text:
    FRANCIS RAY WALKER v. STATE.
    No. A-10963.
    March 30, 1949.
    (205 P. 2d 335.)

      John Howard Payne and John C. Head, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., and Warren H.' Edwards, Co. Atty., Oklahoma County, of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Francis Ray Walker, was charged in the district court of Oklahoma county with the crime of burglary; was tried, convicted by a jury, sentenced to a term of two years in the State Penitentiary by the court, and has appealed.

Three assignments of error are presented:

“ (1) The court erred in permitting hearsay evidence of identification of the Shrine tickets.
“(2) The court erred in admitting evidence of the illegal searches and each of them and failing to suppress same.
“(3) The so-called ‘confession’ was inadmissible as defendant was not advised of his constitutional rights, he had never been taken before a committing magistrate, and same cannot be said to have been voluntary.”

We deem it necessary to give a short statement of the evidence.

Defendant, a boy 20 years of age and a resident of Oklahoma City, was charged with the crime of second degree burglary in the district court of Oklahoma county. He was charged with burglarizing a service station located at Thirteenth and Robinson, Oklahoma City, on the night of October 21, 1946, by breaking a window and entering therein, and stealing $52.25 in money, one Remington electric razor, one bunch of keys, and 18 Shrine circus tickets, the personal property of Beam and Cul-bert Service Station.

At 1:30 in the morning of October 26,1946, two mem-' bers of the Oklahoma City police force were at a filling station, and saw a boy, the defendant, standing at a street corner at Sixteenth and Drexel. This is about two miles from where the burglary occurred. The officers questioned defendant and he informed them that he had taken the wrong bus, and had transferred to take a bus to his mother’s home. The officers drove away, but in a few minutes returned for the reason they were not satisfied with the answers given them. Defendant was still at the bus stop, and was taken into custody without a warrant. He was searched and the officers found in his possession a small pen-type flashlight, a small pair of pliers, and a small screw driver. He was then taken to the city jail, and found to have $12 in money, and some keys. He was placed in jail and charged with loitering and investigation. On the following morning he was turned to city detectives Walker Casady and Gene Wells, who questioned him concerning several recent burglaries in Oklahoma City. Detective Casady, after returning defendant to the city jail, took a key to defendant’s apartment from the package or envelope in which his personal property had been placed. He, with another officer, tlien proceeded to the home of defendant and searched the premises, and found therein a book containing 18 Shrine circus tickets. No search warrant was procured by the officers before making the search. Detective Cas-ady testified that he went up to the Mosque and learned that the Shrine circus tickets found in defendant’s apartment had been issued to Frank Taylor, a member, and by telephone found that Frank Taylor had left these tickets at the Beam and Culbert Service Station, at Thirteenth and Bobinson, and that they had been taken therefrom in the burglary on the night of October 21, 1946.

Detective Casady, Mark Bain and George Leech then took the defendant with them and returned to his apartment and conducted a second search, and found the electric razor. Defendant, when confronted with these facts, made a written statement or confession in which he acknowledged committing, the burglary of the Beam and Culbert Service Station at Thirteenth and Bobinson on the night of October 21, 1946, and taking the property hereinbefore described. He also told them of several other burglaries that he had theretofore committed.

At the trial of defendant, the court admitted that part of the statement or confession with reference to the burglary of the Beam and Culbert Service Station on the night of October 21,1946, but was careful to eliminate reference to all other burglaries which defendant confessed to have committed. A full hearing of the facts surrounding the securing of the written confession from the defendant was had by the court out of the presence of the jury, and all parts thereof pertaining to other acts were deleted therefrom before presenting to the jury that portion pertaining to the burglary on October 21, 1946. It may be stated that defendant’s conviction in this case was based upon the confession which was presented and read to the jury.

We shall first discuss the second assignment of error.

Counsel for defendant cites many cases from this court to sustain the proposition that it was error to permit the introduction of evidence obtained by the search of defendant’s apartment in view of the facts presented by the record. The Attorney General in his brief makes no attempt to answer the argument, and does not cite a single case to uphold his contention, that the search of defendant’s apartment was a valid search under the law. The cases cited by defendant are: Miller v. State, 74 Okla. Cr. 104, 123 P. 2d 699; Patty v. State, 74 Okla. Cr. 322, 323, 125 P. 2d 784; Crim v. State, 78 Okla. Cr. 153, 145 P. 2d 444; Edwards v. State, 83 Okla. Cr. 340, 177 P. 2d 143; Graham v. State, 86 Okla. Cr. 9, 184 P. 2d 984.

