author: JONES, P. J.

text:
    MARVIN RUSSELL HARRIS v. STATE.
    No. A-10983.
    March 2, 1949.
    (204 P. 2d 310.)

      Kathryn Yan Leuven and H. B. King, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Marvin Russell Harris, was charged by information and filed in the district court of Oklahoma county with the crime of rape in the first degree, was tried, convicted, and sentenced to serve a term of 15 years imprisonment in the State Penitentiary and has appealed.

Defendant contends that the information is defective and that the court erred in overruling his demurrer to the information. The information omitting formal parts charges:

“On the 13th day of November, A.D., 1945, in Oklahoma County, State of Oklahoma, Marvin Russell Harris, whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully unlawfully and feloniously commit the crime of Rape in the First Degree in the manner and form as follows, to wit:
“That is to say, the said defendant, in the county ánd state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, wrongfully and feloniously, and by means of force, overcoming the resistance and by means of threats of immediate bodily harm, accompanied by apparent power of execution, and preventing resistence by then and there holding and otherwise maltreating one Dora Zangari, and did then and there have and hold unlawful sexual intercourse with the said Dora Zangari, a female person of the age of 19 years,- and not the wife of the said defendant, and the said defendant being a mále person over the age of 18 years, said act of sexual intercourse being accomplished by the defendant after having by force overcome the resistance of the said Dora Zangari, and without her consent and against her will, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.”

In this connection, counsel for defendant» state that the information failed to charge intent or specify the time and place, and failed to allege that the prosecutrix was a married woman.

It is only necessary that an information inform an accused of the offense with which he is charged with such particularity as to enable him to prepare for trial and so defines and identifies the offense that if convicted or acquitted, he will be able to defend himself against any subsequent prosecution. Broaddus v. State, 66 Okla. Cr. 148, 90 P. 2d 457; McGhee v. State, 49 Okla. Cr. 387, 294 P. 649.

The information contains all of the essential elements necessary to constitute the crime of rape in the first degree, and it certainly is sufficient to apprise the defendant of the nature of the charge so as to enable him to prepare his defense. The demurrer was properly overruled.

The principal contention of the accused is that the evidence is insufficient to sustain the conviction.

The prosecutrix testified that she was 19 years old and lived with her husband and two year old child in Midwest City; that on November 13, 1945, she had started to visit her aunt in Capitol Hill; that while waiting to catch a bus to Capitol Hill the defendant drove up, stopped his car, opened the door, and asked if she would like to ride to town; to which she replied “No, I was merely going to Capitol Hill. He said that is all right he would take me to Capitol Hill and I accepted”. . She further testified that after driving a mile or two on the highway, the defendant turned and drove about one-half mile south and turned off the road to a secluded spot. As to what happened when defendant turned his automobile off on the side road, the prosecutrix testified:

“I asked him where he was going, and he said he was going to see a buddy. Then when he started to turn he told me I knew what he was going to do, then he stopped and turned there and was going to try to kiss me, and I wrenched at the door, and he caught hold of me and started to twisting my wrist to where I could not be in a position to fight, and I begged and pleaded with him to leave me alone, please leave me alone. He merely. laughed at me. He said if I had a child it would be his baby. Then he kept on and told me if I didn’t quit struggling — I just as well give in, because when he wanted something he would get it; he done it before. So,- I kept fighting with him and everything, and he insisted, and he finally got awful mad, if I didn’t give in he would hurt my arm. He said many people got killed that way when they didn’t give in when they were supposed to. So, I pleaded for sometime, scratching at him, and finally I gave,in to him because I'was afraid of him. Q. When the act you told us about was accomplished, were you in the front seat or the back seat of the automobile? A. In the back seat. Q. Did you or did you not feel the insertion? A. Yes, sir.”

She further testified:

“Q. Did you or did you not make any attempt to get out of the automobile? A. Yes. I couldn’t get the car door open. Q. Would that be from the right side? A. Yes, sir. Q. Did you have any wounds on your wrists or anywhere? A. Yes; my wrists — my wrists was terribly red and all where he had twisted them around, they were terribly sore.”

The prosecutrix further testified that after the act was committed, the defendant drove her to Capitol Hill where she went immediately to her aunt’s home and related what had occurred. Her husband and the officers were notified and she was taken to the hospital for an examination.

Doctor Frank Harbison testified that he saw the prosecutrix at the emergency ward of the Oklahoma General Hospital just a few minutes after she arrived; that he made an examination of the vagina and female parts and took what the Doctors call “a hanging drop” and in that hanging drop he found a male spermatoza which showed that she had had sexual intercourse not over six or twelve hours before that time. He further testified that he observed some red marks on her wrists.

Mrs. B. H. Staddard, the aunt of the prosecutrix, testified that on November 13, 1945, the prosecutrix came to her home in Capitol Hill; and that when she opened the door, prosecutrix was there .crying and was so upset that she couldn’t talk for a little while; that after the prosecutrix became more composed, ske related what had happened and the witness called her husband who notified the police and the witness accompanied thé prosecutrix to the hospital where she was examined by the Doctor. She further testified that the arms of the prosecutrix were red.

The defendant testified that he was 22 years old; that on the date in question he had gone to the Atkinson Lumber Company at Midwest City to apply for a job; that on the way back to the city he noticed the prose-cutrix walking along the street and offered her a ride and she accepted. He then stated that he turned off the highway about a mile or a mile and half east of Eastern avenue, and drove about eight city blocks; that prose-cutrix asked him where he was going and he said “down the road a piece.” He then testified:

“Q. Did she make any protest about riding down the road a piece with you? A. Not right then, no. Q. Then what happened? A. Well, I got on down and stopped, and she wanted to know what I was going to do, and I told her. Q. When you stopped, then what conversation took place? A. Well, I told her what I wanted, and we began to argue, and argued back and forth for sometime. Q. What do you mean by ‘argue’? Tell the court what you mean by arguing. A. She kept saying ‘No’ and I would say ‘Yes,’ and she would ask me why.”

Defendant further said that the argument continued for about five minutes and that finally the prosecutrix said “Well, I guess I might as well give up”; that she then got out of the car and into the back seat, removed her shoes, her pants and her hose, and that he started to proceed to accomplish the act of sexual intercourse with her and then stopped and she said “What is the matter” and the defendant then told her it wasn’t any good.

Defendant denied committing sexual intercourse with her and testified as follows:

“Q. Tell the jury, and explain to them if yon can, how come that you did not actually have intercourse with her? A. Well, I started to, and I don’t know, I just sort of come to myself and thought, ‘This was not the right thing to do,’ and I just got up and told her it wasn’t any good. Q. You lost your desire to have sexual intercourse? A. Yes, sir; I lost the desire right then, was the reason I got up, I guess.”

Defendant testified that he then took the prosecutrix to Capital Hill and let her out at the corner of Southeast 29th street and Robinson avenue; that prosecutrix did not want to go home. He then testified:

“Q. Did she seem mad when you left that place out there where you had been? A. Yes; she did then. Q. But she seemed to get in a good humor before she got out at 29th and Robinson, is that right?' A. I wouldn’t say ‘a good humor.’ She just didn’t seem mad. Q. Did she seem mad at all out there when you were out on Grand Boulevard? A. Not exactly, only when we was arguing, she probably got sore. Q. What did she get sore about? A. What 1 was asking her, I imagine. Q. What were you asking her? A. Asking her for a little.”

