sheriff that you have elected to office. It is now your duty. You men come back and say whether or not your sheriff has discharged his duty or whether or not he has neglected it. I think that is' all.”

It is doubtful if, under the decisions of this court construing the above statute, the record would be sufficient to review the remarks placed in the record. Wilson v. State, 24 Okla. Cr. 332, 217 P. 885; Johns v. State, 55 Okla. Cr. 100, 25 P. 2d 716; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d .345; Trotter v. State, 77 Okla. Cr. 368, 141 P. 2d 812.

After an examination of the cases cited, we are of the opinion that, regardless of the compliance with the law with reference to properly taking exception to the argument of counsel, the facts here presented were not such as to constitute a violation of the statute.

In the case of Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 196, the remarks made by the county attorney were:

“They argue about the marks made by the automobile or truck in this case, gentlemen, if that was not so why didn’t the defendant offer some testimony about that.”

Other statements made in the case are similar to the ones made in the instant case, and the judgment was affirmed. See, also, McDonald v. State, supra; and Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646.

In the case of Starr v. State, 63 Okla. Cr. 302, 74 P. 2d 1174, 1178, the question was:

“The defendant had the stolen property. There is no other fact. Nobody has given you any other fact.”

Judge Jones, in writing the opinion in the case of Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 834, 836, quotes with approval from the Chesser ease, where it is said :

“Statements of the prosecuting attorney, in argument to the jury, ‘Why couldn’t they contradict the state’s testimony, but not one place do they do that,’ and ‘I say again there is no evidence offered to contradict the state’s evidence in this case,’ held, not a comment upon the failure of the defendant to testify as a witness in his own behalf, within the meaning of section 3068, St. 1931 (22 O. S. A. § 701).”

In the Presnell case the language was:

“The witness, Deehan, who is now deceased, in his testimony identified this defendant, and that has not been denied or contradicted by anyone in this case.”

The judgment in the Presnell case was affirmed.

As to the contention that the judgment and sentence is excessive, we call attention to the fact that the verdict of the jury in this case contains the following statement:

“We recommend that jail sentence be suspended but that fine be paid.”

Under the law a recommendation of the jury to suspend the sentence is not binding on the court, and in a liquor case the court does not have the right to suspend the jail sentence and leave the fine to be imposed. Coe v. State, 86 Okla. Cr. 297, 192 P. 2d 291.

No donbt the maximum fine of $500 was imposed by the jury in this case on the assumption that the recommendation that the jail sentence be suspended would be complied with. The court rightfully did not attempt to follow the recommendation of the jury.

We are of the opinion that, under the facts and circumstances in this case, the judgment and sentence should be modified from a fine of $500 and 30 days in jail, to a fine of $250 and 30 days in jail; and as so modified, the judgment of the county court of Rogers county is affirmed.

JONES and BRETT, JJ., concur.


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    CALLIE EDWARDS v. STATE.
    No. A-10920.
    Oct. 13, 1948.
    (198 P. 2d 656.)

      C. C. Williams, of Poteau, for planitiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Joseph W. Foster, County Atty., LeFlore County, of Poteau, for defendant in error.
   BAREFOOT, P. J.

Callie Edwards was charged in the district court of Le Flore county with the crime of grand larceny; tried, convicted and sentenced to serve one year in the State Penitentiary, and has appealed.

The charge was the larceny of three spools of 12 gauge, 39" net wire of the value of $35.85, the personal property of Mrs. Claudia Laramore.

In his petition in error the defendant sets out six assignments of error, but in his brief presents only three assignments, and concludes, “which constitutes, when taken as a whole, that the verdict of the jury is not sustained by the evidence and is contrary to law.”

In support of his contention that this case should be reversed, defendant relies upon the case of Ritter v. State, 84 Okla. Cr. 418, 183 P. 2d 257, in which the defendant was convicted of the illegal possession of intoxicating liquor. That was a case based upon circumstantial evidence, and the court held that the evidence was not sufficient to connect the defendant with the possession of the liquor in question.

It is true, as held in the Bitter case, that in a case based solely upon circumstantial evidence, before a verdict of guilty will be permitted to stand, the circumstances proved must not only be consistent with the guilt of the defendant, but inconsistent with his innocence and exclude every other reasonable hypothesis other than that of guilt. Davis v. State, 18 Okla. Cr. 112, 193 P. 745; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052; Sanders v. State, 43 Okla. Cr. 69, 277 P. 605; Sears v. State, 79 Okla. Cr. 437, 156 P. 2d 145.

It is equally well settled that where a conviction rests upon circumstantial evidence, and the circumstances are proven from which the reasonable and logical inference of guilt clearly arises and which excludes any reasonable hypothesis except the guilt of the defendant, although the evidence is conflicting, this court will not substitute its judgment for that of the jury and the trial judge, who were in much better position, after hearing and seeing the witnesses, to determine the issues than is the appellate court. Where the evidence is conflicting, the weight of the evidence and credibility of the witnesses are for the jury. Morris v. State, 67 Okla. Cr. 404, 94 P. 2d 842; Herren v. State, 69 Okla. Cr. 57, 97 P. 2d 96, 100 P. 2d 286; Bucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629; Courtright v. State, 79 Okla. Cr. 270, 154 P. 2d 588; Grooms v. State, 77 Okla. Cr. 448, 142 P. 2d 862; Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758.

