text:
    Ex parte HALL.
    No. A-11317.
    Feb. 23, 1950.
    (215 P. 2d 587.)

      David W. Taylor, Norman, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

This isi an original proceeding in habeas corpus brought by the petitioner Bill Hall. He alleges that he is unlawfully imprisoned at McAlester, Okla., in the State Penitentiary by 0. P. Burford, warden thereof. The cause of his restraint he alleges to be a void judgment and sentence rendered out of the district court of Greek county, Okla., on August 14, 1940, issued by the judge thereof, the late 0. O. Beavers. In said judgment it appears he entered a plea of guilty to the crime of robbery with firearms and was sentenced to a term of 25 years in tbe State Penitentiary. It is admitted by Ms counsel in tbe proceeding in this court that the crime was committed while petitioner was an escapee from the penitentiary at McAlester. It further appears in said petition that the judgment and sentence was the result of his participation in an armed robbery on August 5, 1940, in Creek county, Okla. The crime in which he participated whs an armed robbery committed on August 5, 1940, in Creek county, Okla., against Bessie Moore, in which there was stolen from her $54 in money and a .38-40 caliber Colts pistol. On August 9, 1940, in effecting his arrest, he alleges the officers inflicted on him multiple gunshot wounds consisting of wounds in the chest, back, right thigh, right arm, side of the face and left chest. It is admitted in the record that these wounds were received while the petitioner and his accomplice Joe Lovelace and a girl associate were attempting to run a road block. In this attempt the girl was killed. It further appears after his arrest he was taken to the hospital in Stillwater, Okla.,in what he alleges was thought to be a dying condition. He says he remained there until the afternoon of August 13, 1940, when he was removed by ambulance to Sapulpa, Okla. He alleges, his removal was effected under an agreement with the sheriff that he would be hospitalized upon his arrival in Sapulpa, but instead he was placed in the county jail contrary to the agreement and in spite of repeated requests! for hospitalization. He says that he remained in jail unattended except by a female prisoner in the jail. He alleges the next day, on August 14, 1940, he was brought to the district courtroom where he was arraigned before Justice of the Peace H. R.. Oroston, without the aid of counsel, and before whom he entered a plea of guilty. He alleges that he was immediately bound over to the district court (thus making it appear he was denied his right of 24 hours in which to plead, Title 22 O.S.A. 1941 § 491), and that Judge C. O. Beavers, district judge, immediately proceeded with the arraignment on the charge as laid in the information. He further alleges that he was in such weakened condition that he had to have a hypodermic of morphine in order to participate in the proceedings, and his voice was so weak his answers had to be relayed by the, county attorney to the judge (making it appear in his petition that he was without the aid of counsel at the time of his arraignment in the district court contrary to the Constitution, art. II, § 20, Bills of Right). Immediately after he entered his plea of guilty he says the court sentenced him to the penitentiary for life (thus making it appear that he was denied his statutory right to 48 hours for the imposition of sentence). Whereupon he was placed in an ambulance and taken to the penitentiary. He 'further alleges that he arrived at McAlester in such a weakened condition that he had to have blood transfusions to save his life.

Attached to the petition and offered as evidence in support thereof was a letter from the Stillwater hospital substantiating the injuries but denying any knowledge of the alleged agreement with the sheriff of Creek county that he was to be hospitalized upon his arrival in Sapulpa. Also attached to the petition is a physical examination chart in relation to his condition on August 9, 1940, when he was admitted into the Stillwater hospital showing him to have been wounded as hereinbefore set forth. Also attached to the petition is the affidavit of E. R. Jackson to the effect that upon petitioner’s arrival at the penitentiary in McAlester on August 15, 1940, he, Jackson, was called upon to give a blood transfusion and that he observed the petitioner and believed him to be in a dying condition. Such likewise appears in the affidavit of Pat Casey and in addition thereto, that it was necessary to give the petitioner two blood transfusions before an operation to drain the lung tissue, which was twice performed, and two blood transfusions thereafter to save petitioner’s life. The affidavit of Joe Lovelace was also attached to the petition and offered in evidence. It was to the effect that Bill Hall was brought into the courtroom on a stretcher, that the petitioner was informed of the nature of the crime of which he was charged, that the information was read to him and the petitioner Hall Avas asked if he wanted to enter a plea to the charge. Lovelace says that Hall could not respond to the questions of the court (making it further appear that he was Avithout the aid of counsel), whereupon he alleges a doctor gave the said Hall a shot of morphine, after which the state’s attorney leaned over and informed the court petitioner Hall wished to plead guilty (making it further appear that Hall was without the aid of counsel). Lovelace alleges that Hall waived the right to the aid of counsel and by implication says that he did not have an attorney appointed to defend him. He says finally, thereupon the court pronounced judgment and sentence upon Hall. He further alleges that he was in the jail on the night before Hall Avas sentenced, and that Hall had no medical attention. He further says he heard the sheriff tell petitioner Hall “the only medical treatment you will get is in the penitentiary at McAlester, and that if he did not enter a plea of guilty Avithout a lawyer he (the said Hall) could stay in the county jail and die so far as he was concerned.” The affidavit of Jack Leaser attached to the petition and offered in evidence was to the effect that he saw Hall when he was brought to the penitentiary, that he was in a most serious condition, and he gave him a blood transfusion. There was also offered in evidence his progress record bearing date of August 13, 1940, from the Stillwater hospital which says “Patient is better; some fever. Still has rales in chest and is expectorating blood. To leave via ambulance under guard. Dr. Fry”.

Predicated upon the foregoing, petitioner’s contention herein is that under the proceedings hereinbefore outlined he was denied the aid of counsel at all stages of the proceedings, that his physical condition was such that it was impossible for him to know the gravity of the proceedings, and that he was denied due process of law as guaranteed by the Constitution.

To the petition of Bill Hall the state made response in the form of a demurrer and contended that there are no jurisdictional questions raised in the petition, followed with a general denial except as to all matters admitted as true. In support of its case the state filed a sup- , plemental response setting up the petitioner’s criminal record to show that the petitioner was not ignorant nor inexperienced in courtroom proceedings, but to the contrary was competent to know the consequences of his plea of guilty. In this supplemental response it appears, that the petitioner’s criminal record began in 1933 at the age of 18 years when he was convicted of drunken driving in Pottawatomie county and sentenced to a term of one year in the penitentiary. Thereafter, it further appears in 1934 he was convicted in Pottawatomie county' at the age of 20 of the crime of robbery with firearms and sentenced to a term of 5 years in the penitentiary. It appears that while serving the latter sentence he escaped from the penitentiary at McAlester, and as an escapee he became involved in the robbery with firearms in Creek county, Okla., for which the sentence herein complained of was imposed. Thus it appears that twice before the defendant had had courtroom experience, that he had one prior conviction for robbery with firearms, and was, therefore, not ignorant of courtroom proceedings, and of his right to aid of counsel, etc. Hence, in support of the foregoing response the state introduced in evidence the verified transcript of the proceedings had in the justice of the peace court:'

“Record of Proceedings
“Aug. 14, 1940, Complaint received and filed charging Bill Hall and Joe Lovelance Carl Dickerson and Fletcher Evans with Robbery with Firearms. Four warrants issued and given sheriff for service.
“Aug. 14, 1940. Bill, Joe Lovelance, and Fletcher Evans appear, in person for arraignment on complaint charging them with Robbery with Firearms. Complaint read in open court and defendants notified of their constitutional rights to have attorneys present at all hearing and that they have the right [to] a preliminary hearing. Bill Hall states true name as Bill Hall. Bill Hall in person enters plea of guilty to complaint and waives preliminary hearing, and is bound over to District Court for trial on complaint charging Robbery with firearms. Held without bail. Commitment issued.
“Joe Lovelance states true name as Jóe Lovelace. Joe Lovelace in person enters plea of guilty to complaint and waives preliminary hearing and ig hound over to the District Court for trial on complaint charging Robbery with firearms. Commitment issued. Held without bail. Severance granted as to Fletcher Evans. * * *”

The state also offered in evidence the minutes of the district court made at the time the plea of guilty was entered herein upon which the judgment and sentence herein complained of was based. The district court minutes of the proceeding, omitting caption, reads as follows, to wit:

“The above defendants, Bill Hall and Joe Lovelace, appearing for arraignment on this 14th day of August, 1940, and it appearing that Bill Hall appeared to he in jured from gun shot wounds, and that he was brought into the Court room on a stretcher at his own request for arraignment and plea, and the Court appointed Tom Wallace as his attorney to confer with him and advise him of his Constitutional rights, and the Court also feeling it necessary to inquire into his mental condition appointed Margaret Jennings as Court Reporter to take his statement, and the Court proceedings had.”

