text:
    HERMAN WOODRUFF v. STATE.
    No. A-10902.
    May 26, 1948.
    (194 P. 2d 215.)

      W. R. Wheeler, of Anadarko, for plaintiff in error.
    ■ Mac Q. Williamson, Atty. Gen., and Sam H. Latti-móre, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Herman Woodruff, was charged by information filed in the district court of Cad-do county, with the crime of rape in the first degree, was tried, convicted, and. sentenced to serve fifteen years in the State Penitentiary, and has appealed.

• We direct counsel’s attention to Rule 7 of the Criin-inal Court of Appeals, which is set forth in the Appendix to Volume 44 of the Oklahoma Criminal Reports. This rule specifies the minimum requirements of a brief. Said rule among other things provides:

“First: A concise abstract, or statement of the case, presenting succinctly the question involved and the manner in which they are raised.”

The brief of the plaintiff in error does not clearly set forth his specifications of error and the Attorney General in his answer brief states that it has been difficult for him to determine just what were the various contentions of the defendant.

Our analysis of the brief convinces us that the defendant’s argument may be summarized as follows: First, the witness, Fredica Dorsey, was an incompetent witness because of her age; second, the evidence is insufficient to support the conviction. We shall discuss these assignments of error together.

The defendant at the time of the alleged assault was 80 years of age and Fredica Dorsey, the girl upon whom the rape is alleged to ha.ve been committed, was six years of age. For several months prior to the time of the alleged assault, the defendant and the Dorsey family lived in separate cabins at what is known as the Upchurch Hotel Cabins in Anadarko. The aged defendant was engaged in selling pencils, razor blades, and other small articles on the streets of Anadarko for a living. Occasionally, he had given Fredica Dorsey, the complainant, her sister, and other neighborhood children, a dime, quarter, or other small change, which the children used to buy candy or ice cream. A few weeks prior to the time of the alleged assault, the Dorsey family had moved from the Upchurch Hotel Cabins to a house on east Virginia Street. However, the Dorsey children continued thereafter to go back to the Woodruff cabin and would ask Woodruff for money.

When Predica Dorsey was called as a witness, counsel for the defendant objected to her testimony for the reason that she was incompetent to testify because she was not mature enough to know the nature of an oath or to intelligently relate the facts concerning which she was called to testify. Several questions were asked the witness by counsel for the state and by counsel for the defendant, in an effort to ascertain whether the witness was competent to testify.

By statute it is provided:

“The following persons shall be incompetent to testify: * * *
“2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. * * *” Tit. 12, § 385, O. S. 1941.

Under this statute it has been held that the test of the competency of a witness is to be determined by degree of understanding and not by its age. Although, many attorneys, in seeking to qualify the witness, ask questions concerning the knowledge of the witness of the sanctity or significance of an oath, this is not the test fixed by the statute. The statute rejects a witness “under ten years of age who appear [sj incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” It has been held many times that under this statute the question of the competency of a witness is addressed peculiarly to the sound discretion of the trial court. Barker v. State, 33 Okla. Cr. 25, 242 P. 274; Collins v. State, 15 Okla. Cr. 96, 175 P. 124; Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A. L. R. 638; LeFavour v. State, 77 Okla. Cr. 383, 142 P. 2d 132; Easley v. State, 78 Okla. Or. 1, 143 P. 2d 166, 168.

In Easley v. State, supra, this court stated:

“There is no precise age fixed at which children are excluded from giving evidence. Under the statute, the competency of a child is to be determined, not by its age, but by the degree of understanding which it appears to possess.. As a general rule the child should appear capable of distinguishing between good and evil, and should be of sufficient intelligence to have a just appreciation of the difference between right and wrong, and a proper consciousness of the punishment of false swearing. 272 O. S. 1931, 12 O. S. A. 1941 § 385.”

We have carefully read the evidence of this little girl who was seven years of age at the time she testified. She related that she, together with her sister and her ten year old aunt, went to the defendant’s cabin on June 24, 1945, to get a dollar to pay their way into the swimming pool; that she went into the Woodruff cabin while the other two small girls waited on the outside. After she had gotten.into the cabin, Mr. Woodruff laid her on the bed, locked the door, pulled down the blind, and committed an act of sexual intercourse with her; that when they had finished Woodruff gave her the dollar and she and the other two girls went to the swimming pool; that she was in the house about twenty minutes. This was about 2:00 p. m.; that they left the swimming pool and went home, arriving there about 5:00 p. m.; that her father started questioning her about where she had been .and she told him what had happened in the Woodruff cabin; that she .was then taken to the police station and .from there to the doctor for an examination.. ....

On cross-examination she testified that her aunt was ten years of age and her sister was nine years of age, and that it was not uncommon for either of them to go to the Woodruff cabin and ask for a dime or a quarter.