Here we find a chain of circumstantial evidence which irresistibly points to the guilt of the accused. Mrs. Laramore testified to the loss of the three spools of wire, which had been left on a concrete block by the side of a store building across the highway and a block from her home, in the town of Muse, LeFlore county. She saw the wire there on the evening of June 11, 1946. The next morning her father missed the wire, and reported to her, and they found where it had been rolled from the place ivhere stored, through clover and Bermuda grass 510 steps to the bank of the Kiamichi river. There they found truck tracks. She reported the loss to the officers, and she and her father, Avith a deputy sheriff, Avent to the home of defendant, where they found one spool of 39" net wire and one spool of 20" wire, in his barn. She testified to finding clover in the wire.

Mr. MorpheAV, the father of Mrs. Laramore, corroborated her testimony, and also testified to going from his daughter’s home on the night of June 11th, across the river to his OAvn home, and of seeing a truck parked by the river at the place where the wire apparently “left the ground.” He returned to the home of his daughter in a short while, and the truck was still parked there. He saAV no one in the vicinity of the truck. He testified that the grill on the truck was broken, and an examination of the tracks made by the truck the next morning disclosed that all of the tires were smooth, except the left inside tire on the rear dual wheel. He later saw this truck in Talihina, and defendant stated that the truck belonged to him.

Virgil Wood accompanied the father of Mrs. Lara-more to his home across the river and back on Tuesday night, June 11th, and corroborated his testimony concerning the location of the truck, and that he later identified the truck as that owned by the defendant.

Jack Bishop, a deputy sheriff, testified that the loss of the wire was reported to him on June 12th; that he could and did “track the wire by the weeds being mashed down” to the place on the river bank where they found the truck tracks; that the tracks made by what he described as a ton and a half truck with dual wheels on the rear, corresponded exactly with the tires on defendant’s truck. He accosted the defendant, on the streets at Pine Valley, and told him about the loss of the wire. Defendant told him he had some wire at his barn, and offered to take him down to look at it. The witness got Mrs. Laramore and her father, the father rode in the truck with defendant, and they went to his barn, where they found the wire, as testified to by Mrs. Laramore. There was clover in the wire.

The father of the defendant testified that he bought the two spools of net wire found in defendant’s barn for his son in Mena, Ark., and produced a sales slip, showing the sale of “1 net wire $12.35. 1 net wire $8-.18.” This sales slip, dated 6-4-45, was introduced in evidence. There was nothing on the slip to show the name of the merchant, or where the wire was purchased.

Velva Taylor, a neighbor farmer, testified that at the time defendant moved to the location where the wire was found, witness opened a gate for defendant, and saw two or three spools of net wire on his truck. He was in need of wire, and offered to buy it, but defendant declined to sell.

Defendant’s wife, his brother and the brother’s wife, and Fred Munson all testified that on Saturday afternoon, June 8, 1946, they accompanied the defendant when he drove in his truck up in the mountains, and spent the night. They were picking huckleberries, and returned on Sunday afternoon. They all testified that on the way up they stopped at a place on the river and got water to take with them. They stopped at the identical spot where Mr. Morphew and Mr. Wood saw the truck parked between 9 and 10 o’clock on the night of June 11th, and where the deputy sheriff, Mrs. Laramore and her father testified that the wire “left the ground,” and where they found the truck tracks on Wednesday, June 12th. The ground was dry and sandy.

Defendant testified in his own behalf, positively denied taking the wire, and corroborated the testimony of his father with reference to the purchase of the wire in Mena, Ark., and the other witnesses concerning the night spent on the mountain, and stopping the truck on the river bank to get water.

On rebuttal the state produced Herbert Moody, who testified that after defendant had been arrested, charged with the theft of the wire, he found a roll of net wire submerged in his pond about a quarter of a mile from the home of defendant. He pulled the wire out of the pond and took it to the home of the defendant, “Because it was the only house around there any place.” He testified that defendant admitted placing the wire in the pond, and when asked by witness why he did so, answered: “I bought the wire and they arrested me for stealing some wire, and I knew if they stuck me they would take it away from me.” He further testified that defendant asked him to take the wire home with him, but he refused to do so and rolled it out of his wagon and left it in defendant’s yard.

Defendant was recalled, and asked by his attorney:

“You heard him say when he brought the wire from his lake up there — you heard him say you admitted putting it in there and the reason you did it — or in substance, you wouldn’t get your wire and you wanted him to take it on home? A Yes, I heard him say that. Q. Is that true? A. No, sir.”

While the evidence in this case is wholly circumstantial and is conflicting, the evidence of the state was sufficient, if believed by the jury, to support the verdict of guilty.

Counsel in his brief states that “It will be apparent that the jury would not have convicted the plaintiff in error had not the witness Herbert Moody testified in rebuttal.”

