author: BAREFOOT, P. J.

text:
    ROBERT L. CLASBY v. STATE.
    No. A-10958.
    July 14, 1948.
    (196 P. 2d 541.)
    Paul O. Simms, of Yinita, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Robert L. Clasby, defendant below, was charged in the county court of Craig county, Okla., with the offense of unlawful possession of intoxicating liquor, to wit, 54 pints of whisky and 5 one-fifth gallon of gin with the intent then and there of selling, conveying, bartering or of giving away or otherwise furnishing the same contrary to law. On June 17, 1947, he was sentenced to pay a fine of $500 and to serve 30 days in jail and costs. On said date notice of intention to appeal to the Criminal Court of Appeals was given and entered upon the trial docket, and for good cause shown defendant was granted 60 days time within which to make and serve a case-made and ten days thereafter in which to suggest amendments and five days to sign and settle the same. Upon expiration of the time thus allowed, on August 14, 1947, the period for perfecting the appeal was extended an additional 60 days. Said appeal was filed in the Criminal Court of Appeals on October 17, 1947, or 122 days after the motion for a new trial was overruled and notice of intention to perfect the appeal was given.

The Attorney General of the State of Oklahoma has filed a motion to dismiss for the reason that the appeal was not filed in this court as provided by law.

Under the provisions of Title 22 O. S. A. 1941 § 1054, as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. * * *”

It is apparent that this appeal was not perfected until two days after the expiration of the period for perfecting an appeal in misdemeanor cases as provided by statute. In the recent case of Dee T. Loving, Sr., v. State, 87 Okla. Cr. 150, 196 P. 2d 519, we said :

“A failure to file the appeal in this court within the time allowed by the law is fatal to the appeal and this court has no discretion to determine the appeal unless it is taken within the time prescribed by statute.”

Therein we quoted from Jackson v. State, 86 Okla. Cr. 6, 188 P. 2d 878, 879, and other authorities as follows, to wit:

“We are reluctant to dismiss appeals in criminal cases, and will not do so upon technicalities, but when the appeal has not been filed within the time prescribed by tbe statute, it has been held upon many occasions that this court does not have jurisdiction to consider the appeal. See the following cases: Bouziden v. State, 78 Okla. Cr. 387, 149 P. 2d 99; Monzell v. State, 78 Okla. Cr. 34, 143 P. 2d 163; Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870; Johnson v. State, 70 Okla. Cr. 322, 106 P. 2d 128; Powell v. State, 65 Okla. Cr. 250, 85 P. 2d 326; Wallace v. City of Tulsa, 76 Okla. Cr. 254, 135 P. 2d 1002; Samford v. State, 83 Okla. Cr. 134, 173 P. 2d 749; Butler v. State, 83 Okla. Cr. 105, 173 P. 2d 453; * * *

See, also, Pooler v. State, 85 Okla. Cr. 97, 185 P. 2d 235.

It further appears from the record that the case-made was not served upon the county attorney until October 20, 1947, the appeal having originally been attempted in this court by the attachment of a carbon copy of the case-made to the petition in error and thereafter the original case-made as served upon the county attorney being attached. This defect is likewise fatal as was said in May v. State, 63 Okla. Cr. 165, 73 P. 2d 875:

“The case-made for appeal not served within the time originally allowed for serving a case-made, nor within the time fixed in any valid extension of time is a nullity.”

See, also, Welch v. State, 38 Okla. Cr. 300, 260 P. 787.

Por the reasons hereinbefore stated, the purported appeal herein should be and the same is hereby dismissed and the case remanded to the trial court with directions to enforce its judgment and sentence.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    JOHNNY MERCER v. STATE.
    No. A-10888.
    July 14, 1948.
    (196 P. 2d 520.)
    Wade Arends, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Johnny Mercer, was charged by information filed in the district court of Oklahoma county with the crime of assault with intent to Mil, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed.

The chief contention of the defendant is that the sentence of five years is excessive, unreasonable, unfair and not supported by the evidence.

The evidence of the state showed that one Bill Henderson, a cement contractor, living in Oklahoma City, went with his wife to the Midnight Sun, which was a night club located on the outskirts of Oklahoma City, to dance. While there, Henderson went up to the cold drink stand to purchase a bottle of Seven Up. The defendant and his codefendant, Jack Hathcox, were standing at the bar and an argument ensued between them. The defendant walked outside the building and asked Henderson to accompany him, but Henderson refused and started walking away from the defendant. The defendant then seized a chair and struck Henderson a blow, knocking him unconscious to the floor. After knocking him to the floor he continued to beat on him with the chair. As a result of the beating, according to the testimony of Doctor It. D. Farris, the attending physician, Henderson lost approximately fourteen teeth, sustained a fracture of the skull extending down into the ear, his jaw was fractured in three places, and he sustained severe cuts and lacerations. He lost the vision completely in his right eye, and the Doctor testified that for ten days after the man was brought to his hospital he was in such precarious condition that he thought he was going to die.

Many witnesses testified for the state who were present at the night club and saw the attack by the defendant and with the exception of the codefendant, his sister and another friend who had accompanied the defendant to the night club, they were unanimous in their testimony that the attack was unprovoked by Henderson.

The witnesses for the defendant testified to the effect that Henderson opened a knife and threatened to strike defendant with it, and that defendant struck him with a chair to knock the knife out of his., hand; that the codefendant, Hathcox, struck the first blow and not the defendant. The defendant did not testify.

The punishment assessed the defendant was fixed by the jury. They saw the demeanor of the witnesses on the stand, heard the testimony of the Doctor and saw the condition of the prosecuting witness. The physical injuries of the witness Henderson were such that the jury would have been entirely justified in meting out the maximum punishment of ten years’ imprisonment in the penitentiary. The medical testimony was to the effect that the prosecuting witness was extremely fortunate to have survived the brutal attack which was made.

This court does not exercise its power to modify a sentence unless it is clearly apparent from the record that the sentence is manifestly excessive or that the punishment assessed was in part the result of passion and prejudice and that justice requires a modification. Baker v. State, 65 Okla. Cr. 136, 83 P. 2d 586; Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062.

The facts disclosed by the record do not present a situation where this court can conscientiously say that justice requires a modification of the judgment. The defendant even under the testimony of his own witnesses continued to strike Henderson unmercifully with the chair after Henderson had fallen and was lying unconscious and helpless on the floor.

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

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


author: BRETT, J.

text:
    HAROLD E. SHIMLEY et al. v. STATE.
    No. A-10946.
    July 14, 1948.
    (196 P. 2d 526.)

      David Tant and Herbert K. Hyde, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal by Harold E. Shimley from a conviction for the included crime of kidnapping (Title 21, § 741, O. S. A. 1941, with a maximum penalty of ten years) and sentence thereon to a term of three years in the penitentiary. The charge as laid in the information is for kidnapping for the purpose of extortion under Title 21, § 745, O. S. A. 1941, carrying a maximum penalty of death and a minimum penalty of ten years in the penitentiary. “

Shimley does not contest the correctness of the verdict of the jury as to his guilt. He registers no complaint that the trial judge, Albert C. Hunt, did not give him a fair and impartial trial. He assigns no errors of law occurring during the trial as the reasons for this appeal. His sole and only ground for this appeal is that the sentence of three years in the penitentiary, which the jury inflicted, is excessive, when measured by the sentences of his codefendants of one year in the penitentiary. This contention is predicated upon his claim that the evidence showed that the defendants were acting jointly and together. He says that the reason for the difference in the sentences inflicted upon him and his codefendants is by reason of passion and prejudice which he aroused in an opening statement which he made before the jury in his own defense.