Doctor R. F. Johnston testified that he made an examination of the little girl, Fredica Dorsey, on June 24, 1945, about 5:00 p. m. The Doctor testified that his examination did not disclose any swelling, bruises, or redness around the vagina, but that the lavia was open and there was some redness on the inside of the vagina lining. He further testified that in his opinion some foreign object had opened up the lavia, but that he would not testify that it was necessarily done on the day of the examination, but that it indicated that it had been recently done. He was further asked the following questions :

“Q. Now, doctor, as an expert witness and having knowledge of children, if a child of six years of age had had intercourse with a man 80 years old that afternoon and left and went down to the swimming pool and played all evening and came back home and then her father asked, ‘Where have you been?’ and she said, ‘I’ve been swimming,’ in your opinion, had she had sexual intercourse that evening without hollering or crying or saying a word? A. Speaking of complete sexual intercourse I would say ‘No’ because the opening there, I would say the depth of the opening was about a half to three quarters of an inch. Q. And therefore an 80 year old man could not have had intercourse with her? A. Not complete intercourse. * * * Q. The opening in the vagina was just so small it would be about the size of the handle of an ordinary hair brush, wouldn’t it? A. No, it was larger. I would say the opening there.was about three quarters of an inch, something about like that, and I pulled the vulva back there where I saw the redness, and that depth went in about a half to three quarters of an inch. Q. It wasn’t large enough for the ordinary penis of a man? A. I would say No. Mr. Wheeler: Q. Would it have been possible for a man to have had intercourse with a little girl without malting any showing there within a period of five or ten minutes? A. I wouldn’t think so.”

Theresa Dorsey, sister of the complainant, testified that she, Fredica and Floretta Dorsey, went to defendant’s cabin shortly after noon; that Fredica went inside the cabin and somebody pulled down the shade and locked the door; that in about five minutes they called for Fredica to come on out and the defendant yelled “Wait a minute”; that 'in a few minutes Fredica came out with a half dollar and her aunt told her that was not enough for them to get into the swimming pool, and she went back into the house and returned with a dollar bill; that they used the dollar to pay their wa,y into the swimming pool and buy some ice cream cones. She testified that she tried to enter the Woodruff cabin but the door was locked.

She did not learn about the alleged rape until after the girls had arrived at home about 4:30 p. m. or 5:00 p. m., at which time her father inquired as to where they had obtained the money to pay the cost of entering the swimming pool. It was then that her sister related the story of what happened in the Woodruff cabin.

Mrs. Effie Ryan, who lived close to Herman Wood-ruff, testified that she saw the three little girls at the Woodruff cabin and that one of them went into the house while two stayed on the outside.

The , defendant testified in his own behalf that he did noi commit the crime of rape as charged in the information ; that he was 80 years of age; that he liked all little children and was giving money to them on many occasions. He further testified that about 11:00 a. m. on the day the alleged attack occurred, the children came to his house; that Fredica Dorsey came into the house while the other two stayed outside, but that he did not pull down the curtain or fasten the door; that the little girl remained in there only about two minutes. He further testified:

“Q. Now, I’ll ask you if these two little girls that were on the outside of the building on that day, if they didn’t holler to Fredica to come on? A. I heard them holler. Q. Did you answer them and tell them to wait a minute? A. No, I didn’t. Q. You heard the little girls testify here today, didn’t you? A. The little girl was in there and I gave them 80 cents and she went on out and then came back and said that that wasn’t enough to get bathing suits and go swimming and get some pop corn and they would have to have some more, so I gave her a dollar. Q. How much did you give her that day? A. A dollar and eighty cents. Q. You knew how many there were in the bunch? A. There were three. Q. Do you know why the other two didn’t come in with this little girl? A. No, I don’t know. Q. Did you invite the two girls that were on the outside in? A. No, I didn’t, and the little girl that came in and wanted the money was there just about two minutes. Q. Did she come in the house once or twice? A. She came back and said that 80 cents wasn’t enough, she had to have a dollar and I just gave her the dollar. They wanted to go to the show, too, I guess.”

There was other evidence on behalf of defendant that he had bragged to several people that he was wealthy, although in reality he was practically penniless. This evidence was admitted in support of the defendant’s theory that the prosecution was framed in order to extract money from him.

We have given this case careful attention. After considering the age of the defendant and of the attendant circumstances, including the testimony of the physician, we do not believe the evidence is convincing enough to show an act of sexual intercourse committed by the defendant on the prosecutrix on the date in question. We are convinced that the defendant was performing unlawful lascivious acts with the little children to whom he was constantly giving money. We have had a similar case concerning this defendant which involved an attempt to commit rape on one Dorothy Hamilton, a girl thirteen years of age. Woodruff v. State, 74 Okla. Cr. 289, 125 P. 2d 211.

We have heretofore held that in a prosecution for rape in the first degree, this court may modify the conviction of rape in the first degree to the included offense of assault with intent to commit rape, where the facts in evidence justify or require it. Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246.

It is therefore our opinion that the facts in this case are insufficient to sustain a conviction of rape in the first degree, but that they are sufficient, to support a conviction for the included offense of assault with intent to commit rape.

It is therefore ordered that the judgment and sentence of the district court of Caddo county be modified by reducing the punishment imposed against the defendant from a sentence of fifteen years in the State Penitentiary for a conviction of rape in the first degree to that of three years in the State Penitentiary for the included offense of assault with intent to commit rape, and the judgment and sentence of the district court of Caddo county as thus modified is affirmed.