Mr. Casady, the police officer testifying for the state, on direct examination testified that when he first talked to defendant, defendant admitted to him the commission of the burglary, and defendant went with him to his apartment and agreed to his entering and searching the same. On cross-examination he admitted that when talking to defendant the first time, defendant denied his participation in the burglary. That he then went to the office and procured the key to defendant’s apartment from the envelope where it had been placed by the policeman the night of defendant’s arrest, and he and another police officer went to the apartment and searched the same. They seized the Shrine circus tickets, and came back by the Shrine office, and then telephoned Mr. Taylor and the owners of the service station, and thereafter confronted the defendant with the facts obtained, and he then admitted the burglaries. This witness, with other officers, then took the defendant to his apartment, and seized the electric razor and keys. The defendant was taken to the places of the various burglaries, and he showed them how he had entered the different buildings, including the Beam and Cdlbert Service Station. After returning to the police station, the statement or confession was drawn up and signed by the defendant.

Defendant testified that the confession was made by reason of the fact that one of the police officers who had accompanied him to his apartment told him that if he did not confess, four burglary charges would be filed against him, and charges would also be filed against his wife; but if he confessed, only one charge would be filed against him. The officers denied having made any such statement, and testified that the confession was made voluntarily by defendant after being warned that any statement made by him could be used against him. The officers also testified that no cruel or unusual punishment was inflicted upon defendant, and he corroborated this testimony.

By reason of the search of defendant’s apartment without securing a search warrant, we are of the opinion that the evidence secured was unlawful and the motion to suppress the same should have been sustained. The court seemed to take this view of the case, and upon objection by defendant, the county attorney did not introduce in evidence the property seized. However, the court permitted the witnesses to testify to the finding of the different articles, and testimony that these identical articles had been taken when the service, station was entered on the night of October 21, 1946. This, to onr minds, had the same effect upon the minds of the jury as if the articles had been introduced in evidence. We are of the opinion that the search of the apartment of defendant, as revealed by the facts in this case, does not come within the rule of permission to search the person and immediate surroundings, where one has been placed under arrest; or within the rule that a misdemeanor has been committed in the presence of the arresting officer. Here the defendant had been arrested the night before. No charges had been -preferred against him. He was only being held for loitering and for investigation. He was confined in jail. There was no excuse for the officers’ failure to secure a valid search warrant, if they desired to search defendant’s private apartment. He was entitled to this protection under the law, notwithstanding that it later appeared that he was guilty of the crime charged against him. The records of this court reveal that this defendant is a persistent violator of the law, as he has recently been convicted of the larceny of an automobile and sentenced to five years in the State Penitentiary, and that case was affirmed. Walker v. State, 89 Okla. Cr. 19, 204 P. 2d 552. Notwithstanding this, he is entitled to a fair and impartial trial, and we are of the opinion that this case should be reversed by reason of the error heretofore stated.

As to the admission of incompetent and hearsay evidence, this has reference to the testimony of the police officer that he talked with officers of the Mosque with reference to the Shrine circus tickets. No member of the Shrine testified in this case. We suggest that if this case is retried, a member of that body who knows the facts be called to testify, and this error will not again appear.

The third error complained of is that the statement, or confession, was an involuntary statement and therefore inadmissible. Under the Federal practice as recently held by the Supreme Court of the United States, there is no question but that the statement would be held inadmissible for the reason that it was taken while defendant was under arrest and prior to his being taken before a magistrate and charges filed against him. McNabb v. U. S., 318 U. S. 332, 339, 63 S. Ct. 608, 87 L. Ed. 819, 823; Upshaw v. U. S., App. D. C., 168 F. 2d 167; Id., 335 U. S. 410, 69 S. Ct. 170, 93 L. Ed. —.

