author: BRETT, J.

text:
    Ex parte RAY STORY.
    No. A-11102.
    Feb. 16, 1949.
    (203 P. 2d 474.)

      Champion, Champion & Wallace, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is a petition for a writ of habeas corpus brought by Ray Story wherein he complains that he is restrained of his liberty and unlawfully imprisoned at the Oklahoma State Penitentiary at McAlester, Oklahoma, by C. P. Burford, warden of said penitentiary.

That the cause of said restraint is the judgment and order of commitment entered by the district court of Love county, Oklahoma, made and entered on December 22, 1945 on the petitioner’s plea of guilty to the charge of rape, wherein it was adjudged that the petitioner should be confined in the State Penitentiary for a term of 99 years, and committing him accordingly.

In substance, the petitioner alleges that he was arrested on December 15, 1945, and incarcerated in the county jail at Marietta, Oklahoma; that on the 17th day of December, 1945, a complaint was filed in the county court of Love county charging him with the commission of the crime of rape in the first degree. Immediately on said date he was taken before the county judge sitting as committing magistrate. Petitioner further alleges that ■ he was not advised that he conld have an attorney appointed for him, was not advised that he could reserve time to plead; that the meaning of a preliminary hearing and arraignment was not explained to him; that he did not enter a plea of guilty or enter a plea at the time; that notwithstanding all of this the committing magistrate entered an order setting out that the petitioner was arraigned, pleaded guilty and thereupon hound him over to the district court of Love county. He further says that the complaint was not read to him and a copy at no time was served upon him nor was he furnished with any list of the witnesses to appear against him, or informed as to his legal rights at said purported arraignment, none of which including the preliminary hearing did he waive.

He further alleges that thereafter, on the same day, to wit, the 17th day of December, 1945, an information was filed in the district court of Love county, Oklahoma, charging the petitioner with the crime of rape in the first degree; that thereafter, on the 22nd day of December, 1945, he was taken before the district court of Love county, that the information was not read to him in open court and he was not provided with a copy of it nor a list of the witnesses endorsed thereon with their post-office addresses. He further says that Mr. Crawford Cameron was appointed as his attorney on that date with whom he consulted a very short period of time; that the said attorney had investigated the case prior to the time of his appointment; that petitioner entered a plea of guilty about 30 minutes after said attorney was appointed. In this connection he alleges that it was never explained to him that he had 24 hours within which to plead; that thereafter on his plea of guilty he was sentenced to 99 years in the State Penitentiary.

Further the petitioner alleges that at the time judgment and sentence was pronounced upon him he was 19 years of age. In this connection the record discloses he became 20 years of age on December 21, 1945, the day before the judgment and sentence was pronounced.

Further he alleges that he was without experience and knew nothing of legal procedure and that in addition thereto his parents who were with him at said time had had no experience; that all of said proceedings occurred in the chambers of the said district judge.

To this petition the state made response in substance as follows, to wit, wherein, among other things, it was alleged that the petition does not state facts sufficient to warrant the release and discharge of the prisoner as prayed for, that in said petition no jurisdictional matters are raised and that all of the material allegations raised by petitioner should be raised by appeal and that the same are not propositions that can be legally raised by habeas corpus. In addition thereto, said respondent denies each and every material allegation made and contained in said petition except the admission of the judgment and sentence as was pleaded by the petitioner. The petitioner, his father and his mother testified substantially in support of the allegations of the petition.

The substantial part of the minutes of the county judge of said court recites the following facts:

“Page 214
12-17-45 Defendant being properly arraigned before the County Judge, and in the presence of the County Atty., Geo. Roberson, Dep. Sheriff, Orren Wester, Sheriff, Ona English, & M. W. Short, Court Clerk, waived preliminary hearing and entered a plea of guilty. Upon order of the County Judge, said defendant Ray Story was bound over to District Court without bond, after being advised by the County Judge that he could consult an attorney before entering such plea. (Transferred to Criminal Appearance Docket District Court, Page 185, Book 3.)”

In support of the proceedings had before the county judge sitting as committing magistrate, the substantial part of his affidavit as a part of the record, reads as follows, to wit:

“I am the County Judge of Love County, Oklahoma, and was serving as County Judge of Love County, the 17th day of December, 1945; that Kay Story appeared before me for arraignment and was fully advised by me of his constitutional rights; That I consulted with Ray Story, at some length concerning his rights in this matter. I advised him that he could consult an attorney before entering any plea. I advised him as to his right to a preliminary hearing and explained to him the purpose of a Preliminary hearing. Ray Story chose to waive preliminary hearing and entered a plea of guilty, after which I bound him over to the District Court without bond. To the best of my knowledge and belief, the parents of Ray Story were present at the Arraignment. I do know that I asked Ray Story if he had discussed this situation with his parents, and he replied that he had, and still desired to enter a Plea of Guilty.
“In Witness Whereof, I hereunto sign this 21st day of January, A. D., 1948.
“B. W. Jones, County Judge.”

The affidavit speaks for itself.

In addition thereto the county attorney testified in part in the habeas corpus hearing, in relation to the proceedings before the county judge of Love county as follows :

“Q. Did you appear at the county court at the time the preliminary was set? A. I did. Q. State from your best memory what transpired there at that hearing relative to the pertinent facts in this case. A. They brought Ray over, and I sincerely . believe his father was with him at that time, but I am not definite on that. They brought Ray over, anyway, and the county judge went to some length explaining to Ray what a preliminary was and what it amounted to, and explained to him he was entitled to an attorney and possibly should consult an attorney, and Ray didn’t see any use in that, wanted to get it over with as quick as he could. The judge discussed at some length withholding a plea, right to talk to an attorney, he read the complaint to him, and he entered a plea of guilty, after further discussion Avith the judge. The deputy sheriff, myself, the court clerk, court reporter were,gll the persons there, I believe — the county treasurer, as I remember, was there, possibly one or two other people loose around the courthouse. * * * Q. You had a conversation with his father and mother? A. Yes, I did. Q. Where. A. In my office Monday morning, the first thing. When I came down, Mr. and Mrs. Story were in the hall waiting for me. * * * They tried to get me not to recommend 99 years. I told them the thing to do was to talk to an attorney; they asked me about a jury trial, and I explained to them it would be tried by a jury. They asked me when it would be tried, and I told them he would probably be arraigned in county court that afternoon. They asked a number of questions. They were quite upset. They left, and then came back in about 30 minutes, and I believe they told me they had gone and talked to an attorney. I don’t know how many times they came in to see me between then and the time he was sentenced, possibly' three or four times. Q. You advised them fully the consequences of a plea of guilty and jury trial? A. I did then, and in the office Avith Mr. Cameron, their attorney, I advised them Avhat the recommendation would be in case of a plea of guilty.”

In addition thereto, the petitioner himself testified in the hearing in Greer county as follows, to wit:

“Q. While you were in the county court, Mr. Milor read the complaint to you?' A. Yes, that is correct.”

The foregoing constitutes a substantial delineation of the record made at the time of the preliminary hearing, and the evidence offered by the state in support thereof.

The record further discloses that on December 17, 1915, an information was filed in the district court of Love county wherein the petitioner was charged with the crime of first degree rape. Five days later, on December 22, 1915, it appears that the petitioner entered his plea of guilty in the district court after counsel had been appointed for him and was sentenced to 99 years in the Oklahoma State Penitentiary as alleged in his petition and admitted in the response thereto. The criminal appearance docket in relation thereto is ' in substance as follows, to wit:

“12-27-15 * * * After being properly arraigned in open court, upon a plea of guilty after consulting atty, C. W. Cameron, appointed by the Court. Said Ray Story was sentenced to 99 years at hard labor in State Penitentiary.”

Furthermore, the minutes of the district court in relation thereto are in words and figures as follows, to-wit:

“Saturday, Dec. 22, 1915
State of Oklahoma - ] v. } RAPE Ray Story J
C. W. Cameron, appointed by the Court to represent the Defendant, Ray Story, owing -to the fact that he was unable to employ an attorney.
Upon being properly arraigned, him his right to waive 21 hrs. leave, & pleads guilty of 1st Degree Rape, of Mattie Martin, possibly 2 times, App. 20 years, old, will be 20 yrs. old yesterday.
Judgment and Sentence of the court, that you will be sentenced to the State Penitentiary for a period of 99 years from time of delivery to warden.”