When this matter was first orally presented to the court, it was urged that the difference in penalty occurred because of the passion and prejudice aroused by the opening statement made by Shimley in his own defense. In this connection the defendant Shimley insisted that he be permitted to make an opening statement. The court permitted him to do so. He made an extended argument which he felt sure would be to his advantage. He now feels it was prejudicial. He seeks to invoke in his favor the rule that the court has repeatedly announced that, where the punishment appears excessive in part resulting from passion and prejudice, the judgment and sentence will be modified by reducing the sentence. Deal v. State, 59 Okla. Cr. 385, 60 P. 2d 408; Cunningham v. State, 70 Okla. Cr. 131, 105 P. 2d 264; Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149; Greer v. State, 74 Okla. Cr. 286, 125 P. 2d 225; White v. State, 76 Okla. Cr.. 147, 134 P. 2d 1039; Kidd v. State, 76 Okla. Cr. 213, 136 P. 2d 210; Daves v. State, 77 Okla. Cr. 343, 141 P. 2d 603, and numerous other cases not cited. We find these cases, however, are cases wherp the passion and prejudice engendered was by the state for the purpose of influencing the conviction of the defendant. We found no cases where the defendant by an opening statement or argument made in his own defense had been granted relief where his own acts engendered passion and prejudice against him. The state and the court should not be held responsible for the acts of the defendant in the trial of a case resulting to his prejudice. We can think of no more abortive procedure in the administration of justice than to permit the defendant to become master of the trial and by his own conduct, without provocation, voluntarily inject into the trial some prejudicial word, or act, and then on appeal complain of the same as a means of obtaining a reduction in the penalty imposed or for effecting his release. If such were the case no defendant would be tried without extending his full length and then some, to bring such an abortive situation. The court must hold on this situation that in the interest of orderly courtroom procedure, the defendant is bound by the same hard and fast rule of fair play as is the state in the trial of a criminal case. The state cannot play fast and loose in a trial, neither can the defendant. He cannot precipitate error in his own defense, then use it as a springboard to his own advantage. The results in the trial of a case should be dependent upon the issues of fact. When this appeal was first presented to the court, we were somewhat impressed with the argument on this ground but upon mature consideration it becomes apparent that it is wholly without merit.

Moreover, an examination of the opening statement made by Shimley does not impress us as being prejudicial to his rights, but, on the contrary, it appears in every line and syllable a masterpiece of design intended to create prejudice in his own favor — a grand piece of self-serving declaration designed to relieve the juror’s minds of the motive for this crime, to establish that he was not in the whisky business, but was a family man even though a gambler by profession. How it can be said that this opportunity afforded by our system of jurisprudence was anything but an advantage to him, we cannot. see. However, if it proves a disadvantage he and he alone is responsible. If we are wrong in our impression that it was not prejudicial to him, still he cannot hold the state responsible, to his advantage, for the error he himself injected into the trial. There would be no end to misconduct on the part of defendants in trial procedure if such a rule were established. If such a rule were established it would mark the end of orderly courtroom procedure. The administration of justice would degenerate and become a mere travesty. We therefore cannot follow Shimley’s contention in this regard.

The defendant further contends that his three years sentence is excessive when measured by the one year sentence meted out to his codefendants, since the evidence shows that they acted jointly and together. In this connection, to determine what the basis was for the difference in penalty, we have carefully reviewed the 1115-page record which includes the justice court preliminary proceedings, the latter being offered in evidence by the defendant for impeaching the testimony of the state’s witnesses. This was done by the defense in a sort of flourish “for whatever it is worth” attitude. The defense, however, did not take the pains to point out wherein it was impeaching. After an examination of the same we believe it would have been better for the defense to have left it out. As to the main thread of the story and principal acts complained of, it is highly corroborative of the complainants. This record discloses that Shimley and his codefendants acted jointly and together as he contends, but it shows more. It shows that they did not act in equal roles. Moreover, it presents a picture of the defendant’s attempt to eliminate by rule of tooth and claw W. J. Kelley, a competing bootlegger, with gambling facilities. It shows they tried to muscle in, push him out, and take over his business. It presents a picture of racketeering in unlawful enterprises culminating in the kidnapping of W. J. Kelly and Claudia Jo Sam.

In the foregoing connection, it is well that we briefly review the facts as found by the jury from the record. In substance, the facts were W. J. Kelly owned and operated two establishments, one a telephone whis-ky bootleg distribution point and a suburban eating, drinking and gambling dive known as the San Diego Club. He was apparently doing well financially in both places. This record discloses it was the desire of Shimley and one of his codefendants to take over his whisky business and his7 gambling facilities. Shimley and one of his codefendants, the record discloses, called on W. J. Kelly and told him he had sold a one-half interest in his club to Shimley. This apparently was much of a surprise to Kelly. He denied this. Moreover, he declined to sell. He was then told that if he did not lease both his club and telephone numbers to some other parties to be named by Shimley’s associates, his place would be raided by the officers and torn up. This he also declined to do. Next he was offered $2,000 for his phone numbers and $4,500 for his club. This he further declined. From then on the record shows he had difficulty with Shimley, the gambler, and his associate, who claimed to be king of the Oklahoma City bootleggers. When he could not be moved to sell or lease, his San Diego Club was raided and chopped up just as he was warned it would be.

The record then reveals that W. J. Kelly became involved with one of Shimley’s codefendants and other parties from Chicago in a whisky purchase deal. Kelly claimed they did not deliver the whisky to his cache, and refused to pay for it. Kelly was corroborated in the claim that the whisky was not delivered, by a “Cowboy” Stallings who was in charge of his cache. He received this information over the telephone while the Chicago whisky runners were present in the San Diego Club seeking payment for the whisky. They claimed they had delivered the whisky and that Kelly refused to pay for it. Thereafter, the Chicago whisky peddlers and Shimley decided to take the law into their own hands to apparently accomplish two objectives: first, to collect the money which they claimed was due for the whis-ky, and, second, to acquire his places of business or to drive him out of business in Oklahoma City. The record shows that on February 10, 1947, about 1:30 in the morning, Shimley and his two Chicago codefendants came to W. J. Kelly’s whisky dispensary and, with force of arms, forced Kelly and Claudia Jo Sam, his telephone girl, together with Fred Vehmeyer, deliveryman for Kelly, into an automobile then being driven by Shimley. The record further discloses that before they drove away they decided there was no need to take Vehmeyer and at that point he was kicked and released and then they drove off. Vehmeyer reported to the Oklahoma City police department that Willie J. Kelly and Claudia Jó Sam had been kidnapped. After driving around Shim-ley and his codefendants finally stopped at a tourist court at 39th street and Portland avenue in Oklahoma City where one of his codefendants was registered and had quarters. Here W. J. Kelly was stripped of $740 and demand was made of him to produce his diamond rings. When he could not produce the rings and refused to tell where they were, Shimley hit him over the eye with the butt of his pistol knocking him down and making a bloody wound. The record shows that Shimley wanted to kill both W. J. Kelly and Claudia Jo Sam; that he became so violent and insistent that his associates took his pistol away from him. It shows he left and later returned with another pistol, again threatening to kill them. The record reveals that his codéfendants also took this pistol from him. The case-made shows that he then begged for the return of his gun so he could kill them. It appears from the evidence that a sum of money, first $10,000, then $5,000, and then finally $4,500 was demanded of W. J. Kelly as the price of his release. The record also shows an attempt was made to collect for the whisky allegedly delivered to Kelly by the Chicago men. It further shows that Kelly was taken to a nearby telephone in an attempt for him to raise $4,500 from two friends, Charlie Hughes and O. P. Estes. This these men corroborated in their testimony. Then it was demanded that he give a deed to the San Diego Club, leave town and not return. The case-made shows that they then moved the base of their operations to their automobile driving around Lake Overholser and Lake Hefner. It reveals that Shimley threatened W. J. Kelly and Claudia Jo Sam with disembowelment and death, stating he would put rocks in their bowels and sink them in the lake, that he had killed seven other men, the last one being left in a bathtub. Finally they returned to' the tourist court and discovered by radio Mrs. W. J. Kelly had filed kidnapping charges against them. Boasts were made during all of this procedure that they could effect their release upon arrest almost immediately upon being arrested. While being fingerprinted by Undersheriff Ross Biggers and Herman E. Mozer, fingerprint expert from Tinker Field Air Base, Oklahoma City, they testified, Shimley said that “I hit him over the head, I put that mark on him”, indicating a space on the forehead, “with my pistol. The big mistake that I made is that I did not kill the son of a bitch like I intended to, like I started in to do”. The evidence reveals that none of Shimley’s eodefendants were so vicious or willing to go as far as he did. The record pictures him in the leading role. It is therefore apparent that the jury believed that was his role and that he deserved a greater penalty.