Defendant admits that the testimony of this witness was competent for the county attorney to introduce in his evidence in chief, but complains that his name did not appear in the list of witnesses, although the county attorney had information of the nature of the testimony of the witness; and complains of the unfairness of this practice among county attorneys. At the time this witness testified, no objection thereto was interposed by counsel for defendant.

While the defendant was on the witness stand, the county attorney asked him, on cross-examination, where he got the wire found in Herbert Moody’s pond, and he answered that he knew nothing about any wire being found in Herbert Moody’s pond. He was then asked if Herbert Moody did not find some wire in his pond and take it to defendant’s place, and ask if he placed it in the pond and defendant told him that he did put the wire in the pond because this case was up and defendant was afraid they would take it away from him, to which the defendant answered “No.”

The predicate having properly been laid for the admission of this testimony, we think it was admissible for the purpose of showing an act or statement against interest made by the defendant. Bowman v. State, 82 Okla. Cr. 199, 167 P. 2d 663; Tillman v. State, 82 Okla. Cr. 276, 169 P. 2d 223.

Either party is entitled to introduce evidence to rebut that of the other, and where the state offers relevant testimony in rebuttal, the fact that such evidence might have been introduced in chief does not necessarily prevent its introduction as evidence in rebuttal. The introduction of such evidence is a matter of discretion of the trial court, and will not be ground for reversal unless an abuse of this discretion is shown; and where no objection is made or exception saved, the alleged error is waived, unless fundamental. Quinn v. State, 55 Okla. Cr. 116, 25 P. 2d 711; Tingley v. State, 16 Okla. Cr. 639, 184 P. 599; Bowman v. State, supra.

After a careful consideration of the entire record, we have found no fundamental error which would justify a reversal of the judgment of conviction.

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

JONES and BRETT, JJ., concur.


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    Ex parte SEARCY BAILEY.
    No. A-11120.
    Oct. 13, 1948.
    (198 P. 2d 660.)

      Searcy Bailey, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

Petitioner, Searcy Bailey, filed his petition for a writ of habeas corpus in this court on August 19, 1948, wherein he alleged that he is unlawfully imprisoned and restrained of his liberty by C. P. Burford, warden of the penitentiary at MeAlester, Okla., and in which he prayed that a writ of habeas corpus be directed to said warden that he might be brought before this court “to do, submit to and receive what the law may require”. Petitioner alleges that he was convicted on January 5, 1946, of robbery by force of a taxicab driver in Jackson county, at Altus, Okla.

Said matter came on for hearing before the Criminal Court of Appeals on the 23rd day of September, 1948. Petitioner made it appear by sworn allegations that he was denied his constitutional right to the aid of counsel, and that the county attorney promised him if he would enter his plea of guilty he would not receive more than ten years; that notwithstanding said agreement the court sentenced him to 25 years in the State Penitentiary.

At the hearing, on behalf of the state it appeared from the minutes of the court that he was not at any time denied any of his constitutional rights of which he complains; that the court tendered him aid of counsel, and that he declined such tender and waived the right to such aid, and entered his plea of guilty.

Evidence on behalf of the state sworn to by Honorable Ross Rutherford, assistant county attorney, was to the effect that petitioner was fully advised of all of his rights by the Honorable John B. Wilson, then district judge of Jackson county, Okla., and that said defendant stated that he did not desire an attorney. Further, Mr. Rutherford’s evidence discloses that the petitioner was tendered counsel by Judge John B. Wilson, which he waived. Moreover, he swore that the petitioner was not induced to plead guilty under the belief that he would not get more than ten years, but affirmatively shows that no promise of any kind was made to the petitioner to induce him to plead guilty; that it was the preference of the county attorney’s office that the petitioner be convicted and the plea of not guilty be accepted for the reason that the petitioner admitted that he threatened one Taitón Owens with an icepick and that at the point of said icepick forced the said Owens to surrender his money; that after obtaining the said money the petitioner then stabbed the said Owens and took his taxicab and left Al-tus, Okla.; that after being apprehended he confessed and entered a plea of guilty as hereinbefore indicated. Under the state of the record as herein made, under the law in this state, where a disputed question arises as to what occurred upon arraignment of one accused of crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred. Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18. The record at the hearing, both as reflected in the evidence of Honorable Boss Rutherford and in the court minutes, discloses that the petitioner was advised of all his constitutional rights, and particularly as to aid of counsel by the Honorable John B. Wilson, then district judge of Jackson county, Okla. In Johnson v. State, 79 Okla. Cr. 363, 155 P. 2d 259, 260, it was said:

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

We have held such is not always the rule in capital cases involving minors. Ex parte Cornell, 87 Okla. Cr. 2, 193 P. 2d 904. But here, we are not confronted with a capital case. This court has repeatedly held that a person may waive the rights guaranteed to him by the Bill of Rights, O. S. 1941 Const. art. 2, § 1 et seq., relating to trial by jury, right to aid of counsel, etc. Ex parte Meadows, supra; Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588. In Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461, 146 A.L.R. 357, it was said:

“When this right (to counsel) is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. * * *”

The record herein shows the right to counsel was properly waived. It appears from the record herein that the petitioner was accorded all his constitutional rights, voluntarily, without persuasion, waived the right of aid of counsel, and entered his plea of guilty without any inducements being offered him so to do. This court has held that upon a petition for a writ of habeas corpus, the burden is upon the petitioner to sustain the allegations thereof. Ex parte Motley, supra. The record discloses the petitioner has wholly failed to sustain the allegations of his petition. It clearly appears that the court had jurisdiction of the petitioner’s person, of the subject matter, and under the law had authority to pronounce the judgment and sentence rendered. These are the essential elements for the rendition of a valid judgment and sentence. Ex parte Motley, supra. Moreover, relief by habeas corpus is limited to cases where the judgment and sentence is clearly void. Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Darr 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. No such situation confronts us herein. In the light of the record and the foregoing authorities, we are of the opinion that the writ herein prayed for should be and the same is denied.