It should be observed that in this connection the minutes of the district court state that the said Ray Story being properly arraigned, did enter his plea of guilty. These minutes under the holdings of this court are subject to explanation. In. this connection the affidavit of Judge J. I. Goins in substance is as follows, to wit:

“I, J. I. Goins, being first duly sworn, do upon my oath state that I was the Trial Judge and presiding in the case of State of Oklahoma v. Ray Story. That on December 22nd, 1945, the defendant, Ray Story, was brought before me as the Trial Judge upon arraignment, he being at the time charged with the crime of rape in the first degree. Upon being brought before me he was asked whether or not he was represented by counsel, and he stated that he was not. Thereupon, the court inquired of him if he desired counsel be furnished him, and he stated that he did, and then the court, at his request, appointed Crawford W. Cameron, an able and reputable lawyer and a member of the Love County Bar, to advise with, counsel, and to represent the defendant, Ray Story. During these proceedings the mother and father of the defendant were both present in court. Mr. Cameron came to the court house at the request of the court, and after he was advised of his appointment he retired to a private room- and there conversed with the defendant at length. During the course of their conversation they requested the Trial Judge to come to the conference room, which I did, and Mr. Cameron, the attorney for the defendant, stated in the presence of the defendant, that the defendant was willing to plead guilty if he could be assured of receiving not more than fifty (50) years in the State Penitentiary. I advised both of them that I never gave assurances to any person as to what the penalty. would be prior to their plea of guilty, but it was my custom to usually follow the recommendation of the county attorney in such matters, since he had made thorough investigation, and that I would not improse a sentence of fifty (50) years under any circumstances without the recommendation of the County Attorney. Mr. Cameron advised and stated at the time that the County Attorney was insisting that a much longer sentence be imposed and was going to recommend ninety-nine (99) years. At that time I left the room, and the defendant and his attorney advised together for perhaps thirty minutes or an hour.
“Finally the defendant appeared in court with his attorney and stated that they were ready to proceed. Thereupon, the County Attorney read in open court and in the presence of the defendant and his parents and in the presence of his counsel, the information charging him Avitli the crime of rape in the first degree. Following my usual custom in such matters, I informed the defendant that he had a right to reserve his plea for twenty-four (24) hours, that he had a right to be represented by counsel and be fully advised by him before entering liis plea of guilty or not guilty to the crime as charged, Thereupon, the defendant stated that he wanted to enter his plea of guilty, and at that time his attorney stated that he had discussed the matter thoroughly with the de-. fendant and that was his wishes in the matter.
“He Avas further asked at that time if it was his desire that the court pass sentence then or to wait until the expiration of some forty-eight (48) hours or more, and he stated that he had no objections to sentence being imposed at that time.
“After the defendant was fully advised of all of his legal rights, and knowing that he was well and ably represented, and that it was the desire of the defendant to enter his plea of guilty, the court then and at that time imposed a sentence of ninety-nine (99) years, whose term would begin, as I recall, at the time he was received by the warden.
“Further affiant saith not.
“J. I. Goins.”

It should be observed in this connection as to the matter of the appointment of an attorney, Judge Goins’ affidavit reveals that the appointment of Mr. C. W. Cameron was made at accused’s request. Furthermore, the record reveals that before the aforesaid appointment was made the accused’s father and mother had consulted with Mr. Cameron relative to said cause pending against the petitioner herein. The record further reveals that during the pendency of these proceedings the father and mother of the accused, petitioner herein, were in daily communication and contact with petitioner relative to this case. Moreover, the judge’s affidavit shows the petitioner was thoroughly advised of his statutory and constitutional rights. Furthermore, the testimony of the county attorney in support of the said proceedings in the district court reveals that he conferred with the parents of petitioner, and advised them of his rights. In addition thereto he advised the petitioner of his rights. His testimony reveals the following state of facts in regard to the proceedings in the district court, all of which is corroborative of the Judge’s affidavit:

“Q. Let’s go to December 22, when you first appeared in Judge Goins’ court, that day. A. The judge had been out of town. He came in and asked me about the Story case, if I was ready. I said the information had been filed for sometime, and I would like to bring him over and arraign him. I believe we set it for one or two o’clock. I went in and then they brought Ray over. His parents were there, and the judge asked him if he was represented by counsel. He said he wasn’t and the judge asked him if Crawford Cameron would be all right, or C. W. Cameron — that was the gist of what he said. He said that would be fine; and they called for Mr. Cameron. He came down; and Ray and Mr. Cameron, and I believe his father, went, into the court reporter’s office, which is just off the district judge’s office, and they shut the door and talked quite a while, then called me in. * * *”

Thereafter follows an extended delineation by the county attorney relative to conversations between himself and Mr. Cameron who had been appointed to represent the accused, petitioner herein, relative to what kind of recommendation the county attorney would be willing to make, in the event of a plea of guilty, and in which it appears that the county attorney stood steadfast in his determination not to recommend less than 99 years. Thereafter his testimony reveals:

“A. * * * I went back in the courtroom. They were in there some few minutes longer, then all came out in the judge’s office. Q. What would you estimate the time they were in the court reporter’s room? A. Well, it seemed to me it was, it was an hour or so, I am sure, because we went up there — the way I base the time it was set for 2 o’clock. We went up there in the office, then, at 1:30 or 2:00 whatever time it was, I know when I came back out of the court room and they were taking Ray back to jail, my wife was downstairs to meet me. She teaches school and it was bound to have been around 4 o’clock when I got out of court, some two or three hours we were upstairs. They were in the office over an hour- in my opinion. Q. After they got back in the judge’s office, tell what happened? A. After they got back into the judge’s office, I read the information, and the judge questioned Ray, asked him what he pled, and Ray said he pleaded guilty. He asked him, as I remem--ber — the particular thing I remember, he asked Ray what caused him to do it, and he said, ‘Just lack of foresight, I guess.’ He said, “You raped her two times, didn’t you,’ and he said that he did. Of course, before Ray entered his plea, the judge advised him he had 24 hours to plead, and Mr. Cameron said that Ray wanted to waive the time- — -I believe Mr. Cameron was the one; and the Judge also told him he had 48 hours before sentence would be passed. Q. Then the judge sentenced him on your recommendation? A. Yes, the judge asked me what I recommended and I told him 99 years.”

The testimony of Sheriff Orren Wester is in part in substance as follows, to wit:

“Q. What did the judge say to Mm? A. From the beginning? Q. Yes. A. First, he ask him if he had an attorney. I believe he told him he didn’t have. He told him he would appoint him an attorney. He asked me, I am sure he asked me, to call Mr. Cameron to come and probably tell him what the case was. Q. Did he say anything to the boy as to whether Cameron would .be satisfactory or not? A. I couldn’t recall. Q. Cameron did come? A. Yes. Q. How long was it after Cameron got there until the judge sentenced him? A. Well, it would be hard to say, an hour to an hour and a half, something like that, I suppose. Q. When he came in for sentence, did you hear him plead? A. Yes. Q. What plea did he enter? A. He pled guilty. Q. Did you hear the county attorney do anything? A.'I think the judge asked him what his recommendation would be. Q. Did the county attorney read anything? A. He read the indictment or charge. Q. Information? A. Information. Q. What did the judge say to the defendant? A. He said is your plea guilty or not guilty. Q. He pled guilty? A. Yes. Q. Anything else? A. The judge informed him of his rights * * *. Q. What rights? A. As to the fact he had 24 hours to enter a plea. He has a regular huger - marole’ he goes over, I couldn’t remember all the things he told him. I’ve heard him make it time after time during the twelve years and 21 days I was in office, I never heard him miss it on a plea of guilty. Q. Then sentenced him? A. Yes. Q. His attorney was there? A. His attorney, yes”.