When the matter was orally presented to this court a very sketchy picture of the situation was before us. We now have all had the benefit of a careful review of the record. It clearly appears why the jury gave Shimley three years instead of one year. Under the facts presented by the record, the jury could have found Shimley and his codefendants guilty of the greater offense of kidnapping for the purpose of extortion. The record so supports such a finding, and justifies a much greater penalty than that inflicted on any of the defendants. They are most fortunate that the jury did not find them guilty of the greater offense carrying not less than ten years nor more than the death penalty. We can only presume why they did it. We suspect it was because W. J. Kelly and Claudia Jo Sam were both so disreputable and common bootleggers. We believe it was because they believed it to be only a gang war, one set of gangsters, bootleggers and gamblers preying upon another set of gangsters, bootleggers and gamblers. Of this, this court cannot take cognizance. Of course, they were without legitimate recourse, since the enterprise in which they were engaged is unlawful; resort to the courts could not be had for the collecting of a debt, if any, Kelly owed. But society cannot afford to permit such people to resort to kidnapping, either as an instrument for collecting bad bootlegging debts or as the means of eliminating a competitor. As to the latter, even in legitimate business the law does not recognize a practice designed to get a competitor. Surely, there can be no reason for extending bootleggers and gamblers a practice we do not afford legitimate business. Competition, in legitimate American life has been regarded as the life of trade. Quite obviously, illicit enterprise does not desire competition. The boldness which prompts its invasion of prohibited fields no doubt prompts its resort to the rule of tooth and claw to eliminate competition. Likewise, the boldness which prompts such enterprise also inspires it to cheat the provider of the commodities of the unlawful traffic. By the same urge, illicit traffic in unlawful contraband prompts violators to take the law into their own hands and resort to threats, kidnapping, assaults and battery and some times murder in collecting its price or in exacting its self-instituted penalties. Such conduct cannot be tolerated under the law. Kidnapping is like a malignant growth and vicious contagion. It must be dealt with even among bootleggers and gamblers, lest it spread to other areas. Odious as it may appear, the jealous mistress of the law, on occasions, must find herself affording protection to those unworthy of it, if an orderly society is to be maintained. Gang wars should never be countenanced by any community, for any purpose. We shall not assume a compromising attitude concerning such practices even among bootleggers.,, To do so, would be to embolden them and nurture the first foul germs of anarchy. Therefore, because of the wholly iniquitous, vicious, contagious and anti-social nature of this crime, as revealed by a careful examination of the record, in the absence of a charge of the denial of a fair trial, assignments of errors of law and in the face of the lienency of the sentence by the jury, clearly, we are not justified in temporizing or compromising the jury’s verdict. The record in this case does not justify it. As was said in Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121, 122:

“While this court has the power to modify a judgment and reduce a sentence inflicted by the jury or trial court, this power cannot be arbitrarily used but can only be exercised where it appears from the record that an injustice has been done in assessing the punishment upon him.”

Under the circumstances as revealed by this record and the sentence herein inflicted, the fact that most of the threats of violence made during the commission of this crime as well as one of the acts of battery were made by defendant Shimley, in which he persisted after his arrest, undoubtedly impressed the jury that his guilt was of a greater degree than that of his codefendants, hence, the difference in penalty. Certainly the ends of justice do not warrant us in interfering with the jury’s verdict. To do so would be the arbitrary exercise of power. In Torgeson v. State, 45 Okla. Cr. 50, 281 P. 812, it was said:

“This court has repeatedly held that, where there was a conflict in the testimony, it would not disturb the verdict of the jury.”

Also, we have repeatedly held that modification will be made only where it appears the sentence is excessive. Jones v. State, 84 Okla. Cr. 81, 179 P. 2d 484. Moreover, in the case of Kennedy v. State, 66 Okla. Cr. 318, 92 P. 2d 384, it was held that:

“The power of this court to modify judgment by reducing punishment in furtherance of justice, is not the power to commute by the Chief Executive, since judicial power to modify a judgment, and executive power to pardon are distinct; one being an award of justice, another being an act of grace.”

Therein it was further said:

“Clemency is a matter of discretion and may be refused. Justice is imperative and must not be denied. In other words the Code of Criminal Procedure makes it the duty of this court to review the record, and in a proper case, in furtherance of justice, modify the judgment by reducing the sentence so as to prevent the imposition of punishment which the evidence will not warrant.”

Citing in support thereof Harry v. State, 59 Okla. Cr. 302, 58 P. 2d 340. See, also, Hall v. State, 78 Okla. Cr. 389, 149 P. 2d 268.

Under the conditions herein presented, were we to modify this sentence to one year we would be compelled to hold that the jury acted from passion and prejudice, which this record does not support. Moreover, we would be invading the executive field by usurping the pardoning powers of the Chief Executive and his agency the Pardon and Parole Board. This we will not knowingly do.

At the time of oral argument counsel for the defendant urged that some of the jurors now favor reducing the sentence herein inflicted to one year as evidenced by their affidavit. This constitutes no part of the record which this court can properly consider. Such matters can only be presented to the Pardon and Parole Board. Such jurors, who signed the affidavit and who now feel that their verdict should be temporized by an act of grace, will find the doors of the Pardon and Parole Board open to them, where they may give full and free expression to their feelings, in the event they now feel impelled to compromise their verdict. This is a matter that is not for the consideration of this court. We would be acting in a most arbitrary manner and invading a field which is not rightfully ours under the law, if we consider matters that are outside of the record. This we never do. Jackson v. State, 86 Okla. Cr. 6, 193 P. 2d 895, 898, wherein we said:

“Under the law we will consider only such matters as appear in the record of the trial below, reflected in the case-made.”

See, also, Beatty v. State, 5 Okla. Cr. 105, 113 P. 237; Cochran v. State, 4 Okla. Cr. 390, 111 P. 978; Territory v. Cooper, 11 Okla. Cr. 699, 69 P. 813. For all of the foregoing reasons the judgment and sentence inflicted herein is accordingly affirmed.

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


text:
    EB HALL v. STATE.
    No. A-10892.
    July 21, 1948.
    (196 P. 2d 703.)

      R. A. Howard, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Eb Hall, was charged by information filed in the district court of Carter county with the crime of assault with intent to kill, was found guilty of the lesser offense of assault with a dangerous weapon, and the punishment left to the court; the trial court thereupon, sentenced the defendant to serve two years’ imprisonment in the State Penitentiary, and he has appealed.

It is only necessary that we consider one of the assignments of error in the brief of defendant. It is contended that the court committed reversible error in denying the motion for continuance filed by defendant.

The information charged that the defendant did, on the 22nd day of April, 1946, shoot at one May Emberlin with a 30 - 30 rifle with intent to kill the said May Em-berlin.