But under the rule adopted in this state and many other state courts, the holding of the trial court after a full and complete hearing in the absence of the jury that the statement was voluntary would be upheld. Fry v. State, 78 Okla. Cr. 299, 147 P. 2d 803; State v. Folkes, 174 Cr. 568, 150 P. 2d 17; State v. Smith, 158 Kan. 645, 149 P. 2d 600; People v. Malinski, 292 N. Y. 360, 55 N. E. 2d 353; State v. Collett, Ohio App., 58 N. E. 2d 417; State v. Nagel, N. D., 28 N. W. 2d 665; State v. Ellis, 354 Mo. 998, 193 S. W. 2d 31, 37; Finley v. State, 153 Fla. 394, 14 So. 2d 844; State v. Browning, 206 Ark. 791, 178 S.W. 2d 77; Russell v. State, 196 Ga. 275, 26 S. E. 2d 528.

This case is reversed and remanded by reason of the unlawful search of defendant’s apartment, as hereinbe-fore stated.

JONES, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    Ex parte VIRGIL BROWN.
    No. A-11170.
    April 6, 1949.
    (205 P. 2d 339.)
    Virgil Brown, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This original action in habeas corpus was instituted by the petitioner, Virgil Brown, for the purpose of securing his release from confinement in the State Penitentiary. The Attorney General has filed a demurrer to the petition. .

The verified petition alleges that petitioner is illegally imprisoned in said penitentiary by reason of the following facts: that he was charged by information in the district court of Canadian county in case No. 2197 with the crime of murdering his wife; that he entered a plea of not guilty, was tried, convicted, and pursuant to the verdict of the jury was sentenced to serve a term of life imprisonment in the State Penitentiary.

The petition then concludes that the judgment and sentence was not in accordance with the statutes and rulings of the Criminal Code of the State of Oklahoma, nor with the Constitution of the United States, and prays this court to grant him his outright release from confinement.

Although the petition on its face did not allege any facts sufficient to show a lack of jurisdiction in the district court of Canadian county, to pronounce the judgment and sentence which was pronounced against the defendant, this court set the petition for hearing on January 19, 1949, after notice to all parties concerned, in order to give the petitioner an opportunity to present any facts which would support his conclusion that the judgment was void. At the date of said hearing, there was no appearance on behalf of said petitioner and no evidence was offered to show the invalidity of the judgment.

A copy of the judgment and sentence was not attached to the petition, so we have not even had an opportunity to examine it.

In the case of Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934, this court held:

“The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which the judgment and sentence of the court is attacked as clearly void, or that the court did not have jurisdiction of the person or subject matter.”

In the body of the opinion, it is stated:

“It is an attempt to have this court review by ha-beas corpus the facts surrounding the trial of petitioner. There is nothing in the petition which raises any question of law, or which in any way reveals that the judgment and sentence of the district court of Canadian county is void, or that that court did not have jurisdiction of the person and the subject matter. No transcript of the record, or of the evidence appears in the record.”

The writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte CLARENCE MERTON.
    No. A-11169.
    April 6, 1949.
    (205 P. 2d 340.)

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

This is a petition for writ of habeas corpus brought by Clarence Merton, an inmate in the penitentiary, wherein he seeks his release from the custody of C. P. Burford, warden of the State Penitentiary.

In his petition he alleges the cause of his restraint' is the judgment and sentence and commitment to life imprisonment entered against him on March. 6, 1947, in the district court of Tulsa county, wherein he was charged with the crime of first degree murder. In said petition and the brief in support thereof it further appears that his case was called for trial and he announced ready. Without objection thereto on his part, the case was tried to a jury which had retired for deliberation and had been out some 10 hours. It further appears that thereafter by and with the advice of his counsel he determined to withdraw his plea of not guilty and enter a plea of guilty to said charge. This he did, whereupon the trial court sentenced him to life imprisonment. It further appears that thereafter said judgment and sentence was not attacked by motion for new trial or otherwise, and said proceedings have never been questioned until the petition for a writ of habeas corpus was filed.

Specifically, this petitioner says that he was denied the right to be served with a list of the witnesses. Under the facts as they appear in the petition he waived such right by his failure to object thereto and by announcing ready for trial. Van Brunt v. State, 62 Okla. Cr. 188, 70 P. 2d 1103; Huffman v. State, 46 Okla. Cr. 377, 287 P. 1090.

Further he contends that he was denied the right to • a speedy trial. This right, too, is waived by proceeding to trial without objection. Ex parte Wilkerson, 73 Okla. Cr. 32, 117 P. 2d 172.