From the court minutes it thus appears that the petitioner was arraigned at his own request. The state further introduced in evidence the record of the proceedings had in the district court of Creek county, Okla., upon arraignment of the petitioner and his codefendant Joe Lovelace. We deem it important that it be quoted substantially as taken therein. It appears, omitting caption, as follows, to wit:

“Testimony Taken upon Arraignment of Bill Hall and Joe Loveless.
“Now, on this 14th day of August, 1940, Bill Hall and Joe Loveless, both being present in the District Court Room, at Sapulpa, Oklahoma, the following proceedings were had:
“Appearances:
“Everett S. Collins, County Attorney
“Kenneth Hughes, Deputy County Attorney — for the State of Oklahoma
“Tom Wallace — for the Defendants
“The Court: The Court is going to appoint Tom Wallace as attorney to advise with and represent Bill Hall at this hearing for the reason that he is afflicted at the present time, and I understand he is charged with a serious offense, and so is this defendant standing here. He is charged with a similar offense. Have you talked with an Attorney? Joe Loveless: Yes, sir. The Court: Have you had his advice? Joe Loveless: No, no legal advice. The Court: Do you want legal advice. The court wants to tell you that you have a right to counsel. The Court: Do you want a lawyer to represent you, or haven’t you made up your mind whether you want a lawyer — what you want to do — you don’t want any attorney? Mr. Loveless: No. The Court-: All right. Mr. Wallace: If your Honor please, if you will pardon me— to represent this man here — before we enter in this case— I will use my own discretion as to what action will be taken, subject to the wishes of my client, but I would like to talk to him. The Court: I think you ought to have that opportunity. Mr. Wallace: I will just talk to him out here, if it’s all right. The Court: Roll him out there, Sheriff. (After Mr. Wallace and Bill Hall conferred, out of the presence of the Court, the following proceedings were had:) County Attorney: (Reading) Information. * * * (substance omitted) The Court: You have heard the reading of that information charging you with the crime? Bill Hall: I have. The Court: Are you now ready to enter your plea? Bill Hall: Yes, sir. The Court: Are you ready? Bill Hall: Yes, sir. The Court: Guilty or not guilty? Bill Hall: Guilty. Joe Lovelace: Guilty. (Joe Lovelace had previously asked that he be allow to make arrangements with Tom Wallace to represent him, and Mr. Wallace entered his appearance as attorney for Joe Lovelace.) The Court: Let the record show that these defendants were in open Court represented by counsel, after conferences with their counsel. The Information was read. Each of them plead guilty to the Charge. Now, I would like to have you to submit some of the facts in connection with this matter so that the Court will have an idea of the extent of their guilt. County Attorney: What facts do you desire, Your Honor? Do you want something about the commission of the crime? The Court: I first want some facts with reference to the defendant here — his mental and physical condition at this time. Dr. B. C. Schwab, a witness on behalf of the State was duly sworn to tell the truth, the whole truth and' nothing but the truth, testified as follows : Direct Examination by County Attorney: Q. State your name to the Court', doctor. A. Dr. B. C. Schwab. Q. You are a licensed and practicing physician? A. Yes, sir. Mr. Wallace: We admit Dr. Schwab’s qualifications. Q. Have you had an occasion two or three days to wait on one Bill Hall in the county jail, Sapulpa, Oklahoma? A. Yes, sir. Q. Have you been his attending physician for that time? A. Yesterday evening and this morning I attended him. Q. Are you acquainted with his physical condition and the mental condition he is in at the present time? A. Yes, sir. Q. State to the court what that is? A. He is mentally sane. He has a little fever from his injury, but he is normal to know what he is doing. Bill Hall: That’s right. Q. (by county attorney) In your opinion, doctor, do you believe that since the time you have been attending Bill Hall in the county jail at Sapulpa, Oklahoma, that his actions are his own voluntary actions? A. I do. Q. And during this time done with his own accord? A. Yes, sir. County Attorney: Does the court wish to ask any questions? The Court: Mr. Wallace? By Mr. Wallace: Q. Doctor, you never saw this man of your knowledge prior to this time? A. No, sir. Q. Prior to the time you was called upon to attend him yesterday? A. No, sir. Q. How much conversation have you had with him? A. Oh, just with reference to his condition concerning, his wounds is all. Q. You looked at his wounds? A. Yes, sir. Q. Treated them? A. Yes, sir. Q. What are the extent of his wounds? A. Oh, he has two shoulder wounds in the back of the left leg between the knee and hip — in the lower third — about lower third and middle — he has one Avound where a ball went through from the left hip— left chest. He has another wound in the back from the right side — seems that ball is in about the fifth — about the first or second lumbar vertebrae — then he suffered a wound where he was just touched with a ball — pistol ball here on this shoulder (indicating). Then he has another wound in the right bicep and another one in the elbow that has fractured his arm. Then he has a mess of bird shot up in the left shoulder. I think that’s about all of them. I might have missed a few. Q. When did he say he received his wounds? A. Oh, possibly a feAV days ago —he didn’t say — I would say possibly a few days ago. I couldn’t tell you exactly. Q. Is be suffering severe shock from those gun shot wounds? A. Yes, sir. Q. Have you taken his fever today? A. No, I didn’t take his temperature. Q. What would it run? A. Right about a hundred. Q. In other words, just a few degrees? A. Just from the wounds and shot is all. Q. Would you say that from your examination of him that from all the wounds you described and the fever resulting therefrom that you think he is capable of, at this time, of acting on anything grave concerning himself, in a mental way, I mean? A. Yes, sir. Q. In other words, you think he had full alertness of his mental capacities? A. Yes, sir, he don’t have enough fever to render him unconscious to where he wouldn’t know what he is doing. Q. From your talk with him would you say that he is a fairly intelligent man? A. Yes, sir, he is absolutely alert and knows what is going on. Q. He is, in your opinion, alert? A. Absolutely. Q. He is not under the influence of any opiate? or anything of that character that would impair him to any degree? A. No, sir. Q. As a general thing men Avho are suffering from gun shot wounds they are often given shots. Q. He has had a shot since he has been in the room. People have the wrong idea about morphine. It doesn’t depress them it hoots them up like a shot of liquor. Q. Makes them alert? A. Yes, brightens up their ideas — -that’s the reason that they like it. Q. Is he an addict? A. No, sir, I don’t think so. He doesn’t show much evidence of that. Mr. Wallace: I believe that’s all. County Attorney: That’s all. The Court: Witness excused. The Court: Now, you boys have just entered your pleas of guilty here to the charge of high jacking with firearms, and under the law you will be entitled to wait 24 or 48 hours before sentence is passed upon you — you have a right to waive that at this time and let the court pass judgment on you. You have a right to demand that time and wait 48 hours before sentence is passed on you. Bill Hall: I would rather waive it and be sentenced now. I would like to be sentenced now. I would like to waive it. The Court: Do you request the court to proceed now to pass judgment upon your plea of guilty? Bill Hall: Yes, sir. The Court: (to Joe Lovelace) How about you? Joe Lovelace: Yes. The Court: His name is what? Joe Lovelace: Joe Lovelace. The Court: And it is your desire too to be sentenced now? Joe Lovelace: Yes, sir. The Court: And you both waive that time and request the court to now pass judgment upon you; is that right? Joe Lovelace: Yes, sir. Bill Hall: Yes, sir. The Court: Mr. Hall, you know perfectly well what you are doing here, do you? Bill Hall: -Yes, sir. The Court: And you want to plead guilty to this charge and take your sentence, is that right? Bill Hall: Yes, sir.. The Court: All right, let the record show that these things have been asked — that it is the judgment of the court that you, and each of you, be confined to the State Penitentiary for the balance of your life at McAlester. The time to commence on this charge when you are received there by the warden of the penitentiary.”

Such is the record before us on the petition for a writ of habeas corpus.

The sole questions before us in this proceeding are: (1) Was the proceeding conducted at the request of the petitioner or was his plea the result of coercion? (2) Was the petitioner represented by counsel at the time of the proceeding herein, complained of? (3) Was he in such mental condition as to realize the gravity of the situation and the consequences of his plea? (4) Was his plea voluntary and intelligently made? (5) Is relief by habeas corpus open to him after nine years delay?

We have held many times that it is fundamental that where a petition for writ of habeas corpus is filed, the burden is upon the petitioner to sustain the allegations thereof, and every presumption favors regularity of the proceedings had in the trial court. The general rule often announced by' this court is that error must affirmatively appear from the record; it is never presumed. Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Cartwright, 88 Okla. Cr. 206, 201 P. 2d 935. It is made to appear from the affidavit of Joe Lovelace that the arraignment of Bill Hall was the result of coercion. This contention is refuted by the court minutes to the effect that his arraignment was at the request of the petitioner Hall. It thus affirmatively appears from the record contrary to the affidavit of Lovelace that the speedy arraignment of Hall was upon Hall’s request. In this connection we have often held that where a disputed question arises as to what occurred upon arraignment of one accused of a crime,- great weight will be given to the recitation in the minutes of the court proceedings as to what occurred. Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Matthews, supra; Ex parte Cartwright, supra. It is well here that we say, that proceedings of such gravity should not be conducted with undue haste, as though the accused was being given the rush act. Neither should they be unduly delayed. The court minutes show nothing contrary to the defendant’s request for a speedy arraignment which alone is the saving grace of this proceeding. We cannot presume that they speak an untruth, in the absence of clear and convincing proof to the contrary. Even in the face of the court minutes we cannot restrain the feeling of the court that the better practice in such cases would be to have taken the petitioner to the penitentiary hospital, awaited his recovery, returned him to Sapulpa, and then proceeded with the arraignment. Certainly the haste here employed could not be justified on the ground of fear of the defendant’s escape. He was in no condition to do so. This proceeding is and can be sustained solely on the ground of what, appears to be a valid and truthful court minute made at the time of the proceeding, which is sought to be contradicted nine years later by the faulty recollection in an accomplice’s affidavit as revealed in his accomplice’s affidavit which discloses he did not even recollect the appointment of counsel for the petitioner. In the face of the foregoing record we can only conclude in the absence of clear and conclusive proof to the contrary that the arraignment was conducted at the request of the petitioner and that his plea was not the result of coercion on the part of the sheriff. Moreover it supports the proposition that the defendant by his conduct waived his right to 24 hours in which to plead, which under the law he could, and did do. Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 205; Norman v. State, 81 Okla. Cr. 78, 160 P. 2d 751.