The defendant was arraigned in the district court on September 27, 1946, and entered his plea of not guilty to said charge. His case was then assigned for trial on October 14, 1946. Thereafter, on October 7, 1946, counsel for the defendant caused to be issued subpoenas for certain witnesses to testify on behalf of defendant. Among these witnesses were J. A. Wells and Mr. and Mrs. Conn Adams. On October 11, 1946, the sheriff made his return on the subpoenas stating that the witnesses, J. A. Wells, Conn Adams, and Mrs. Conn Adams, could not be found in Ms county. When the case was called for trial on October 14, 1946, according to present counsel for defendant, J. B. Champion, attorney for defendant, who had issued the subpoenas, was allowed to withdraw as counsel for the defendant. The defendant being unable to employ counsel, the court thereupon appointed his present counsel, B. A. Howard, to represent him and passed the case until 2:00 p. m. on that date. When the case was again called for trial at 2:00 p. m., counsel for defendant presented a written motion for continuance which said motion reads as follows:

“Comes now the defendant Eb Hall in his own proper person, and moves the court to postpone the trial of this cause for the following reasons, to wit:
“1. That he cannot safely go to trial herein without the presence of Conn Adams and his wife Edna Adams who are material witnesses for and on his behalf, and if present would testify that they were at the home of the defendant on the day and date of the alleged assault; that they had come to the home of the defendant that morning, and were in the home of the defendant and that the defendant was in the house with said witnesses, that they all heard some shooting near the house and run out to see what was going on, and that they saw the complaining witness about a quarter of mile from the home of defendant, and that they saw the smoke of the gun that had been fired; that the complaining witness May Emberlin east of defendant’s home and was encouraging her dogs to run defendant’s cattle, that the dogs were south and a little east of defendant’s home, and that between where the dogs and cattle were and the house where witnesses were they saw one Jimmie Glenn Hall with a gun, and saw the smoke of the gun, and that at no time did the defendant have his hands on a gun at the time of the alleged assault. Defendant says that said witnesses lived at Tussey, just across the line in Garvin County, Oklahoma, and just recently went to work at or near Bristow as defendant is informed and believes, that they still live at or near Tussey, and are away only temporarily, and that if this case is postponed until another term of court, or until the next docket, said witnesses can be procured; that on October 7th, 1946 he caused a subpoena to be issued for said witnesses and that on the 11th day of October, 1946 he learned that said witnesses had left their home at Tussey, and has been unable to find them, and that he cannot go to trial without said witnesses, that there is no other person by whom he can prove said state of fact. That said testimony of said witnesses is true, and material to this defendant’s defense.
“Wherefore defendant prays that this cause be continued to another term of court when said witnesses may be procured.”
“Eb Hall, Defendant”

This motion was overruled with an exception allowed to the defendant.

May Emberlin testified that she lived in Garvin county; that she owned ten acres of land just across the section line from her home in Carter county; that this ten acres of land joined an 80-acre farm where the defendant Eb Hall lived; that on April 22, 1946, five head of cattle belonging to Hall had gotten into a patch of grain belonging to her and her husband on the ten acres; that she took her dogs and hissed the dogs on to the cattle to run them out of the field; that she saw the defendant over near his house about 150 yards away and that he yelled at her to leave that stuff alone and then he fired; that she hissed the dogs on the cattle again and defendant fired again; that after the second shot she turned and went back to her house.

J. C. Moore, son-in-law of May Emberlin, testified that he was at her place on the morning of April 22, 1946; that he heard a gun fired twice and saw the defendant with the gun which he thought was a high powered rifle of some kind.

G. E. Emberlin, husband of May Emberlin, said that he was feeding his livestock and heard a gun fire; that he walked out of his feed lot and saw the defendant take another shot at his wife; that he had a rifle of some description in his hand; that he could see the defendant point the gun toward his wife and saw the smoke come out of the barrel. This was all the evidence on behalf of the state.

On behalf of the defendant, Jimmie Glenn Hall testified that he was the son of defendant; that on April 22, 1946, he saw Mrs. Emberlin chasing some cattle belonging to him and his father out in their field; that he had a 4-H Club calf in the bunch; that his attention was first attracted by hearing the dogs bark at the cattle; that he went into the house and got a shotgun and fired two shots at the dogs; that his father was in the house at the time he did the shooting and that his father did not fire any shots at all that morning; that they did not own a rifle of any description; that J. 0. Moore, son-in-law of the prosecuting witness who testified in her behalf, came up the road in his car going to the Em-berlin house after the shooting had occurred and that he could not have seen the shooting.

The defendant testified that on the morning of April 22, 1946, he had some alfalfa hay which had been cut and needed to be baled; that he had hired J. A. Wells and Conn Adams to do the baling and they were at his house together with Mrs. Conn Adams; that an early morning shower had fallen and it was too wet to bale; that he heard two shots fired and went out into the yard and saw his son, Jimmie, in the wheat field about 150 yards southeast of his house over near the fence; that he saw Mrs. Emberlin on the east side of the field back near her place; that his son, Jimmie, had discharged a twelve gauge shotgun twice at the dogs which were chasing the cattle, but the dogs were so far away that the shotgun did not have any effect on them; that he did not own a rifle at the time of the shooting, but had sold his rifle the year before to Cain Miller just before the opening of the deer season.

After a motion for new trial was filed, counsel for the defendant filed two affidavits in support thereof which read as follows:

“J. A. Wells, of lawful age, being first duly sworn, deposes and says: That he resides in Tillman County, Oklahoma, recently removed from Carter County, Oklahoma. That on the 22nd day of April, 1946, he went to the home of the defendant Eb Hall to help bale hay, that Connie Adams and his wife Edna Adams were there. That about the time affiant arrived he looked off in a southeastern direction and saw Jimmie Glenn Hall, a son of Eb Hall with a shot gun in his hands which he had fired twice; that immediately after the shooting Eb Hall, and the Adamses came out of the house to see what the shooting was about. There was Jimmie, Eb Hall and the Adamses and myself there; I looked off across the wheat field and saw a woman in Eb Hall’s wheat patch up towards the Emberlin’s house, who may have been Mrs. Emberlin I could not identify her at that distance. When the shooting was over some dogs and this woman went on towards the Emberlin house. There was no loud talking, and no conversation between Eb Hall and the woman that I saw off towards the northeast. Jimmie Glenn Hall brought the shotgun back and put it away. Directly we all decided that it was too wet to bale hay, and me and the Adamses left there. I did not know about the trial of this case in October, 1946, but after the time of the shooting, and the trial I moved to Tillman County, Oklahoma, and can be a witness on another trial of this case I have no interest in this matter, except that justice be done.
“J. A. Wells”
“Conn Adams and Edna Adams being sworn each for themselves, depose and say; that they are husband and wife, that they reside near Tussey, Oklahoma, That on the 22nd day of April, 1946, affiants were present at the home of the defendant Eb Hall and in his house when they heard two shots fired from a gun, at that time the defendant Eb Hall was in the house, in the kitchen, cleaning up that part of the house; that when they heard the shooting they (affiants) went out of the house, and at about the same time the defendant Eb Hall came through the room where affiants were, and that all of them went out of the house about the same time. That they all looked out southeast of the house, and saw Eb Hall’s boy, Jimmie Glenn Hall off a hundred yards or so southeast of the house with a shotgun in his hands, that there was smoke from the gun around and above him. That this morning the defendant Eb Hall did not have any gun in his hands, it was Jimmie Glenn Hall that did all the shooting. Affiants say that they saw the cattle over southeast of the Eb Hall house, and saw the dogs that had been chasing the cattle, and that Jimmie Glenn Hall shot at the dogs, and did not shoot at the woman over on the east side of the Eb Hall farm. That soon after the shooting they heard a car coming east on the road and that by the time that car got up to the Emberlin house the said Jimmie Glenn Hall had come back to the house. That the defendant Eb Hall did no shooting that morning. Affiants further say that they had come there that morning to help bale hay, and that on account of it being cloudy and looking so much like rain the hay baling was postponed. That they saw a woman on the east side of the Hall farm, but that on account of the distance and the weather condition they were unable to identify who the woman was : That there was no hollowing or conversation between Eb Hall and the prosecuting witness. That a short time before the trial of the defendant Eb Hall affiants left their home near Tnssey, and went to Logan County, Oklahoma, where they are at the present time, but that they expect to be back to their home near Tussey before very long. That they did not move on account of trying to escape being witnesses in this case, and that they are willing to appear in court and give evidence of their knowledge of the case. That they did not tell the defendant Eb Hall that they were going away, and as far as they know he did not know that they had gone from their home near Tussey.
“That they have no interest in this case and make this statement only that justice may be done.
“Connie Adams
“Edna Adams”

At the hearing on the motion for new trial, the county attorney used three witnesses who testified they saw J. A. Wells there in the vicinity of defendant’s home on Sunday before the trial commenced on Monday. One of these witnesses testified that he had known Wells for 25 years, and that shortly before the trial Wells had moved to Tipton in western Oklahoma. This same witness also testified that he knew Connie Adams who lived close to Goose Neck; that Adams baled his hay and that he left his place to go bale the defendant, Eb Hall’s, hay. The court thereupon passed the case for one week and issued out of county subpoenas to have the witnesses of the defendant, J. A. Wells, and Mr. and Mrs. Conn Adams, brought before the court.