Under the state of the record as hereinbefore set forth when the petitioner announced ready for trial and entered his plea of guilty, he waived any objections which he might have raised to any irregularities in the proceedings, except such as would go to jurisdiction. As was said in Ex parte Gilbert, 71 Okla. Cr. 268, 282, 111 P. 2d 205, 211, quoting from Starr v. State, 5 Okla. Cr. 440, 115 P. 356, 367:

“ ‘Generally speaking, the constitutional provisions guaranteeing to every accused person in a criminal action certain rights may be separated into two classes. First,those in which the public generally, and as a community, is interested, as well as the accused, and which are jurisdictional as affecting the power of the court to try the cause, second, those more in the nature of privileges which are for the benefit of the accused alone, and do not affect the general public. The former cannot be waived. Jurisdiction to try the cause is conferred by the law. Consent cannot confer jurisdiction, but the accused may waive a constitutional right or privilege designed for Ms protection, where no question of public policy is involved. * * *
“ ‘Where a constitutional right in a criminal cause is largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that an accused may waive such right. * * *’ ”

In the Gilbert case, supra, this court said 71 Okla. Cr. at page 285, 111 P. 2d at 213:

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

All the objections raised in the case at bar by petitioner relate to personal privileges, which be waived under the facts and the authorities hereinbefore set forth.

Further petitioner alleges and argues in his brief that his conviction was without due process of law in that he alleges he was misrepresented by his counsel who failed and neglected to file a motion for a new trial in his behalf. On this point he concedes that he was unable to find any authority to support this contention. We are convinced there are none which would afford relief in habeas corpus on this ground. The reason there is none is quite obvious. The only questions open to inquiry on habeas corpus are those where the jurisdiction of the court are in question. Ex parte Custer, 88 Okla. Cr. 154, 200 P. 2d 781; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18. These questions are limited to the determination of the propositions, did the court have jurisdiction of the person, jurisdiction of the subject matter and authority under the law to pronounce the judgment and sentence rendered. Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Cartwright, 88 Okla. Cr. 206, 201 P. 2d 935; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; In re Swaim, 66 Okla. Cr. 30, 38, 89 P. 2d 363; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Newman, 67 Okla. Cr. 401, 94 P. 2d 556; Ex parte Davis, 68 Okla. Cr. 29, 95 P. 2d 915; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129. Here all the foregoing requisites to jurisdiction were present, to the rendition of a valid judgment.

The petition herein is entirely insufficient to attack the judgment and sentence and commitment herein on any of the last hereinbefore mentioned grounds, and the writ of habeas corpus herein sought is accordingly denied.

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


author: BAREFOOT, J.

text:
    CHARLEY ROBERSON v. STATE.
    No. A-10987.
    April 6, 1949.
    (204 P. 2d 989.)

      Thad L. Klutts, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., Oklahoma- County, of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Charley Roberson was charged in the court, of common pleas of Oklahoma county with the offense of illegal possession of intoxicating liquor, was found guilty by a jury and his punishment assessed by the court at 30 days in the county jail and a fine of $250 and costs. From this judgment and sentence, defendant has appealed.

The state relied for this conviction upon the testimony of two deputies from the office of the county sheriff, and an evidence officer and stenographer from the office of the county attorney. There was no testimony offered on the part of the defendant.

Motion for new trial was duly filed and overruled on June 20, 1947; thereupon the court rendered judgment and sentence. An appeal was perfected by filing in this court on December 9, 1947, a petition in error with case-made and proof of notices.

No briefs have been filed, and no appearance for oral argument made.

Where a defendant appeals from the judgment of conviction and no briefs in support of the petition in error are filed, and no appearance for oral argument made,, this court will examine the record for jurisdictional errors, and finding no fundamental error, the judgment will be affirmed.

We have closely examined the record and have found no error therein which would warrant a reversal of the judgment, and it appearing that the defendant was accorded a fair trial and was properly convicted, the judgment of the trial court herein is accordingly affirmed.

JONES, P. J., and BRETT, J., concur.


text:
    Ex parte CLAUDE A. COBB.
    No. A-11126.
    April 13, 1949.
    (205 P. 2d 518.)

      Homer Caldwell, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, P. J.

Tbis is an original action in habeas corpus wherein tbe petitioner, Claude A. Cobb, seeks to secure bis release from confinement in tbe State Penitentiary.

Tbis is a companion case to that of Ex parte Cook, 84 Okla. Cr. 404, 183 P. 2d 595, 596, decided July 9, 1947.