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


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    Ex parte WILLIAM ROY FARR.
    No. A-11065.
    Oct. 13, 1948.
    (198 P. 2d 748.)
    William Roy Farr, of McAlester, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus by the petitioner, William Roy Farr, who is confined in the Oklahoma State Penitentiary at McAlester.

In the verified petition it is alleged that on September 15, 1945, the petitioner entered a plea of guilty to the charge of burglary in the second degree in the district court of Oklahoma county, and the said judgment and sentence of two years imposed upon his plea of guilty was suspended during his good behavior. Subsequent thereto, on December 11, 1945, the petitioner entered his plea of guilty to the crime of burglary in the second degree after former conviction of a felony and was sentenced to serve ten years in the State Penitentiary. On December 20, 1945, the district court of Oklahoma county entered an order revoking the suspended sentence of the petitioner and directing his commitment to the Penitentiary.

The petitioner contended that the order revoking the suspended sentence having been made eleven days after the petitioner was sentenced for the crime of burglary in the second degree after former conviction of a felony, the sentence of ten years is excessive and without the jurisdiction of the district court for the reason that the two year sentence for burglary in the second degree had been suspended and was not effective so as to authorize the court to enlarge his punishment upon a plea of guilty to burglary in the second degree after a former conviction of a felony, which former conviction was based upon the suspended sentence which had been given.

In the case of Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, 168, it is held:

“When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.”

Petitioner is in error in thinking that he was not a duly convicted person after the suspension of his sentence. While under the suspended sentence he was not freed from the legal consequences of his guilt. He was merely enjoying a conditional favor bestowed by the district court which postponed his punishment upon certain conditions, which postponement might have been withdrawn at any time within the discretion of the court. The county attorney was therefore authorized at anytime subsequent to the sentencing of the petitioner even though the sentence was suspended in charging the petitioner with committing a crime after a former conviction of a felony.

The petitioner further alleges that the sentence which was imposed upon him is excessive and asks this court to reduce it. The sentence of ten years imposed upon petitioner to the plea of guilty after a former conviction of burglary in the second degree was the minimum sentence which could be pronounced under the law for such crime. Tit. 21 O. S. 1941 § 51.

Furthermore, it is well settled that in a habeas corpus proceeding, the Criminal Court of Appeals is without authority to reduce the punishment, but is limited in its inquiry as to whether the judgment and sentence pronounced against the accused was without authority of law. The inquiry is addressed to jurisdictional matters only and may not be used to perform the office of appeal. Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550.

The writ of habeas corpus is denied.

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


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    Ex parte GARLAND TAYLOR.
    No. A-11070.
    Oct. 13, 1948.
    (198 P. 2d 750.)

      Garland Taylor, of McAlester, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This action in habeas corpus was instituted by the petitioner, Garland Taylor, to secure his release from confinement in the State Penitentiary.

The evidence in support of the petition showed that the petitioner was committed to the State Penitentiary on December 2, 1940, upon two sentences that had been pronounced against him, one from the district court of Oklahoma county, dated November 25, 1940, and one from the district court of Bryan county, dated December 2, 1940.

At the time of his reception in the State Penitentiary, the petitioner was given Number 42,821 and was listed on the record as serving the Bryan county sentence for robbery with firearms. Subsequent thereto, and on April 5, 1944, the petitioner, in an action in mandamus brought in the district court of Pittsburgh county, secured a writ of mandamus wherein the court directed the warden to correct the records of the penitentiary to show that the time served by the petitioner since December 2, 1940, should be credited to the sentence from the district court of Oklahoma county, which was the sentence first pronounced and that upon his discharge from his Oklahoma county sentence, he should begin the serving of the Bryan county sentence. Pursuant to the writ of mandamus issued by the district court of Pittsburgh county, the record clerk of the penitentiary showed that the Oklahoma county sentence was completed on August 22, 1943, and the petitioner was accordingly re-filed in the institution as inmate Number 45,775, to commence the serving of the Bryan county sentence, the date of the beginning of said sentence being made retroactive to August 22, 1943.

It is the contention of the petitioner that he having once been listed in the penitentiary as Number 42,-321, to commence the serving of the sentence from Bryan county on December 2, 1940, with the necessary allowances for good time, he is now entitled to discharge from said institution, and that he is being illegally detained in said institution.