The subpoenas for Mr. and Mrs. Adams were sent to Kay county and on December 12th a return was made by the undersheriff of Kay county stating that Burbank, the place where the Adams lived, was in Osage county and not in Kay county. At the time of the hearing, the subpoena issued in Tillman county for the witness Wells had not been returned and Wells did not appear.

By statute it is provided:

“When an indictment or information is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, as in civil cases, direct the trial to be postponed to another day in the same or next term.” 22 O. S. 1941 § 584.

In applying this statute it is now well settled that an application for continuance is addressed to the sound discretion of the trial court and the ruling of the court will not be disturbed on appeal in the absence of an abuse of discretion. Nix v. State, 20 Okla. Cr. 373, 202 P. 1042, 26 A. L. R. 1053; Inman v. State, 61 Okla. Cr. 73, 65 P. 2d 1228; Simmons v. State, 68 Okla. Cr. 337, 98 P. 2d 623.

It has been said that a continuance should be granted only that justice may be done. Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Ross v. State, 34 Okla. Cr. 363, 246 P. 645.

It has further been held that in reviewing the refusal of a continuance, all the facts and circumstances disclosed by the record will be considered by this court in determining whether or not the exercise of discretion by the trial court was abused in denying the application. Inman v. State, supra; Tucker v. State, 9 Okla. Cr. 587, 132 P. 825.

This case has caused the court much concern. No doubt, the trial court was deeply concerned as he stated at the time he pronounced sentence upon the defendant:

“Gentlemen, I have given considerable thought and attention to this matter. I would really like to give Mr. Hall a new trial as far as I am personally concerned.”

In an ordinary case the precautions taken by the trial court as shown by the various continuances from date to date in passing upon the motion for new trial would have prompted this court to say there was no abuse of discretion in denying the motion for continuance and in overruling the motion for new trial. However, the case itself presents a factual situation where the testimony of the absent witnesses, if obtainable as it appears likely they would be, might change the result of the case. It is unfortunate that neighboring families have become so involved as the facts disclose the Emberlin and Hall families to be. The witnesses, Wells and Mr. and Mrs. Conn Adams, corroborate the evidence of the defendant, that it was defendant’s boy who fired the shots and that he was shooting at the dogs with the shotgun and not at Mrs. Emberlin with the rifle. When the jury first returned to the court after they had retired to deliberate on their verdict, counsel for the defendant who had been appointed by the court was not present. The defendant was present and a colloquy occurred between the court, county attorney, and the jury, concerning the question as to whether the jury could find the defendant guilty and leave the punishment to the court. The foreman of the jury advised the court that they had determined the guilt of the man, but not the penalty. During the conversation by the court and the jury, the county attorney interrupted to say:

“I might suggest, if the court please, there is several degrees, they might find the degree and then leave it up to the court.”

The court then concluded the conversation by saying: .

“All right, let’s take about fifteen minutes gentlemen, if you can’t agree within that time as to punishment, then you agree on your verdict and return it without fixing the punishment and we will get through tonight.”

After considering this record, it is hard for us to conclude that the defendant, even assuming that he fired the shots as claimed by the state, intended to kill or even strike the prosecuting witness. If he had intended to have shot her, there is nothing in the record which apparently showed anything to have prevented it. Mrs. Emberlin did not take him too seriously because she testified that after the first shot was fired, she hissed the dogs on the cattle again. An ordinary person would not have stayed and hissed the dogs on the second time if they had thought that someone was firing at them only 150 yards away with a high powered rifle. They might have stood the ground for the first shot, but a sensible individual would have been several yards away before the second shot was fired.

After considering all the facts and circumstances as disclosed by the record, it is our conclusion that the case should be retried with the defendant given another opportunity to produce the witnesses Wells and Adams and that another jury should then be allowed to pass upon his guilt or innocence after hearing this evidence.

The judgment and sentence of the district court of Carter county is therefore reversed and remanded, with instructions to grant the defendant a new trial.

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


text:
    Ex parte JOHN CURTIS BARBER.
    No. A-11064.
    July 21, 1948.
    Writ of Certiorari Denied Oct. 18, 1948.
    See 69 S. Ct. 59.
    (196 P. 2d 695.)

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

This is an original proceeding in ha-beas corpus by petitioner, John Curtis Barber, to secure his release from the penitentiary at McAlester, Okla. The petition alleges, in substance, as follows, to wit, that he was arrested on September 17, 1907, charged with the murder of Marion Farrell, that said offense was originally committed in what later became Pottawatomie county, but which at the time of the commission of said offense was Oklahoma Territory; that said Territory became merged - with Indian Territory into what became the State of Oklahoma on November 16, 1907; that he was indicted by the district court of Pottawatomie county, Okla., on December 23, 1907. Thereafter, on January 20, 1908, he was tried and convicted, and thereupon he was sentenced on January 30, 1908. At said time the State of Oklahoma not having a penitentiary, he complains he was committed to the Kansas State Penitentiary February 26, 1908, and thereafter transferred to Mc-Alester, Okla., the site of the Oklahoma State Penitentiary.

It is well to note that this petition was filed by John Curtis Barber by himself. This court has repeatedly held that we “will view with liberality a petition for habeas corpus filed, without the aid of counsel, by an inmate in the penitentiary, and will give every reasonable inference that it can to such petition to see whether same is sufficent, upon its fact, to justify a hearing thereon”. Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670, 671; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549. However, this court has further held that the writ of habeas corpus is limited to cases in which the judgment and sentence of the court attacked are clearly void. Ex parte Tollison, supra. Moreover, it has repeatedly been held that this court, on habeas corpus, “will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure”. Ex parte Tollison, supra; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. Furthermore this court has repeatedly held “the remedy of habeas corpus is available wherever it is found that the court in which the petitioner was tried had no jurisdiction to try him, or that in its proceedings his constitutional rights were denied”. Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, 19; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41. We have also held that “in habeas corpus proceeding to obtain release of prisoner who is in custody under sentence, inquiry of Criminal Court of Appeals is limited to determination of whether court had jurisdiction of prisoner’s person and of crime charged, and if such court had jurisdiction to convict and sentence, the writ cannot issue to correct irregularities in the proceeding”. Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561, certiorari denied, Cannes v. State, of Oklahoma, 320 U. S. 764, 64 S. Ct. 44, 88 L. Ed. 456; Ex parte Linam, 71 Okla. Cr. 155, 109 P. 2d 838; Ex parte Newman, 67 Okla. Cr. 401, 94 P. 2d 556; In re Swaim, 66 Okla. Cr. 30, 89 P. 2d 363.