In the case of Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580, 584, this court stated:

“It is strongly urged by defendant in his brief that the law of this state is that in a case of rape that ‘there must be the -utmost of force and the utmost of resistance,’ and cites the case of Sowers v. Territory, 6 Okla. 436, 50 P. 257, and Parker v. Territory, 9 Okla. 109, 59 P. 9. It will be noted that these cases were decided by the territorial court prior tó statehood. In so far as they adhere to the old doctrine with its strict construction that ‘there must be the utmost of force and the utmost of resistance/ they have not been followed by this court since statehood, and are not' in harmony with the true rule as now followed by the more modern decisions. In the case of Bulls v. State, 33 Okla. Cr. 64, 241 P. 605, 606, this court, speaking through Judge Doyle, says :
“ ‘The old rule of “resistance to the uttermost” is obsolete, and is repudiated by the more modern authorities. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest her opposition. In reference to the degree of resistance required, the jury should be instructed that it is necessary, not that the prose-cutrix should have made the uttermost resistance, but that she has made such resistance as she was capable of making at the time. See 33 Cyc. 1506, and cases cited.’
“And in Snider v. State, 40 Okla. Cr. 214, 267 P. 687, the court says:
“ ‘In this state to constitute rape by force it is not essential that resistance be to the utmost, but need be only such as to make nonconsent the actual resistance reasonably manifest.’ ”

Counsel for the defendant in their briefs stressed the fact that the prosecutrix removed her garter belt and her hose which indicated that she was acceding to the request of the defendant and that if the act was accomplished, it was not an act whereby the defendant had overcome her resistance by force or threats. The prosecutrix testified that the defendant held her arms continuously and twisted them. Even under the testimony of the defendant, the prosecutrix protested vigorously against his committing the act, and he testified that the act was never accomplished.

This is not as strong a rape case as many we have reviewed and we do not know what we would have done if we had been on the jury. However, the jury heard the witnesses, saw their demeanor on the witness stand and on the disputed questions of "fact have held against the accused.

Under the decisions hereinabove cited, it appears that the amount of resistance required on the part of the female necessarily depends upon the circumstances, such as the relative strength of the parties, the age and condition of the female, the uselessness of resistance and the degree of force or threats manifested. The resistance must be in good faith and not a mere pretense, or, as stated otherwise, it must be real and genuine and active, and not feigned or passive.

The element of fear evidently played a large part in overcoming the resistance of the prosecutrix. She related that the defendant said many people get killed when they don’t give in when they are supposed to. Her physical condition at the time she arrived at her aunt’s house wholly negatives any idea that she had performed a voluntary act of sexual intercourse with the defendant. Not only that, but the prosecutrix, together with her husband, had moved to the State of New York before the trial commenced, and she returned to Oklahoma from that state to testify against, the accused.

When a case such as this arises and the female in stating the occurrence says that she did not consent and did resist until resistance became so useless as to warrant its cessation, can this court, after the jury have accepted her version of the transaction and the trial court has approved the verdict, say as a matter of law that there was no competent evidence to sustain the verdict of the jury. We think not.

We have examined the instructions and they appear to be substantially correct. There were no requested instructions by the defendant. The jury reported back several times that they were hopelessly deadlocked. It was apparent that they were reluctant to convict the defendant of rape in the first degree with a minimum punishment of 15 years. At one time, they reported that they had “voted to report a hung jury”. The verdict that was received carried with it a recommendation from the jury that the judge suspend the sentence of the defendant. At the hearing on the motion for new trial and at the time sentence was pronounced, the trial court called attention to the. statute, 22 O.S. 1941 § 991, authorizing trial courts to suspend the sentence of one convicted of crime and emphasized that because of previous convictions sustained by the accused for similar offenses, the court was unable to follow the recommendation of the jury and give the defendant a suspended sentence. Under those circumstances the only hope for clemency lies with the Chief Executive.

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

BAREFOOT and BRETT, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MARVIN RUSSELL HARRIS v. STATE.
    No. A-10975.
    March 2, 1949.
    (204 P. 2d 305.)

      Kathryn Van Leuven and H. B. King, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Marvin Russell Harris, was charged by information filed in the district court of Oklahoma county, with the crime of attempted rape, and after hearing the evidence, the jury returned a verdict reading as follows:

“We, the jury, empaneled and sworn in the above entitled' cause, do upon our oaths, find the defendant Guilty, and leave his punishment to be fixed by the Court. We, the jury recommend that the sentence be suspended.”

After overruling a motion for new trial, the defendant was sentenced to serve seven and one-half years imprisonment in the State Penitentiary, and has appealed.

The brief of the defendant contains numerous assignments of error. We shall only discuss those which appear to constitute reversible error.

It is first contended that the trial court erred in overruling the motion for mistrial of the defendant because of voluntary and improper statements made by two different officers in their testimony.

The defendant was arrested by Officers Harbolt and Ryan. Officer Harbolt testified:

“Q. You took Mm to the station, did you? A. Yes, sir; we did. Mickey Ryan and I put him in our car and I drove the Ford to the station. Q. Did he or did he not make any statements to you? A. He talked to Mickey on the way to the station. That is my understanding. After he was booked and placed in jail, we talked to him in the presence of his father, at which time he admitted this and four or five other deals to us.”

When Officer Ryan was called as a witness for the state, he testified concerning other alleged attacks by the defendant as follows:

“Q. Did you talk to him later in the presence of his father? A. I did. Q. What was said there, please, sir? A. He admitted at that time that he had attemped to rape three or four different women.”

In each of those instances, when the voluntary statement that defendant had admitted committing other offenses was made, counsel for- the defendant moved for a mistrial, which motion was denied . However, the court did strike the statement of Officer Ryan from the consideration of the jury.

The practice of experienced officers making voluntary statements of evidence against a defendant which could not have been inquired about has been repeatedly condemned by this court. One of the latest cases involving this question was the case of Wire v. State, 87 Okla. Cr. 44, 194 P. 2d 212, 213, wherein we held that the statement of arresting officer, “We arrested her one time before and she had them” was prejudicial error.

We shall consider this assignment of error together with the proposition that the court committed reversible error in admitting evidence of other offenses similar to the one for which the defendant was being tried.

During the cross-examination of the defendant, the county attorney, over objection of counsel for the defendant, asked the defendant concerning an alleged affair which he had with a girl by the name of Luda Puckett. When the objection of counsel for defendant was overruled, the trial court stated:

“The Court: Gentlemen of the Jury, you are advised that this evidence is not admitted as tending to show whether or not the defendant did or did not commit the offense for Avhich he is charged here. It is only admitted ■for a limited purpose, as showing a plan, purpose, intent, or scheme. That is the only reason it is admitted. That will be covered fully in the court’s instructions. The objection is overruled and exceptions allowed.”

The defendant denied knowing a girl by that name. The county attorney then asked him concerning a written statement which he had given to the officers concerning this alleged affair with Luda Puckett, and defendant admitted signing the statement. The trial court admitted the statement in evidence, overruled the objection of counsel for defendant and stated that he was admitting the evidence for the “limited purpose of shOAV-ing intent, motive, or plan.”

In this statement, the defendant admitted picking up a girl at Midwest City, several days prior to the date of the alleged occurrence for which he was being tried, and driving to a secluded place and attempting to have sexual intercourse with her there but failed because the girl jumped out of the car and ran.

Defendant on cross-examination was also asked several questions about another girl, but the defendant denied knowing anything about her and no evidence as to any improper relations with her was ever introduced.

In the case of Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809, 810, this court held:

‘“The character of the defendant cannot be impeached' or attacked by the state unless he puts his character in issue by introducing evidence of good character.
“‘Evidence of offenses other than the one charged is admissible only when it tends to prove the offense charged. To be competent' it must have some logical connection with the offense charged.
“Conduct of prosecuting attorney, in persisting in cross-examining the accused and witnesses for the accused by assumptions and insinuations as to previous unlawful acts and transactions, in spite of rulings against him, held improper and prejudicial. * * *
“Where the defendants are cross-examined as to other crimes alleged to have been committed by them, which have no connection with the offense charged, upon which alleged offenses convictions have not been obtained, and the defendants deny the commission of the alleged offenses, it is error to permit the state to introduce witnesses in rebuttal with the view of impeaching the testimony of the defendants by showing the commission of the alleged crimes, as a witness cannot be impeached upon collateral matters.”