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


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    PLEASANT TOBLER v. STATE.
    No. A-10845.
    May 26, 1948.
    (194 P. 2d 202.)
    Tom Payne, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Defendant, Pleasant Tobler, was charged jointly with George Pittman and Wilson Miller in the district court of Okmulgee county with the crime of larceny of four Duroc Jersey red hogs; was granted a severance, tried, convicted, sentenced to serve a term of three years in the State Penitentiary, and has appealed.

It is contended that this case should be reversed for the reason that the evidence was not sufficient to support the verdict of guilty, and that the verdict is contrary to the evidence.

The defendant and his codefendants, George Pittman and Wilson Miller, were charged with stealing four hogs from William Hadley, a farmer living five miles south of Beggs, in Okmulgee county, on May 15, 1946. The defendants and the Hadleys were Negroes.

The statute under which the defendants were charged is 21 O. S. 1941 § 1716, which is as follows:

“Any person in this State Who shall steal any horse, jackass, jennet, mule, cow, or hog, shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years; * *

William Hadley testified to the ownership of the hogs, and that they were allowed to run on the open range. The hogs returned home each night to be fed. They were fed on the morning of May 15th, but did not return home that night. He further testified that he lived about 250 yards from the home of Wilson Miller. About 7 o’clock on the morning of the date in question, he saw the defendant and George Pittman at the home of Wilson Miller. He identified the date by reason of it being his birthday, and he was 81 years of age. He testified that the hogs were taken without his consent or knowledge.

Lizzie Hadley, the wife of William Hadley, testified as to the description and ownership of the hogs, and of their return home each night to be fed. They did not return on the night of May 15, 1946. It had been raining *nd she went across the creek on the morning of May 16th to the place where the hogs ranged, looking for them. She saw where the grass was mashed down and where the hogs had been piled up. She saw the defendant and George Pittman about 7 o’clock on the morning of May 15th, at the home of the codefendant Wilson Miller, and both of them had guns which looked like 22 calibre rifles. About 10:30 or 11 that morning, she heard gunfire in the direction of where it was later found that the hogs had been killed. About 3 o’clock that afternoon, she again saw both of these parties at the home of Wilson Miller.

Howard Williams, also a Negro farmer, testified that he had been living in that community since February, 1946. About 4 o’clock on the afternoon of May 15, 1946, he was in the bottom looking for his horses. He had known the defendant, and at that time saw him carrying a red hog on his shoulder, with a gun under his arm. The hog’s head had been cut off. The codefendant George Pittman was with the defendant at the time, and was carrying a hog, wrapped in a cotton sack. He testified that the Hadleys came over the next day looking for their hogs, and he told them about the incident.

Monroe Griffin, age fifteen years and a nephew of Howard Williams, testified that he lived with his uncle. That on May 15, 1946, he went with his uncle into the bottom to look for the horses, and his dog smelled two dead hogs, and found them there in the pasture. One was uncovered, and the other was in a sack. He saw a small bullet hole in the right side of one of the hogs, and it looked like a hole made with a 22 rifle.

When these witnesses had testified for the state, the state rested. No demurrer to the evidence or motion for a directed verdict was made, and after the opening statement to the jury, the defendant placed Mr. and Mrs. L. A. Reynolds, residents of Okmulgee, on the stand. Mr. Reynolds worked for the Phillips Refinery. He and his Wife both testified that on the afternoon of May 15, 1946, they, with a fifteen-year-old boy by the name of Randolph, went to the home of defendant for the purpose of going squirrel hunting. They fixed the date by reason of it being the first day of squirrel season. They testified that they arrived at defendant’s home about 3 or 3:30 in the afternoon, and hnnted until very late. That they were with defendant all the time on the afternoon of May 15th, and that he did not go to the Hadley premises during that time.

Defendant and his wife Addie Tobler both corroborated the testimony of the Reynolds, and defendant specifically denied killing or taking the hogs of the Hadleys. On cross-examination defendant admitted having been previously convicted of the crime of grand larceny, and being sentenced to two years in the State Penitentiary; and to having pleaded guilty in the county court of Ok-mulgee county to a charge of violating the prohibition laws.