The petitioner advances four contentions based upon the facts hereinbefore set forth. Petitioner contends that the state was without jurisdiction to try him for said offense, and without authority of law to cause him to be confined in the State Penitentiary of Kansas and to later return him to the State Penitentiary at McAlester. The first contention is based upon the proposition that under the foregoing facts, the indictment not having been returned before Oklahoma became a state, the federal court had jurisdiction to try the petitioner, and that should the writ of habeas corpus be granted he should be returned to the federal authorities for trial or be granted his outright release. This contention is wholly without merit as revealed by the cases of Ex parte Bailey, 1 Okla. Cr. 115, 94 P. 553, and Ex parte Buchanen, 1 Okla. Cr. 135, 94 P. 943, which involve precisely the identical question here presented, and wherein indictments for crimes were returned covering offenses under the laws then in force in both the Oklahoma and Indian Territory, respectively, after the admission of the state into the union, and no prosecution whatever had been begun prior to such date. In both of these cases the Supreme Court of the state then having jurisdiction of criminal as well as civil matters held that such crimes were cognizable in the district court of the state in the county in which the offense was committed. In the later case of Ex parte Buchanen, supra, Judge Williams, then Chief Justice, said:

“The question is now presented whether or not a prosecution for the offense of manslaughter committed in that part of the state formerly known as the Indian Territory, where no prosecution whatever had been begun — not even a complaint or information having been filed against the accused — prior to the admission of the state into the Union, can be instituted in the state courts and prosecuted to final judgment thereafter. Section 20 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) as amended March 4, 1907 (34 Stat. 1287, c. 2911) provides as follows:
“That all causes, proceedings, and matters, civil or criminal, pending in the district courts of Oklahoma Territory, or in the United States Courts in the Indian Territory, at the time said territories became a state, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be proceeded with, held, and determined by the courts of said state, the successors of said district courts of the territory of Oklahoma, and the United States Courts in the Indian Territory; with the right to prosecute appeals or writs of error to the Supreme or appellate court of said state, and also with the same right to prosecute appeals or writs of error from the final determination in such cases made by the Supreme or appellate court of such state to the Supreme Court of the United States, as is provided by law for appeals and writs of error from the Supreme or final appellate court of a state to the Supreme Court of the United States. All criminal cases pending in the United States Courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.’
“In the decision of this court in the cases of Higgins v. Brown (decided at this term of court) [1 Okla. Cr. 33], 94 P. 703, wherein it was held said section, having been concurred in on the part of the state by virtue of provisions contained in sections 27 and 28 of the Schedule to the Constitution, vested jurisdiction in the proper state courts of all criminal cases, not of a federal character, pending at the time of the admission of the state into the union in the territorial courts of Oklahoma and in the United States Courts in the Indian Territory, and in that same case it was held that if the crime of murder was committed in what was formerly the Indian Territory, not within a fort or arsenal or in such place in said territory over which jurisdiction would have been solely and exclusively within the jurisdiction of the United States, had it at that time been a state, such offense was cognizable in the state courts. To make such a construction as to necessitate the conclusion that the state courts would not have jurisdiction of such character of crimes, not of a federal nature or character, as might have been committed prior to statehood on the Indian Territory side, where no prosecution had been begun, would be tantamount to holding that it was the intention of Congress and of the constitutional convention that such crimes, not of a federal character, should not be prosecuted to final judgment; for, although they had been defined as offenses by the laws in force in the Indian Territory, they would not be cognizable within the federal courts after the admission of the state into the Union. Moore v. United States, 8 Cir., 85 F. 465, 29 C. C. A. 269.
“Section 1 of the Schedule to the Constitution provides :
“ ‘No existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of the government, but all shall continue as if no change in the form of government had taken place. And all process which may have been issued previous to the admission of the state into the union, under the authority of the territory of Oklahoma, or under authority of the laws in force in the Indian Territory, shall be as valid as if issued in the name of the state.’
“When this provision is construed in the light of the provisions of section 20 of the enabling act, as amended by the act of March 4, 1907, we are aided in reaching an interpretation as to what was intended by said section 1, supra; and we conclude that said provision has the same effect as that contained in said section 20, supra, where it is stipulated that certain cases ‘shall be prosecuted to final determination in the state district courts of Oklahoma under the laws now in force in that territory.’ In the case of Moore v. United States, 8 Cir., 85 F. 468, 29 C. C. A. 272, supra, the court says:
“ ‘Its civil and political powers were transferred to other officers; those of peculiarly internal character to officers of the new state; those which bore any relation of the national system of government, of which the state formed a part, to officers holding commissions under that system, and possessing only the powers derived from their commission. As one of the states of the Union, and in virtue of that character forming one of the districts of the United States, the district of Utah, and the Circuit Courts sitting in that district, would possess no peculiar jurisdiction or authority; none which did not appertain to other districts and the Circuit Courts having cognizance of matters within those districts.’
“In the case of Shively v. Bowlby, 152 U. S. 1, 48, 14 S. Ct. 548, 566, 38 L. Ed. 331, the court says:
“ ‘By the Constitution, as is now well settled, the United States having rightfully acquired the territories, and being the only government which can impose laws on them, having the entire dominion and sovereignty, national and municipal, federal and state, over all the territories so long as they remain in the territorial condition/ etc. See, also, Higgins v. Brown [1 Okla. Cr. 33, 94 P. 703], and authorities therein cited.
“It may be contended, however, that the people of the state, through their constitutional convention, could not provide for the continuance of laws enacted by Congress for the government of the Indian Territory for the purpose of prosecuting to final judgment existing rights and actions, etc., having arisen thereunder prior to the admission into the Union. In the Bailey case, supra [Ex parte Bailey, 1 Okla. Cr. 115, 94 P. 553], it was held that the only limitation upon the action of the convention was that the state government should be republican in form and the provisions of the enabling act complied with; everything else, which the convention had the power and the right to insert by reasonable implication, being permitted, and afterwards concurred in through the action of the President in issuing the proclamation admitting the state into the Union. In the case of Ex parte Larkin, 1 Okla. 53, 25 P. 745, 11 L. R. A. 418, it was held that it was within the power of the Legislature of the territorry of Oklahoma to continue in force after the adjournment of the Legislature certain laws of Nebraska extended to said territory by act of Congress known as the ‘Organic Act’ for said territory (Act May 2, 1890, c. 182, § 11, 26 Stat. 81), until the adjournment of the first Legislature thereof. After-wards, in the case of United States v. Pridgeon, 153 U. S. [48], 54, 14 S. Ct. 746, 38 L. Ed. 631, the Larkin case is cited with approval. In the Pridgeon case the offense was committed prior to the adjournment of the first Legislature of said territory, and he was tried and convicted in the proper court of said territory after the adjournment of said Legislature. If the Legislature at its first session could by enactment provide for the continuing in force of said laws, why could not the constitutional convention in like manner continue in force laws that had been in almost practically the same manner extended in force in the Indian Territory by Congress, for the purpose of continuing prosecutions for the violation of said laws prior to the admission of the state into the Union? Benner v. Porter, 9 How. 235, 13 L. Ed. [119], 120; United States v. Pridgeon, 153 U. S. 53, 54, 14 S. Ct. 746, 38 L. Ed. 633; Ex parte Larkin, 1 Okla. 53, 25 P. 745 [11 L. R. A. 418]; Moore v. United States, 85 F. 465, 29 C. C. A. 269.
“Whilst we do not readily reach these conclusions, yet we are clear that it was the intention of Congress, as well as the constitutional convention, that malefactors, who had committed serious and grave offenses against society prior to the admission of the state into the Union, when there had been no opportunity to lodge indictments against them ought not to go unwhipped of justice, and thereby the law could not be vindicated after such infractions.”

In this case the court announced the rule to be:

“Where an indictment for the crime of manslaughter, an offense committed under the laws in force in the Indian Territory, is returned after the admission of the state into the Union, no prosecution whatever having been begun prior to such date it is cognizable in the district court of the state in the county in which the offense was committed.”

It therefore appears that based upon this reasoning, the identical contention made by the petitioner in the case at bar was rejected and the writ denied. See to the same effect, Higgins v. Brown, 1 Okla. Cr. 33, 94 P. 703, 717, wherein the Supreme Court said:

“It is obvious that it has been the universal practice in this republic to prosecute pending criminal cases, not of a federal nature, in the state courts, as the successors of the territorial courts when new states were admitted into the Union where it was so provided in their respective Constitutions. * * *”

Therein the court held:

“Sections 16 and 20, inclusive, of the enabling act for Oklahoma, Act June 16, 1906, c. 3335, 34 Stat. 276, 277, as amended March 4, 1907, c. 2911, 34 Stat. 1286, 1287, when concurred in by the state of Oklahoma by the adoption of sections 27 and 28 of the Schedule to the Constitution, being a proper exercise of power by the Congress under article 4, § 3, of the Constitution of the United States, are valid.
“An indictment for the crime of murder, alleged to have been committed within the jurisdiction of the United States court for the Northern District of the Indian Territory, and pending in said court on the admission of the state into the Union, is cognizable in the district court of the state, as its successor, in the county in which the offense was committed.”