See, also, Lizar v. State, 74 Okla. Cr. 368, 126 P. 2d 552; Duggins v. State, 76 Okla. Cr. 168, 135 P. 2d 347.

In the case of Coppage v. State, 77 Okla. Cr. 414, 142 P. 2d 371, 376, the State in a prosecution for sodomy attempted to introduce evidence of an alleged sexual act committed by defendant with another woman and this court stated:

“There was no relation between the two crimes. If they were committed, they were different crimes, and at different times. It is a well defined general rule ■ that one should only be placed on trial for the crime with which he is charged in the information.”

Other cases similar in facts to the instant case are Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 797, and Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591.

In the case of Byers v. State, 78 Okla. Cr. 267, 147 P. 2d 185, 188, this court stated-:

“We have said that in order for other offenses to he admissible against the accused to show a common scheme or plan or intent that they must not be remote as to time and there must be a visible connection between the crimes. Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A.L.R. 1149; Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Landon v. State, 77 Okla. Cr. 190, 140 P. 2d 242; Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325.

“The fact that one person may commit similar crimes does not justify the admission of the other identical offenses if they are independent of each other. Where the trial court cannot clearly see a visible connection between the alleged other offenses to the one charged, he should refuse to admit the other offenses in evidence. If the trial court is uncertain as to the admissibility of such evidence, he should give the benefit of such doubt to the defendant as it is manifestly unfair to the accused to force him to prepare to defend himself against any collateral crime other than the one charged against him in the information. Juries are too prone, when such other offenses are admitted in evidence, to find an accused guilty of the crime charged merely because he might have committed some other offense.”

We have been unable to find any case where this court has ever admitted evidence, in a prosecution for rape or any of the sex crimes, of other alleged sexual acts committed by the defendant except evidence of acts committed by the defendant with the prosecutrix. Each of the acts herein involved different parties, were separate and independent occurrences at different times, and their admission in evidence forced .the defendant to defend against several collateral acts. Here, there was no disputed question as to the intent of the defendant. He wanted and intended to have sexual intercourse with the prosecutrix. The only question for the jury to consider was whether he went far enough in his efforts to constitute a crime; and if so, whether it was the crime of attempted rape, or that of either of the two lesser offenses of assault with intent to commit rape or assault and battery.

In this case, the prosecutrix testified that defendant picked her up on a street corner in Midwest City and started driving with her in his automobile on 29th street toward Oklahoma City; that the defendant turned off the road in a secluded section of the country and there asked her to have sexual relations with him; that she refused the defendant, and they sat and talked and argued for several minutes; that the defendant grabbed her wrists and attempted to force her back over the seat of the automobile; that defendant tore some buttons off her dress; that during the struggle she reached down on the floor of the automobile, picked up a wrench and struck the defendant which caused him to desist; that defendant then drove her to the railway crossing on 29th street and let her out of the car. She immediately telephoned her husband who notified the officers and the defendant was shortly thereafter arrested.

The defendant’s testimony varied but little from that of the prosecutrix. He admitted picking up the prose-cutrix and driving to the secluded spot. He testified that he then “propositioned”'her and she refused; that they had a conversation for several minutes in which he kept insisting that she have sexual relations with him, and that finally she said “Well, I can’t because I have just had an operation” and raised her dress and showed him that she was bandaged and was wearing an abdominal support because of her operation; that when she showed him this, he made no further comment, but drove her to her destination.

The jury deliberated for a considerable length of time and then reported several times to the court that they were unable to reach an agreement, and on one of these occasions, the foreman asked the court the following question:

“We want to know if we can bring in a verdict, leaving the punishment to the court, with a definite understanding that the sentence, whatever is given by the court, will be suspended?”

The record discloses that Avhen this question was asked, the court held a consultation with counsel, out of the hearing of the jury, and then stated:

“The Court: Let the record show that both sides waive a Avritten instruction and agree that the court may give this further instruction orally. Gentlemen of the Jury: You are advised that as to the matter of suspending a sentence, that is a matter that is left up to the court. It is not within the province of the jury. You can make any recommendation you care to, but that would not be binding on the court, the court would still be bound to follow the law, and it may, or may not be possible to follow such recommendation. The court has to follow the law just as you do.”

We quote the foregoing record with reference to the deliberations of the jury to show the difficulty which the jury had in returning a verdict of guilty, even though they had before them other alleged offenses, including the voluntary statements by the officers that defendant had admitted offenses against four or five other women.

In such a close case, this court would not be warranted in holding that the admission of this evidence was harmless error; on the contrary, it appears to be substantial and such as requires a reversal of the judgment of conviction.

Counsel further contend that the court erred in failing and refusing to allow counsel for the defendant to see and examine the instructions before the same were returned to the jury.

The record in connection with this assignment discloses the following: That at the time the trial judge started to instruct the jury, counsel for defendant stated:

“If it please the court at this time defendant asks to be allowed to see and examine the instructions before same are read to the jury in order that the defendant may know if other or further instructions should be requested and have an opportunity to present same.”

The trial court refused an examination of the instructions and stated:

“You may save any exceptions to the instructions at any time before motion for new trial is passed upon.”

The law in regard to this proposition was set forth in the early case of Thompson v. State, 6 Okla. Cr. 50, 117 P. 216, 217, wherein it is held:

“Where counsel for a defendant in a criminal case request permission to be heard upon the law of the case, before the instructions are read to the jury, and this request is refused by the court, such refusal will operate as an exception to each and every paragraph contained in the instructions, and as a request to give proper instructions in behalf of the defendant upon every issue arising from the evidence before the jury.
“Where the record discloses the fact that counsel for a defendant in a criminal case has requested permission to be heard upon the law of the case before the charge of the court is read to the jury, and this request has been refused by the trial court, it will then become the duty of this court to carefully scrutinize the instructions given for errors, both of omission and commission, and, if any such errors appear, which, in the light of the entire record, may have operated to the injury of the appellant, the judgment of the lower court will be set aside and a new trial will be granted, whether such error was excepted to or not.”

This rule of law was cited with approval in Fowler v. State, 8 Okla. Cr. 130, 126 P. 831, and the recent case of Jenkins v. State, 80 Okla. Cr. 328, 161 P. 2d 90, 92, 162 P. 2d 336.

In Jenkins v. State, supra, it is stated:

“Counsel for the defense have the right to be heard in the trial court upon the law as well as upon the facts. This is fair to all parties concerned and is necessary to the proper administration of justice. It gives the judge an opportunity to correct any errors which he may have made and it gives the county attorney an opportunity, if he thinks the charge of the court is erroneous, to join with the defendant in requesting that such error be corrected. Therefore, if counsel for the defendant makes a timely request for permission to examine the court’s instructions before they are read to the jury to déter-mine whether he wishes to make objection thereto, it would be error on the part of the trial court to refuse to give counsel such opportunity. The facts of each individual case will be considered in determining whether this was prejudicial error.”

The trial court did not submit to the jury in his instructions the lesser offenses of assault with attempt to commit rape and assault and battery. We think under the evidence, instructions submitting these two lesser offenses should have been given. Under the rules of law set forth in the above cases, where counsel for defendant is denied his request for permission to examine the instructions and to be heard on the law before they are read to the jury, such refusal by the trial court will operate as an exception to each and every instruction and as a request to give proper instructions in behalf of defendant upon every issue arising from the evidence before the jury.