The state in rebuttal put on the witness stand one of the codefendants, George Pittman, He testified that he was acquainted with the defendant, and with Wilson Miller. He was living at Jones, Okla., on the date in question, but had previously lived in the Beggs community. He returned there about May 10th, about five days before the hogs were stolen. About 8 o’clock on the morning of May 16, 1946, the morning after it is alleged the hogs were stolen, this witness went to the home of Wilson Miller. He and Miller went in Miller’s two-seated Chevrolet car to the town of Beggs, in Okmulgee county. They went by the home of a Mr. Taylor, and a white boy got in the car with them. Wilson started to turn off to go up to the home of the defendant, Pleasant Tob-ler. The white boy, whose name was Jimmie Ray, got out of the car, and the witness also got out, telling Miller: “Pleas and I don’t get along, and I better wait for you.” Wilson Miller then went about, half a mile to the home of defendant, and soon returned with the defendant in the car with him. They stopped, and the witness, George Pittman, got in the car with them. Miller and the defendant had a conversation after they had gone a short distance, and the car stopped and defendant got out of the car and went' out under some grape vines near the road and brought out a red hog that was dead. Miller told him to hurry up, and he brought a second hog and “Miller opened the back of the car and they put them both in there.” The hogs were described as being red and about the size of the Hadley hogs. They went from the place where the hogs were placed in the car through a part of the town of Beggs to the home of Joe Adams, a cousin of the defendant. Neither Adams nor his wife was at home, but a boy and four or five small children were there. The two hogs were unloaded by Miller-and the defendant at the Adams home. In going to Beggs, they passed the boy, Jimmie Ray, who had gotten out of the car, but they did not pick him up. When they went back to Beggs, Wilson bought some potato slips and two sacks of sawdust. They returned to the Miller home and the witness set out the potato slips on the evening of May 16th. On cross-examination this witness admitted that he had been previously convicted of the crime of manslaughter, in Seminole county, and received a sentence of seven years in the penitentiary.

The witness Jimmie Ray corroborated the testimony of George Pittman as to riding in the automobile with Wilson Miller and Pittman, and of getting out of the car and being passed by them as he was walking towards Beggs. He testified to seeing Pittman and Wilson Miller when they passed him, but did not see the defendant, who was in the back seat.

The defendant in rebuttal placed Joe Adams on the stand, and he testified that no hogs were brought to his home on May 16, 1946, or at any other time.

Joe Adams, Jr., age sixteen, testified for the defendant, and stated that he left home on the morning of May 16, 1946, about 8 o’clock. That no one brought hogs there while he was at home, and he knew nothing about it at all.

Wilson Miller testified for the defendant on rebuttal. He corroborated the witness George Pittman as to his coming to his house on the morning of May 16, 1946, and of their going in the car to the town of Beggs, and of the boy Jimmie Ray riding part of the way with them, and of George Pittman and Jimmie Ray getting out of the car when he returned to go to the home of the defendant Pleasant Tobler. He went there to see about a planter. He saw the defendant at his home and talked to him about the planter. The defendant did not leave with him in the car, and no hogs were picked up or put in the car by him or by the defendant.

Prom the foregoing statement, it will be noted that there is a direct conflict in the evidence. There is some conflict in the date, whether it was May 15th or May 16th. It has long been the rule of this court that a case will not be reversed where there is a conflict in the evidence, and the evidence is sufficient to sustain the judgment and sentence. The jury having passed upon the evidence in this case, this court will not set aside the verdict. Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758; Brown v. State, 82 Okla. Cr. 344, 169 P. 2d 772; Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638; Young v. State, 84 Okla. Cr. 71, 179 P. 2d 173.

The defendant presented the defense of an alibi. This was a question for the consideration of the jury, and the issue was fairly submitted to the jury in the instructions of the court. All of the evidence revealed that defendant was in close proximity to the scene of the crime on the date alleged in the information. Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289.

Defendant’s second assignment of error is that the court erred in refusing to sustain the motion for new trial by reason of newly discovered evidence. This motion is based upon the following statement made in the motion:

“That the star witness for the state, George Pittman, has, since said trial, admitted in the presence of defendant’s counsel and Tom Powell, deputy sheriff, that the statements he gave incriminating this defendant, were absolutely false and that he did not see Tobler take hogs from the thicket of a grapevine and that Tobler did not accompany him and Miller on the trip to Beggs, Okla,-homa, and did not know, of his own knowledge, that this defendant had anything to do with the hogs.”

Affidavits to support the motion for new trial were not filed but the court permitted the introduction of evidence to support the motion, and the codefendant George Pittman, who was confined in jail, was placed upon the witness stand and testified that the evidence given by him at the time of the trial of defendant,-and also that of the codefendant Wilson Miller, was false in so far as it related to his going with Miller and the defendant and picking up the two hogs and placing them in the car and taking them to the home of Joe Adams. He did testify that he had seen Miller in close proximity to where the hogs were killed and that he was covered with blood, and told witness he had killed a squirrel, and the witness said to Miller, “You must have carried it on your shoulder.”

Solomon Spring and the defendant Pleasant Tobler also testified at the hearing on the motion; and Tom Powell, a deputy sheriff, testified to hearing the witness George Pittman state in the sheriff’s office that a part of the evidence given by him at the former trial was false.

With reference to granting a motion for new trial on the ground of newly discoveréd evidence, we are confronted with the rule so often announced by this court, that this question is addressed to the sound discretion of'the trial court, and that such motion should not be sustained unless there is a reasonable probability that the newly discovered evidence would have changed the result of the trial. Coulson v. State, 48 Okla. Cr. 206, 291 P. 152; Cummings v. State, 57 Okla. Cr. 428, 48 P. 2d 879; John v. State, 79 Okla. Cr. 50, 151 P. 2d 808; Grounds v. State, 81 Okla. Cr. 11, 159 P. 2d 275.