Obviously, the contention of the petitioner is without merit. The change in his designation by number was caused by the action in mandamus which he instituted in the county court of Pittsburgh county. He has not served enough time in the institution to complete each of the two terms for which he was committed by the district courts of Oklahoma and Bryan counties. The fact that he now has a different number was caused by a matter which he himself initiated. He may not go into court and seek relief and then subsequently claim that the court erred in granting him the relief which he sought. Even if we should hold with petitioner that he has been serving on his Bryan county sentence all of the time since December 2, 1940, he still would not be entitled to his release on habeas corpus as he would still have the Oklahoma county sentence to serve. Under the evidence before us, the petitioner has completed the service of the Oklahoma county sentence and is now serving the Bryan county sentence. Based on the minimum time with allowances for good conduct and work credits, he will be discharged on November 26, 1950.

The purpose of the writ of habeas corpus is to inquire into the legality of the restraint with which the petitioner is suffering. Since the facts herein show that the petitioner is being legally restrained in the State Penitentiary, it is ordered that the writ of habeas corpus be denied.

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


author: BEETT, J.

text:
    Ex parte MARVIN HAMPTON.
    No. A-11061.
    Oct. 20, 1948.
    (198 P. 2d 751.)

      Marvin Hampton, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti- - more, Asst. Atty. Gen., for respondent.
   BEETT, J.

This is an original proceeding in ha-beas corpus brought by Marvin Hampton, petitioner. In his verified petition he complains that in Osage county in Case No. 2921, he was charged with murder alleged to have been committed by himself and others on March 22, 1930. To this charge he pleaded guilty on March 13, 1937, and was sentenced to life imprisonment in the Be-formatory at Granite, Okla. In his petition he alleges that he is now being unlawfully restrained of his liberty by C. P. Burford, warden of the State Penitentiary at McAlester, Okla. The grounds of said complaint are that he was never served with any notice or copy of the information or list of witnesses; that he was not advised of his rights; that he was not advised that he was entitled to trial by jury, but he was advised by the assistant county attorney that a plea of guilty would bring forth a sentence of five years; that he was advised by the county attorney that he did not need an attorney on a plea of guilty. He further contends that the court first accepted the petitioner’s plea of guilty and then advised him he would have to sentence petitioner to life; that the court did not inform him of his right to withdraw his plea of guilty; that he was not advised of the different degrees of homicide; that on trial he might be convicted of a lesser degree of homicide than murder; that he entered his plea of guilty solely upon the representations made to him by the assistant county attorney; that by reason of the said facts his plea was not voluntary, all of which served to deny the court proper jurisdiction to accept said plea and enter the judgment and sentence thereon.

Furthermore, he contends that the district judge violated the statutes of the State of Oklahoma by sentencing him to the Oklahoma State Reformatory at Granite, Oklahoma, for the reason that the statutes forbid a person to be sentenced to the State Reformatory after conviction for murder. None of the grounds set forth in the petition for habeas corpus appear on the face of the record, but, to the contrary, it appears that the petitioner was accorded his constitutional and statutory rights, the denial of which he first complains. In Ex parte Seale, 75 Okla. Cr. 183, 129 P. 2d 862, 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.”

See, also, Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613, 614.

At the hearing upon the petition, the petitioner offered no additional proof other than that contained in his verified petition. To the contrary, the state- offered in evidence certified copies of the court minutes. An examination of these minutes reveals that the petitioner was not denied any of the foregoing rights, but discloses that the petitioner was ably represented on February 1, 1937, at the time of his arraignment by counsel, Honorable John Tillman of Pawhuska, an able attorney, well versed in criminal procedure and law. The minutes disclose at the arraignment the information was read to him, and a copy thereof served upon him in open court. The minutes further reveal that he was given 48 hours to plead. That thereafter, and on February 3, 1937, petitioner was again present in open court in person and by counsel; that at said time counsel was granted leave to withdraw. It further appears that the court explained the petitioner’s rights to him, and the defendant thereupon entered a plea of not guilty. On February 25, 1937, the petitioner again appeared in open court and asked leave to withdraw his former plea of not guilty for the purpose of entering a plea of guilty. The minutes disclose that before the request was granted, the court explained the penalties of a plea of guilty to the petitioner. That notwithstanding this explanation petitioner entered his plea of guilty to the charge of murder, whereupon sentence was deferred until March 15, 1937. It further appears that on March 13, 1937, petitioner requested that he should be sentenced then and that the matter not be deferred until March 15, 1937. The record discloses that upon this request being made the county attorney made recommendation that the petitioner be given the minimum sentence for murder, that of life imprisonment; that thereupon the court sentenced the petitioner to the reformatory at Granite for a term of his natural life. As hereinbefore indicated, the petitioner offers no proof to support the charges other than Ms verified petition and a photostatic copy of the judgment and sentence. In Ex parte Motley, supra, we said:

“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.
“As against a 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 writ of habeas corpus. * * *
“Where a disputed question arises as to what occurred upon arraignment of one accused of crime great weight will be given to the recitations in the minutes of the court proceedings as to what occurred.
“Public policy will not permit the petitioner, in a habeas corpus proceeding, to supply the missing links, by his testimony standing alone. His release must be based on something more substantial and in any event his testimony should be corroborated by clear and convincing proof.”