As to the petitioner’s contention that he was denied the aid of counsel, the record discloses that at the preliminary arraignment he did not have counsel but was advised in that proceeding of his constitutional right thereto, that he did not demand aid of counsel, and a plea of guilty was voluntarily entered. It was the petitioner’s right under the law to waive his right to aid of counsel. Baker v. State, 9 Okla. Cr. 62, 130 P. 820. The right to waive the preliminary hearing was exercised under art. 2, § 17 of the Bill of Rights, permitting the right to waive a preliminary hearing. Moreover, in such a case where defendant is arraigned on an information or indictment and pleads guilty to the merits he waives the right to thereafter question any irregularity in the preliminary hearing if one was held. Ex parte Cartwright, supra. The petitioner’s contention that the court lacked jurisdiction for failure to provide counsel for him at the preliminary hearing is therefore without merit. The record conclusively shows that at the arraignment in the district court, the petitioner was represented by counsel, Tom Wallace, an able and experienced lawyer in the field of criminal law. This fact is contrary to the affidavit of Joe Lovelace the petitioner’s codefendant. Under the record, the petitioner’s contention that he was not represented by counsel at all stages of the proceedings is therefore without merit. In fact, the trial court cautiously guarded the rights of the petitioner in this regard as conclusively appears from the record.

The next question is, Was the petitioner in such mental condition as to be able to appreciate the gravity of the situation and the consequences of his plea? The only competent evidence in this regard is that of Dr. B. C. Schwab who attended petitioner while he was in the Creek county jail. His evidence given at the arraignment is to the effect that he, Dr. Schwab, was acquainted with Hall’s physical condition and mental condition at the time of the arraignment. He testified Hall was able to fully appreciate what he was doing. To this Hall, himself, the record shows, apparently voluntarily interjected “that is right”; that Hall’s plea of guilty was of his own accord, and that the shot of morphine was not such as would impair him to any degree. The petitioner himself does not deny the facts of the record showing he knew what he was doing. The doctor’s testimony, and the petitioner’s actions as revealed from the record, show that the petitioner was in such a mental state as to appreciate the gravity of the situation and the consequences of his plea. In a case where the plea is mental incapacity on the part of the accused to understand and know of the charges and appreciate the effect of the plea of guilty, in a ha-beas corpus action, the burden is on the petitioner. He must show mental incapacity to understand and know the nature of the charges pending against him, and that he did not appreciate the effect of the plea of guilty thereto. When the petitioner fails to sustain the burden under such plea, habeas corpus will be denied. Ex parte Bostwick, 90 Okla. Cr. 133, 211 P. 2d 290.

Next, was his plea of guilty voluntarily entered. Nothing appears in the record to the contrary except the affidavit of Joe Lovelace, the petitioner’s codefendant, already shown to be predicated upon faulty recollection. As we said in Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141:

“Under bill of rights, Sec. 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea. * * *
“A person prosecuted for a crime may waive the rights guaranteed to him by bill of rights, relating to trial by jury, right to be heard by counsel, etc. * * *
' “Whether one accused of crime has. waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

See, also, Ex parte Cobb, 89 Okla. Cr. 82, 205 P. 2d 518. The petitioner has not sustained the burden of establishing that his plea of guilty was not voluntarily entered. As we said in the Meadows case, supra, each case must stand on its particular facts including the background, experience and conduct of the accused. Based on this premise we can only conclude that the plea of guilty was not only voluntarily but intelligently made. In light of the petitioner’s knowledge and experience as to arraignment, apparently the petitioner thought so, for if he had not he would not have refrained from questioning the proceedings for nine years. Proceedings for habeas corpus under the conditions herewith presented should be timely pursued. As was said in Ex parte Matthews, supra [85 Okla. Cr. 173, 186 P. 2d 841]:

“The right to relief by habeas corpus may be lost by laches, when the petition for habeas corpus is delayed for a period of time. so long that the minds of the trial judge and court attendants become clouded by time and uncertain as to what happened, or due to dislocation of witnesses, the grim hand of death and the loss of records, the rights sought to be asserted have become mere matters of speculation, based upon faulty recollection, or figments of imagination, if not out-right falsifications.”

See, also, Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613; Ex parte Cole, 89 Okla. Cr. 380, 208 P. 2d 193, and numerous other cases. Even now, since this proceeding was instituted, Judge C. O. Beavers, who presided over the arraignment herein involved, is now deceased. No doubt others in the prosecution, such as material witnesses, may have passed on. In any event, as revealed by the faulty recollection of Joe Lovelace as to the facts of the arraignment, the recollection of witnesses as to the facts of the case on its merits would be most unreliable. It appears from the record that the court used more than ordinary caution in protecting the petitioner’s rights. The trial judge did not stop in his exercise of caution with the appointment of counsel to represent the accused and the taking of medical testimony to determine his mental capacity to intelligently plead to the information, but after the plea was accepted he advised the petitioner and Ms codefendant of their statutory right to 48 hours before pronouncement of judgment and sentence. This the record shows the petitioner and his codefendant both waived, and requested immediate pronouncement of sentence. Under the record herewith presented, it is apparent that the court had jurisdiction of the subject matter, jurisdiction of the person, and authority under the law to pronounce the judgment and sentence rendered. We have repeatedly held that in habeas corpus the inquiry is limited to these questions. Ex parte Brown, 90 Okla. Cr. 129, 211 P. 2d 293; Ex parte Merton, 89 Okla. Cr. 76, 205 P. 2d 340; Ex parte Story, 88 Okla. Cr. 358, 203 P. 2d 474; Ex parte Cartwright, supra; Ex parte Matthews, supra; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41, and numerous other cases to the same effect. It therefore appears that the court was not without jurisdiction to pronounce the judgment and sentence herein rendered. For all of the above and foregoing reasons, the writ of habeas corpus is accordingly denied.

JONES, P. J., and POWELL, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    LINCOLN v. STATE.
    No. A-11059.
    Feb. 23, 1950.
    (215 P. 2d 580.)

      Wade Arends, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Jack Lincoln, was charged in the common pleas court of Oklahoma county, with the unlawful possession of intoxicating liquor, was tried, convicted, and pursuant to the verdict of the jury, was sentenced to serve six months in the county jail and to pay a fine of $500 and costs, and has appealed.

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

Rule Nine of the Criminal Court of Appeals provides:

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

Certain officers of Oklahoma county, armed with a search warrant, searched a truck in a garage in Oklahoma City, and found 338 pints of whisky. The garage owner testified that the truck was brought into his place of business for repairs by the defendant. The defendant admitted that the whisky belonged to him. There are no substantial errors.

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

BRETT and POWELL, JJ., concur.


author: POWELL, J.

text:
    BUSH v. STATE.
    No. A-11079.
    Feb. 23, 1950.
    (215 P. 2d 577.)

      Frank Leslie, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Wesley Bush, was charged by information filed in the court of common pleas of Tulsa county with the crime of unlawful possession of intoxicating liquor, was tried before a jury, found guilty, and was sentenced to be imprisoned in the county jail of Tulsa county for 30 days and to pay a fine of $250. Appeal has been perfected to this court.

The state used but one witness, Deputy Sheriff Boy Bains, who testified that on February 25, 1948, he had a search warrant to search an automobile owned by the defendant. He and Officer Tommy Warren located the car parked near the fairgrounds in Tulsa county; that it was after dark, about 8 p. m.; that the officers later followed the car to near the ball park where it was stopped by them; that the defendant was driving and that another man was in the car with him; that the officers searched the car and found 10 pints and five four-fifths gallons of tax-paid whisky in the front of the car on the floor.

The defendant did not testify and offered no evidence. At the close of the case, the county attorney and defendant’s attorney entered into a stipulation that the. court might instruct the jury orally and use the instructions given in a case that had just been tried prior to the calling of the within case.

For reversal of his conviction, the defendant sets out in petition in error eleven assignments of error, but they are argued together. First, defendant claims that his reputation was placed in issue when he did not take the witness stand. He argues that it was reversible error for Deputy Rains to recite an alleged conversation had with the defendant at the time of the arrest, and alleges that such testimony was given to prejudice him with the jury.