For all of the foregoing reasons, the judgment of the district court of Oklahoma county is reversed and remanded for further proceedings consistent with this opinion.

BAEEFOOT and BEETT, JJ., concur.


author: BAREFOOT, J.

text:
    Ex parte WILLIE EDWARDS.
    No. A-11182.
    March 9, 1949.
    (204 P. 2d 547.)

      . Wm. H. Lewis, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Willie Edwards, who is now serving a term in the State Penitentiary at Mc-Alester, has personally filed in this court a petition for writ of habeas corpus. Since filing his petition, he has employed counsel, and this case has been well briefed by both counsel for petitioner and the state.

To correctly discuss the issue presented it is necessary to give a short statement of the facts as presented by the record.

Petitioner, a negro citizen, was sentenced by the district court of Washita county in case No. 489, to the State Reformatory at Granite for a term of two years on a plea of guilty to a charge of larceny of domestic •fowls. Only the information and judgment and sentence are shown in the files, the proceedings in the justice court not being shown.

While serving the above sentence, the defendant was charged in the district court of Greer county with the crime of assault with intent to kill, in case No. 2336, entered a plea of guilty, and was sentenced on September 20, 1929, to serve a term of two years in the State Reformatory at Granite, the sentence “to begin at the expiration of the sentence he is already serving there.”

It appears from the record that the judgment and sentence was not formally entered in case No. 2336 on the date rendered, and on March 1, 1938, a judgment was filed, signed by Judge T. W. Wise, who had succeeded District Judge T. P. Clay, the judge when sentence was imposed. It appears, however, that the minutes of the district court of Greer county are in the record, and they are as follows:

“The State of Oklahoma vs. Willie Edwards, No. 2336.
“Minutes of the Court.
“September 20, 1929: Enter call of case in open court. Defendant present and states he is unable to hire counsel; Court now appoints Percy Powers as attorney for the defendant; defendant now pleads guilty. The court assesses his punishment at 2 years in Okla. State Reformatory, to begin at the expiration of the sentence he is already serving there; defendant remanded to the custody of the sheriff and jail to be taken therefrom to the Okla. State Reformatory at Granite, Okla. to serve two years; said term to begin at the expiration of the 2 yeár sentence now being served by defendant; court fixes fee of Percy Powers at $25.00”

Before petitioner had completed serving the sentence in case No. 489, from Washita county, above referred to, and on November 15, 1929, information was 'filed in the district court of Greer county, charging petitioner with the crime of murder, committed within the walls of the State Reformatory at Granite, and on January 20, 1930, after trial and conviction, he was sentenced to serve a term of 40 years in the State Penitentiary at McAlester. On January 20, 1930,- and prior to the completion of his two sentences to the reformatory at Granite, he was transferred to the penitentiary at McAlester, and there booked in to begin the serving of the 40 year sentence for murder. The judgment and sentence in this case is not shown by the records of the Greer county district court, but the minutes of the court are as follows:

“State of Oklahoma vs. Willie Edwards.
“Minutes of the Court.
“January 15, 1930: Enter call of case in open court; motion for new trial is presented; the court is of the opinion the same should be and now the court overrules same and defendant excepts; exceptions are allowed; and now the court passes sentence as follows: Court orders defendant be remanded to the custody of the sheriff and jail of Greer county there to remain until such time- as he may be transported to the Oklahoma State; Penitentiary at McAlester, Oklahoma, there to serve a term of 40 years for the offense committed; clerk directed to make entry on minutes and docket that exceptions and notice of appeal in open court; defendant in open court excepts to the court’s order overruling motion for new trial, and to the passing of sentence and now in open court gives notice of appeal to Criminal Court of Appeals of the State of Oklahoma and for good cause shown, the Court grants defendant 90 days to prepare and file case made; 10 days thereafter for the State to suggest amendments to be settled upon 5 days notice by either party. Supersedeas bond fixed by court at $25,000.”

It is conceded by both' the state and the petitioner that petitioner has served sufficient time to satisfy the 40 year sentence imposed upon him by the district court of Greer county, allowance being made for time granted by the rules and regulations of the penitentiary for good behavior. This term expired on August 27, 1948.

The response discloses that petitioner was then held by the warden of the penitentiary to serve the two year sentence from Greer county in case No. 2336, and that the minimum discharge date on that sentence will be November 22, 1949, and that at the expiration of that date, petitioner is due to commence serving the balance of the unserved term on his first- sentence, from Washita county in case No. 489, which has a balance of five months and 20 days to run, making the minimum discharge date of petitioner May 12, 1950.

It is the contention of the state that petitioner is not entitled to his discharge until that date, and that he is, therefore, not illegally restrained of his liberty by the warden of the State Penitentiary at this time.

In an affidavit attached to his petition, petitioner states that he was not present in person at the time the judgment and sentence was signed by Judge W. T. Wise, on March 1, 1938, in case No. 2336; but that he was confined in the State Penitentiary at McAlester at that time, and was not returned to Greer county.

Petitioner’s contention for his release at this time is stated in the brief of counsel, as follows:

“Since this petitioner has been in custody of the State of Oklahoma, since April 15, 1929, and was serving two years on his first sentence, and received another two-year sentence while serving his first two year sentence, which second two year sentence was by order of the court to commence at the expiration of his first two year sentence, and while still having a little more than 5-months yet to serve on his first two year sentence, the State of Oklahoma removed him to McAlester, Oklahoma, to serve a 40 year sentence, he certainly has served all his time, at least he constructively served the balance of the first two years, and all of the second two years. The authorities handled him the way they wanted to, — he had no voice in the matter. If they were anxious for him to serve all of the first and second two year sentences, then they should have allowed him to complete his first two year sentence, and then the second two year sentence, (which was stated in his judgment should commence on the expiration of the sentence he was then serving), and then commit him to the Penitentiary to serve the 40-year sentence. He has been in custody all this time.”

In the case of Ex parte Tillman, 81 Okla. Cr. 332, 164 P. 2d 649, 650, this court had occasion to discuss the question of the proper manner and procedure to be followed in serving terms in the penitentiary where one has received two or more sentences. It was there said:

“The question presented is whether the petitioner is ■ entitled to credit on the first sentence for the time which he has served since his commitment from the district court of Logan county, as it is conceded by the state that if he is entitled to this credit, he has already served more than enough time to earn his release from confinement on the first commitment from Stephens county.
21 O.S. 1941 § 61 provides:
“ ‘When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.’
“In Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478, it is stated:
“ ‘Where there are one or more convictions and judgments thereon, the accused should be incarcerated upon the first conviction under which he is apprehended and delivered for imprisonment for the period of time therein named, followed by confinement for the fine and costs if same are not paid. At the end of that period of confinement, the imprisonment should commence upon the second conviction and terminate in like manner and so on.’
'“In Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284, 285, it is stated in the opinion:
“ ‘Now where there are a series of convictions and judgments thereon, bearing in mind that our statute contemplates that each judgment shall be satisfied separately, and applying such provisions to this case, it would seem logical for the sheriff to confine the accused upon the first conviction for the period of imprisonment therein named, followed by confinement for the fine and costs therein named, in the event the same are not paid; that at the end of that period of confinement, the imprisonment named in the judgment upon the second conviction, and imprisonment for the fine and costs therein, would begin and terminate in like manner; and so with the third. This conclusion is deduced from and based upon the decisions cited and the provisions of sections 6332, 2782, 2774, and 2303, Comp. Stat. 1921, 28 O.S. 1941 § 101; 22 O.S. 1941 §§ 980, 976; 21 O.S. 1941, § 61.
“ ‘Decisions to the contrary in other states, and in this state prior to the passage of the 1913 statute herein referred to, will not control in the face of the policy outlined in the statutes and decisions cited.
“ ‘We hold, therefore, that under the conditions here shown the- periods of imprisonment do not run concurrently, and that the first judgment must be satisfied in full before the second can be held to begin, and the second, before the third.’ ”