The question of witnesses who have testified in the trial of a case, and thereafter state that the evidence given by them' was untrue and false, was discussed in the case of Whitworth v. State, 80 Okla. Cr. 239, 158 P. 2d 364, 159 P. 2d 277. There this court said:

“The practice of granting new trials upon affidavits of persons who have been convicted and then change their testimony, admitting that they had committed péirjuryj is not looked upon with favor by the courts.”

We have carefully read the testimony given by the witness Pittman on the hearing of the motion for new trial. It is not at all impressive, and we can readily see that it did not impress the trial court, who immediately overruled the motion.

We shall not discuss further the reasons for the above rule, as they are fully stated in the Whitworth case, supra, and the authorities from this and other courts cited and quoted therein.

As stated in the brief of the state, there was sufficient evidence in the record in this case to sustain the conviction of the defendant, even though the testimony of the witness George Pittman be disregarded. His testimony did, how'ever, strengthen the evidence of the state, if believed by the jury.

Finding no error in the record, the judgment of the district court of Okmulgee county is affirmed.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte JIMMIE GOFF.
    No. A-10961.
    May 26, 1948.
    (194 P. 2d 206.)

      Jimmie Goff, pro se.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondents.
   BRETT, J.

This matter comes before the court on a petition for writ of error coram nobis by Jimmie Goff, pro se, wherein he contends that he was adjudged guilty of the crime of murder in the district court of Okmul-gee county on the 16th day of October, 1937, and was sentenced by said court to life imprisonment in the State Penitentiary. He complains that the judgment and sentence is excessive; that he was never informed by written-statements or orally of his indictment by a grand jury sitting in Okmulgee county, Oklahoma. He further states that all of the parties representing the State of Oklahoma in the course of his trial and thereafter were of the opinion that he should not receive a sentence greater than his accomplice in the alleged crime, Olin Anderson. In support of the latter statement he attaches thereto a letter of the county attorney of Okmulgee county, the sheriff of said county and the judge of the district court who tided him stating that in their opinion the Pardon and Parole Board would be justified in commuting his sentence to 20 years. He further alleges that his accomplice Olin Anderson was released from the Granite Reformatory upon the expiration of his 20 years sentence. He further says that the reason he is asking for a writ of error coram nobis is because of the fact that a writ of habeas corpus cannot be substituted for an appeal.

He sets forth a factual statement involved in his case substantially as follows, to wit:

“Petitioner was jointly convicted, at the same hearing, in the District Court of Okmulgee County, with one Olin Anderson, for commission of the same crime. However, the charge or Murder was placed against the petitioner, upon conviction of which he was sentenced to Life imprisonment. Said Anderson w'as sentenced on the charge of Manslaughter and * * * received a twenty (20) year sentence.”

The cause of said convictions he says were as follows:

“On June 19, 1937, the aforementioned Olin Anderson and the petitioner attended an outdoor picnic a few miles east of Beggs, Oklahoma. After their arrival at the picnic, the said Anderson and the petitioner separated. Shortly thereafter Anderson approached the petitioner requesting that the petitioner take his (Anderson’s) pistol, and keep it for him until the festivities were over. The petitioner complied with Anderson’s wishes as Anderson assured the petitioner that trouble for him (Anderson) was brewing, and he did not wish to have the gun on his person. Later, during the course of the picnic, the petitioner approached the grandstand and upon elevating himself to the rostrum, was ordered by one of the occupants to leave. Harsh Words ensued and in a fit of wrath the petitioner discharged the pistol which he was holding for Anderson. The person on whom the attack was directed was able to escape uninjured, but several innocent bystanders were injured, some fatally. The petitioner was definitely proved to be in an intoxicated state and a wholly irresponsible state at the time of the altercation. At the time that Anderson handed the pistol to the petitioner for safekeeping he likewise handed the petitioner a full, half-pint bottle of whisky. The Hon. J. Harvey Smith presided at the trial. The Hon. L. A. Wallace represented the State in his capacity as County Attorney for Okmulgee County. The Hon. Tom Payne was the defendant’s counsel. Petitioner entered a plea of Not Guilty, inasmuch as the killings were purely accidental in nature. Petitioner was committed to the Oklahoma State Penitentiary on September 29, 1937. He was paroled September 16, 1946 and his parole was revoked on August 18, 1947. His prison record is clear.”

To this petition the Attorney General, appearing on behalf of the State of Oklahoma, filed a response wherein it is alleged in substance that the defendant seeks to vacate and set aside a valid judgment and sentence entered on October 16, 1947, in the district court of Okmul-gee county finding the defendant guilty of murder and fixing his punishment at life imprisonment in the penitentiary. He further alleges that on July 7, 1937, an information was filed in the district court of Okmulgee county charging the defendant Olin Anderson with the murder of John Grayson on June 19, 1937, by shooting the deceased with a pistol; that on October 12, 1937, the matter came on for trial by jury after severance in which trial he was convicted and sentenced as hereinbefore set forth. Prom this judgment and sentence no appeal was taken.