The questions asked1 and answers given by Deputy Rains and which were objected to by counsel for defendant, were as follows:

“Q. Did you have any conversation with Wesley Bush at that time? A. Yes, he complained about being searched, and that he had been knocked off too many times since Christmas. * * * Q. Was there any other conversation had with the defendant at that time? A. Well, he wanted to know why we were riding him and were not raiding some of the others, and I just told him that I did not know how it happened, that we did not intend it that way, but it just so happened that he was caught with the whisky. That it might just happen that this was his night to get it.”

The county attorney is presumed to have interrogated his witness prior to placing him on the witness stand and to have known what his testimony would be. The witness was an experienced officer, and no doubt knew what evidence was competent .and. what was not competent. The statements recited had no bearing on the guilt or innocence of the defendant of the crime charged. If the witness had taken the stand and denied that the whisky found in his car was his property, or denied that he had knowledge of the same being in his car, the recitation of the alleged conversation would have been proper. As it was, although the evidence of defendant’s guilt is conclusive, the incompetent evidence may have had some bearing on the amount of fine assessed, so that in furtherance of justice the judgment will be modified by the Criminal Court of Appeals. Tit. 22 O.S.A. § 1066; Tucker v. State, 89 Okla. Cr. 30, 204 P. 2d 540; Wire v. State, 87 Okla. Cr. 44, 194 P. 2d 212.

Defendant contends that the county attorney called to the attention of the jury in his argument to the jury the fact that defendant did not testify in his own behalf, when he stated that “The evidence of Boy Bains has not been denied or contradicted.” The applicable statute is Tit. 22 O.S.A. § 701. This statute has been in a number of cases construed in connection with similar statements made by prosecuting attorneys in argument to jury, and has been held not to constitute error.

In McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345, 346, this court said:

“The statute, section 3068 supra [Tit. 22 O.S.A. § 701] is comprehensive in the extreme and this court will not enlarge nor extend its provisions so as to prevent a fair discussion of the evidence, even though the defendant did not testify and called no witnesses in his behalf. This statute will not be deemed to go to the extent of prohibiting comment upon inferences reasonably to be drawn from a failure to controvert the state’s evidence by proof other than that which might be given by the defendant personally.”

See, also, Sellers v. State, 88 Okla. Cr. 114, 200 P. 2d 443; Passmore v. State, 87 Okla. Cr. 391, 198 P. 2d 439.

It is next argued that the court erred in giving instructions Nos. 3 and 8.

Instruction No. 3 relates to the possession of more than one quart of whisky as prima facie evidence of intent to sell. This instruction tended to shift the burden of proof to the defendant, and was insufficient, as has been held in a number of cases by this court. See Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476.

Instruction No. 8 involved reasonable doubt. The definition given has been held by this court td be incorrect. See Price v. State, 1 Okla. Cr. 358, 98 P. 447.

The record in this case shows, however, that at the completion of the introduction of the evidence, the parties entered into the following stipulation:

“It is hereby stipulated and agreed by and between the Attorney for the State of Oklahoma, and Attorney for the defendant in this case, that instructions in case 54381, entitled State of Oklahoma, plaintiff, vs. Bob Parker, may be considered and used as the instructions in this case, with the exception of the statement of the case, and other matters pertaining to. this case, and that said Instructions in this case to the jury may be made by the court orally.”

The effect of such stipulation was to request the court to give the instructions now complained of. This court has in many cases held that a defendant cannot complain of instructions given at his request. Patterson v. State, 4 Okla. Cr. 542, 113 P. 216; Allen v. State, 16 Okla. Cr. 136, 180 P. 564. And under the circumstances recited, the error, if any, was invited.

For reasons heretofore recited and under the provisions of Tit. 22 O.S.A. § 1066, the judgment and sentence should be and hereby is modified to a fine of $50, and to 30 days in the county jail of Tulsa county, and as so modified, is affirmed.

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


author: J ONES, P. J.

text:
    HUTTON v. STATE.
    No. A-11056.
    March 1, 1950.
    (215 P. 2d 586.)
    O. P. Estes and David Tant, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   J ONES, P. J.

The defendant, Alexander Newton Hutton, was charged by information filed in the district court of Oklahoma county with the crime of robbery with firearms, was tried, convicted, and sentenced to serve 25 years in the State Penitentiary, and has appealed.

Two propositions are presented: First, there was a material variance between the allegations of the information and the proof; second, the sentence was excessive.

Under the first proposition, it is contended that the information charged the accused with the crime of rob; bery with firearms, while the state’s proof conclusively showed that the defendant committed nothing more than attempted robbery.

The complaining, witness, Grady Hopkins, and his wife owned and operated a grocery store in Oklahoma City. They lived in a room adjoining the store and in the same building. At the time alleged in the information, Hopkins and his wife were asleep in bed, and were awakened from their sleep by the defendant who was armed with a pistol and demanded their money. They gave the defendant about $10, which was in a cardboard box, and defendant then demanded the rest of the money. Mrs. Hopkins told defendant it was in her purse in the other room. When Mrs. Hopkins started into the other room after the purse, at the direction of defendant, the defendant turned to watch Mrs. Hopkins, and Hopkins struck the defendant in the head, knocking him to the floor. Hopkins then wrestled with the defendant and disarmed him. A neighbor, aroused by the disturbance, came over and assisted Hopkins in holding the accused until the police arrived and took him to the jail.

The defendant in his own behalf admitted breaking into the Hopkins home, pointing a pistol at them, and demanding the money, but contends that the money never did pass into his possession. The evidence of .Hopkins and his wife is to the contrary in so far as the money in the cardboard box was concerned.

Moreover, the statute under which this prosecution was instituted provides:

“Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same.” 21 O. S. 1941 § 801.

Under this statute, it punishes an individual who robs or attempts to rob any person, etc. An attempt to rob is just as grave an offense as the actual robbery.

There is no merit to the contention that the punishment is excessive. An armed robber who takes his loaded pistol and commits a crime such as this defendant admits will receive no sympathy in this court. He was a potential murderer, • and the’ commission of such crimes cannot be stopped except by the imposition of very severe penalties. The person who robs another with a loaded pistol is our most dangerous criminal. He is ready to kill if his commands are not obeyed. If juries will give them long prison terms for these dastardly crimes, or even the death penalty in aggravated cases, and the Parole Board will see that such sentences are executed, the commission of armed robberies will be lessened, if not stopped. A term of 25 years’ imprisonment under the circumstances herein disclosed is certainly not excessive.

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

BBETT and POWELL, JJ., concur.


text:
    CRICKENBERGER v. STATE.
    No A-11111.
    March 1, 1950.
    (215 P. 2d 582.)
    Clint Braden, Wilburton, and M. O. Counts, McAles-ter, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Carl Crickenberger, was charged in the district court of Latimer county on July 10, 1947, with the larceny of domestic animals, to wit: four head of cattle, duly described in the information. It was alleged that the cattle were owned by one Roy Tripp, and were stolen on May 9, 1947.

The case was called for trial on February 4, 1948.. Defendant was represented by two attorneys, one of whom had represented him in his preliminary hearing. After the state had offered the testimony of six witnesses, counsel for defendant requested a recess, and after consultation with the defendant, his father and others, announced that at that time they wished to withdraw defendant’s plea of not guilty, and enter a plea of guilty. This was permitted, the jury discharged, and sentence day was set for March 3,' 1948. On that date defendant appeared with his father and attorneys, one of whom made an impassioned plea for the defendant, and closed by stating that the defendant did not want to be sentenced on a plea of guilty. The court recessed until after noon, at which time defendant moved the court for permission to withdraw his plea of guilty and enter a plea of not guilty, and asked the court to consider the statement made at the morning session as a part of his motion.

The record would indicate that there was another similar case pending in the district court of Latimer county against this defendant, and it was the contention of the county attorney that he had agreed to dismiss that case, and to recommend a sentence of five years in the case on trial, if the defendant did enter a plea of guilty and pay Mr. Tripp for his calves. The defendant denied any such agreement, but the other case pending against defendant was dismissed in open court the day the plea of guilty was entered.

The court refused to permit the defendant to withdraw his plea of guilty, and sentenced him to five years in the State Penitentiary. Petition 'in error with case-made attached was duly filed in this court.

But two assignments are made in the petition in error :

“1. Error of the trial court in refusing to allow the defendant, Carl Crickenberger, to withdraw his plea of guilty and enter a plea of not guilty in lieu thereof, and to permit the defendant to have a jury trial, to which action of the court the plaintiff in error then and there excepted.
“II. Error of the trial court in overruling the motion of the defendant, Carl Crickenberger, to withdraw his plea of guilty and enter a plea of not guilty to which action of the court the plaintiff in error then and there excepted.” '

The evidence of the state stands uncontradicted, and in considering defendant’s appeal, we deem a short statement of the evidence iii order.