The facts in the Tillman case are not identical with the facts here presented, but the application of the principles announced causes us to hold that it would have been the correct practice for petitioner to have been entered at the State Penitentiary at McAlester to first serve the balance of his two-year term in case No. 489, from Washita county, and at the expiration of that term to serve the two-year term in case No. 2336 from Greer county, and then to serve the 40-year term in case No. 2354 from Greer county. By reason of the failure of the clerk at the State Penitentiary to enter the sentences in their proper order, should petitioner be discharged prior to the time the sentences imposed upon him would be fully served? We think not. In the Tillman case, supra, we held that the proper procedure would be for the warden of the penitentiary to correct his records in that case, and we think that is the proper procedure in this case, in accordance with the terms above stated. Petitioner would then be entitled to his discharge on May 12, 1950.

In the case of Ex parte Porter, 60 Okla. Cr. 327, 64 P. 2d 1235, 1237, the court said:

“The uniform holding of this court is that the time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and where the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L.R.A., N.S., 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993; Ex parte Oliver, 11 Okla. Cr. 536, 149 P. 117, 119; Ex parte Smith, 17 Okla. Cr. 578, 190 P. 1092; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284. And see Ex parte Riggert, 33 Okla. 303, 125 P. 485.”

In the recent case of Ex parte Hill, 86 Okla. Cr. 318, 192 P. 2d 849, 851, Judge Jones says:

“Expiration of time without imprisonment is in no sense an execution of the sentence.”

We are, therefore, of the opinion that under the facts here presented and the law applicable thereto, petitioner is not entitled to the writ, and the same is denied.

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


text:
    Ex parte WILLIAM MILLER.
    No. A-11189.
    March 9, 1949.
    (203 P. 2d 890).
    Elmore A. Page, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is. an original action in habeas corpus instituted by the petitioner, William Miller, to secure his release from confinement in the State Penitentiary. The verified petition alleges that on December 7, 1946, the petitioner entered a plea of guilty before the district court of Garfield county to the charge of grand larceny, and was thereupon sentenced to serve two years imprisonment in the State Penitentiary at McAlester; at the same time and place the execution of said sentence was suspended in accordance with the statutory provisions. That thereafter oh August 2, 1948, the county attorney of Garfield county presented an oral application for revocation of the suspended sentence, a bench warrant was issued for tlie petitioner’s arrest and the petitioner was accordingly arrested and incarcerated in the county jail of Garfield county and was there incarcerated for a period of 45 days before being released upon an appearance bond. That thereafter, on January 8, 1949, the county attorney of Garfield county filed a written application with the district court of Garfield county asking that the suspended sentence of petitioner be revoked; that a hearing was held on said application on January 15, 1949, at which time the district court of Garfield county entered an order revoking the suspended sentence of the petitioner and ordering him committed to the penitentiary to serve said sentence; that immediately thereafter the petitioner was transported to the State Penitentiary to serve said sentence and he is now incarcerated in said penal institution serving said sentence.

That your petitioner alleged that said imprisonment is illegal and unauthorized for the reason that the period of the petitioner’s suspended sentence had wholly expired prior to the time of the revocation of his suspended sentence and that the court lacked jurisdiction to revoke his suspended sentence at the time the revocation was made.

At the hearing before this court, it was established that the order revoking the suspended sentence was made after a hearing on January 15, 1949, which was more than two years after the judgment and sentence of two years’ imprisonment in the State Penitentiary was rendered against the petitioner which sentence was suspended under the provisions of the statutes. Tit. 22 O.S. 1941 §§ 991 and 992.

As justification for the delay in the action that was taken to revoke the suspended sentence, it was shown that the. petitioner had been charged with a violation of the law in Pittsburg county and that at the time of his arrest in August, 1948, the charges had not been adjudicated against him and for that reason the county attorney did hot wish to attempt to revoke his suspended sentence until after said charges had been adjudicated; that thereafter, the hearing on said oral application to revoke the suspended sentence was postponed from time to time at thé request of the petitioner.

The question herein presented has become well settled in several decisions of this court. In the case of In re Workman, 74 Okla. Cr. 225, 124 P. 2d 748, the syllabus reads:

“Where a person has been sentenced to serve two years in the State Penitentiary and such sentence is suspended during good behavior under the provisions of O.S. 1941, Tit. 22, secs. 991, 992, the language To report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge,’ imports that the sentence can be revoked only within the period of time imposed in the sentence, and a revocation of a suspended sentence after that period is ineffective, and after that period the court is without power to enforce the original judgment.”

In the case of Ex parte Eaton, 29 Okla. Cr. 275, 233 P. 781, 782, this court held:

“It .will be observed that section 2804 [22 O.S. 1941 § 992], supra, requires the person so released To report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge.’ We think the statute is clear, but if there is any ambiguity it should be resolved in favor of the person sentenced. It was evidently the legislative intent that in case of sentence imposed upon a minor other than for certain specific offenses, wlio had previously borne a good reputation and had not been convicted of any crime, such person should not be incarcerated if, during the term of the sentence, he conformed to certain conditions by reporting to the court, abstaining from associating with objectionable persons, and other conditions, and if before the expiration of the term of the sentence such person did violate the terms of his parole or suspended sentence, the court had the power to revoke the same and enforce the original sentence. After the expiration of the term of the sentence, he was no longer required to report, and the sentence was discharged.
“It was certainly not the intention of the lawmakers to hold the sentence over the head of the person paroled so long as* he should live, but only during the pendency of the judgment. To hold otherwise would be contrary to the spirit and policy of the law. And if within one year after the sentence has terminated, for any violation of the law or for associating with persons prohibited by the statute, the court may revoke the suspended sentence or parole and compel the incarceration of the person paroled, it might do so at any time thereafter.”

To the same effect are the following cases: Ex parte King, 40 Okla. Cr. 21, 266 P. 511; Ex parte Bell, 57 Okla. Cr. 257, 47 P. 2d 886.

The writ is awarded and the prisoner is discharged from custody.

BAREFOOT and BRETT, JJ., concur.


author: BRETT, J.

text:
    PETE MORRISON v. STATE.
    No. A-10965.
    March 9, 1949.
    (204 P. 2d 544.)
    Walter Billingsley, of Wewoka, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, the defendant below, was charged by information with the unlawful possession of intoxicating liquors. The evidence discloses that he was in the possession of five pints of whisky. He waived a jury and was tried before the court, found guilty, and sentenced to 30 days in the county jail and to pay a fine of $150; a motion for new trial was overruled, and this appeal perfected.

The principal contention relied on by the defendant is that the court erred in overruling his motion to strike and to suppress the state’s evidence. This contention is based upon the following state of facts as revealed by the record: a complaint and affidavit for search warrant ivas ostensibly prepared for C. N. Lyon, deputy sheriff, which reads in part as follows, to wit:

“Comes now, C. N. Lyon, of lawful age, being first duly sworn according to law, upon oath deposes and says (thereafter follows the allegations of fact to support the issuance of a search warrant).”