Moreover, to the same effect is Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; and Robbins v. State, 12 Okla. Cr. 294, 155 P. 491. No such proof is before us in this proceeding. As was aptly said by this court in Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 147:

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

The record in this case reveals that everything was done to protect the petitioner’s rights to which he was entitled. Moreover, it appears from the record that the rights which the law accords him and of which he did not avail himself, he waived. This he could do, as this court has repeatedly held in Ex parte Meadows, supra; Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588; And in Johnson v. State, 79 Okla. Cr. 363, 155 P. 2d 259, 260:

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

This rule was limited in Ex parte Cornell, 87 Okla. Cr. 2, 193 P. 2d 904, as applied to minors. It appears that such is not the situation in the case at bar. Furthermore, nothing appears from the record made by the trial eourt to the contrary and the judgment and sentence is valid against collateral attack. Ex parte Matthews, supra. It is evident, therefore, that the petitioner’s first contention relative to a denial of his constitutional and statutory rights is without merit.

In his second contention the petitioner alleges that the judgment and sentence is void since the court was without authority of law to sentence him to the reformatory at Granite, Okla. This contention is predicated upon the provisions of 57 O. S. A. 1941 § 105. in effect that “the trial judge shall sentence * * * to the State Penitentiary at McAlester, Oklahoma, * * * all persons whose term of confinement is for life”, etc. This contention might have been made at the outset of the petitioner’s incarceration while he was confined in the Reformatory at Granite, but under the state of his present confinement, such contention is wholly without merit since petitioner is now confined at the penitentiary as by law provided. This holding is in keeping with the rule announced in Ex parte Combs, 87 Okla. Cr. 164, 195 P. 2d 772, 773, to the effect that:

“Custody and place of confinement is an administrative matter and not a judicial act”.

And “where in a habeas corpus proceeding it appears from the petition and the facts involved that the present custody and place of confinement of a person convicted of crime is according to law the writ will be denied.”

Furthermore, 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 person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment. Ex parte Motley, supra. We also said in Ex parte Mayberry, 78 Okla. Cr. 366, 148 P. 2d 785, that inquiry in habeas corpus is limited to a determination of those questions. Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561, certiorari denied, Cannes v. State of Oklahoma, 64 S. Ct. 44, 320 U. S. 764, 88 L. Ed. 456. Moreover, we have repeatedly held, the writ of ha-beas corpus is limited to cases where the judgment and sentence of the court attacked are clearly void. Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. We are confronted with no such situation in this petition for ha-beas corpus, and the writ must therefore be denied.

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


text:
    Application of BERT MILLER.
    No. A-11086.
    Oct. 20, 1948.
    (198 P. 2d 755.)
    Bert Miller, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Bert Miller, who is an inmate of the State Penitentiary at McAlester, serving a life sentence for murder by reason of judgment and sentence of the district court of McCurtain county, has filed in this court an application for writ of mandamus. By this application he seeks to have this court issue a writ of mandamus directed to the district court of Mc-Curtain county, directing said court “to furnish a case-made record at your petitioner’s own expense, or a transcript.”

No part of the record of McCurtain county is attached to the petition, and no evidence was submitted, or appearance made, at the date of the submission of this case on September 22, 1948.

The petition shows on its face that petitioner was sentenced on May 3, 1943. The time for appeal has long since expired. There is no statute in this state which permits this court to issue an order requiring the district court to furnish a transcript or case-made after the time has expired for taking an appeal in a criminal case.

Petitioner contends that he is being deprived of his rights in violation of sec. 7, art. 2 of the Oklahoma Constitution, and the Fourteenth Amendment to the Federal Constitution, which provide:

“No person shall be deprived of life, liberty, or property, without due process of law.”

We do not find that petitioner has been deprived of any right guaranteed under the above provision.

As has often been stated, there has been created in this state a Pardon and Parole Board, which has ample facilities for the consideration and review of the facts where one has entered a plea of guilty, or been convicted and is serving a sentence in the State Penitentiary. It is unnecessary to again review these provisions.

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

JONES and BRETT, JJ., concur.


text:
    Ex parte RICHARD WILLIAMSON.
    No. A-11128.
    Oct. 27, 1948.
    (198 P. 2d 1003.)

      Richard Williamson, petitioner, pro se.
    Mac Q. Williamson, Átty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Richard Williamson, has filed in this court his petition for habeas corpus, seeking his release from the State Penitentiary at McAlester, where he is now confined by reason of a judgment and sentence rendered in the district court of Oklahoma county, upon a plea of guilty to the crime of grand larceny after a former conviction of a felony, and for which he was sentenced to a term of four years in the State Penitentiary.

At the time of the submission of this case upon the rule to show cause, no appearance was made by petitioner or counsel, and no proof was offered to sustain any of the allegations of the petition.

No attempt was made to appeal from the judgment and sentence rendered against petitioner. The judgment and sentence was rendered on March 9, 1948, and the petition for writ of habeas corpus was filed on September 2, 1948. It will be noted that the six months period granted by the statute for an appeal in a felony case had not expired at the time the petition for habeas corpus was filed in this case.