After conviction a motion for new trial was heard and overruled by the court, and on October 16, 1937, the court proceeded to render judgment and sentence in accordance with the verdict of the jury, and on which judgment and sentence defendant has now served about nine years.

In petitions for habeas corpus and petitions for writ of error coram nobis which have been filed by inmates of state institutions, this court is very liberal in construing the same particularly where the same has been prepared without the advice and help of an attorney, as we realize there will be many cases where prisoners may have good grounds for petitioning this court for relief but are unable to secure the assistance of an attorney because of their financial condition or otherwise; and in those instances We give every reasonable inference that we can to their petitions to see whether the same are sufficient on their face to justify a hearing upon the issues thus raised. Ex parte J. H. Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670. In its response the state sets forth that in Anderson v. State, 76 Okla. Cr. 260, 137 P. 2d 254, involving the appeal of Olin Anderson from his separate trial and conviction, “in the body of the opinion at page 268, of 76 Okla. Cr., at page 258 of 137 P. 2d we note this comment:

‘At the time of his trial he (Goff) took the witness stand and testified that he did not do any shooting on that night, but that the defendant Olin Anderson had the gun and did the shooting. At the present trial he took the witness stand and admitted that he had the gun and did the shooting, and that the defendant Olin Anderson did not fire a shot.’ ”

Further the respondent says that the facts stated in his petition are not sufficient to entitle the petitioner to the relief prayed for. The Attorney General seems to be of the impression that while the petition is labeled for writ of coram nobis, it was the intention of the petitioner to seek relief by writ of habeas corpus. If it was intended as an application for a writ of habeas corpus the same will not lie for the reason, as was said in Ex parte Linam, 71 Okla. Cr. 155, 109 P. 2d 838, in paragraph 3 of the syllabus:

“Where facts stated in a petition for a writ of ha-beas corpus, if established, will not warrant the discharge of the petitioner, the writ will be denied.”

Moreover, the writ of habeas corpus is limited to cases in which the judgment and sentence of the court attacked are clearly void. Ex parte Walker, 84 Okla. Or. 190, 180 P. 2d 670. Further, in Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840, 842:

“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.”

Moreover, as was said in Ex parte Story, 86 Okla. Cr. 20, 184 P. 2d 983 :

“In a habeas corpus proceeding, only jurisdictional questions may be considered, and the writ cannot be invoked to review the action of courts of records, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.”

Considering this matter on the basis of a petition for a writ of habeas corpus, petitioner has wholly failed to allege facts to bring him within the foregoing rule by raising any jurisdictional questions supported by the record. It is not denied by the petitioner that the court had jurisdiction of his person, jui'isdiction of the subject matter, and authority under the law to pronounce the judgment and sentence rendered. The questions raised by this proceeding are all matters that might have been raised on appeal. Therefore, when viewed as a petition for habeas corpus, relief thereby must be denied.

Furthermore, where there is no question to the jurisdiction of the court and where the judgment and sentence has been rendered and the defendant has suffered the penalty pronounced in the judgment in whole or in some substantial part, even during the term, the authority of the court rendering the judgment is at an end and the trial court is without jurisdiction to modify, suspend or otherwise alter the judgment, except to set aside a judgment void on its face as shown by the record Burford, Warden, v. Sullivan et al., 86 Okla. Cr. 364, 193 P. 2d 594; In re Gable, 73 Okla. Cr. 155, 118 P. 2d 1035; Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A., N. S., 60; Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419; Yoder v. State, 66 Okla. Cr. 178, 90 P. 2d 669; Ex parte Pruitt, 41 Okla. Cr. 318, 273 P. 288; Tracy v. State, 24 Okla. Cr. 144, 216 P. 941. The petitioner herein has now served approximately nine years of the sentence imposed upon him on the 16th day of October, 1937. The day petitioner began the service of the penalty pronounced in the judgment herein involved, the authority of the trial court was at an end, and said court was without jurisdiction to vacate, modify, suspend or otherwise alter the judgment except as provided by statute, Title 22, O. S. A. § 952, reading in part as follows:

“Seventh. When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial, or when it can be shown that the grand jury was not drawn summoned or impaneled as provided by law, and that the facts in relation thereto were unknown to the defendant or his attorney until after the trial jury in the case was sworn and were not of record. * * *”

Prom the allegations of the petition it is apparent that the petitioner presents no such situation for our consideration grounded upon facts in the nature of newly discovered evidence not passed on by the court.

Next considering the case upon the basis of a petition for writ of error coram nobis, none of the facts alleged bring the petitioner within the rule announced in Burford, Warden, v. Sullivan, supra, as follows, to wit:

“5. The functions of a writ of error coram nobis are limited to an error of fact for which the statutes provide no other remedy, which fact did not appear of record or is unknown to the court when judgment was pronounced, and which, if known, would have prevented the judgment and which was unknown and could not have been known to the party by the exercise of reasonable diligence in time to have been otherwise presented to the court, or unless he was prevented from so presenting them under duress, force, or other sufficient cause. * * *
“8. A writ of error coram nobis does not lie to correct any error in the judgment of the court, nor to contradict or to put in issue any fact directly passed upon and confirmed by the judgment itself, nor to review and revise the court’s opinions but only enables the court to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.”