Tbe facts concerning tbe commission of tbe crime of burglary at Ada, Okla., tbe arrest of Cobb and Cook, their arraignment before tbe justice of the peace, and their later pleas of guilty before the district court of Pontotoc county, and all the circumstances surrounding said proceedings, are fully set forth in Ex parte Cook, supra, and will not here be repeated.

In Ex parte Cook, supra, we vacated the judgment as to Cook and remanded the cause to the district court of Pontotoc county for the trial of Cook for the reason as set forth in the syllabus as follows:

“A judgment and sentence to the maximum term of imprisonment in the State Penitentiary on plea of guilty to burglary, by uneducated, illiterate, and inexperienced youth, seventeen years of age, will be vacated and set aside where record discloses that upon day accused was arrested he was arraigned in district court without counsel and sentenced less than an hour after his arraignment before a justice of peace, and record further discloses that parents of accused, who lived in county, did not learn of his arrest until after he was sentenced to penitentiary. Under circumstances there was not an intelligent waiver of the constitutional rights of the accused and court should have appointed counsel to represent the accused as a necessary requisite of due process of law before accepting a plea to the felony charge filed against him.”

Petitioner, Claude A. Cobb, now contends that in view of the opinion of the court in Ex parte Cook, supra, he is entitled to discharge from imprisonment.

The father of petitioner testified that petitioner had been subject to mental disturbances and had become mentally incapacitated from handling himself in a proper manner; that petitioner was 23 years of age at the time of his conviction; that petitioner pleaded guilty at Dallas, Tex., when he was 16 years of age to a charge of car theft and was placed on probation to his parents; that petitioner, in January, 1947, was charged by indictment filed in the United States District Court for the Western District of Oklahoma, upon eight counts which in effect charged him with conspiracy with other named individuals to steal automobiles and change their engine numbers and transport the stolen automobiles in interstate commerce; that after the conviction sustained by petitioner in Pontotoc county, out of which this petition for habeas corpus arose, the petitioner entered a plea of guilty to the indictment, and on April 7, 1947, the United States District Court suspended the sentence on each of said counts of the indictment and placed petitioner on probation for five years to begin at the expiration of the sentence he is now serving in the penitentiary because of the judgment and sentence imposed by the district court of Pontotoc county.

While we still feel, as was expressed in our opinion in Ex parte Cook, supra, that the court officials should not have acted with such haste in disposing of petitioner’s case, yet the question presented is not whether the court used too much speed in disposing of petitioner’s case, but whether the petitioner was fully cognizant of what was transpiring and whether he was fully advised as to his rights and as to the consequences of his act before entering his plea to the information.

In the case of Cook, because he was only 17 years of age, and appearing in court for the first time, the judgment was vacated because no counsel was appointed to confer with the accused and protect his rights. In the instant case, Cobb was an adult, and according to the testimony of the assistant county attorney, Cobb wanted to plead guilty to the burglary of the jewelry store and go on to the penitentiary to start the serving of his sentence in order to avoid a prosecution for theft of the automobile in which Cobb and Cook were traveling at the time of their arrest.

The petitioner testified that he had only attended public school to the eighth grade; that in 1942, he joined the Army and served for 11 months and 13 days until his discharge on November 13, 1943; that he was married and that his wife resided in Oklahoma City; that he was acquainted with John R. Cook; that he met Cook the night of January 22, 1947, and rode with him to Ada; that petitioner had been drinking beer all day and that on the road to Ada, they bought a pint of whisky which they drank; that he became so intoxicated that he had no recollection of what had occurred until he awoke in jail in Shawnee about 1:30 a. m. on January 23, 1947; that he was immediately taken to Ada, and placed in jail there, and early the next morning he was taken before a justice of peace where he was informed that he was charged with the burglary of a jewelry store in Ada; that neither the county attorney nor his assistants were present and he was not advised of his right to counsel, but was told by the policeman who took him to the court that if he pleaded guilty he would only be sentenced to two years; that he was not allowed to use the telephone, but was taken shortly thereáfter to the district court where he remained for about five minutes before the judge entered the court-room; that when the judge arrived the county attorney informed him that the petitioner wanted to plead guilty to burglary of a jewelry store at Ada, and that the prosecutor recommended the maximum punishment of seven years’ imprisonment in the penitentiary; that the court thereupon followed the recommendation of the county attorney and sentenced the petitioner to serve seven years in the penitentiary.