LeRoy Tripp testified that he owned twelve head of cattle, on open range, in Latimer county. He missed some of them, made a diligent search and finally heard the bell on one of his cows from the direction of the defendant’s place, found some tracks which he followed to the home of defendant, and there found two of his cows, but the four yearlings running with them were not there. Defendant offered to purchase the cows, but witness told him they were mortgaged and not for sale, and took them home, thinking their calves would come to them. He looked for the yearlings for twelve days,' but did not find them. All of his cattle were branded, and defendant knew his brand. The jersey heifer described in the information was later found at Cordell, Okla. . It was in a truck at the courthouse on the day of the trial, and was identified by the witness as his animal.

Lloyd Wilson Haley, who lived near Amber, in Grady county, testified that he had known the defendant for several years, had hauled cattle for him, sold hay to him, bought fence posts from him, and had other business dealings with defendant. That one. F. H. Freeman, a divinity student at Shawnee, had some lands leased near the witness’s home; that witness sold hay for Freeman to the defendant and hauled the hay, with some hay of his own, to the defendant; that defendant owed each of them about $200 for the hay and hauling. About May 1, 1947, witness went to Shawnee and he and Freeman drove to defendant’s home for the purpose of trying to collect for the hay and hauling. They were there about two hours, and defendant told them he had some cattle, and if they would return in about a week, he would have the cattle rounded up, and they could take and sell them, and apply the proceeds on the amount due them. Witness returned to Latimer county on May 8, but Freeman did not go. Witness took, a neighbor boy, Harold Ingram; along for the ride and company. They got to defendant’s home about dark, and defendant told them he did not have the cattle up, but knew where they were, and if they would stay over, they could gather them the next day. Witness stayed, and he and Ingram with the defendant and another man rode all the next day looking for cattle, and returned to defendant’s home about dark with nine head of cattle. They ate supper, and about 10 or 10:30 loaded seven head, two cows and five yearlings, and started home, with directions from defendant to sell the cattle and apply the proceeds on the hay debt. On the way home, witness stopped at the farm of Floyd Yell in Grady county, and sold the seven head of cattle to him for $310. Three weeks later, about May 27, 1947, the defendant went to the home of witness and informed witness that he wanted to purchase the cattle back; that they were mortgaged and the bank officials would be at defendant’s home in three days to check them. Witness went with defendant to see Mr. Yell, who agreed to sell the cattle back to defendant, but wanted a profit on the deal. They did not reach an agreement on the price of the cattle, but defendant told witness to bring the cattle back to Latimer county, that he had his automobile sold when he got home, and would pay witness for the cattle with the proceeds. Defendant was in a hurry (it was then about 9 p. m.) and left. Witness and Mr. Yell talked the matter over, and were afraid they would not get their money after hauling the cattle back to Latimer county, and the next night the witness and Mr. Yell hauled the cattle to Oklahoma City and they were sold at the stockyards the following morning. Witness identified the heif er in the truck as one of the animals brought from defendant’s home in Latimer county, sold to Mr. Yell and later sold in Oklahoma City.

J. H. Freeman corroborated Haley in every particular as to the hay, the amount due them, the trip to Latimer county, and defendant’s statement about the cattle.

Floyd Yell also corroborated Haley in every detail so far as his connection with the deal was concerned.

Harold Ingram, age 20, further corroborated Haley, and testified to going with defendant and the others to look for the cattle, helping to load them, and haulng them to Grady county.

Carl Cofelt, age 17, was working for the defendant at the time, and helped to load the cattle. On cross-examination this witness was asked if he did not sign a statement in the county attorney’s office in which he stated that the defendant told him those were stolen cat-le, and for him “to keep his mouth shut.” Witness admitted this. Defendant’s attorney then asked him if he did not come to his office later on, with the defendant, and tell the attorney that the county attorney had told him if he did not sign the statement they would send him to the penitentiary. Witness also admitted this, and testified that the defendant told him to make this statement to his attorney, that he was working for defendant, and was afraid not to do as he said. The evidence of defendant’s guilt was overwhelming, without consideration of the testimony of this witness.

At the close of this testimony the defendant, as here-inbefore stated, asked for a recess, and later asked leave of the court to withdraw the plea of not guilty, and enter a plea of guilty, which he was permitted to do.

We shall consider defendant’s assignments of error together.

While the Constitution of this state, Art. II § 20, gives to every person accused of crime the right to trial by jury, it also contains a provision that this, right may be waived, Art. VII § 20. Certainly this right was accorded the accused in this case, and when he withdrew his plea of not guilty and entered a plea of guilty after the selection of the jury and a number of witnesses for the state had testified, be effectively waived his right to have his case determined by a jury, and cannot now claim that he was denied any right which he had under the Constitution or statutes of this state. He had the benefit of able counsel, well skilled in criminal practice and .procedure, at every step of the proceedings, and had the advice of his father. After accepting his plea of guilty and discharging the jury on. February 4, 1948, the court fixed the day of sentence for March 3, 1948; and after counsel’s plea on behalf of his client, the court took the matter under consideration for several hours. There was no undue haste, and it would appear that no action was taken in the case without due deliberation.

The general rule followed by this court is that the granting or denying of permission to withdraw a plea of guilty and to substitute a plea of not guilty is a matter within the sound discretion of the. trial court, and that its action must be upheld unless an abuse of such discretion clearly appears. Wilson v. State, 82 Okla. Cr. 272, 168 P. 2d 898; Shiever v. State, 55 Okla. Cr. 342, 30 P. 2d 192; McAtee v. State, 39 Okla. Cr. 10, 262 P. 703.

From the testimony appearng in the record, and defendant’s plea of guilty, the court was justified in taking the position that to grant permission to withdraw his plea of guilty would merely postpone defendant’s day of reckoning, and this same procedure could be repeated and final determination of the case delayed indefinitely. We agree with Judge Doyle where he said in Hart v. State, 29 Okla Cr. 414, 233 P. 1095, 1096:

“A defendant should not be allowed to trifle with the court by deliberately entering a plea of guilty one day, and capriciously withdrawing it on the day set for pronouncing judgment.”

A careful study of the entire record convinces us that the facts in the within case call for the application of the rule announced in the above case; and that the trial court did not abuse his judicial discretion in refusing to allow defendant to withdraw his plea of guilty and to enter a plea of not guilty, under the circumstances here shown.

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

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


text:
    DUNGAN v. STATE.
    No. A-11066.
    March 1, 1950.
    (215 P 2d 581.)
    John F. Thomas and Arthur L. Cavanagh, Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Robert J. Dungan, was charged by an informaton filed in the district court of Comanche county, with the crime of assault with intent to kill, was tried, convicted, and sentenced to serve one year in the State Penitentiary, and has appealed.

No brief has been filed on behalf of the defendant, and no appearance was made on his behalf at the time the case was assigned for oral argument.

Rule Nine of the Criminal Court of Appeals provides:

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

We have examined the record. The evidence showed that the defendant, who was a Sergeant in the Army, while in an intoxicated condition, made an unprovoked attack upon one Fred Butts, a 67 year old man, by striking him with his fist, knocking him down, and then kicking him several times. Mr. Butts was taken to the hospital where X-rays disclosed that his right arm was broken in two places. The Doctor testified that his face and head, arm, chest, and both legs were swollen and bruised.

The assault occurred on June 11, 1947, and at the time of the trial in November, 1947, Mr. Butts was still unable to raise his right arm over his head.

The defendant testified in his own behalf that he was attending the radio school at Fort Sill; that he had graduated with his class on June 11, and came into town with a group of his comrades to celebrate; that they drank quite a lot of intoxicating liquor; that he passed out sometime during the night, and he awakened the next morning in jail. He related that he did not remember striking or abusing the prosecuting witness in any manner, and knew nothing at all of the charges filed against him until he was informed the next 'morning by the M. P. Sergeant the nature of the charges against him.

We have carefully examine the record and have found no fundamental error which requires a reversal of the judgment of conviction. The verdict of the jury did not find the defendant, guilty of the crime of assault with intent to kill, but of the included offense of assault with a dangerous weapon.

Our attention not having been called to any specific error in the record, and having found no fundamental error, under the rules of the court it becomes our mandatory duty to affirm the judgment of conviction.

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

BKETT and POWELL, JJ., concur.


author: BRETT, J.

text:
    AKINS v. STATE.
    No. A-11078.
    March 1, 1950.
    (215 P. 2d 569.)

      Sam Y. Colby, Madill, for plaintiff in error. ,
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty Gen., for defendant in error.
   BRETT, J.

Earl Akins, defendant below, was charged by information with the crime of murder. It was alleged he killed his son-in-law Monroe Pierce on September 1, 1947, in Kingston, Marshall county, Okla.

The crime occurred iii Pierce’s living room just after dark. There were only two competent eyewitnesses to the killing, the defendant and his daughter, Mrs. Pierce, wife of the victim of the crime. Mrs. Pierce testified for the state. She was unwilling, unco-operative and all but hostile.