This complaint and affidavit was sworn to on September 7, 1946, not by C. N. Lyon but by J. H. Sand-lin before Rudolph Hill, justice of the peace. On the same day, September 7, 1946, a complaint and affidavit was prepared for J. H. Sandlin which was likewise executed by him. The record is most unsatisfactory as to when J. H. Sandlin executed the said complaints and affidavits. It is altogether possible that the affidavit prepared for his signature may have been executed long after the service of the search warrant, and after the same had become dead as a legal instrumentality. It appears that it may not have formed any part of the basis upon which the search warrant was originally issued and served. The justice of the peace and the officers do no remember when the affidavit and complaint or either of them was executed. The record is conclusive, however, that no complaint or affidavit was ever executed by C. N. Lyon, the deputy sheriff, but, upon the belief that C. N. Lyon had executed an affidavit the justice of the peace-issued a search warrant, reciting in part “proof by .affidavit having this day been made before me by O. N. Lyon showing probable cause and belief that intoxicating liquors, imitations thereof and substitutes therefor, the sale of which is prohibited by the laws of the State of Oklahoma, are being manufactured, sold, bartered, given away and otherwise furnished; etc.”

Here it clearly appears that a search warrant was issued on the erroneous assumption that C. N. Lyon executed the complaint and affidavit for the same, which he did not do. The search warrant is limited to his affidavit by naming him only, as the basis upon which the search warrant was issued, thereby lending credence to the proposition that the second affidavit executed by J. H. Sandlin may not have been executed by him until later and after the return of the search warrant. If both affidavits were actually executed at the time of the issuance of the search warrant, the directions contained in Title 22, O.S.A. 1941 § 1226, should have been followed. The warrant must be in substance in the following form:

“County of -. In the name of the State of Oklahoma. To any sheriff, constable, marshal or policeman in the county of-. Proof by affidavit having been this day made before me, by (naming every person whose affidavit has been taken) * # *

It is clear that under the statute, if any complainant or affiant is to be named, they should all be named. The effect of the warrant should not be limited to the affidavit of one affiant if there were others. We believe it is clear that such is the intent of the statute. However, it has been held that it does not render the search warrant void not to name any of the complainants or affiants in the search warrant. In Johnson v. State, 43 Okla. Cr. 407, 279 P. 366, 367, this court said:

“The defendants next complain that the order issued by the magistrate did not contain the name of the party making the affidavit. Section 2881, Comp. St. 1921 [22 O.S. 1941 § 1226], provides that the order ‘must be in substantially the following form.’ In the body of the form in parentheses are these words, ‘Naming every person whose affidavit has been taken.’ Provisions of this kind have always been held by this court to be directory and not mandatory. The failure to insert the name or names of the persons making the affidavit would be a mere irregularity, and not a fundamental requirement, and the failure to insert the name in the warrant did not make the warrant void.”

It is essential, however, that the search warrant be issued upon a complaint and affidavit sufficient in form and substance to support the search warrant. In Bowdry v. State, 60 Okla. Cr. 46, 61 P. 2d 31, this court said:

' “A search warrant is void if issued without an oath or affidavit as required by law.”

The search Avarrant herein issued on the purported affidavit of C. N. Lyon certainly does not meet the requirements of the law. The affidavit prepared for execution upon facts allegedly known to C. N. Lyon could not properly be sworn to by J. H. Sandlin. In any event it could not be said to be the affidavit of C. N. Lyon who executed no affidavit.

Moreover, the test of the sufficiency of a complaint and affidavit for search warrant was, stated in Mason v. State, 60 Okla. Cr. 392, 64 P. 2d 1238, as follows:

“True test of sufficiency of complaint or affidavit to warrant issuance of search warrant is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false.”

In the case at bar the facts do not meet the test. Here, C. N. Lyon could not be prosecuted for perjury because he made no affidavit. J. H. Sandlin could not be prosecuted for perjury since the search warrant naming only C. N. Lyon as affiant was not issued and served on the basis of Sandlin’s affidavit. We believe the facts support the conclusion that the search warrant in the case at bar was issued without a valid affidavit. In view of the fact that the search warrant was not issued on a valid affidavit the same is therefore void.

Furthermore, it necessarily follows that the search warrant does not conform strictly to the constitutional and statutory provisions to support the search and seizure. In Kuhn v. State, 70 Okla. Cr. 119, 104 P. 2d 1010, 1013, this court said:

“Under provisions of State and Federal Constitutions against unreasonable searches and seizures, it is uniformly held that a search warrant must conform strictly to the constitutional and statutory provisions for its issuance, and no presumptions of regularity are to be invoked in aid of process under which an officer obeying its command undertakes to justify.”

Such matters are not left open to speculative processes. To support the proceeding herein as to the search and seizure, the court would be compelled to indulge presumptions of regularity in aid of process when the record is altogether too indefinite and uncertain as to support regularity of the proceedings. Under these conditions the court erred in not sustaining defendant’s motion to suppress. For the foregoing reasons this case must be and the same is hereby reversed and remanded, with directions to dismiss.

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


author: BBETT, J.

text:
    Ex parte FRANCIS B. NORRIS.
    No. A-11176.
    March 16, 1949.
    (204 P. 2d 291.)

      It. C. Searcy, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BBETT, J.

This is a verified petition for a writ of habeas corpus by Francis B. Norris complaining that he is unlawfully restrained by C. P. Burford, warden of the State Penitentiary. He alleges that the cause of the restraint is the judgment and sentence made and entered against him on November 26, 1947, in the district court of Garfield county, wherein he was charged with the crime of' kidnapping his former wife Leona Norris and transporting her to the State of California.

Petitioner further says that the judgment and sentence and commitment is unlawful, wrongful and void in that he was denied statutory and constitutional rights. More particularly, he says, that on the 13th of October, 1947, he was-arrested in Tulsa county and removed to Garfield county on November 7, 1947, where he remained in jail until the 26th day of November, 1947. He further says that during this period of time he made numerous requests of the sheriff and county attorney to communicate with persons he was acquainted with, and with the county attorney in order that he might procure counsel and aid in his defense in connection with the charges contained in the information charged against him; that all these requests were denied. That on November 26, 1947, he was taken before the justice of the peace where the county attorney, without consulting petitioner as to what he desired to do, informed the justice of the peace the petitioner was going to plead guilty, and nothing further was done in the preliminary case. Thereafter, and on November 26, 1947, petitioner alleges he was taken before Honorable Tom R. Blaine, judge of the district court of Garfield county, and arraigned on the charge of kidnapping filed against him, by information in the district court. He alleges that therein he was required to enter his plea to said charge, and that at said time, the said district judge did not advise petitioner of his right to aid of counsel, or to a continuance in order to procure counsel and prepare for trial. That he was not familiar with the criminal laws of the State of Oklahoma and he entered his plea of guilty to the charge against him. Petitioner makes further allegations in relation to prior difficulty he had had with his said wife which in no way whatsoever are related to the jurisdiction of the court to impose the sentence herein complained of.

To this petition the Attorney General responded substantially as follows, to wit, that the petitioner was not being detained and restrained of his liberty unlawfully, and that the petition does not state facts sufficient to entitle petitioner to be discharged on habeas corpus.

In support of his verified petition, pétitioner offers his own affidavit substantially in the same language as his verified petition. In addition thereto he submits the affidavit of a friend of his, one Kitty Woolard, reading in substance as follows, to wit, in October, 1947, he wrote her at Tulsa, Okla., and asked her to come to Enid, which she did, and went to the office of the sheriff of Garfield county, and requested that she be permitted to see the said Francis B. Norris. She alleges that permission was denied her so to do, that if she had been permitted to talk to said Francis B. Norris and learn in wbat manner be wanted her to assist Mm in procuring counsel to represent him in his defense, she would have so assisted him.