The assistant county attorney testified that he talked with petitioner in the afternoon of January 23, 1947; that petitioner was anxious to plead guilty to burglary in order to escape prosecution for automobile theft; that it was quite late in the afternoon and he called the district judge to see if he would remain until he could bring the accused before him to plead to the charge of burglary; that when petitioner was taken before the district judge, he, the assistant county attorney, read the information in open court; that the court then advised the prisoners of the nature of the crime charged against them and of their right to have counsel to represent them, and further advised them that the court would appoint a lawyer for them, or for either of them if they were not able to hire one; that after this advice was given the petitioner he insisted on pleading guilty and the court pronounced the sentence of seven years’ imprisonment in the penitentiary.

The district judge testified that he went into great detail advising the petitioner of all of his rights, including the right to trial by jury, right to be represented by counsel, the right to have additional time in which to plead to the information; that the assistant county attorney read the information to the accused in open court and that petitioner then stated that he wanted to enter a plea of guilty and have sentence pronounced at once.

The right of one accused of crime to the assistance of counsel in the preparation of his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Our Constitution, art. 2, § 20, Okla. Const., provides that in all criminal prosecution the accused “shall have the right to be heard by himself and counsel”.

Our Code of Criminal Procedure provides:

“If the defendant appear for arraignment, without counsel, be must be informed by the court that it is bis right to have counsel before being arraigned, and must be asked if be desire the aid of counsel. If be desires, and is unable to employ counsel, the court must assign counsel to defend him.” 22 O.S. 1941 § 464.

In the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141, this court adopted the following provisions of law as shown by the syllabus:

“Under bill of rights, sec. 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.”
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”
“A person prosecuted for a crime may waive the rights guaranteed to him by bill of rights, relating to trial by jury, right to be heard by counsel, etc.”
“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.”

It is our conclusion that the facts in the instant case distinguish it from the companion case of Ex parte Cook, supra. Cook was 17 years of age. The petitioner was an adult, 23 years of age, who had been convicted of automobile theft while a juvenile.

When we issued the writ of habeas corpus for Cook, it was solely because he was a juvenile, and counsel was not appointed to advise with him. The father of petitioner. attempted to show that the petitioner was mentally deficient so as to bring him within that class where the court had the legal duty to appoint counsel to represent him, even though the accused sought to waive his right to counsel. Such evidence of mental incapacity was weak and unsatisfactory and insufficient to overcome the strong presumption of legality that attaches to the judgment and sentence which is regular on its face. This judgment and sentence was also bolstered by the evidence of the assistant county attorney, the police chief, and the district judge, whose testimony showed that the petitioner fully knew what was transpiring in the court-room and sought to plead guilty to the lesser crime of burglary, of which he was guilty, in order -to avoid prosecution not only for the burglary but for the additional crime of larceny of an automobile.

The writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


text:
    Ex parte LARENCE POTTS.
    No. A-11173.
    April 13, 1949.
    (205 P. 2d 522.)

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

Petitioner, Larence Potts, filed bis petition for writ of habeas corpus in this court on November 19, 1948. In said petition he alleged in substance that he was being unlawfully restrained by C. P. Burford, warden of the State Penitentiary, under and by virtue of a commitment from the district court of Garvin county, Okla., on April 17, 1944, wherein he was sentenced to life imprisonment on a charge of first degree murder. He alleges that he is being held without due process in violation of the statutes of the State of Oklahoma.

This contention is based upon the proposition that the district court of Garvin county was without jurisdiction or authority of law to accept a plea of guilty or allow petitioner to enter such plea without first determining the question of doubt as to the sanity of the petitioner or his mental capacity to waive his rights, even though represented by counsel appointed by the court. The petitioner relies upon the provisions of Title 22 O. 5. A. 1941 §§ 1162, 1163, reading as follows to wit:

“§ 1162. When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.
“§ 1163. The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.”

The petitioner further alleges that the records will show that he was found to be insane at the time of trial, and at the time of the commission of the crime by doctors of the Central State Hospital where he was committed on the date of February 21, 1944.