Furthermore, the testimony of Mr. C. W. Cameron, the petitioner’s attorney, supports the state’s contention, the substantial part of which is as follows:

“Q. (By Mr. Milor) Mr. Cameron, yon were appointed by the court herein to defend Ray Story? A. I was. Q. Mr. Cameron, had you discussed this case with the Storys prior to this appointment? A. Not with the defendant, but I had with Mrs. Story and his father. Q. How long before you were appointed was that? A. I couldn’t say. It was a matter of several days. Q. You were present here in the court room at the time he was arraigned and entered his plea? A. I was. Q. Did you advise Mr. Story of biis rights? A. I did. Q. How long a period of time did you advise with the defendant himself? A. I don’t know. I advised with him two or three times the same day I was called down at the courthouse in that afternoon. My recollection is that I talked to Mr. Story first and then later came down and investigated the case and talk with the sheriff and other people who had made the investigation. Now, that was after he had been bound over to district court. They advised me he had entered a plea of not guilty at the preliminary hearing, and apparently in the conversation there was an effort to try to get leniency as much as possible. I advised them to talk with Mr. and Mrs. Martin, inasmuch as they had been friends for a long time, to see what they could get in the way of a recommendation of leniency. They came back and advised me that the Martins said they would not take any part in it, leave it up to the court. I advised them approximately the reasonable expense in defending the case. I wasn’t employed. I was called to the courthouse and Judge Goins advised me that I had been appointed to represent the defendant. He was present in the courtroom. They permitted me to take him into a room and we talked the matter over in detail. Then I left and discussed the matter with the county attorney and tried to get him to recommend 25 or 50 years. I went back and reported to the defendant that I was unable to get the county attorney to make a recommendation other than life. Then I advised the defendant that I would ask the county attorney to come in and talk with the defendant and advise him. I was present also when he talked to the county attorney. He discussed it, the nature of the evidence, and told him he would not recommend any sentence other than life. Then I had a further conference with the defendant. I advised him that he had 24 hours within which to enter a plea and that I thought it might be a good idea to wait and see what developed. He read that over a few minutes and then he said he didn’t see where 24 hours would make any difference, that he would go ahead and enter his plea of guilty. We came back into the courtroom. I told the court he had decided to waive his right to wait 24 hours to plead. Q. You advised him that if he did not plead guilty he probably would get the electric chair? A. No, I did' not. I advised him that if he did go to trial a jury might give him the death penalty, that that was possible. Q. You advised him that he might take time to enter his plea. A. 24 hours, yes, sir.”

This court has repeatedly held that habeas corpus is limited to inquiry into, the jurisdiction of the court. Ex parte Bailey, 87 Okla. 406, 198 P. 2d 660; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41; In re Swaim, 66 Okla. Cr. 30, 89 P. 2d 363, and numerous other cases. The court is limited in its inquiry to the propositions of jurisdiction of the person, of the subject matter and of authority under the law to pronounce the judgment and sentence rendered. Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550. The petitioner raises no question as to the first two requirements, he only challenges the latter. He contends that the court lost jurisdiction to pronounce judgment and sentence by failure to accord him his statutory and constitutional rights, or that he was denied due process, both in the preliminary and at his arraignment in the district court. If this be true, the court lost jurisdiction to pronounce sentence, and the petitioner would be entitled to the relief prayed for. Ex parte Stinnett, 71 Okla. Cr. 184, 110 P. 2d 310; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Smith, 85 Okla. Cr. 299, 187 P. 2d 1003. Neither the record nor the authorities support his contentions.

In relation to the petitioner’s first contention relative to the hearing before the county judge sitting as committing magistrate, we are of the opinion that as to the matter of the waiver of preliminary hearing under the conditions herein involved, the petitioner’s contention is without merit. As we said in the. recent case of Ex parte Cartwright, 88 Okla. Cr. 206, 201 P. 2d 935, 937, wherein the proceedings pursued were identical with the case at bar:

“As to the matter of waiver of a preliminary hearing under conditions as herein involved, this court has spoken. In Sheller v. State, 58 Okla. Cr. 204, 52 P. 2d 105, this court said:
“ ‘Preliminary examination of accused charged with felony may be waived before committing magistrate, or entire preliminary proceedings may be waived in trial court and is waived by failure to file motion to quash or set aside information in apt time (St. 1931, §§ 2937, 2940-2942 [22 O.S. 1941 §§ 493, 496-498]; Const. art. 2, § 17.’
“See Anderson v. State, 21 Okla. Cr. 177, 204 P. 132; Cooper v. State, 31 Okla. Cr. 217, 238 P. 503; Neff v. State, 39 Okla. Cr. 133, 264 P. 649.
“This court has further held that a preliminary examination is a right accorded which the accused may waive, under Const, art. 2, § 17, prescribing ‘no person shall be prosecuted' * * * for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination’. Further, where the defendant is arraigned on an information and pleads to the merits, he waives the right to a preliminary examination, or if one was held, any irregularity therein. Neff v. State, supra. Moreover, where a defendant voluntarily entered a plea of guilty, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination. And, further, where one is charged in the district court by information, and desires to raise the question of not having had a preliminary examination, this should be done by a plea in abatement, or by motion to quash the information. Sparks v. State, 71 Okla. Cr. 430, 112 P. 2d 434; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, 259; Stamper v. State, 25 Okla. Cr. 324, 220 P. 67; Robbins v. State, 12 Okla. Cr. 294, 155 P. 491; Quinton v. State, 10 Okla. Cr. 520, 139 P. 705, and in Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868, 871:
“ ‘We call particular attention to the case of Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781, in which it is held :
“ ‘ “The right to have a preliminary examination is for the benefit of the accused and proper proceeding to raise question of. failure to have preliminary examination is by a motion to quash or set aside the information before entering a plea to the information.
“ ‘ “Where defendant voluntarily enters a plea to the information and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination * *
“See, also, Ex parte Miller, 82 Okla. Cr. 315, 169 P. 2d 574; * * See Burchfield v. State, 85 Okla. Cr. 415, 188 P. 2d 392.

The record in this case reveals, that the preliminary proceedings were not questioned by a motion to quash or to set aside the information before the plea of guilty was entered to the information in the district court. As hereinbefore indicated the attack on the preliminary proceedings therefore was not presented in apt time and is therefore without merit.

In relation to the proceedings had in the district court, we are of the opinion that the accused, petitioner herein, was represented by able counsel, and that he was not denied any of his statutory or constitutional rights. As was said in Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141:

“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.”

We reannounced this rule in Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588. Further in the Meadows case, supra, it was said:

“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.
“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.”

See, also, Ex parte Snow, supra. In the Meadows case it was further said:

“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. * * *
“A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.
“Where a disputed question arises as to what occurred upon arraignment of one accused of a crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred.”

The minutes herein are not as full and complete as they should be, but in the light of the foregoing record we are bound by the rule announced in Ex parte Bradley, 72 Okla. Cr. 107, 113 P. 2d 611. In the body of the opinion, 72 Okla. Cr. at page 117, 113 P. 2d at page 615, this court said:

“These minutes are not as full as they should have been under the facts as disclosed by the affidavits of the court attaches who were present at the time of the arraignment and plea of guilty by the petitioner. The presumption created by the- absence of the recital of the waiver of these rights in the minutes of the court and in the journal entry of judgment and sentence, however, has been overcome by the testimony of the court officials, which shows that the proceedings upon the arraignment of the defendant were regular and that the court had jurisdiction to pronounce judgment and sentence against the accused upon his plea of guilty.
“As was said in Ex parte Meadows, supra, the question as to whether one accused of crime has waived his right to the assistance of counsel and of his other rights, which may be waived by him, must depend in each case upon the particular facts and circumstances surrounding that case, and no abstract rules of law may be set forth which will be applicable to every case.”

Here, the affidavit of the district judge and the sworn testimony of the court attaches and counsel for the accused, petitioner herein, all of whom were present at the time of arraignment and plea of guilty by the petitioner, are sufficient to overcome the presumption created by the absence of the recital of the waiver of these rights in the minutes of the court, as well as the journal entry of judgment and sentence. Their sworn evidence, shows that the proceedings upon the arraignment of the defendant were regular and that the court had jurisdiction to pronounce the judgment and sentence herein rendered upon the accused’s plea of guilty.

We therefore are of the opinion, after a careful examination of the record of the proceeding had before the county judge sitting as committing magistrate, and the affidavits and evidence in support thereof that the accused, petitioner herein, waived such constitutional and statutory rights which he alleged were not accorded him in the proceedings therein. Furthermore, we are of the opinion that the accused, petitioner herein, by his failure to question the preliminary proceedings by a motion to quash or set aside the information before entering his plea of guilty in the district court, waived the right to question any irregularity therein.

Furthermore, we are of the opinion that, after consideration of the record and proceedings had in the district court, the record herein, including the affidavit of the trial judge, and sworn testimony of the court attaches, including counsel for the accused, petitioner herein, waived the rights he complains of and the trial court had jurisdiction to pronounce the judgment and sentence herein involved. Ex parte Marchbanks, 72 Okla. Cr. 380, 116 P. 2d 725. The petition as filed herein is without substantial merit and should be and the same is hereby denied.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    Ex parte MILLARD GEORGE GREEN.
    No. A-11159.
    Feb. 16, 1949.
    (203 P. 2d 443.)
    Millard George Green, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Millard George Green, has filed his petition for writ of habeas corpus, alleging that he is confined in the State Penitentiary at McAlester by reason of a judgment and sentence of the district court of Muskogee county, rendered on October 20, 1943, wherein he was sentenced to serve a term of 15 years in the State Penitentiary for the crime of rape.