The state offered in support of its response the following evidence. The minutes of the district court in said criminal action against the petitioner reads in substance as follows, to wit:

“November 26, 194T. No. 2310 State v. Francis B. Norris, Judgment and Sentence of Court on Plea of Guilty, Defendant is Guilty, and Sentenced to 10 years in State Penitentiary at McAlester, Oklahoma, Sheriff directed to deliver prisoner to Warden at McAlester.”

The foregoing minutes are entirely inadequate standing alone. In support of and as explanatory of the same, the state offers the affidavit of Park W. Lamerton reading in substance, in part, as follows, to wit: that he knew of his own personal knowledge and intimate contact with the case that the petitioner was allowed to use the telephone in the county jail in order to secure for himself an attorney to represent him in this cause. Further, that the petitioner was contacted by at least four or five members of the legal bar in the city of Enid, Okla., who had discussed the case with him; that finally he secured the services of Wesley R. McClanahan, a member of said bar, for the purpose of filing a motion to set aside and hold for naught a decree theretofore entered in the divorce action between him and the victim herein, Leona Norris. That on November 25, 1947, the said motion was overruled, that immediately thereafter the petitioner personally talked to Mr. Lamerton and stated that the action in the district court in overruling his motion to vacate and set aside the decree gave him no chance in the kidnapping case, and it was his desire to enter Ms plea of guilty and so to do at once. That according to his knowledge and belief such action was done after consulting with and upon the advice of the attorney who represented him in the divorce proceedings. At the preliminary hearing, the county attorney further says, that the justice of the peace first advised petitioner of his rights and the purpose of a preliminary hearing, all of which the petitioner waived and entered his plea of guilty, and thereupon the justice of the peace bound him over to the district court. As soon thereafter as the information could be. prepared petitioner was taken before Honorable Tom R. Blaine, district judge of Garfield county, Okla., and there arraigned by said judge, who fully advised him of all of his rights including the right to aid of counsel and 24 hours to plead and prepare for his defense. Notwithstanding the court’s admonition he expressed his desire to enter his plea of guilty and did so. The court advised him of the charge pending against him of kidnapping his former wife, Leona Norris, to which charge petitioner pleaded guilty. Thereupon, the court being fully advised as to the defendant’s character, reputation and prior penitentiary record, upon the recommendation of the county attorney, sentenced the defendant to 10 years in the penitentiary at McAlester, Okla.

Further, in support of the proceedings in the district court, the state offered the affidavit of Ralph Ten-nison, sheriff of Garfield county, Okla. He says, in substance, that the petitioner Francis B. Norris was permitted, as is every other person in the county jail, to call his attorney and to confer with the same. That the petitioner employed Wesley R. McOlanahan to represent him in said matters pending before the district court before he entered his plea of guilty; that to his personal knowledge the said attorney represented Mm in the divorce proceedings as well as .in the proceedings, thereafter. Further, he states .that the petitioner was informed of all of his rights at the. time he was arraigned in the district court and with knowledge thereof voluntarily entered a plea of guilty.

Further, in support of said proceedings in the district court, Honorable Tom R. Blaine made an affidavit in support thereof, in substance as follows, to wit: that Francis B. Norris appeared in open court in the district court room on November 26, 1947, and that the judge inquired of him if he was then ready to be arraigned, to which he answered in the affirmative. That the county attorney of Garfield county read the information, and Judge Blaine informed the defendant of his right to be represented by an attorney of his own selection or one to be appointed by the Court. The judge informed the accused he could take time in which to decide what kind of plea he wished to enter to said charge. The said Norris stated that he wished to waive time in which to plead to the information, did not desire service of counsel, and was ready to enter his plea and desired to and did enter a plea of guilty to the information. Judge Blaine further stated that he made inquiry of the said Norris as to whether he was actually guilty of the charge of kidnapping and Norris answered he was guilty and that he had no defense to said action. Whereupon the judge inquired of the accused if there was any reason why he should not be sentenced, to which Norris said there was no reason and that he desired to be sentenced at that time. Further Judge Blaine stated that, in open court, the said Norris or the county attorney, or both of them, stated that the matter of punishment had been discussed, before the defendant had been brought into the court for arraignment, and that the county attorney would recommend a sentence of ten years in the penitentiary. Whereupon the court asked the said Norris if he still wanted to plead guilty after the county attorney had informed the affiant he had recommended a 10 years sentence, and that after the court indicated he intended to follow such recommendation, the said Norris stated he was guilty and wished to have his plea of guilty stand, and did not desire to change the same to a plea of not guilty. Whereupon said proceedings being thus concluded, as presiding judge, he sentenced the said Norris to the term of 10 years in the penitentiary at McAlester. Judge Blaine’s affidavit further shows that by reason of the seriousness of the charge against the defendant Norris and the severity of the penalty recommended by the county attorney, he took unusual precautions to inform said Norris of each constitutional and legal right to which he was entitled. That to his knowledge the said Norris was not deprived of any right or privilege allowed him either by the Constitution or by the statutes of this state.

This court has repeatedly held that habeas corpus is limited to inquiry into the jurisdiction of the court. Ex parte Bailey, 87 Okla. Cr. 406, 198 P. 2d 660; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41; In re Swaim, 66 Okla. Cr. 30, 89 P. 2d 363, and numerous other cases. In habeas corpus proceedings, the court is limited in its inquiry to the propositions of jurisdiction of the person, of the subject matter, and of authority under the law to pronounce the judgment and sentence rendered. Ex parte Wade, 82 Okla. Cr. 215, 167 P. 2d 920; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550.

Under the foregoing pleadings and facts the petitioner raises no question as to the ■first two requirements, he only challenges the latter. He contends that the court lost jurisdiction to pronounce judgment and sentence' by failure to accord him his statutory and ..constitutional rights, in that he was denied the aid of counsel, both in the preliminary and at his arraignment in the district court. If this he true, the court lost jurisdiction to pronounce sentence, and the petitioner would be entitled to the relief prayed for. Ex parte Stinnett, 71 Okla. Cr. 184, 110 P. 2d 310; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Smith, 85 Okla. Cr. 299, 187 P. 2d 1003. In this connection, if the district court proceedings are regular and the plea of guilty was voluntarily entered by the petitioner with knowledge of his rights, he waived his right to a preliminary and any irregularity therein. Where the defendant is arraigned on an information and pleads to the merits, he waives the right to a preliminary examination, or if one was held, any irregularity therein. Neff v. State, 39 Okla Cr. 133, 264 P. 649. To the same effect is Sheller v. State, 58 Okla. Cr. 204, 52 P. 2d 105, wherein it was said that:

“Preliminary examination of accused charged with felony may be waived before committing magistrate, or entire preliminary proceedings may be waived in trial court and is waived by failure to file motion to quash or set aside information in apt time.”

Further in this connection see Sparks v. State, 71 Okla. Cr. 430, 112 P. 2d 434; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, 259; Stamper v. State, 25 Okla. Cr. 324, 220 P. 67; Robbins v. State, 12 Okla. Cr. 294, 155 P. 491; Quinton v. State, 10 Okla. Cr. 520, 139 P. 705; Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868. Here the petitioner voluntarily entered his plea of guilty to the information with the advice and aid of counsel without ever challenging the information by motion to quash or set aside the information. We are of the opinion that he waived any right to question the preliminary proceedings • or any irregularity therein by entering his plea of guilty.

In relation to the proceedings had in the district court, the minutes are entirely inadequate and if standing alone without the aid of the affidavits of the court attaches, we would be compelled to grant the writ for we have repeatedly held that where a disputed question arises as to what occurred upon arraignment of one accused of crime, we give great weight to the recitation of the court minutes of the proceedings as to what occurred. Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588; In Ex parte Meadows, supra, we further said [70 Okla. Cr. 304, 106 P. 2d 141]:

“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in- their loss.
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each ease upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

In Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840, 841, we said:

“Where a petition for a writ of habeas corpus is filed, the burden is upon petitioner to sustain the allegations thereof.”