To the same effect see Ex parte Ellis, 1 Okla. Cr. 125, 94 P. 556.

Next he contends that his confinement in the penitentiary in Kansas is without authority of law since he was convicted by a state court. This contention is without merit. The Act of Congress of June 16, 1880, 21 Stat. at Large 259, 277, provides:

“That the legislative assemblies of the several Territories of the United States may make such provision for the care and custody of such persons as may be convicted of crime under the laws of such Territory as they shall deem proper, and for that purpose may authorize and contract for the care and custody of such convicts in any other Territory or State, and provide that such person or persons may be sentenced to confinement accordingly in such other Territory or State, and all existing legislative enactments of any of the Territories for that purpose are hereby legalized.”

Pursuant to the authority conferred by this statute, the Legislative Assembly of the Territory of Oklahoma in 1890, Stats. 1893, p. 739, 741, passed an act empowering the Governor of the Territory of Oklahoma to contract with some other state or territory for the care and custody of such persons as may be convicted of crimes punishable in the penitentiary, by the courts of the Territory. This act provides also that after entering into such contract, persons convicted of crimes punishable by imprisonment in the penitentiary shall be sentenced by, the district courts to the penitentiary named in the contract, with like force and effect as though such penitentiary were located in the territory. Provision was also made that officers having such prisoners in charge are authorized to convey them from the territory to any other state or territory where provisions have been made for their incarceration. Under the provisions of this statute in 1890 the territorial legislative assembly (c. 64, ■§§ 1, 2, 3, 4, 5, 6) gave the Governor of the Territory of Oklahoma authority and power to contract in the name of said territory with the proper authorities of some other state or territory for the care and custody of persons convicted of crimes punishable in the penitentiary. It also conferred upon him authority to bind the territory for the faithful performance of such contract or contracts. Under the authority of the foregoing congressional act and the statute just quoted from, the Governor of the Territory of Oklahoma made a contract with the State of Kansas for the custody and incarceration of persons convicted of crimes where a penitentiary sentence was involved. Thereafter succeeding territorial Legislatures empowered succeeding territorial governors to so contract. The petitioner’s contention in this regard is based upon the proposition that he was tried and convicted and sentenced to the penitentiary at Lansing, Kan., after the Territory of Oklahoma became a state,, and that the court was without authority so to do. With this we cannot agree. Since the state Legislature had not yet enacted legislation providing for establishment of a penitentiary, the court was clearly within its power to sentence the petitioner to the Kansas Penitentiary at Lansing. This must necessarily follow under the provisions of the Enabling Act, § 13, 34 Stat. 275, providing in part as follows:

“* * * and that the laws in force in the Territory of Oklahoma, as far as applicable, shall extend over and apply to said State until changed by the legislature thereof.”

In Grayson v. Perryman, 25 Okla. 339, 106 P. 954, 955, Judge Williams, speaking for the Supreme Court then having jurisdiction of both criminal and civil matters (prior to the creation of the Criminal Court of Appeals) said:

“The Legislature of the State of Oklahoma not having passed any act thereon, the laws brought over from the territory of Oklahoma by virtue of the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267 (U. S. Comp. St. Supp. 1909, p. 154) and section 2 of the Schedule of the Constitution, control.”

It is, therefore, apparent under the authority of the statutes of the United States, the Enabling Act, and the decisions of the Supreme Court, that the petitioner’s confinement in the penitentiary at Lansing, Kansas, until other provision had been made by the State Legislature, was valid. Thus the contract made by the last territorial governor with the State of Kansas for the keeping of persons convicted of crimes for which they were sentenced to the penitentiary was in force and effect at the time the sentence herein complained of was imposed upon the petitioner.

The petitioner next contends that his removal back to the penitentiary at MeAlester, Oklahoma, was without authority of law.

It appears that the first State Legislature (S. L. 1907, c. 22, art. 1) created a Prison Board of Control. General Statutes of Oklahoma 1908, § 5300, p. 1106, provides as follows:

“For the purpose of removing and transferring to the State of Oklahoma any person or persons who have been convicted of any crime in the Territory of Oklahoma or the State of Oklahoma by any court and sentenced by said court to the Territorial prison or the Kansas State penitentiary, located at Lansing, Kansas, and now confined therein, there is hereby created a Board of Control to be composed of the Governor, the Attorney-General and president of the Board of Agriculture, who shall have full power and authority to order on the proper authorities of the State of Kansas, to direct, remove and transfer any person heretofore or hereafter convicted of any crime, by any court in the Territory of Oklahoma, or the State of Oklahoma and sentenced by said court to imprisonment in the Territorial prison or the Kansas State penitentiary located at Lansing, Kansas. Provided, said Board shall not order, direct, remove or transfer any person from said Kansas penitentiary located at Lansing, Kansas, until it shall make arrangements with the authorities of the State of Kansas, that said convicts may be removed from the prison in the State of Kansas as aforesaid to the State of Oklahoma, and to be confined in prison in the State of Oklahoma at such place or places as said Board of Control may deem to the best interest of the State. (L. 1907, ch. 22, art. 1. Took effect May 26, 1908.)”

Under the authority of the foregoing section, the removal of the petitioner from the penitentiary of Kansas located at Lansing was within the authority of the Board of Control. Said Board of Control has since been abolished and the State Board of Public Affairs created in its stead for the control of penitentiaries, etc. (Title 57, O. S. A. § 132). Under the provisions of § 5300, Gen. Stat. 1908, upon effecting the removal and transfer of the petitioner from Kansas to Oklahoma, the place of confinement was vested in the Board of Control as it may deem to the best interest of the state.

Finally, the petitioner contends that when the court sentenced him to the penitentiary at Lansing, Kansas, subject to his being received by the warden thereof and that if he was not received directing that he be returned to the Pottawatomie county jail, he was thus being subjected to a double sentence. This contention is likewise without merit. The court will take judicial notice of the fact that at the time the judgment and sentence was pronounced herein, the state of the law was in doubt. Oklahoma having become a new state the court apparently was not aware of the fact that the territorial laws carried over until the Legislature made other provisions. Thus the court sentenced the defendant to the penitentiary at Lansing with the provision that if not received he be returned to the county jail in Pottawatomie county, Oklahoma. This was done in order that the petitioner might not escape what the trial court regarded as a just punishment. Under the conditions herein involved and the court being in doubt he could make no other provision with regard to the public security in keeping with the ends of justice. Furthermore, since no attempt was made to execute the provision of the judgment and sentence returning him to the Pottawatomie county jail, that part of the order stands as an absolute nullity. Moreover, the Boárd of Control was vested under the foregoing statute with the authority upon the petitioner’s removal from the State of Kansas to designate his place of confinement or places of confinement as said Board of Control deemed to be to the best interest of the state. Thus his confinement within the State of Oklahoma after Ms removal was an administrative and not a judicial act under the authority of the Board of Control. See, in this connection, Ex parte Neighbors, 85 Okla. Cr. 183, 187 P. 2d 276. Thereafter, the penitentiary having been erected and control thereof being vested in the State Board of Public Affairs, and the petitioner now being confined therein under a life term, Title 57 O. S. A. § 105, his present proper place of confinement is in the penitentiary at McAlester. It therefore follows, as was said in the recent case of Ex parte Combs, 87 Okla. Cr. 164, 195 P. 2d 772:

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

The court therefore being of the opinion the court had jurisdiction of the person, jurisdiction of the subject matter and authority under the law to pronounce the judgment and sentence rendered, and that the custody and confinement of the petitioner both past and present having been in all things according to law, this court is without jurisdiction to consider the petition, and the writ is accordingly denied.