The petitioner herein has wholly failed by the allegations of his petition to bring himself within the foregoing rule by allegating the elemental facts necessary to entitle one to relief on such basis. The writ must be and the same is hereby denied.

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


author: JONES, J.

text:
    ALBERT HAYGOOD v. STATE.
    No. A-10835.
    June 2, 1948.
    (194 P. 2d 210.)

      •Emmons Arrington, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The Attorney General has filed a motion to dismiss the appeal for the reason that it was not taken within the sixty days prescribed by statute. 22 O. S. 1941 § 1054. No response was filed by the defendant to the motion to dismiss.

The record discloses that judgment and sentence was pronounced against the defendant pursuant to the verdict of the jury on October 28, 1946, and at the time of the pronouncement of the judgment and sentence, the court granted the defendant an extension of thirty days from that date to make and serve the case-made.

Pursuant to the order of the court, the County Court reporter prepared and delivered to counsel for defendant within the thirty days a certified copy of the case-made. On November 25, 1946, the certificate of the trial judge was affixed to the case-made certifying the same as a true and correct case-made in said cause. Counsel for the defendant then had thirty-one days in which to lodge his appeal in this Court before the statutory period expired. However, instead of filing the appeal in this Court within the sixty day period authorized by statute, the case-made, together with petition in error attached, was not filed with the Clerk of the Criminal Court of Appeals until February 11, 1947.

A failure to file the appeal in this Court within the time allowed by the statute is fatal to the appeal and the Criminal Court of Appeals has no discretion to determine the appeal unless it is taken within the time prescribed by statute. Jump v. State, 76 Okla. Cr. 9, 133 P. 2d 561; Gunter v. State, 13 Okla. Cr. 83, 162 P. 231; Wilkerson v. State, 76 Okla. Cr. 152, 134 P. 2d 998; Miller v. State, 78 Okla. Cr. 112, 144 P. 2d 120; Brown v. State, 84 Okla. Cr. 115, 179 P. 2d 478.

For the reasons hereinabove stated, the purported appeal herein should be dismissed and the cause remanded to the trial court with directions to enforce its judgment and sentence. It is so ordered.

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


text:
    GERTRUDE WIRE v. STATE.
    No. A-10887.
    June 2, 1948.
    (194 P. 2d 212.)
    Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., Oklahoma County, of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

This is an appeal from the court of common pleas of Oklahoma county, wherein Gertrude Wire was tried and found guilty of the offense of illegal possession of intoxicating liquor, and sentenced to serve three months in the county jail, and pay a fine of $500. From this judgment and sentence, she has appealed.

The evidence reveals that, on December 6, 1946, about 10 o’clock in the forenoon, Jack Caldwell and Howard Taylor, two city police officers assigned to liquor investigations, went to the Lincoln Inn, at 221 Northwest Tenth Street, in Oklahoma City, and there made a search of the premises, and as a result of the search found 608 pints of tax-paid whisky.

The officers first went to the living quarters of the defendant, who was the manager of the hotel, and served the search warrant. She came out into the hall with the officers, who looked under the door of room No. 100, w'hich was directly across the hall from the living quarters of the defendant, and saw boxes in the room labeled whisky. The room was locked, and there was a key-plug in the lock. The officers asked the defendant for the key to the room, and she stated that the room was rented to a Mr. Smith and his wife, who were traveling, and she did not have the key. When the officers told her they could see whisky in the room, and it would be necessary for them to enter, she produced the key.

No question as to the validity of the search warrant is raised.

For a reversal of this case, counsel assigns two propositions. The first is:

“Where intoxicating liquor is found in a search by the officers and one is charged with unlawful possession thereof, and there is no positive evidence, either direct or circumstantial, connecting defendant with possession thereof, the evidence is insufficient to sustain a conviction of illegal possession of intoxicating liquor.”

The two officers who made the search were the only witnesses testifying in this case.

Both officers testified that the room where the whis-ky was found did not have the appearance of being occupied. That the whisky was stacked in boxes on the floor, some on tbe bed, and all over the room. They found men’s clothing hanging in the room, and also a trunk and two suitcases. The defendant told them that the clothing and the trunk belonged to her husband, and the two suitcases belonged to her. One of the officers testified that the defendant denied owning the whisky.

The evidence of the state was sufficient to make a prima facie case requiring the submission of the issue of defendant’s guilt to the jury. She was the manager of the hotel; she had the key to the room; clothing and a trunk belonging to her husband, and two suitcases belonging to her were in the room. Her statement to the officers that the room was rented by a Mr. Smith and his wife was weak, and was contradicted by the fact that she had the key to the room, and that the only personal effects therein belonged to her or to her husband.

This court is committed to the rule that it will not set aside the verdict of a jury on the ground that the evidence is not sufficient to sustain the conviction, unless the record affirmatively discloses that there is no competent evidence in the record upon which the verdict could be based. Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401; Todd v. State, 82 Okla. Cr. 424, 172 P. 2d 345.