Petitioner’s contention is that he was not (a) granted a speedy trial; and (b) that he was not furnished a list of witnesses as provided by article 2, section 20 of the Constitution of this state. He alleges that a copy of the information and judgment are attached to his petition, but no such copies appear.

No appearance was made on behalf of petitioner on •the date this matter was assigned for hearing, and no evidence presented.

It appears that petitioner, after his conviction in the district court of Muskogee county, appealed his case to this court, and the same was affirmed on November 14, 1945. See Millard George Green v. State, 81 Okla. Cr. 282, 163 P. 2d 554. A reading of that case reveals that neither of the issues here presented were presented on the appeal.

There is nothing in the record which shows that the judgment and sentence rendered by the district court of Muskogee county was void. Nothing in the record which shows that petitioner was not given a speedy trial, or that he was not furnished with a list of witnesses prior to his trial, as provided by the Constitution. As above stated, these questions were not presented in the appeal.

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

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


text:
    Ex parte H. C. OLIVER.
    No. A-11131.
    Feb. 23, 1949.
    (203 P. 2d 442.)
    H. C. Oliver, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, H. C. Oliver, has filed petition for writ of habeas corpus, seeking his release from the State Penitentiary at McAlester, where he is serving a term of ten years for conviction in the district court of Oklahoma county on a charge of obtaining money under false pretense, after former conviction.

This petitioner has heretofore filed in this court a petition for- writ of mandamus, in which he sought to require the court clerk of Oklahoma county to furnish a case-made and transcript of the evidence in the case in which he was convicted. That case was decided by the court on September 22, 1948, Application of Oliver, 87 Okla. Cr. 366, 198 P. 2d 220, and the petition for mandamus was denied. In that opinion we stated:

“For the record, we will state that the writer of this opinion has, since this petition was filed, secured the copies of the case-made from the attorney who represented petitioner in the trial court, and has had the clerk of this court forward the same to the petitioner.”

At the time that case was decided we had before us the case-made and were fully familiar with the same.

Petitioner, on September 10, 1948, and before the opinion was handed down in the mandamus action, filed this petition for.writ of habeas corpus, seeking his release from the penitentiary, and attached to his petition the ease-made referred to above.

In the former opinion we said:

“There is nothing in the record to show that the judgment and sentence entered in this case was void.”

Under this statement and a further examination of the record, we are of the opinion that the petition for writ of habeas corpus should be denied; and it is so ordered.

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


text:
    MOSE (SONNY) DOTY v. STATE.
    No. A-10977.
    Feb. 23, 1949.
    (203 P. 2d 444.)
    Fred L. Patrick, of Sapulpa, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Mose (Sonny) Doty, plaintiff in error herein, defendant below, was charged in the district court of Creek county, Oklahoma, by information on December 30, 1943, with the crime of first degree manslaughter, tried to a jury on June 10, 1947, convicted of manslaughter in the second degree and sentenced to two years in the State Penitentiary. From the judgment and sentence therein imposed, he appeals.

The information in substance alleges that the defendant, Doty, while driving his two-door automobile at a dangerous and reckless rate of speed in disregard of the traffic and conditions of the highway (it being wet and sleety weather) defined by statute as a misdemeanor, did run into and strike Burrell Wadsworth Rice, thereby inflicting upon him mortal wounds from which he died as a result of the acts of the defendant although the defendant was without design to effect the death of said Rice.

The sole question raised by the defendant is that the evidence is insufficient to sustain the conviction. That question turns on the proof as to who was driving the defendant’s car at the time of the death of Mr. Rice. The state’s case is predicated upon the testimony of one Earl Buckley, attendant at the filling station. It appears that Buckley was attending the Pure Gold Fill: ing Station on the north edge of Sapulpa, Oklahoma, where the acts complained of occurred. It appears further that Mr. Rice’s automobile was standing in the driveway of the filling station attended by Buckley, that he was servicing the car on the outside lane next to the pavement, and Rice’s car was on the inside. lane next to the filling station, the filling station being located on the west side of the pavement. Rice’s car was sitting on the inside lane headed north. He asked for a chamois to wipe the windshield to get the snow and ice off of it and he went back to the car and was cleaning the windshield ; that while he was thus situated the defendant approached from the north. The defendant’s automobile approaching from the north by virtue of the bend in the road was headed directly into the lane in which Rice’s automobile was located, and his automobile was driven into Mr. Rice’s automobile, pinning Mr. Rice in between the cars, knocking the Rice car back out of the driveway and throwing his automobile across the road into the ditch east of the pavement, injuring Mr. Rice in such manner that he died as a result thereof. All the evidence showed that the lights from the filling station were blinding. Earl Buckley testified that the lights did blind people under such conditions as prevailed that night. The record discloses that other wrecks had occurred in identically the same manner. Buckley testified a lot of them had occurred. In fact, he testified that the officers making the investigation had an accident in identically the same manner as they approached from the north. Buckley testified when the defendant’s car struck Mr. Rice and Mr. Rice’s automobile he took time to call an ambulance and the police. Then he said he went across the street to where the Doty car had been stopped. He said he saw Martin Doty, Mose Doty’s brother, sitting on the right-hand side of the Doty automobile and Mrs. Mose Doty was sitting in the middle with her head on Martin’s shoulder. He said he helped them out of the left side of the car because the right-hand door of the car was jammed in the collision and would not open, Mose Doty was not in the car. The state’s testimony further reveals that Doty was not seen around the accident after that. He was later arrested uptown in his room. The evidence of the state further shows that Mose Doty was pretty heavily intoxicated and Martin Doty had been drinking. All of this the -defendant, Martin and Mrs. Doty denied. This is the state’s evidence, tending in no other way to connect Mose (Sonny) Doty with driving the car except there was blood on Martin Doty’s left shoulder, which Martin Doty said got on his left shoulder when Mrs. Doty was taken to the hospital after the collision. In this connection Martin Doty, the defendant’s brother, testified both at the preliminary and at the trial that he himself was driving the car and not Mose Doty, the defendant. In this he was corroborated by both Mose (Sonny) Doty and his wife. There was no other evidence tending to establish he was driving the car. Martin Doty explained his reason for being in the automobile in the position in which he was observed by Buckley to the effect that he got back in the automobile in an effort to remove Mrs. Doty therefrom. Upon the foregoing evidence the jury found the defendant guilty of driving the automobile as alleged but left the punishment up to the court.

It developed in the argument here, that Buckley, the state’s principal witness, had been arrested and charged with the theft of Mr. Rice’s overcoat. Thereafter he pleaded guilty to petit larceny. This fact casts a cloud of doubt over the credibility of Buckley’s testimony which is weak at best.

It is contended by the defendant in relation to who was driving the automobile that the evidence being purely circumstantial, it is not sufficient to overcome the presumption of innocence that the defendant is entitled to under the law and to sustain his conviction. It is fundamental that one charged with crime may be convicted upon circumstantial evidence as well as direct and positive testimony. Courtright v. State, 79 Okla. Cr. 270, 154 P. 2d 588. The Attorney General urges that the evidence is sufficient to exclude every reasonable hypothesis other than the defendant’s guilt. The universally fundamental rule followed by this court is that the facts and circumstances proved must not only be consistent and point to the guilt of the defendant, but they must be inconsistent with his innocence. Sies v. State, 6 Okla. Cr. 142, 117 P. 504; Key v. State, 22 Okla. Cr. 284, 210 P. 1044; and in Davis v. State, 18 Okla. Cr. 112, 193 P. 745, 746, in the body of the opinion this court said:

“It is incumbent upon the state to prove every essential element of the crime by evidence beyond a reasonable doubt, and a conviction based upon circumstances which raise merely suspicions of guilt should not be' allowed to stand.”

In Starr v. State, 63 Okla. Cr. 302, 74 P. 2d 1174, this court said:

“When, in the trial of a criminal case, the evidence relied on to connect the accused with the crime charged is entirely circumstantial, it must do more than raise a suspicion or inference of guilt, but must point clearly and conclusively to guilt and exclude every reasonable hypothesis of innocence. * * *
“Where the evidence only raises a suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof, and the court should direct a verdict under such circumstances.”

For other cases in which the rule relative to circumstantial evidence is stated, see Atkins v. State, 81 Okla. Cr. 197, 162 P. 2d 195; Courtright v. State, supra; Sears v. State, 79 Okla. Cr. 437, 156 P. 2d 145; Barcus v. State, 60 Okla. Cr. 351, 44 P. 2d 897. In Cook v. State, 71 Okla. Cr. 65, 108 P. 2d 184, wherein in addition to stating the rule relative to circumstantial evidence, this court said:

. “It is well-settled law in this state that if there is evidence to support the conviction, this court Avill not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conAÚcti.on.”