In the brief filed by petitioner in connection with the petition, it is claimed that Habitual Criminal Statute (Tit. 21 O. S. 1341 § 51,) is unconstitutional. This statute provides:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1 If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.
“2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.
“3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.”

This question has been passed upon contrary to the contention of the petitioner. Williams v. State, 56 Okla. Cr. 245, 37 P. 2d 658; Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; Ex parte Hibbs, 86 Okla. Cr. 113, 190 P. 2d 156.

It is contended by petitioner that he was not given a preliminary examination. There is no proof in the record 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; Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868.

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

JONES and BRETT, JJ., concur.


text:
    Ex parte HARVEY LEE.
    No. A-11100.
    Oct. 27, 1948.
    (198 P. 2d 1005.)

      Harvey Lee, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding in ha-beas corpus brought by petitioner Harvey Lee, seeking to effect his release from the penitentiary at McAlester, Okla. In his verified petition he alleges that he is being unlawfully restrained of his liberty by C. P. Bur-ford, warden of the penitentiary. Furthermore, he alleges he was not guilty of the theft of the cow with which he was charged. Furthermore, he says he was denied due process in that he was not accorded his constitutional right to aid of counsel. He says that at the time of said denial he was only 20 years of age. He further alleges it was represented to him by the county attorney that he probably would get 15 years if he did not plead guilty, but if he pleaded guilty the county attorney would see that he got only three years. He says that he believed the county attorney had the power so to do, and that was the motivation which prompted him to enter his plea of guilty. He complains that instead of getting three years he got five years. Petitioner offered no other proof than his verified petition. In opposition thereto, a certified copy of the court minutes discloses the following proceedings were had in the case:

“Feb. 28, 1947. State appears by its County Attorney Charles W. Allen, Jr. Defendant appears in person and is arraigned in open court. Information read. Defendant requests time to have his attorney present. Court grants extension of time and Defendant is again committed to the care of the Sheriff with bond set at the sum of $3000.00.
“Mar. 14, 1947. State appears by its County Attorney, Charles W. Allen, Jr. Defendant having previously been granted 24 hours in which to plead appears in open court in person and enters a plea of ‘not guilty’. Defendant is again committed to care of Sheriff and bond is reduced to sum of $2000.00.
“April 25, 1947. State present by its County Attorney, Charles W. Allen, Jr. Defendant present in person and arraigned in open Court and having heretofore been informed of his constitutional rights, he waived further time to plead and entered his plea of ‘guilty’. It is judgment and sentence of the Court that the Defendant is guilty of the crime of larceny of domestic animals and that he be imprisoned in the State Penitentiary at McAlester for a period of 5 years from date of delivery to the warden. Defendant was notified of his right of appeal to Criminal Court of Appeals.
“April 25, 1947. Judgment and Sentence. * * *”

Moreover, the record before us discloses that petitioner was not without prior courtroom experience; that though he was only 20 years of age at the time the judgment and sentence herein was entered, he had formerly been convicted in the district court of Lincoln county, Okla., in March, 1945, of the crime of second degree forgery, and was given a suspended sentence of two years therefor. Upon this record petitioner asks to be released on writ of habeas corpus.

As to the guilt or innocence of petitioner, this court has repeatedly held that proceedings in habeas corpus cannot be used as a substitute for an appeal. See Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; 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. 489, Note 26, citing numerous authorities from this and other courts so holding. In the light of the foregoing authorities the question of guilt or innocence cannot be considered in this proceeding, and the petitioner’s contention in relation thereto is without merit herein.

Furthermore, we have repeatedly held that inquiry in habeas corpus is limited to the question of whether the court in which the prisoner was convicted and sentenced had jurisdiction of the person of the defendant, and of the crime charged, and did the court have jurisdiction to render the particular judgment. Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Matthews, supra. The record discloses that the court had jurisdiction of the petitioner’s person, and of the subject matter, and had jurisdiction to render the judgment and sentence herein involved. In Ex parte Barrett, 75 Okla. Cr. 414, 132 P. 2d 657, we 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.”

The foregoing being true, the case as based upon the allegations of the petition and the court minutes and the record before us resolves itself into the question: Did the court lose jurisdiction to pronounce the judgment and sentence because it did not appoint counsel to represent petitioner? In Johnson v. State, 79 Okla. Cr. 363, 155 P. 2d 259, it was said:

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

This rule was modified as applied to minors in Ex parte Cornell, 87 Okla. Cr. 6, 193 P. 2d 904, but as applied to the case at bar, therein it was said:

“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
“Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable. * * *
“Where the accused is young, illiterate, and inexperienced in court proceedings, and charged with felony, the court should proceed with caution. The caution to be exercised depends upon the age and experience of the accused and the gravity of the offense charged.”