It is further contended that the court committed reversible error “in admitting certain incompetent, irrelevant and immaterial and highly prejudicial testimony on the part of the state.”

This contention is based upon the testimony of Howard Taylor, one of the officers who conducted the search. When testifying as to the contents of the room where the whisky was found, this witness, When asked on direct examination if the defendant made any statement concerning “the other things in the room”, answered: “She stated that the trunk and clothing hanging in the closet belonged to her husband, and that the two suitcases belonged to her,”

On- cross-examination, lie testified:

“Q. Now, then, did she tell you who the suitcases belonged to? A. I knew who the suitcases belonged to. Q. I didn’t ask you if you knew. Did she tell you who they belonged to? A. No. Q. Do you now know who they belong to? A. At this time, No.”

On re-direct examination, this witness testifed:

“Q. He asked you if you knew Avho owned those two suitcases now. Do you mean to say you don’t know whether she is supposed to have them or not? A. That is right. Q. You don’t know who happens to own them at this time? A. No, sir. Q. You did know the suitcases, didn’t you? A. Yes, sir. Q. Whose were they? A. Mrs. Wire’s. Q. Why do you say that? A. We arrested her one time before, and she had them.”

Counsel for defendant immediately objected to this testimony, moved the court to strike it from the record, and further moved the court to declare a mistrial.

This court has repeatedly condemned the practice of officers, while on the witness stand, making voluntary statements prejudicial to the rights of the defendant on trial. In this case, a careful review of the entire record convinces us that the jury was justified in finding the defendant guilty as charged; and that because of the enormous amount of whisky found, the punishment should be more severe than in an ordinary case. We are inclined to believe, however, that the voluntary statement of the police officer that: “We arrested her one time before and she had them” was harmful to the defendant, and probably caused the jury to assess greater punishment than they otherwise would have done.

The judgment and sentence of the trial court is, therefore, modified from a term of three months in the county jail and $500 fine, to sixty days in the county jail, and $300 fine; and as so modified, is affirmed.

JONES and BRETT, JJ., concur.


text:
    Ex parte JAMES BERRYHILL.
    No. A-11008.
    June 2, 1948.
    (194 P. 2d 214.)
    James Berryhill, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

James Berryhill has filed his verified petition in which he seeks a writ of habeas corpus to be released from imprisonment in the State Penitentiary, where he is serving a sentence of life imprisonment pursuant to a judgment and sentence pronounced by the district court of Atoka county.

The verified petition alleged in substance that the judgment was void for the reason that the petitioner was not served with either a list of witnesses or a copy of the information filed against him; that he did not have an attorney to represent him, and was not advised by the court that if he wanted an attorney or could not afford one, the court would appoint an attorney for him, and the attorney would be paid by the state; nor was he advised of the different degrees of homicide of which he might be found guilty, provided the jury did not find him guilty of murder. Attached to the petition was an affidavit of the petitioner in which he stated that he engaged in a dispute with a man named Wilson in Atoka county on June 23, 1939, and that said petitioner in self-defense did shoot and kill said Wilson; that petitioner fled from the scene of the altercation but was apprehended in Phoenix, Ariz., several months later and was returned to Atoka county for trial; that en route from Arizona to Oklahoma certain officers of Atoka-county (without naming them) advised him that if he did not enter a plea of guilty to the crime of murder he would burn in the electric chair.

The warden of the State Penitentiary, acting through the Attorney General, filed a response denying the material allegations of the petition and further alleged that the petitioner entered his plea of guilty to the crime of murder on February 1, 1940, after being fully advised and thoroughly aware of all of his constitutional rights. It was further alleged that the petitioner, prior to his conviction of murder for which he is serving a term in the State Penitentiary, had sustained three convictions for felonies and had served terms of imprisonment in the State Penitentiary for each of said convictions; that by reason of these prior convictions, the petitioner was not inexperienced in court proceedings, but was thoroughly experienced in crime and familiar with the rights of those charged in criminal actions.

At the time this matter was set for hearing, there was no evidence offered on behalf of the petitioner to support the allegations of the petitioner, other than the affidavit of the petitioner hereinabove referred to. On the other hand, the proof of the state sustained the allegations of the response.

It may be true as stated in the petition that the petitioner would not have been given a sentence in excess of that authorized for a conviction of manslaughter if he had stood trial. He had the option of either standing trial or entering his plea of guilty. By entering his plea of guilty, he waived his right to a trial by a jury.

This court is not vested with powers of clemency. In habeas corpus proceedings we may not modify the sentence which has been imposed upon one convicted of crime, although such right of modification is given by statute where an appeal has been lodged from a judgment of conviction. 22 O. S. 1941 § 1066. In habeas corpus proceedings we are limited in the issuance of the writ of habeas corpus to those cases in which the judgment and sentence pronounced against the accused is clearly void. Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670. There is nothing before us which would authorize or justify the conclusion that the judgment and sentence was void.

The writ of habeas corpus is denied.

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