When measured by the foregoing rules, the most that can be said for the evidence in the case at bar is that it tends to raise a suspicion that the defendant was driving the automobile at the time the fatal collision occurred.' It certainly is not, in the opinion of this court, sufficient to overcome the presumption of innocence which follows the defendant throughout the trial until overcome by competent proof establishing his guilt beyond a reasonable doubt. For all of the foregoing reasons the conviction and judgment and sentence herein imposed is vacated and set aside and the defendant ordered discharged and his bond exonerated.

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


author: JONES, P. J. BAREFOOT, J.

text:
    Ex parte HOWARD LEE et al.
    No. A-11140.
    Feb. 23, 1949.
    (203 P. 2d 720.)

      Charles Hill Johns, of Oklahoma City, for petitioners.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioners, Howard Lee and Neal Parnell, to secure their .liberty from the county jail of Garvin county, Oklahoma, where they were allegedly illegally restrained, of their liberty by the sheriff of Garvin county.

The verified petition alleged that the petitioners are charged by information filed in the district court of Garvin county with an alleged crime of importing approximately 2,800 pints of alcoholic liquors into Oklahoma without a permit on May. .9, 1947, and that they are now being illegally held in the county jail of Gar-vin county awaiting trial on said information..

It is further alleged that the information charges the accused with a violation of the so called “Liquor Permit Law”, being chapter 16 of the Session Laws of Oklahoma of 1939, the same being sections 41 to 48, inclusive, of Title 37, Oklahoma Statutes 1941.

It is further alleged that said liquor permit law was specifically and expressly repealed by chapter 2 of Title 37, Session Laws of 1947, p. 296, § 22, the same being House Bill Number 254, which said law was passed and approved by the Governor with the emergency clause attached and therefore ^became effective upon the 24th day of April, 1947.

That by reason of the repeal of said liquor permit law, the district court of Garvin county does not have jurisdiction to entertain the prosecution of the petitioners under an information charging them with the offense of importing intoxicating liquors without a permit.

This cause was submitted upon an agreed statement of facts which recites:

“That on the — day of May, 1947, a Criminal Complaint was filed in the Justice Court of Garvin County, State of Oklahoma, before Ben Looney, Justice of the Peace, wherein it was alleged and charged that petitioners herein, defendants therein, did on or about the 9th day of May, 1947, unlawfully, knowingly, wilfully, intentionally, wrongfully and feloniously import into the State of Oklahoma and into Garvin County, from an unknown point in the State of Louisiana to a point on State Highway No. 19, the exact charging part of said Criminal Complaint being found in the copy thereof attached to petitioners Petition for Writ of Habeas Corpus as Exhibit ‘A’ thereto.
“That a warrant was issued pursuant to said Criminal Complaint and the petitioners were arrested and tried upon a preliminary trial in the Justice Court of Garvin County, State of Oklahoma, before Ben Looney and upon the 6th day of June, 1947, petitioners herein, defendants therein, were bound over to the District Court of Garvin County, State of Oklahoma, for trial in the District Court.
“That, thereafter, upon the 6th day of June, 1948, an information was filed in the District Court of Garvin County, State of Oklahoma, wherein the State of Oklahoma was plaintiff and petitioners herein were defendants, said Information charging petitioners in the same manner in which they were charged in the Criminal Complaint, a copy of which said Information is attached to petition for Writ of Habeas Corpus as Exhibit 'B’ thereto.
“That petitioners herein are now awaiting trial in the District Court of Garvin County, Oklahoma.
“That this prosecution is instituted by the duly authorized representatives of the State of Oklahoma under Chapter 16 of the Session Laws of 1939, the same being Sections 41-48, both inclusive, Title 37 O.S. 1941.”

The Attorney General in his brief agrees that there was an attempted repeal of the act upon which this prosecution was based by the provisions of House Bill Number 254, chapter 2, Title 37, Session Laws 1947, but alleges that said attempted repeal was void because it violated the provisions of section 57, article 5 of the Oklahoma Constitution which provides:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

The title to House Bill Number 254, which aecord-ing to the petitoners repealed 37 O.S. 1941 §§ 41 to 48, inclusive (the liquor permit law) is as follows:

“AN ACT defining nonintoxicating and intoxicating beverages; defining certain general terms as used herein; levying a tax upon the manufacture or sale of such nonintoxicating beverages; requiring manufacturers within the State of Oklahoma to obtain a permit and pay a fee therefor; requiring manufacturers outside the State of Oklahoma to qualify with the Secretary of State to do business within the State of Oklahoma and thereafter to pay a license fee; providing for the apportionment of revenues accruing hereunder; prescribing and requiring that all persons, coming under the provisions of this Act shall pay a permit or license fee, prescribing the amount thereof; providing for reports and payment of fees required herein; requiring dealers to obtain a permit from the county judge; providing for an appeal to the district court, prescribing fees for 'permits and for the issuance, cancellation br revocation thereof; providing for rules and regulations for enforcement of this Act; requiring all dealers to-comply with the provisions of this Act and the regulations; providing penalties for violation of the Act or such rules and regulations; authorizing necessary actions in the name of the State of Oklahoma for the enforcement of the Act; prescribing certain rules and regulations for trucks and other carriers engaged in the transportation of such beverages; prescribing and regulating use of labels and other markers in connection with the enforcement of this Act; enjoining enforcement duties upon county judge, county attorney, sheriff and other peace officers of the counties; providing for the effective date of this Act; making the provisions of the Act severable; repealing Chapter 2, Title 37, Oklahoma Statutes 1941, Chapter 2, Title 37, Session Laws 1945, 37 0.8. 1941 §§ 41, 42, 43, 44, 45, 46, 47 and 48, and all laws or parts of laws in conflict herewith; and declaring an emergency.” (Italics ours.)

It is the contention of the Attorney General that the bill as j.repared and introduced in the House of Representatives dealt solely with alleged nonintoxicating beverages, to wit: beer, and that it was an act fixing a tax upon beer and providing for the regulation and enforcement of the beer law; that after it passed the House of Representatives as a licensing and regulatory measure, that part of the act repealing the liquor permit law was later inserted by a Senate Committee into the bill, and that it was passed by the Senate and later by the House of Representatives with the repeal provision therein, which repeal provision was not called to the attention of the members of either house; that the insertion of said attempted repeal provision into House Bill Number 254 was unconstitutional for the reason that the attempted repeal of the act requiring a permit for the importation' of alcoholic liquors dealt with a subject entirely foreign and not related to the subject of nonintoxicating beverages which was the main subject of House Bill Number 254.

The law seems to be well settled that in passing upon the constitutionality of a statute, the court will not go beyond the four corners of the bill and will not permit the impeachment of a statute by parol evidence or by the introduction of legislative journals to show that the act was not regularly passed.

In Goddard et al. v. Kirkpatrick et al., 193 Okla. 92, 141 P. 2d 292, it is stated:

“An enrolled bill duly filed in the office of the Secretary of State as the law provides imports absolute verity and the same cannot be impeached by the legislative journals. It is not competent to show by the journals that the Act was not regularly passed, but when such an Act is called in question the courts look to the enrolled bill only.”

In the opinion it is stated:

“According to the expressed view in this jurisdiction, it is far better that a provision should occasionally find its way into the statute through mistake or even fraud, than that every Act should be at any and all times liable to be put in issue and impeached by the journals, loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischief absolutely intolerable.’ ”

The repeal provision is plainly set forth in the title to the statute as has been hereinabove shown. The statute is not attacked on tlie ground that the alleged repeal of the alcohol permit law was not named in the title, but the sole question presented is whether the statute in question contains more than one subject in violation of the constitutional provision, (sec. 57, art. 5, Okla. Const.)

The general rule followed by courts in determining the constitutionality of a statute claimed to violate the constitutional provision prohibiting statutes from containing more than one subject is set forth in 50 American Jurisprudence, section 195 as follows:

“The rule that every legislative act is presumed to be constitutional and every intendment must be indulged by the courts in favor of its validity, is applicable to statutes claimed to be unconstitutional as in violation of the provision prohibiting statutes from containing more than one subject or object. The courts will accord the statutes a liberal construction with the view of sustaining the legislative action. Indeed, the objection should be grave, and the conflict between the statute and the constitution substantial and plain or palpable, before the judiciary should disregard a legislative enactment upon the ground that it embraces more than one subject or object. Under these rules, where a court is still in doubt as to the constitutionality of the act, it should sustain the same. The principles herein set forth do not, however, prevent the court from strictly enforcing the constitutional provision under consideration in cases that fall within the reasons on which the provision rests.”