It appears that the defendant with the aid and by the advice of counsel at every state of the proceeding entered a plea of guilty to the charge, and that no appeal was taken therefrom. Under these conditions the situation is similar to the facts involved in the case of Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205, 208, wherein the court after quoting the foregoing statutes, in part, said:

“The construction of these statutes has been before this court on many occasions, and reference to some of these cases will hereafter be made. The question of whether a writ of habeas corpus may be maintained under the facts as they appear here has also been considered.
“In the early case of In re Maas, 10 Okla. 302, 61 P. 1057, 1058, the territorial court had under consideration a case similar in many respects to the case at bar. In that case, after reviewing the facts, Judge Burwell said:
* * If the trial court committed error in pronouncing judgment and sentence upon the defendant, his only remedy is by an appeal to this court. Such matters cannot be reviewed in this action.’
“In the case of Ex parte Yandell, 54 Okla. Cr. 357, 22 P. 2d 114, 115, this court had before it the exact question here raised, and in an opinion by Judge Edwards, where the petitioner had been adjudged an insane person by the county court of Seminole county, and a copy of the order was attached to the petition, and it was further alleged that he appeared without counsel and none was appointed for him, after review of the cases relied upon by petitioner in Re Wright, 74 Kan. 406, 86 P. 460, 89 P. 678, and Mabry v. Hoye, 124 Miss. 144, 87 So. 4, said:
“ ‘It is fundamental that habeas corpus cannot be invoked for the release of one imprisoned under a judgment and commitment by a court of competent jurisdiction unless the judgment and sentence is clearly void. After a judgment of conviction has become final, the question of defendant’s insanity at the time of the commission of the offense or at the time of trial cannot be raised on habeas corpus. Ex parte Stevenson, 187 Cal. 773, 204 P. 216. See, also, In re Selowsky, 189 Cal. 331, 208 P. 99; People ex rel. Cassidy v. Lawes, Warden, 112 Misc. 257, 182 N. Y. S. 545, 546; Winslow v. Green, 155 Ind. 368, 58 N. E. 259; Ex parte Heytz, 17 Okla. Cr. 698, 192 P. 698.’ ”

This court has repeatedly held that where a prisoner in custody under sentence of conviction seeks discharge on habeas corpus inquiry is limited to questions whether the court in which prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and whether the court had jurisdiction to render -the particular judgment; and that a writ of habeas corpus may not be used as a substitute for an appeal. Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613.

Here, it is clear that the matters sought to be raised in this proceeding are not such as may be reached by babeas corpus. The writ of habeas corpus is accordingly denied.

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


author: JONES, P.' J.

text:
    JIM PIERCE v. STATE.
    No. A-10945.
    Jan. 19, 1949.
    Rehearing Denied April 13, 1949.
    (205 P. 2d 1171.)
    Fred V. Shirley, of Watonga, and David Tant, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P.' J.

The defendant in error, Jim Pierce, was charged in the district court of Blaine county with the unlawful possession of intoxicating liquor, a second offense, was tried, convicted and pursuant to the verdict of the jury was sentenced to serve 120 days in the county jail and pay a fine of $1,250.

There has been no brief filed on behalf of the defendant and no appearance was made in his behalf at the time the cause was assigned for oral argument.

Under Rule 9 of the Criminal Court of Appeals it is stated:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence and if no prejudicial error appears will affirm the judgment.”

We have carefully examined the record. The information sufficiently charges the offense. The instructions of the court are substantially correct. The testimony of the state showed that a large amount of whis-ky and other intoxicating liquors were found stored in a skating rink in the city of Watonga which belonged to the defendant. The defendant lived in a house next door to the skating rink and had the keys to the skating rink in his possession at the time the officers, who were armed with a search warrant, came to his place to search for intoxicating liquors. The defendant did not testify in his own behalf, but his evidence consisted of testimony of various witnesses who had stored various articles of personal property in the skating rink of defendant during the period of time involved in the prosecution. The theory of the defendant was that under the evidence the intoxicating liquor could just as well have belonged to any one of the various parties who owned personal property stored in the skating rink as to have belonged to tbe defendant. The intoxicating liquor was found locked in two large trunks wbicb were opened by tbe officers.

Tbe evidence properly raised an issue for tbe determination of tbe jury. It is sufficient to sustain tbe judgment. No briefs having been filed, and no specific errors of law having been called to our attention, it is our conclusion that the defendant bad a fair and impartial trial, and tbe judgment and tbe sentence of tbe district court of Blaine county is accordingly affirmed.

BAREFOOT and BRETT, JJ., concur.