The state’s evidence discloses that Pierce and Akins were partners in the operation of a beer parlor about a mile east of Kingston. The parties lived in Kingston in the Pierce home. The defendant Akins stayed with them, and had done so for several years, but when they established the beer parlor Akins started staying there at nights. It was suggested by Pierce that Akins take his pistol with him and keep it with him there for protection against robbery. It appears, however, that this suggestion was never heeded and on the night of the killing the pistol was in the wardrobe top drawer. In operating the beer parlor, Pierce had permitted gambling at, the place and the defendant objected. They were therefore in disagreement and not getting along well. Akins testified he objected because he was afraid they would lose their beer license if it continued. Apparently it was profitable to Pierce to let it continue, and it appears he wanted it so to do. On the evening in question Pierce came home and left, hunting for Akins. Just before he left Pierce said to his wife “Well, you have to choose between me and your daddy”. Shortly thereafter Pierce and defendant returned together. They had a discussion about dissolving the partnership. They figured awhile and the defendant Akins paid his son-in-law Pierce about $38. The record is not clear as to who sold to whom or who bought out whom. But the partnership was nevertheless dissolved. During the argument about the poker game and the settlement, the defendant Akins used profane language in the presence of Pierce’s two little children, 6 and 3, and Pierce rebuked him for it. Thereafter, Pierce told the defendant Akins “.Well, jour plate is broke”, meaning that he was through eating at Pierce’s table. He also told him to get his stuff and get out. In response to this, the defendant went into the bedroom and returned with his pistol in his right hand. Mrs. Pierce said that her husband had brought some carpenter tools home Sunday the day before the killing. She said that when her father came back with his pistol instead of him leaving as he had ample time to do, he continued to argue about the beer parlor. While the argument ensued her deceased husband picked up a hammer and attacked the defendant with the hammer. She was between them and Pierce. pushed her away and said “let me to him”. Her father had started out and was standing in the front door. When Pierce rushed him Akins fired and went out the door. Pierce, dropping the hammer in the living room, followed him out into the yard where he fell to the ground and died from wounds in the abdominal cavity on the left side 45 minutes later in the Madill hospital. Mrs. Pierce said she later put the hammer on the icebox or on the shelf in the kitchen.' The day following the shooting she said she came into the house and saw the hammer lying on the floor. She said she didn’t know whether that was the same hammer or not. (It is interesting to note that the hammer was never found or produced as evidence by the defendant.) Mrs. Pierce further testified that she didn’t know what became of the hammer. In this connection, on the ha-beas corpus hearing to determine the defendant’s right to bond, Mrs. Pierce testified that she could not swear whether her deceased husband had a hammer in his hand or not, that she did not see any. The state offered this evidence on the ground of surprise for impeachment and to counteract the injurious effect of her testimony, and the trial court erroneously excluded the same. The only thing to contradict the claim of surprise was the unsupported statement of counsel for the defendant that the county attorney could not plead surprise. It was competent and material and from the state of the record should have been admitted, particularly in view of the fact that the defendant offered no factual evidence to refute the claim of surprise. This court has held that:

“Where a .party has placed a witness upon the stand, having reason to believe that he will testify to a given state of facts, and the witness then testifies to a different state of facts, the party calling him as a witness may show his previous statements for the purpose of affecting his credibility and to explain the reason for placing him on the stand and to counteract the injurious effect of his testimony.
“A witness’ prior contradictory statement when introduced is to be considered only for the purpose of impeachment and to explain the calling of such witness.. It cannot be used as substantive testimony tending to prove the truth of the facts stated. The court, by proper instruction, should limit the application of such testimony to this purpose.” Dunham v. State, 78 Okla. Cr. 54, 143 P. 2d 834, 835. Foreman v. State, 38 Okla. Cr. 50, 259 P. 176; Donahue v. State, 38 Okla. Cr. 87, 259 P. 179.

So limited, the evidence of Mrs. Pierce given at the habeas corpus hearing, was admissible for impreaching purposes. Not to so hold would obviously constitute a perversion of justice. After all what the law seeks to ascertain in the administration of justice is the truth, and justice can be predicated upon no other basis. Courts should never permit deceit to defeat ascertainment of the truth. For the foregoing reasons the tendered evidence was admissible.

Sheriff Hargis testified that immediately following the killing he picked up the defendant, and the defendant told him that the shooting occurred oyer “just as near, nothing as could possibly be”. He said the defendant at no time said anything to him about being attacked with a hammer. He testified he took the defendant to the residence and made an investigation, and that he did not see a hammer on the floor. He said he did find the gun in the wardrobe dresser where the defendant showed him it was. The foregoing is substantially the state’s case in chief.

The defendant’s plea was self-defense. He testified in his own behalf that the day before the killing Pierce had done some repair work at the beer parlor and brought his tools home and left them in the living room. These tools consisted of a hammer, saw and a square. He said a few nights before that he came into the beer parlor and found a poker game going on. He told Pierce that that would not do, that they would lose their license. He said Pierce said to him “I will take care of that, the license is on me”. He said Pierce did not like what he said about it. On Monday, the day before the shooting, the defendant was at the Smith Domino Parlor, and the deceased Pierce called him from the back door and said “I have a little business with you”. He got up and met him. Pierce took hold of his arm and they walked about 10 steps from the building and Pierce told him he wanted a settlement out of the beer parlor business. They started for Pierce’s home to work out the settlement. On the way home the defendant continued to argue about the poker game and the fact if it was continued they would get closed up. Upon arrival at home they got the bills, receipts, etc., and made a settlement. They did not argue much about the deal according to the defendant. Defendant Akins said he wound up the deal by paying Pierce $38.85. He said they got a gun for him to use at the beer parlor against hi-j ackers. The defendant said he then got up and went into the bedroom and got his gun, saying in substance, if he was going out there alone “to stay out there from now on, I will take this gun and walk on out there”. (It is pertinent to observe here that the defendant had at no prior time deemed it necessary to take the gun with him.) Pierce said, “you are tailing the gun, you just as well get your other things, too. I don’t want you around here. Your plate is broke”, meaning he said, he was no longer welcome around there. Instead of leaving, he said he stopped and told Pierce that he was there because Pierce and his wife, his daughter, had asked him to stay, when he planned to go to California, and Pierce was going up to Woodward, Okla., to work. Pierce said he wanted him to stay with his wife, the defendant’s daughter, while he was away. He was assured his board would not cost him anything. Thereafter the argument about the gambling started over again. The defendant contended that since the license was in Pierce’s name and everybody believed that Pierce was the owner, that for him as a hired hand to try to stop the gambling would brand him among their customers as a “damn heel”. He said Pierce rebuked him for cussing before Pierce’s children. Mrs. Pierce asked them not to have a racket, he said, and he told her he was not, and at that time Pierce approached him with a hammer in his hand and said “let me to him, I will tear his head off”. Coming at him in a low crouch, armed wth a hammer he became afraid. He jumped back, intending to back out the door, instead he backed into the door facing. He said this threw him back in the room a little piece. Pierce was about three feet from him and he shot once. Pierce straightened up. The defendant said he ran out the door and Pierce followed him. Pierce fell on the ground in the yard and lay on his back. He took the pistol back in and put it in the dresser drawer. Thereafter he tried to help his daughter with her dying husband. On cross-examination he testified he had, never had the gun out at the beer parlor. He said somehow or other he hadn’t thought about it when he was around home. He further said the only time he tried to back out the door was when the deceased came at him with a. hammer. (Thus it appears from his own testimony that he had plenty of time to get away and avoid the necessity of having to use the pistol.)

Tom Gresham testified for the defense that the deceased passed him a short time before the killing hunting. for the defendant saying to him “he wanted to see that man, I am going to kick the seat of his pants up on his shoulders”. He said the deceased did not tell him why he wanted to do it.

Raymond Smith, who ran the domino parlor where the deceased found Akins, the defendant, testified for the defense that he came in and said he wanted to speak to Akins when the domino game was over. He said Pierce did not seem angry to him, that if he was he could not tell it.

Sid Cunningham, who was playing partners with Akins in the domino game, testifying for the defense, said that Pierce came in, got Akins by the arm and said “I want to talk to you”, and they left by the back door. He said he did not pay much attention, and he did not know if Pierce was in a bad humor. There wasi other evidence offered on behalf of the defendant and the state by other witnesses of little if any importance.