See, also, In re Day, 82 Okla. Cr. 139, 167 P. 2d 380; Ex parte Peaker, 82 Okla. Cr. 360, 170 P. 2d 264; In re Miller, 82 Okla. Cr. 269, 168 P. 2d 897.

In light of the foregoing, the petitioner’s prior courtroom experience, the fact that he had the aid of counsel and the record herein made even though the minutes are entirely inadequate, we are bound by the rule announced in Ex parte Bradley, 72 Okla. Cr. 107, 117, 113 P. 2d 611, 615, wherein this, court said:

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

The affidavit of the county attorney, the sheriff and the district judge, all of whom were present at the time of the arraignment and plea of guilty by the petitioner, are sufficient to overcome the presumption created by the absence of the recital of the waiver of the petitioner’s right to the aid of counsel in .the minutes of the court. Their sworn affidavits show that the proceedings upon arraignment of the defendant were regular, that the defendant had the aid of counsel and was advised of his constitutional and statutory rights, and that the court had jurisdiction to pronounce the judgment and sentence herein rendered upon the plea of guilty being rendered. Under this state of the record we are of the opinion that the petitioner has failed to sustain the burden required of him. The writ of habeas corpus is accordingly denied.

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


text:
    ROGERS GLANCE v. STATE.
    No. A-10973.
    March 16, 1949.
    (204 P. 2d 296.)

      W. L. Steger, of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Lewis T. Martin, Co. Atty., Bryan County, of Durant, for defendant in error.
   BAREFOOT, J.

This appeal is from a judgment of the county court of Bryan county, entered in pursuance of a verdict of a jury finding Rogers Glance guilty on a charge of illegally transporting 96 pints of whis-ky, and fixing his punishment at confinement in the county jail for 30 days, and a fine of $50.

The only assignment of error presented in the brief is that the court erred in overruling the defendant’s motion to suppress the evidence.

The information in this case was filed on July 3, 1947, and on July 22 the defendant filed a motion to suppress the evidence. The case was called for trial on July 25, a jury selected, the opening statement made by the county attorney; and the jury was excused and the motion to suppress presented.

In the motion to suppress,, the defendant states: “that part of said property was seized against his will and without a search warrant, and that the remaining part of said property was seized against his will and with a search warrant that was void, illegal, and not issued in accordance with the laws of the State of Oklahoma.” Attached to his motion is a schedule of the property of which he is the owner, and this schedule lists: “Ninety-six pints of tax paid whisky.”

The record discloses that the officers of Bryan county had received word that the defendant was on his way to Durant with a load of liquor, for delivery to a Mrs. Disheroon. One of the sheriff’s deputies procured a search warrant for “A motor car, tag No. DZ 9227, Texas License, 1941 Model Buick Maroon Convertable Coupe.” Later in the evening the sheriff and five of his deputies concealed themselves near the place of business of Mrs. Disheroon. The defendant drove in from the south, and turned in between two garages. There was a junkyard in the rear. The defendant got out of his car, leaving the motor running, and walked toward the corner of the building. When, he had gone approximately 75 feet from his automobile, he evidently saw one of the deputies, and started to run, but was stopped by deputy W. T. Templeton.- There was a carton of whisky, open and in full view, on the front seat of the automobile.

In support of the motion to suppress, the defendant offered two witnesses, C. H. Parker and W. T. Templeton, both deputy sheriffs.

Mr. Parker testified to making the affidavit for, and procuring the search warrant, between 4 and 5 o’clock in the afternoon, and that he had the search warrant in his possession when the defendant drove up. He testified that Mr. Templeton stopped the defendant when he started to run, and- witness immediately told him that he had a search warrant and wanted to check the tag number on his car. They walked back to the car, the sheriff and other deputies coming up at the same time. The tag number on the automobile corresponded with that on the search warrant. Mr. Parker testified:

“Q. Did you tell Rogers Glance that you had a search warrant? A. I did. Q. Right at that time? A. I did. Q. Did you give it to him? A. Had it in my hand and he turned to the car and he handed it back, and I told him, as quick as we checked the number, I said, ‘Here is the search warrant.’ The Court: Did I understand you to say you offered him the search warrant? A. I said, ‘Here is the search warrant for the car.’ He turned, something was said, — he turned. He didn’t take it. Q. (By the attorney) Did he see what was there? Did you hand the search warrant right out to him? A. Had it in my hand. Handed it right out like that (indicating). There was not anything to keep him from it.”

This witness further testified that two of the deputies immediately took the defendant to jail, and this witness and another deputy took his automobile to a garage, and there found an additional 84 pints of liquor in the car. That within 15 or 20 minutes after he had offered the search warrant to the defendant, he went up to the jail and gave the search warrant to Rube Meeks, the jailer, and told him to take it up to the defendant.

W. T. Templeton testified to defendant driving in between the garages and getting out of his car. That defendant walked to within about 15 feet of the witness, then started to run. Witness told him to “stop and put your hands up”, and defendant complied. This witness saw Deputy Parker offer the search warrant to the defendant. He testified:

“A. No, Mr. Glance didn’t take the search warrant. Mr. Parker offered him the search warrant, but he never did take it. He said, ‘That is all right.’ Mr. Parker offered him the search warrant.”

The state called the sheriff, Cliff Keirsey, on the motion to suppress. He testified that they had been informed that defendant was going to deliver whisky to “old lady Disheroon” that night, and that defendant had been delivering there before. He and five of his deputies, after procuring the search warrant, concealed themselves near her place. He corroborated the testimony of the two deputies. The sheriff was in his automobile, parked on the street, and drove in behind the defendant, blocking the drive, and with his lights shining on the defendant and his automobile. He testified:

“Q. Did you see Mr. Parker hand or try to hand Glance the search warrant? A. I seen him try to hand it to him. The officer said, ‘I have got a search warrant/ and I thought he handed it to him. He said, ‘I have got a search warrant for the car.’ And I seen it was the right tag number of the car. And I seen this lug of whisky laying in the car as quick as I went up to the car there. And Bill was pushing, him back. He started to run. He said, ‘This is all the whisky I have got.’ We said, ‘You ought to have some more whisky.’ We brought him to the service station and found — I believe it was 84 pints.”

The defendant did not testify on the motion to sup: press, or in his own behalf at the trial.

Defendant in his brief does not question the validity of the affidavit, or the search warrant.

The sheriff and three of his deputies testified in the trial before the jury. They all testified to seeing the. package of liquor, open, on the front seat of defendant’s automobile when they reached it. The sheriff testified that the defendant claimed the car, and that it had been delivered to him.

We are of the opinion that search of defendant’s automobile was justified under the search warrant, and that the tender of the warrant to defendant was sufficient. His refusal to take the search warrant into his hand would in no wise justify holding that it was not served on him. To so hold would put it within the power of a defendant to defeat the purpose of the law by refusing or failing to accept a search warrant tendered him. No such construction should be placed upon the statute.

The only witness offered by the defendant on the trial was W. T. Templeton, and he testified that he ar-. rested the defendant when he started to run, and that he did not find any weapons of any kind on him.

The evidence would have justified the officers in searching the automobile, for the reason they saw the whisky in the car, and after the arrest, in searching the person of defendant, and his immediate surroundings. Sands v. State, 36 Okla. Cr. 55, 252 P. 72; Edwards v. State, 81 Okla. Cr. 296, 164 P. 2d 245; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028.

Under all the facts as brought out on the hearing of the motion to suppress, we áre of the opinion that the court committed no error in overruling the same.

The judgment of the county court of Bryan county is affirmed.

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