In 50 Amercan Jurisprudence, section 197, it is further stated:

“To constitute plurality of subject, an act must embrace two or more dissimilar and discordant subjects, that by no fair intendment can be considered as having any legitimate connection with or relation to each other. Within the meaning of the constitutional provision, matters which, apparently constitute distinct and separate subjects are not so where they are not incongruous and diverse to each other. Generally speaking, the courts are agreed that a statute may include every matter germane, referable, auxiliary, incidental, or subsidiary to, and not inconsistent with, or foreign to, the general subject or object of the act. The constitutional provision is not intended, nor should it be so construed as, ,to prevent the legislature from embracing in one act all matters properly connected with one general subject or object, but the term ‘subject’ or ‘object’ as used in these provisions is to be given a broad and extended meaning, so as to allow the legislature full scope to include in one act all matters fairly, reasonably, naturally, logically, properly, or directly or indirectly connected with, or related to, each other or the same subject or object.”

In the case of Shinn v. Oklahoma City, 59 Okla. Cr. 433, 61 P. 2d 1126, 1130, this court stated:

“ ‘The term “subject” as used in these provisions is to be given a broad and extended meaning, so as to allow the legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to the general subject of the act, it is not open to the objection of plurality. To constitute duplicity of subject, an act must embrace two or more dissimilar and discordant subjects, that by no fair intendment can be considered as having any legitimate connection with or relation to each other. * * * Matters which constitute, apparently, two distinct and separate subjects are not so, in the meaning of the constitutional provision, unless they are incongruous and diverse to each other. While this provision is mandatory, yet it is to be construed liberally. It is not intended nor should it be so construed as to prevent the legislature from embracing in one act all matters properly connected with one general subject.’ ”

In Smith v. State, 47 Okla. Cr. 184, 287 P. 835, this Court stated:

“The purpose of the Constitution, declaring that every act shall embrace but one subject, which shall be expressed in its title, was not to hamper legislation but to check and prevent deception therein. * * *
“Every legislative act is presumed to be constitutional and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is a doubt, the express will of the Legislature should be sustained.”

The act there in question prohibited the tapping of a pipeline and declared such act to be a felony, and also prohibited the taking of any crude oil, gas, or gasoline fr.om a pipeline or receptacle from which same is being collected, and declared such act to be a misdemeanor.

This court, after quoting with approval from 25 R.C.L. section 88, as hereinabove quoted in Shinn v. Oklahoma City, supra, stated:

“The provisions, of the act under consideration in this case, are germane to each other and properly come under the subject of protection and theft of crude oil, gas, etc., while in storage and in pipe lines.”

In Ruth v. Oklahoma City, 143 Okla. 62, 64, 287 P. 406, 408, our Supreme Court quoted with approval the language of 25 R.C.L. 847 as.follows:

“The intention doubtless is to prevent embracing in an act having one ostensible object provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects, and thus to conceal and disguise the real object proposed by the provisions of an act under a false or deceptive title.”

In Griffin v. Thomas, 86 Okla. 70, 206 P. 604, 609, the court again quoted from 25 R.C.L. § 90, page 844, as follows:

“The ‘subject’ of an act is the matter or thing forming the groundwork of the act which may include many parts or things, so long as they are all germane to it and are such that if traced back they will lead the mind to the subject as the generic head. There can be no surer test of compliance with the constitutional requirements of singleness of subject than that none of the provisions of an act can be read as relating or germane to any other subject than the one named in the title. An act is not unconstitutional because more than one object is contained therein where the objects are germane to the main subject, or they relate directly or indirectly to the main subject, and have a mutual connection with and are not foreign to the subject of such act or when the provisions of the act are of the same nature and come legitimately under one subject.”

The constitutionality of the statute in question must be determined in accordance with the above fixed principles of law. The statute is one dealing with alcoholic liquors. It defines nonintoxicating beverages under the act as being alcoholic liquors containing more than one-half of one per cent of alcohol and not more than 3.2 per cent of alcohol by weight. Intoxicating beverages are defined to be alcoholic liquors in excess of 3.2 per cent of alcohol by weight. The statute requires permits from manufacturers, wholesalers, distributors and various kind of retailers, and charges a fee for the issuance of such permits for the manufacture, distribution and sale of alcoholic beverages containing less than 3.2 per cent of alcohol by weight.

Manufacturers of alcoholic beverages containing less than 3.2 per cent of alcohol by weight, located outside of the state, under the provisions of the act, are required to procure a permit from the Oklahoma Tax Commission before they are permitted to ship their manufactured products in the State of Oklahoma, which permit costs the sum of $500.00.

Wholesalers under the provision of the act must secure a permit from the Oklahoma Tax Commission and pay therefor the sum of $250. This provision applies alike to wholesalers doing business within the state and those located outside of the state who desire to ship their products to retailers within the state.

Under the provisions of the act there are four classes of retail dealers and each of them is required to secure a permit from the Oklahoma Tax Commission, the fee for the permit to be fixed according to the classification in which the retail dealer belongs.

The repealing clause of said act provides:

“Chapter 2, of Title 37, Oklahoma Statutes 1941, and Chapter 2 of Title 37, Session Laws 1945, and all laws in conflict herewith are hereby repealed subject to the conditions of enforcement of accrued rights as provided in Section 21 of this Act. 37 O.S. 1941 §§ 41, 42, 43, 44, 45, 46, 47 and 48, are hereby repealed.”

Title 37 O.S. 1941 §§ 41 to 48, inclusive, the liquor permit law, is expressly repealed by the provisions of this clause of the statute in question. This alcohol permit law made it unlawful for any person, etc. to import into the State of Oklahoma, any intoxicating liquor containing more than four per cent of alcohol by volume without first securing a permit from the Oklahoma Tax Commission. These permits were to be issued for a fee of $2 and were only issuable where the alcoholic liquor was to be used for scientific, mechanical, medicinal, or sacramental purposes under the provisions of the act. The act was passed by the Oklahoma Legislature in 1939, in order to secure the protection of the Federal Government in the state’s effort to prevent the importation or transportation of liquor into Oklahoma, a dry state.

Prior to the passage of the 1939 act, it had been held that the Federal Liquor Enforcement Act, 27 U.S.C.A. §■ 221 et seq., is inapplicable to Oklahoma, for the reason that the act makes importation or transportation of liquor into a dry state a federal offense only when such state prohibits all such importation or transportation by its laws or requires permits or licenses to accompany liquor lawfully imported. Dunn v. United States, 10 Cir., 98 F. 2d 119, 117 A.L.R. 1302.

The constitutionality of said act has been sustained. Harris v. State, 74 Okla. Cr. 13, 122 P. 2d 401, 402.

Attack was made upon that act on the ground that it contained two different subjects, the same as the attack which is made upon the act here involved.

In disposing of the constitutional objection this court held, in Harris v. State, supra:

“The purpose of ch. 16, Laws 1939, 37 O.S. 1941 §§ 41, 42, 43, 44, 45, 46, 47, 48, is to provide for importation under permit system for certain limited and specified purposes only, and a provision prohibiting importation without permit for all purposes is essential to make the act effective and is referable and cognate to the subject expressed in the title which recites that the act creates and provides for permit system for importation and transportation of liquor into the state for' scientific, sacramental, medicinal, or mechanical purposes, and forbids importation of such liquor without a permit.”

As to whether the repeal of the alcohol permit law is germane to the other provisions of House Bill Number 254, we are impressed with the argument of the Attorney General, but we are bound by the rule long ago adopted by this court and apparently universally followed by the courts in other jurisdictions; that the conflict between the provisions of the statute must be plain or palpable and must be so incongruous and diverse to each other that the court can say that by no fair intendment can they be considered as having any connection with or relation to each other.

Applying this rule of law, it appears to us that the repealing of a law requiring a permit for the importation of alcoholic liquors is not clearly or plainly diverse and nongermane to a statute defining and classifying alcoholic liquors and requiring permits from various dealers in nonintoxicating alcoholic liquors. The whole act deals with the one subject matter of alcoholic liquors. We feel impelled under the law where any doubt at all exists as to the constitutionality of a statute to resolve that doubt in favor of sustaining the legislative enactment.

Counsel for the state may be absolutely correct in his assertion that the manner in which the repeal provision was inserted in the bill was a deception practiced upon the remaining members of the Legislature who were not members of the committee who inserted the repeal provision, and that the great majority of the members of the Legislature at the time the act was passed did not know that they were repealing the alcohol permit law. If this assertion is correct, the Legislature is now in session and this alleged deception can be remedied by the re-enactment of the alcohol permit law.