It is apparent that there are conflicts in the foregoing evidence. It is not denied that Pierce’s death was the result of the gunshot wound inflicted upon his body by the defendant Earl Akins as a result of the disagreement between them about the beer parlor and its operation and the resulting altercation. The evidence is in conflict relative to the deceased Monroe Pierce being armed with a hammer. It is well that we summarize the conflicts that appear in the evidence going to the defendant’s plea of self-defense. First, we must bear in mind that the defendant told Sheriff Hargis the killing occurred over about as little as could be possible. Mrs. Pierce, a very unwilling if not hostile witness, testified she accompanied her . husband to the hospital. It appears that she did not return to the house until the next morning. She said upon entering she saw the hammer on the floor in the living room. She could not remember what she did with the hammer, and could not find it after she mislaid it. To the contrary, Mrs. Sam Murr, who cleaned up the house the next morning after the killing the preceding night, said there were no hammers around the house. More strongly to the contrary, Sheriff Urkle Hargis, who was there and made an investigation of the premises, the night of the killing, saw no hammer in the living room where Mrs. Pierce said she saw it the following morning. Moreover, if the defendant was attacked as he claimed he was, he would not have made the statement it happened over as little as could be possible. Furthermore, if he had been attacked as he contends, would he not have mentioned that fact to the sheriff upon being taken into custody? Also, when they were at the house to get the gun, if the defendant had been attacked with a hammer, is it not reasonable that he would have pointed out the hammer on the floor to the sheriff if one had been used in the attack and left there as he contended at the trial? Is it not reasonable to believe that if such bad been tbe case be would have delivered tbe instrument used by bis assailant along with tbe gun that he used in bis defense? The important question as to the defense in this case is, Was there any hammer involved in the case? The foregoing factual conflicts presented an issue for the jury. They decided it against the defendant. The evidence was sufficient to support such finding. Counsel for the defense apparently thought so too or he would have demurred to the evidence. This he did not do. On such an issue only recently, in the case of Neill v. State, 89 Okla. Cr. 272, 207 P. 2d 344, 345, this court said:

“Verdict of jury in homicide case based upon conflicting evidence will not be disturbed on appeal on ground that the evidence is insufficient to sustain the judgment.”

Also, in Walker v. State, 89 Okla. Cr. 284, 207 P. 2d 341, 342, we said:

“Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the same and determine the facts.
“The function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis, in the evidence, on which the jury can reasonably conclude that the accused is guilty as charged.”

The contention in relation to the insufficiency of the evidence is therefore without merit.

The defendant further contends that it was error to permit the funeral director Wendyl Watts, to testify to the location of the gunshot wounds that killed Pierce. This contention is likewise without merit for the reason that the fact of the killing was admitted by the defendant Earl Akins, and evidence as to the range of the bullet was not an issue. The lack of merit as to this contention is apparent.

Next, tbe defendant contends that hearsay, evidence was permitted to be offered by the state. An examination of the record discloses in a few instances this was true, which was error but harmless, since it was not as to a material matter and of such nature as contributed to the jury’s verdict of guilty. The one instance particularly complained of by the defendant was when the sheriff was told there had been a shooting scrape. The fact was there had been one admittedly by the defendant. This evidence while hearsay was not as to a material matter which contributed to the verdict of guilty. Where such evidence is so material it contributed to the verdict of guilty, the same constitutes reversible error. Smith v. State, 59 Okla. Cr. 312, 58 P. 2d 347; Brokhaus v. State, 11 Okla. Cr. 625, 150 P. 510. But such evidence is not error unless it appears the defendant was injured thereby. Russell v. State, 41 Okla. Cr. 71, 270 P. 339; Winfield v. State, 18 Okla. Cr. 257, 191 P. 609. There being no injury, for this reason in this case this contention is without merit.

The defendant further contends that the trial court unfairly restricted him in the matter of cross-examination of Mrs. Pierce, the state’s chief witness. This contention is predicated upon the proposition that the court would not let defense counsel ask leading questions on cross-examination. In this connection, an examination of the record discloses that in several instances the question had already been answered before the court sought to restrict counsel for the defendant. In those instances the objective of the cross-examination had been realized. In other instances, the record reveals that where the court sustained objections to what was competent evidence, counsel re-framed his question and got the desired answer. Hence, under these conditions the defendant suffered no injury. This court has repeatedly held that the scope of the cross-examination of a witness is largely a matter of discretion with the trial court, and that the burden is upon the appellant to show that the trial court abused its discretion. Winfield v. State, supra; Ralston v. State, 54 Okla. Cr. 408, 22 P. 2d 1038, wherein this court said “under such conditions to warrant a reversal it must clearly appear ,the court abused its discretion”. This record does not disclose an abuse of discretion warranting a reversal of the case in this regard.

Next, the defendant complains: of the opening statement of the county attorney to the effect that the defendant had been on a protracted drunk and that he offered no proof in support thereof. The record fails to reveal why the county attorney did not present this evidence. It was so pertinent to the defendant’s state of mind that it would have been admissible. But the record does not show the statement was not made in good faith. From an examination of the whole record in this case, we are of the opinion the defendant was not prejudiced by the statement of the county attorney. In Lee v. State, 67 Okla. Cr. 283, 94 P. 2d 5, this court said:

“Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial.”

In Guest v. State, 56 Okla. Cr. 129, 34 P. 2d 1082, it was held:

“An opening statement is, and purports to be, no more than an outline of the state’s theory and the evidence expected to be offered in support. The statement, of incompetent or immaterial matter affords no ground for reversal unless it appears that the statement was manifestly prejudicial.”

Under this record the defendant’s guilt is clear and his plea of self-defense unconvincing. The verdict fixing the punishment at four years certainly is indicative of the fact that the defendant was not prejudiced as the result of passion engendered by the opening statement.

Finally, the defendant complains of the opening argument of the special prósecutor employed by the decedent’s brothers, and the closing argument of the county attorney. The special prosecutor’s argument contained .the statement “this whole thing was prefabricated from one end to the other”. Thé defendant objected, his objection was overruled and an exception allowed. The closing argument of the county attorney contained the statement “the evidence further shows that after it was all over, the evidence shoAVS that he met some fellows out in front there, and went to get a pint of whisky. Earl Akins did that 15 or 20 minutes after he had shot this man”. Upon the county attorney making this statement the court did not wait for the interposition of an objection but immediately reprimanded the county attorney and admonished the jury that there was no such evidence in the record and that they were to disregard it, and the county attorney apologized. The foregoing statements were highly improper and were not Avarranted by the evidence: In Sweet v. State, 68 Okla. Cr. 44, 95 P. 2d 242, 243, this court held:

“It is the duty of the county attorney in his opening statement and closing argument to the jury to confine himself to the facts as shown by the evidence. But they have the right to draw uheif deductions and conclusions, and unless the statements or arguments are such that deprive a defendant of his substantial rights, or are such that would arouse the passion and prejudice of the jury to tbe extent that they -would be swayed from arriving at a just verdict, the judgment and sentence will not be set aside on appeal.”

It was error for the trial court not to sustain the objection of the defendant to the statement of the special prosecutor, but harmless error in view of the conflict in the testimony of Mrs. Pierce given on the trial and in the habeas corpus hearing, hereinbefore discussed. As to the statement of the county attorney, had the court not stopped counsel and admonished the jury to disregard the same, the jury might have been influenced by the unwarranted statement of the county attorney and it might have tended to arouse the passion and prejudice of the jury. The court however is of the opinion that the statements contained in the county attorney’s opening statement, the special prosecutor’s opening argument and the county attorney’s closing argument did not sway the jury from arriving at a just verdict. It is inescapable that the defendant admittedly killed Monroe Pierce, that his plea of self-defense under the conditions herewith presented is weak and unconvincing. Under the conditions, it is clear that the verdict is right. Even if the things complained of had not occurred, the jury could not have reasonably returned a different verdict. Had it not been for the able and persistent representation of counsel for the defendant, he would have suffered a greater penalty. We are of the opinion the facts would have sustained a greater penalty. The defendant makes other assignments of error which we do not believe to be of importance. The errors complained of by the defendant, in light of the entire record, fall within the provisions of Title 22, § 1068, O. S. A. 1941, reading in part as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this State in any case, * * * on the ground of * * * the improper admission or rejection of evidence, or as to error in any matter of * * * procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

For all of the above and foregoing reasons, the judgment and sentence herein imposed is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


text:
    Ex parte HAYS.
    No. A-11367
    March 8, 1950.
    (215 P. 2d 854.)
    LeRoy Powers and John F. Eberle, Oklahoma City, ior petitioner.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., Granville Seanland, Co. Atty., and Russell Holloway, Asst. Go. Atty., Oklahoma City, for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner De Wayne Hays for the purpose of securing his discharge from the county jail of Oklahoma county. .

In the verified petition it is alleged that the restraint of the petitioner is by reason of a purported commitment issued by a justice of peace of Oklahoma City after a purported preliminary hearing before said justice of the peace; that the commitment of the'said justice of the peace was without legal effect and void for the reason that the evidence before said justice of the peace was wholly insufficient to show that a crime had been committed or to show that the petitioner was guilty thereof.

The petition further alleges that no information has been filed in the district court charging petitioner with any crime and that the petitioner is deprived of his freedom in violation of his statutory and constitutional rights.

The sheriff of Oklahoma' county filed a response to the petition in which he alleged that an information had been filed in the district court of Oklahoma county charging the said De Wayne Hays with the crime of forgery in the second degree and further alleging that all preliminary proceedings had been regularly conducted and that petitioner at the time he was ordered held to await trial in the district court by the committing magistrate had had his, appearance bond fixed in the sum of $1,000.

At the hearing before this court it was agreed that an information had been filed in the district court of Oklahoma county charging the petitioner with the crime of forgery in the second degree and that petitioner had had his hail fixed in the sum of $1,000, conditioned for his appearance before the district court for trial, hut that said bond had not been perfected.

Counsel for petitioner by this action have asked this court to review the transcript of the evidence taken at the preliminary hearing for the purpose of determining the sufficiency of the evidence.