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


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    Ex parte FLOYD McINTOSH.
    No. A-11072.
    July 21, 1948.
    (196 P. 2d 542.)

      Floyd McIntosh, pro se.
    Mac Q. Williamson, Attorney General, and Sam H. Lattimore, Asst. Atty. Gen., for respondent, Claude Moore, Warden Oklahoma State Reformatory.
   BAREFOOT, P. J.

Petitioner, Floyd McIntosh, has filed in this court a petition for writ of habeas corpus seeking his release from the State Reformatory at Granite, Okla., where he is now confined in pursuance of a judgment and sentence sentencing petitioner to serve a term in the State Penitentiary at McAlester, and from which petitioner has been transferred by order of the State Board of Public Affairs to the Oklahoma State Reformatory at Granite.

The petition states:

“(1) To form a basis in fact for claims set forth in this petition, your petitioner cites Article Y. Bill of Rights: ‘No person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life,, liberty, or property, without due process of law: nor shall private property be taken for public use without just compensation/ and will attempt to lay before the court the fact that the provisions herein contained have been ignored by the State of Oklahoma, and, as a result, he is being deprived of his liberty.
“(2) On July 10, 1939, your petitioner was committed to the Oklahoma State Penitentiary, located in Pittsburg County, McAlester, Oklahoma, on judgment and sentence in case No. 13298, formal sentence being passed by a Court of competent authority, and, judgment and sentence being so designed as to make your petitioner a ward of the Warden of the Oklahoma State Penitentiary at McAlester, Oklahoma for the term of such sentence:
“On December 18, 1941, your petitioner was discharged from legal committment in the Oklahoma State Penitentiary, McAlester, Oklahoma, and was against his will and by force, transported to the Oklahoma State Reformatory, Granite, Oklahoma,, and there imprisoned, ‘without due process of law.’
“It is the contention of your petitioner that, when he was discharged from custody of court empowered authority, legal custody ceased, and judgment and sentence became null and void, and, that, the present sentence in the Granite Reformatory was imposed by a self-styled and unauthorized group without legal status. In support of this contention, your petitioner refers the court to the recent ‘Alvin Neighbors’ Habeas Corpus matter, and to the ‘due process of law’ provision in Article V. Bill of Rights.
“(3) Your petitioner wishes the court to consider that he was not granted the privilege of grand jury consideration: nor was he indicted by such a body in accordance with provision contained in Article V. Bill of Rights.
“Comes now your petitioner and alleges that he is being illegally detained by Claude Moore, Warden of the Oklahoma State Reformatory, Granite, Oklahoma, and prays that the court will issue order causing Claude Moore, Warden of the State Reformatory, Granite, Oklahoma, to release your petitioner from illegal incarceration and permit him to follow his own pursuit of happiness in his own way.”

Rule to show cause was entered and the Attorney General representing the warden at Granite, Honorable Claude Moore, has filed a demurrer to the above petition.

It will be noted that petitioner seeks his discharge by reason of the opinion in the case of Ex parte Neighbors, 85 Okla. Cr. 183, 187 P. 2d 276, 278.

This case was set for hearing on the 9th day of June, 1948, and at this time no one appeared for petitioner. No evidence was introduced to sustain the allegations of the petition. It will be noted that the petition does not allege from what county petitioner was sentenced or the length of term he received. It does not show whether he was a “confirmed criminal, repeat violator” or whether he had received a sentence of life imprisonment, “convicted of first degree manslaughter, assault with intent to kill in a cruel and inhumane manner”, or “convicted of first degree rape”.

In the Neighbors case it is held that in the above cases it is necessary that defendants serve their sentence at the State Penitentiary at McAlester. In the seventh syllabus of the Neighbors case it is said:

“7. The State Board of Public Affairs may transfer prisoners from the Oklahoma State Reformatory to the Oklahoma State Penitentiary and vice versa in the exercise of its discretion when it is necessary so to do; to separate confirmed and incorrigible criminals from those who do not require the restrictions placed around them that the confirmed criminal requires, but, such transfers are not to be arbitrarily made or made contrary to classifications expressly provided by tbe Legislature, and where it appears that the transfer of a prisoner has been made contrary to a statutory classification, the State Board of Public Affairs will be directed to return the prisoner to the place of confinement as provided by law.”

There is nothing stated in the petition to indicate that the State Board of Public Affairs did not act in conformity with the law in the instant case.

For the reasons above stated, the demurrer to the petition should be sustained. It is so ordered.

JONES and BRETT, JJ., concur.


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    Ex parte EDWARD SHADDAY.

      No. A-11075.
    July 28, 1948.
    (196 P. 2d 531.)
    Edward Shadday, pro se.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, P. J.

The petitioner, Edward Shad-day, has filed in this court his application for writ of habeas corpus, asking his release from the State Penitentiary at McAlester, Okla., where he is confined by reason of a judgment and sentence of the district court of McCurtain county, entered on January 2, 1948.

Attached to the petition is a copy of the information filed against petitioner in McCurtain county, charging him with larceny of domestic animals, to wit: “one certain yearling, the property of John Fradday”, etc.; a certified copy of the judgment and sentence entered on his plea of guilty, and also an affidavit and letter written by petitioner’s codefendant, (who also entered a plea of guilty and is now in the penitentiary) stating that petitioner did not participate in the stealing of the “yearling” as charged, but that he only hauled the same in his truck, and received pay therefor. This was a question of defense which could have been presented at the trial, if petitioner had desired to do so. It has often been held that the writ of habeas corpus cannot be substituted for an appeal.

We have carefully examined the information, and the judgment and sentence. There is nothing in the record to show that the judgment and sentence as pronounced was void, or that the court did not have jurisdiction to render the same.

This petitioner has the right to submit his application for relief to the Pardon and Parole Board in the manner provided by law.

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

JONES and BRETT, JJ., concur.


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    ROBERT LOWELL ROGERS v. CITY OF TULSA.
    No. A-10864.
    July 28, 1948.
    (196 P. 2d 532.)
    James P. Devine, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Geo. B. Sehwabe, Jr., City Prosecutor, of Tulsa, for defendant in error.
   BRETT, J.

Defendant, Robert Lowell Rogers, was charged in the municipal criminal court of the city of Tulsa, Tulsa county, Okla., with the crime of reckless driving in violation of Ord. No. T-150, Ordinances of the City of Tulsa, was tried, convicted and sentenced to serve 30 days in jail, and pay a fine of $100 and costs.

An appeal from that judgment was filed on .April 10, 1947. On April 7, 1948, the city prosecutor of the city of Tulsa filed a motion in this court to dismiss the appeal in which he alleges that the defendant, Robert Lowell Rogers, is now, and since March, 1947, has been outside of the jurisdiction of this court, that the defendant is presently incarcerated in the Illinois State Penitentiary, Joliet, 111., serving a sentence of from five to ten years for the crime of burglary, that the defendant cannot be made to respond to any judgment or order that might be made in this case, and that for said reason the appeal should be dismissed. Thereafter, the said case was set for hearing on April 28, 1948, at 1:30 p. m. No response to said motion has been filed on behalf of the defendant, and no appearance in -his behalf was made at the time the motion to dismiss came on for hearing. Proof of the state substantiates the allegations of the motion to dismiss the appeal. In Evinger v. State, 35 Okla. Cr. 12, 247 P. 416, it is stated:

“Where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of his bond by leaving the state without leave of court, it is within the discretion of the court whether it will proceed to a decision of the cause or dismiss the appeal.
“Where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case.”

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, 977, Judge Matson, speaking for the court, says:

“If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would he practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal, continually violating the criminal statutes of this state.”

See, also, Mann v. State, 73 Okla. Cr. 245, 119 P. 2d 878; Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514; Payne v. State, 78 Okla. Cr. 396, 149 P. 2d 272.

Upon consideration of this matter we are of the opinion that the defendant, by his conduct, has waived his right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

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