One other question has been raised in this proceeding, the petitioners were charged with having imported approximately 2,800 pints of intoxicating liquor in • the state without a permit on May 9, 1947. Counsel for the state contend that even though the 1947 Act constituted an effective repeal of the alcohol permit law, that under the express language of the statute it did not become operative and effective until midnight June 30, 1947. •

In answer to this contention of the state, counsel for the defendant assert that the act contained an emergency clause in due form which placed the act in full force and effect upon its passage and approval by the Governor. It was approved April 24, 1947.

Section 21 of the act provides:

“This Act shall become operative and effective for the purposes of administration and enforcement at midnight, June 30, 1947;”

Section 22 of the act contains the emergency clause providing that the act shall be effective from and after its passage and approval.

A similar question was presented to the Supreme Court of Oklahoma in the case of Cities Service Oil Company v. Oklahoma Tax Commission, 191 Okla. 303, 129 P. 2d 597, in which the court laid down the following-rule of law:

“A provision in a statute placing- the same in full force and effect on a specified future date is controlling, notwithstanding the emergency clause attached thereto as provided by section 58 article 5 of the Constitution provides that said statute shall take effect and be in full force after its passage and approval.”

In the opinion it is stated:

“The controversy involves only the effective date of the repealing section, and arises under the provision of section 40 and the emergency clause of the statute. Section 40 reads as follows: ‘This Act shall be in full force and effect on and after January 1, 1940.’
“Then follows an emergency clause in due form placing the Act in full force and effect upon its passage and approval. It was approved April 18, 1939.
“Plaintiff contends that the emergency clause was controlling- and that by reason thereof the 1937 Act was repealed as of April 18, 1939. It is said that if there is any uncertainty as to the time the repealing clause became effective plaintiff, as the taxpayer, should be favored in the construction of the statutes, as is the rule in this state.
“The legislative intent is the controlling element in the judicial interpretation of statutes. But if they contain no inconsistent provisions, no ambiguities or uncertainties, no occasion exists for the application of rules of construction and they will be accorded the meaning as expressed by the language therein employed. In re Assessment of Champlin Refining Co., 186 Okla. 625, 99 P. 2d 880. The rule is there stated as follows:
“ ‘Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.’ ”
“It is urged that section 40 and the emergency clause of the Act, supra, are in conflict with reference to the effective date of the clause repealing the former Act. It is said that in such situation the last of the conflicting sections will control, which in this case was the emergency. Authorities from other states are cited.
“But we see no irreconcilable conflict between the two sections. The power of the Legislature to fix the effective date of a measure is controlled by section 58, article 5 of the Constitution. That section provides that no Act, with the exception of certain types of legisla-., tion not here involved, shall take effect until ninety days after adjournment of the session in which the same was enacted, unless the emergency clause is attached to the bill. The Constitution neither requires that all acts without the emergency become effective at the expiration of ninety days from adjournment nor that the emergency when added must fix the effective date as of the day of passage and approval. Without the emergency, bills of this character cannot take effect under ninety days, but the Legislature may suspend their operation beyond ninety days. Leatherock v. Lawter, 45 Okla. 715, 147 P. 324.
* * * * *x* * *
“Although the emergency clause in this case provided that the Act take effect and be in full force from and after its passage and approval, that provision should be looked upon -as subordinate to the express provision contained in the body of the Act suspending its operation until a future date. The emergency clause may serve a particular and important function in such case for the reason that the day of adjournment cannot in every instance be foreseen at the time of the enactment, and if the emergency clause is attached to the measure it will go into effect on the day fixed therein notwithstanding that day may later turn out to be less than ninety days from the date of adjournment. Thus, Avhere the purpose of a statute will be wholly or partially thwarted unless it becomes effective on a particular date, the emergency clause will insure its operation at the designated time regardless of the date the Legislature may have adjourned.
“By the Act of 1939 the Legislature clearly intended to abolish the tax provided for in the Act of 1937, and to substitute another tax therefor, all as of January 1, 1940. The emergency clause attached to the Act of 1939 merely insured the commencement of its operation on January 1, 1940, regardless of the date of adjournment of the Legislature that enacted the measure.”

In the instant case, if we should hold that the emergency clause prevails over that provision of the act making it effective, for the purpose of administration and enforcement, midnight June 30, 1947, it would mean that there would have existed no law relating to the sale of 3.2 (legislative defined “nonintoxicating”) beverages during the period from April 24th to July 1st. The legislative intent is plain. By the emergency clause the Legislature intended to prevent the 90 days delay in the effective date of the act which would have resulted in the absence of the emergency clause. At the same time, the members of the Legislature intended that the act should not become effective until July 1st, which was the beginning of a new fiscal year.

We often find the Legislature passing a bill with the emergency clause attached but postponing the effective date of the act to some definite future time. Evidently the purpose of the Legislature in many of these acts, including the one in the instant case, was to avoid a referendum vote upon the act and to further insure a definite date it would become effective. In the instant case, had the emergency clause not been attached, the act Avould not have become effective until August, .1947, which was 90 days after the adjournment of the Legislature, irrespective of the clause making it effective at midnight June 30, 1947. It is evident to us that the insertion of the emergency clause was for the sole purpose of insuring that the act would become effective on July 1, 1947.

It is our conclusion that the act is constitutional and does not contain two wholly irreconcilable, diverse and non-germane subjects.

It is our further conclusion that' the act did not become effective until July 1, 1947, and that at the time the petitioners were charged with a violation of the liquor permit law on May 9, 1947, the act was in full force and effect, and they were subject to prosecution for any violation of said law.

It appearing that the prosecution was correctly instituted for the reason that the alcohol permit law was in full force and effect on May 9, 1947, it is ordered that the writ of habeas corpus be and the same is hereby denied.

BRETT, J., concurs. BAREFOOT, J., concurs in part, dissents as to seventh syllabus.

BAREFOOT, J.

I concur in the above opinion, except as to that part which holds the effective date of the Act was at midnight on June 30, 1947, and not April 24, 1947.

I am of the opinion that the Legislature intended by Section 22 of Chapter 2 of the Act of the Legislature of 1947 to repeal sections 41 to 48 inclusive, Oklahoma Statutes 1941, and that by placing the emergency clause thereto it was intended to be in effect on April 24, 1947, the date of the passage of the Act. It is unnecessary to . state my reasons for this conclusion. Von Patzoll v. United States, 10 Cir., 163 F. 2d 216.

I therefore am of the opinion that the writ of ha-beas corpus should be granted in this case, and the defendants discharged.


author: BABEFOOT, J.

text:
    EVA POWELL v. STATE.
    No. A-10923.
    March 2, 1949.
    (203 P. 2d 892.)

      Preslie H. Brown, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Fred W. Whetsel, County Attorney of Pittsburg County of McAlester, for defendant in error.
   BABEFOOT, J.

Defendant, Eva Powell, was charged in the county court of Pittsburg county with driving a motor vehicle while under the influence of intoxicating liquor; was tried, convicted by a jury, and sentenced by the court to pay a fine of $50 and costs, and has appealed.

A number of errors are presented, but it is necessary to consider only three of them in disposing of this case. First, that the judgment and sentence is contrary to the evidence; second, error of the court in admitting evidence over the objection of the defendant which was incompetent, irrelevant, immaterial and highly prejudicial to the defendant; and, third, misconduct on the part of the county attorney in his manner of cross-examination of' defendant and defendant’s witnesses.

' Tlie defendant was charged with' driving a 1942 Chevrolet sedan upon and along IT. S. Highway 270 within the city limits of the city of McAlester, on February 16, 1947, while under the influence of intoxicating liquor. The record reveals that she was arrested by two state patrol officers about 2 o’clock in the morning of the above date.

The two officers testified that they saw defendant run a stop line, and followed her car for about four blocks. They testified that she was driving on the wrong side of the street, that she cut one corner and ran up over the curb in turning another corner; and that she did not stop when they first blew the siren, but stopped .when they drove up by the side of her car. They asked her to get out of the car, and both testified that she was drunk. She staggered and her speech was such as to indicate she was under the influence of liquor. She rode in the patrol car with one of the officers to the police station. The other officer drove her car, and her husband rode with him. When they arrived at the police station, defendant refused to get out of the car, but got out at the request of her husband, who told her they would make bail. They both testified that the officers would not permit them to make bond, or to use the telephone. They were placed in jail, and remained there until the following afternoon (Sunday) when the assistant county attorney appeared and ordered defendant’s release.