In the case of Ex parte Wood, 71 Okla. Cr. 200, 110 P. 2d 304, 305 this court stated:

“The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law, and a defendant held by virtue of an information preferred by a proper prosecuting officer in a court of competent jurisdiction cannot be discharged on habeas corpus for insufficiency of the evidence on his preliminary examination to show commission of a felony or probable cause to believe him guilty thereof. A defendant has the right to raise this question in a court where the information is pending, by motion to quash or set aside the information; upon adverse ruling by the court the remedy is by appeal from a judgment of conviction.”

This rule has been steadfastly followed by this court. Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092; In re Hill, 12 Okla. Cr. 335, 156 P. 686; Ex parte Woods, 7 Okla. Cr. 645, 125 P. 440; Ex parte King, 41 Okla. Cr. 241, 272 P. 389; Ex parte Wheeler, 65 Okla. Cr. 290, 85 P. 2d 434; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Green, 69 Okla. Cr. 218, 101 P. 2d 641; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645.

The petition for the writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.


text:
    BECK v. STATE.
    No. A-11153.
    March 8, 1950.
    (215 P. 2d 856.)
    John A. Cochran and W. M. Hullett, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

“That Otha Beck on the 13th day of March, A. D., 1948, in Tulsa County, State of Oklahoma, and within the jurisdiction of this Court, did unlawfully, wrongfully and wilfully and feloniously have in his possession certain intoxicating liquor, to-Wit: 291 pints; 486 one-half pints; and 63 one-fifths of tax-paid whisky; with the unlawful intent then and there, upon the part of said defendant, to barter, sell, give away and otherwise furnish same in violation of the prohibitory liquor laws of the State of Oklahoma.
“That said defendant heretofore, to-wit: on the 17th day of August, 1945, was convicted of Unlawful Possession of Intoxicating Liquor in the Common Pleas Court of Tulsa County, Oklahoma, and was sentenced to pay a $50.00 fine and serve 30 days in the County Jail, by Judge Harley, in Case No.. 47247.
“That said defendant also, on the 24th day of October 1945, was convicted of Unlawful Possession of Intoxicating Liquor in the Common Pleas Court of Tulsa County, Oklahoma, and was sentenced by Judge Smith of said Court to pay a $100.00 fine and serve 30 days in the County Jail, in Case No. 47866, said sentence of 30 days in the county jail being a suspended sentence, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.”

The defendant filed his motion to suppress the evidence in support of the information on the ground the same had been obtained contrary to law. It is well to note here that he abandoned this contention on appeal. After the evidence was heard in support of the motion to suppress and the motion overruled, a jury was waived and it was stipulated that the evidence on the motion to suppress might be considered as the evidence in the case in chief. The evidence briefly was to the effect that the officer was seated in his automobile in the street adjacent to the defendant’s home at 6102 East Pine street, Tulsa, Oltla. While so situated he observed the defendant hurriedly removing sealed cartons of whisky containing on the side the words “National Distilleries” and recognizing the same -as sealed cartons of whisky he thereupon placed the defendant under arrest, and discovered a quantity of whisky established by the proof to be some 27 cases. He arrested the defendant without a warrant for an offense committed within his presence. These facts bring the case within Griffin v. State, 90 Okla. Cr. 90, 210 P. 2d 671. However, there is not a scintilla of proof as to the prior convictions alleged in the information, nor does the record contain a stipulation as to the truth of the allegations contained in the information relative to the prior conviction^. A demurrer was interposed to the sufficiency of the evidence to support a cause of action against the defendant and in favor of the state. The evidence was entirely sufficient to sustain a charge of unlawful possession of intoxicating liquor in violation of the provisions of section 31, Title 37 O. S. A. 1941. The court upon overruling the demurrer, and finding the defendant guilty, then proceeded to pronounce judgment and sentence as under the provisions of section 12, Title 37 O. S. A. 1941, as for a second and subsequent convictions as follows, to wit:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the State Penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.”

As to the demurrer, the court’s ruling would have been valid had not the information charged facts bringing, the case clearly within the provisions of section 12, Title 37 O. S. A. 1941, which made it necessary that the state establish with proper proof the two prior offenses alleged in the information. It clearly appears that the court might have sentenced the defendant under the provisions of section 31, Title 37 O. S. A. 1941, but it was error, under the state of the record herein confronting us, to overrule the demurrer and then impose sentence as for a second and subsequent convictions, in the absence of proof as to the former convictions. In Johnston v. State, 46 Okla. Cr. 431, 287 P. 1068, this court said in syllabi 1 and 2:

“Where an accused is prosecuted for a second violation of the prohibitory liquor law under the provisions of second 6991, Comp. Stat. 1921 [37 O. S. 1941 § 12], the state must plead and prove the previous conviction as an essential element of the crime. A plea of not guilty to an information which alleges a former conviction of the accused puts in issue, not only all matters of fact essential to the crime for which he is being tried, but also the fact of the alleged former conviction.”

Therein see the numerous authorities cited in support of the foregoing rule. Also, Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109, holding that such proof , is essential but may be by circumstantial evidence. In the instant case it was error to overrule the demurrer and then impose sentence for a second and subsequent offense in the absence of proof supporting the same. Clearly the court was without jurisdiction to pronounce the judgment and sentence herein rendered, in the absence of proof to support the first and second offenses relied upon to bring the case within the provisions of section 12, Title 37 O. S. A. 1941, and it was reversible error so to do.

Moreover, if the evidence had been sufficient to sustain a judgment and sentence for the offense as laid in the information under the provisions of section 12, Title 37 O. S. A. 1941, supra, the'judgment and sentence herein imposed would be void as not within the foregoing provisions or -within the court’s power to pronounce, in that it does not impose a fine of not less than $50, the mandatory minimum provided in the Constitution, Art. I, Section 7, as was held in Harrigill v. State, 90 Okla. Cr. 347, 214 P. 2d 263, 265, wherein it was said:

“The prohibitory provisions of the Oklahoma Constitution, Art. I, § 7, are self-executing, and all embracing against the manufacture, sale, advertising for sale, soliciting the purchase of any liquors, barter, giving away, shipping, conveying or otherwise furnishing any intoxicating liquor of any kind, and fixing the minimum penalty therefor at a fine of not less than $50 and imprisonment at not less than 30 days in jail; and such minimum penalty provisions constitutes a limitation on the legislative power to fix the minimum penalty for a third offense and ‘an habitual offender of the prohibition laws of this state’, at imprisonment in the penitentiary at not less than one .year, S. L. 1911, Ch. 70, p. 165, § 18 [37 O. S. 1941 § 14], and such act is unconstitutional and void since the same is in conflict with the minimum penalty provisions of the Constitution.”

This provision is not only a limitation on the Legislature but also the court’s power to pronounce judgment and sentence in disregard of the $50 minimum fine therein provided. Hence, for two reasons this case must be reversed and remanded for a new trial. First, because of the failure of proof as to the first and second offenses and preceding the offense on which the charge of unlawful possession was laid and, second, because the sentence imposed does not carry with it the constitutional minimum fine of $50 provided' under the provisions of section 12, Title 37 O. S. A. 1941, and under which provisions the judgment and sentence was sought to be imposed. It is unfortunate that such a glaring oversight should occur wherein the evidence is so overwhelming as to guilt, and wherein the state no doubt could have supplied the necessary proof to bring the case within the enhanced penalty provision of section 12, Title 37 O. S. A. 1941. Hildebrandt v. State, 19 Okla. Cr. 30, 197 P. 852. The provisions of which said section 12 were clearly intended to cover habitual violators of the prohibition act, and its more severe penalties were designed and intended to punish violators such as the defendant herein, but this court cannot put its stamp of .approval upon void judgments such as the one rendered herein. . For all of the above and foregoing, reasons, the judgment and sentence herein is accordingly reversed, vacated and set aside with directions to re-try the defendant on the information herein involved in accordance with the views expressed in this opinion.

JONES, P. J., and POWELL, J., concur.


text:
    CRITSER v. STATE.
    No. A-11090.
    March 8, 1950.
    (215 P. 2d 859.)

      Harry Seaton and Q. M. Dickason, public defenders, Tulsa County, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Plaintiff in error, Bill Critser, was convicted in the district court of Tulsa county of the crime of robbery by force, the jury leaving the punishment to be fixed by the court. Thereafter, judgment was entered on December 15, 1947, the court sentencing the defendant to imprisonment in the State Penitentiary for a term of five years. From the judgment an appeal was attempted to be taken by filing in this court on June 25, 1948, a petition in error with case-made..

The Attorney General has filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the date on which the judgment was rendered.

Tit. 22 O. S. A. § 1054, provides:

« * * * jn felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

The six-months period having expired prior to the filing of the petition in error and case-made, this court did not acquire jurisdiction of tbe appeal. Smith v. State, 20 Okla. Cr. 123, 201 P. 661; Johnson v. State, 70 Okla. Cr. 322, 106 P. 2d 128.

It follows that the motion to dismiss the appeal must be sustained.

It is therefore ordered that the purported appeal be and the same is hereby dismissed.

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