The record herein discloses that the petitioner, though only 20 years of age, had prior experience in court proceedings. The minutes disclose that he apparently had counsel, and requested time for him to appear before entering his plea, which time he was given, approximately 15 days. It further discloses that thereafter he entered his plea of not guilty; that 40 days later the petitioner apparently appeared in court, having been advised of his constitutional rights, withdrew his plea of not guilty and entered a plea of guilty, and was thereupon sentenced. The minutes disclose that he was advised of his right to appeal. In Ex parte Matthews, supra, we said:

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

As we said in the Matthews case, supra, as against a collateral attack, the judgment is valid unless the contrary appears in the record. The invalidity of the judgment and sentence herein does not appear in the record. Under such conditions the burden is upon the petitioner to sustain the allegations of his petition by showing that the court failed to preserve some of his constitutional or statutory rights. Ex parte Matthews, supra; Ex parte Seale, 75 Okla. Cr. 183, 129 P. 2d 862. In this connection the proof herein is based entirely upon the allegations contained in the petitioner’s verified petition without any supporting proof. In Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613, and Ex parte Matthews, supra, we have held that the burden is upon the petitioner to sustain the allegations thereof. And in Ex parte Motley, supra, we held that public policy will not permit the petitioner in a habeas corpus proceeding to supply the missing links (if any) by his testimony standing alone. Therein we have said that his release must be based on something more substantial, and in any event his testimony should be corroborated by clear and convincing proof. Such proof is entirely lacking in the instant proceeding. In the light of petitioner’s prior experience and the conduct of the court as revealed by the minutes, we are of the opinion that petitioner was not denied any of his constitutional or statutory rights, but was accorded them at every stage of the proceeding, and the writ of habeas corpus is therefore denied.

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


text:
    Ex parte ED SCHARNHAUS.
    No. A-11107.
    Oct. 27, 1948.
    (198 P. 2d 1009.)

      Ed Scharnhaus, pro se.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Ed Scharnhaus, has filed petition for writ of habeas corpus, alleging that he is illegally detained and imprisoned in the Oklahoma State Penitentiary at McAlester.

As grounds for the issuance of the writ, it is alleged:

“That the evidence upon which the said commitment was based was in substance as follows, that is to say: your petitioner was arrested in the city of Tulsa, by the officials of the Police Department of said City on March 14, 1946, upon a charge of rape and investigation. He was turned over to the Sheriff’s Office of Tulsa County, Oklahoma, on a charge of first degree of rape on June of 1947. However, it is particularly vital and important that it be pointed out to this Honorable Court that your petitioner was released and freed from the charge in the year 1946 with no conditions whatever imposed upon him. Your petitioner was not out on bond. Further, your petitioner was not tried and a'suspended sentence imposed. The matter did not proceed beyond the stages of a preliminary hearing and arraignment in the said year of 1946. It was simply and unquaifiedly dropped. Then, fifteen months afterward the officials of the said County of Tulsa saw fit to reinstate the charge, apprehending your petitioner and bringing him to trial.
“And your petitioner further shows that by virtue of the foregoing he is illegally detained and imprisoned upon the following premises, to-wit:
“First, your petitioner was subjected to double jeopardy, being twice held and informed against on the identically same charge, which was not amended or changed in any respect. Secondly, your petitioner hereby avers that the District Court of Tulsa County lost and was totally without jurisdiction in the said case, to-wit: Case No. 12,921, heard in said Court, and upon which a judgment and sentence of fifteen (15) years was rendered for the crime of first degree rape, on the 1st day of October, 1947, by virtue of the failure of the officials of the said County of Tulsa to extend your petitioner a constitutionally guaranteed speedy trial and hearing.”

And in the concluding paragraph, petitioner states:

“And your petitioner respectfully requests that if this Honorable Court does not see fit to issue an order for his outright release that the Court will order that your petitioner’s time be reduced to time served.”

A response to the rule to show cause was filed by the Attorney General, denying the allegations of the petition, and attaching, to the response a copy of the judgment and sentence of the district court of Tulsa county, showing that petitioner was sentenced to 15 years imprisonment from Tulsa county, where he was charged with rape in the first degree. By the terms of the judgment and sentence, it is stated that defendant entered his plea of guilty to the charge, and that his age was 49 years.

At the time this cause was set for hearing on the rule to show cause, there was no appearance by defendant. No proof was offered to in any way sustain the allegations set out in the petition.

It will be noted that no appeal was taken by petitioner from the judgment and sentence rendered, and the time for appeal has expired. The sentence imposed upon petitioner was the minimum provided by the law of this state where one is convicted of the crime of rape in the first degree. (21 O. S. 1941 § 1115.)

There is no proof before this court that petitioner was subjected to double jeopardy, or that the district court of Tulsa county was without jurisdiction to render the judgment and sentence against petitioner. It has often been held by this court that where it appears that the judgment and sentence was rendered by a court having jurisdiction over the person and subject matter, and with authority to render the particular judgment and sentence, that one will not be released upon habeas corpus, unless the judgment and sentence is void. Ex parte Cobler, 80 Okla. Cr. 25, 156 P. 2d 383; Ex parte Wallace, 81 Okla. Cr. 176, 162 P. 2d 205; Ex parte Wilson, 81 Okla. Cr. 233, 162 P. 2d 786; Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670.

It has also been held that the judgment and sentence can not be modified in a habeas corpus proceeding. Ex parte Cavers, 79 Okla. Cr. 262, 154 P. 2d 106; Ex parte Boots, 81 Okla. Cr. 293, 163 P. 2d 856.

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

JONES and BRETT, JJ., concur.