The two patrolmen testified that defendant used profane language toward them when she was placed in jail. The policeman at the city jail testified that defendant was, in his opinion, drunk, and that he heard her talking loud, but did not hear her cursing the patrolmen. A part of a bottle of whisky was found in defendant’s automobile by tbe officers. It was on the floor, between the front and back seats.

Defendant testified that she was the wife of Dave Powell, who was yardmaster for the M. K. & T. Ry. Co. That on Saturday night, February 15, 1947, she and her husband, in company with Mr. and Mrs. L. Y. Webb, Mr. and Mrs. Larry Yaux, Mrs. Katie Arch and Lloyd Wintery, had dinner at the Hill Top Cafe. After finishing dinner between 10 and 10:30 o’clock, they went to the Boga Night Club to dance, but did not stay, as it was crowded. They then went to Daisy’s Mountain Yiew Inn, and danced until about 12:30, at which time the defendant and her husband started home, first taking Mrs. Archer to Krebs. She testified she drank one bottle and part of another of beer with the chicken dinner, and that she did not drink any liquor and no liquor was drunk by any of her party during the evening. She denied that she was in any way under the influence of liquor at the time of her arrest. She testified that her reason for not getting out of the car at the police station was that she did not want to be placed in jail. She denied that she talked loud and cursed until after she was locked up, and that she did not use the language attributed to her by the officers, and that the officers refused to permit her to make bail, or to telephone her daughter or her mother. Her explanation of the bottle of liquor being found in the automobile was that her son-in-law was visiting them and had just come in a few days before, and that he had used the car that day and the night before, and that he evidently left the bottle in the car. That she did not know it was there, and had not drunk therefrom. She testified that at the time of her arrest they were going to the home of her mother to ask her mother to open up the restaurant at 6 o’clock the next morning.

Defendant’s testimony was corroborated in every detail by her husband, Dave Powell, and by all of the parties who were with her during the evening and just prior to her arrest, with the exception of one of the ladies who was ill and unable to attend the trial.

Mr. Webb testified that he was at the Mountain View Inn at the time defendant and her husband left to go home about 12:30 a. m., and that he danced with defendant just before she left. That she was in no way under the influence of liquor at that time, and he had been with her and other members of the party during the entire evening and no liquor had been served, and he did not see defendant drink anything except the two glasses of beer with the chicken dinner at the Hill Top Cafe early in the evening. Other members of the party corroborated this testimony.

A number of responsible citizens of McAlester testified to the good reputation of defendant as a peaceable and law-abiding citizen.

It will be noted that the evidence of the state and of the defendant was directly contradictory. We would not have referred to this evidence, except that we think it necessary in consideration of other errors presented, and which will hereafter be considered.

The rule has often been announced by this court that where there is a conflict in- the evidence, and the evidence of the state is sufficient to sustain the verdict, the same will not be set aside on appeal to this court. It is only when the evidence is insufficient to sustain the judgment and sentence that the same will be set aside. Under the above state of facts, the judgment and sentence would be affirmed.

We will consider the second and third assignments hereinbefore mentioned together.

While Dave Powell, the husband of defendant, was upon the witness stand the county attorney asked him the following questions:

“Q. You had a charge of public drunk filed against you as the result of this same action? Preslie Brown (Attorney for defendant) : I object as incompetent, irrelevant and immaterial. Court: Overruled. Brown: Allow us an exception. We move the court to have this question stricken from the record and the jury instructed not to consider it. Court: Motion overruled. Brown: Exception. Q. As a result of this action I’ll ask if you had a charge of public drunk filed against you by my office? Brown: I reiterate my objection to that question on the grounds that it is highly prejudicial and inflammatory and calculated to prejudice the jury against the defendant. Court: Overruled. Brown: Exception. A. I don’t know if that is what you call it. I was not drunk. Brown: I object. Court: Overruled. Brown: Allow us an exception. Q. What was the result of that trial? Brown: I object, that case is still pending. Fred Whetsel (County Attorney) : He was tried and convicted. I think he has appealed it. Court: It is improper to bring this out. It has been brought out here that he was a public drunk. Strike that part of the evidence. Brown: I would like to move at this time for a mistrial because of the remarks of the county attorney which are highly prejudicial, inflammatory and calculated to and which do prejudice the minds of the jury against this defendant and her witnesses — and his attempt to try both cases before this jury. Whetsel: I didn’t bring it out. You brought it out.” Brown: I don’t know what I have done to bring it out, as I have raised every objection possible to keep this matter from being brought- up before this jury. Court: Motion overruled. Brown: Allow ns an exception. Court: Exception allowed.”

In our opinion it was error for the court to permit this testimony to be offered and that, under the circumstances of this case as above outlined, it was very prejudicial to the defendant and was one of the main reasons for her conviction. It will be noted from the above record that the case against the witness grew out of this same transaction, and the county attorney in the presence of the jury stated: “He was tried and convicted. I think he has appealed it.” And the court stated in the presence of the jury: “It has been brought out here he was a public drunk.” It appears that the case against her husband had not been finally decided but was still pending. Even if the witness had been previously convicted, the evidence would only be admissible for the purpose of affecting his credibility as a witness, and the jury should have been so instructed. Yet, no such instruction was given the jury at the time the evidence was admitted, or in the general instructions. It was certainly prejudicial where the evidence was so highly conflicting as in this case.

We have often held that it is improper to offer evidence that one has been charged with a crime, but a witness may, for the purpose of affecting his credibility as a witness, be asked if he has ever been convicted of a crime. Pryor v. State, 51 Okla. Cr. 345, 1 P. 2d 797; Gatewood v. State, 80 Okla. 135, 157 P. 2d 473; Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758.

The record further reveals that the county attorney on cross-examination of defendant asked her many questions which ivere incompetent, such as these:

,“Q. You drink quite a lot, don’t you Eva? (Objection made and overruled) A. No. * * * Isn’t that quite a habit of yours? (Drinking) (Objection made and overruled) A. No.”

Mrs. Evelyn Webb was a witness for defendant, and the county attorney asked her:

“Q. You have a similar charge against you right now?”

The court sustained the objection to this question. The county attorney, in the presence of the jury, then stated:

“If the court please, I would like to make this observation. She says she has no personal interest in this case, but I would like to show that she has a personal interest in that she is charged with drunk driving now. Brown: I object to the question and remarks of the county attorney, which is the second attempt to ask improper questions of witnesses and to make prejudicial and inflammatory remarks in the presence of the jury against the defendant and her witnesses. Court: He can ask about the conviction. Brown: He did not ask about the conviction and I would like to have an exception to the ruling of the court. Court: Exception allowed. Brown: I move the court to strike the question and remarks of the county attorney and the court from the record. Court: Overruled. Brown: Allow us an exception. Court: Exception allowed. Brown: I move the court to instruct the jury not to consider the remarks of the county attorney or the improper questions for any purpose. Court: Motion overruled. Brown: Please allow us an exception. Court: Exception allowed. Q. Have you ever been convicted on a drunk driving charge? A. I haven’t been convicted. Q. Do you know whether Mrs. Powell drinks very much or not?” (Exception sustained.)

All of these questions show a concerted effort on the part of the county attorney to inject into the case evidence that was incompetent and highly prejudicial to the defendant. We aré not holding that these questions, under all circumstances, would constitute reversible error, but under the facts in this case they were incompetent and highly prejudicial to the rights of the defendant, especially the remarks of the county attorney in the presence of the jury.

Defendant has raised a number of assignments of error which we will not discuss. One is that the defendant at the time she was charged was accompanied by her husband, and the presumption is that she was under duress from him, and therefore could not be charged individually.

This contention may not be sustained, for the reason that under all the facts in the case, it is conclusive that the wife was acting freely, and not under any subjection from her husband. Tit. 21 O.S. 1941 § 159.

In the event this case is retried, we desire to call attention to one other fact. No exception was taken to the instructions, and no requested instructions offered. Luellen v. State, 64 Okla. Cr. 382, 81 P. 2d 323 was a case involving the charge of driving a motor vehicle while under the influence of intoxicating liquor. We there presented an approved instruction defining when one would be considered “under the influence of intoxicating liquor.” Since that time, most of the courts have given this instruction, or one of similar import, in cases of this character. We are of the opinion that the defining of this term, which is the very foundation of the offense charged, may be very helpful to the jury in arriving at a verdict in a case of this character. We suggest that if this case is retried, that either this instruction or one of similar import be given.

For the reasons above stated, the judgment of the connty court of Pittsburg county is reversed, and the case remanded.

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