text:
    L. C. MONTGOMERY v. STATE.
    No. A-10226.
    Nov. 18, 1942.
    (131 P. 2d 127.)
    Sid White, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, L. C. Montgomery, was charged by information filed in the court of common pleas of Oklahoma county with the crime of resisting an executive officer in the performance of his duty, was tried, convicted, and sentenced to pay a fine of $50 and costs, and has appeared.

That part of the information which describes the acts of the defendant which are alleged to have been committed is as follows: * * and in resisting the arrest and service of said warrants, the said L. C. Montgomery, did strike, beat, bruise and otherwise maltreat the said J. R. Turner, all of which acts were done by the said defendant, L. C. Montgomery, in the resistance of the said officer in the performance of his official duties ; * *

Several assignments of error are presented by tbe defendant, bnt bis brief is devoted mainly to tbe proposition that tbe evidence is wholly insufficient to sustain tbe conviction.

No brief bas been filed on behalf of tbe state, and at tbe time tbe cause was set for oral argument counsel who* appeared for tbe state informed this court that in their opinion tbe evidence was insufficient to sustain tbe conviction. However, no formal confession of error bas been filed.

The defendant was 50 years of age and engaged in tbe business of buying and selling used furniture and other secondhand goods in Oklahoma City.

Prior to the occasion in question, the officers of Oklahoma City bad made various searches of the place of business operated by tbe defendant looking for stolen merchandise. On some of these trips they bad been successful in finding’ articles which bad been reported to> them as stolen. Tbe defendant bad complained that the officers were searching bis place of business without, a search warrant several times daily and were disturbing bis business and their activities were preventing him from selling bis merchandise.

On tbe morning, of tbe day tbe offense was alleged to have been committed, tbe defendant and bis attorney bad secured a temporary restraining order from tbe district court restraining tbe officers from making a search of tbe defendant’s place of business without a search warrant. About 2 o’clock in tbe afternoon on that day five of tbe officers obtained a search warrant and went to tbe defendant’s place of business. Tbe facts up to this point are undisputed.

J. W. Casady, policeman, testified that he was in another part of tbe building and beard a commotion out on the sidewalk and that when he got out there he saw Mr. Turner (the policeman) throw defendant over his shoulder onto the sidewalk and that he picked the defendant up and put him in the car. He further testified:

“Q. What did Mr. Montgomery say, if he said anything? A. He was screaming for help. He had people around there working for him and he wanted them to help him. Q. Did you see anybody strike him? A. No, sir, I didn’t. Q. And was he the worst beat up man that ever came into the courthouse? A. No, sir. Q. Mr. White here, in his opening statement, said he was the worst beat up man that ever came into the courthouse'— A. X think he had his head skinned where Mr. Turner threw him over his shoulder. I think it skinned his head some.”

J. E. White, policeman, testified:

“A. We went in and looked around his place; and I was standing over there near the telephone and I heard him ask Bob (Turner) if he could use the telephone and Bob told him ‘No’ and Bob said ‘You are under arrest’ and give him them warrants; and he said ‘that is just fine’ and he said ‘you sonsabitches, I want you to' do all you can’ and I walked over by the radiator and Bob' started out to' the car; and that is when I heard them scuffling and I looked around and Bob was leading him around out to' the car; picking him up off the floor. Q. What happened? A. I didn’t run over there but I think Casady helped get him in the car.”

R. M. Ewing, policeman, testified that he was in the rear of the store building and heard a scuffle out on the sidewalk between the defendant and officer Turner. He further testified:

“Q. Did you see anybody hit anybody? A. I think, while scuffling, there was a lick or two passed. * * * Q. Who struck the first blow? A. I couldn’t tell whether both struck, or what. The only thing I saw was just as they started out, and whether Mr. Montgomery in turning accidently hit him with his elbow or arm; but on Mr. Turner’s left side the glass kinder gouged in his mouth, and his glasses hanging by one ear, and Mr. Montgomery kinder turned — well, I don’t know in turning whether he hit him with his fist or elbow. I am inclined to think his elbow. * * * Q. Was his back all skinned up? A. He was pretty well skinned up, but I think it was1 caused by falling on the sidewalk; and if anybody kicked the man, or used their boots on him, I didn’t see it. I didn’t see what took place prior to about six feet back. You know, where the counter goes down, five or six feet back in the store. I did not see what happened from there back in the store. * * * Q. Well, who hit those licks? A. There were some licks passed between him and Mr. Turner. Q. Who hit them? A. Mr. Turner, I think. I don’t think there were over two or three passed. They were pretty close together. Q. And that is the way the old man got down, wasn’t it? A. No, he didn’t go down from those licks. He went to hollering.”

Officer Turner testified that he had a search warrant and two warrants for the arrest of defendant when he and the officers went to his place of business. He further testified:

“Q. Did the defendant, Montgomery, say anything to you? A. I told him I had the warrants and he said ‘That is fine. That is fine. That is just fine.’ And ‘You sonsabitches is making it better all the time.’ And I took ahold of him and said that didn’t make any difference and told him to go on out to the car and wait until they got through looking around and he hit me. * * * Q. What did you do? A. I grabbed him and carried him out of the place and we both fell. He got up and came at me again and I hit him and he came back again and I grabbed him and he went at me again and I threw him kind of over, me as we fell. Q. Then what happened? A. We got him up and put him in the car and put him in the county jail. Mr. Casady and I.”

This is all the testimony of the state.

W. H. Regian testified that he was the deputy court clerk and saw the defendant at the courthouse when he was fixing to make bond. He further testified:

“Q. What was his condition, tell the jury? A. Well, he looked like a freight train had hit him. He was bloody and blood all over him. All over his shoulder and head. Q. Was his shirt torn off? A. It was torn. Not off of him. Q. His side bloody? A. Yes. Q. And body? A. No, I just saw where it was torn. Where his shirt was torn. Q. Did you notice whether or not he was stooped over like he was about to collapse? A. Yes, he was standing in a kinder stooped position. Q. He was in a very bad condition, wasn’t he? A. Looked to me like he should have gone to the hospital.”

L. M. Gregg testified that he was near the defendant’s place of business and heard the defendant hollering for help and the officers were knocking him down and kicking him. That his head was bleeding on top and also his face was bleeding.

Ruth James testified that she lived near the defendant’s place of business. That she heard the defendant hollering “My God, try to help me. Don’t let them kill me.” That she saw one officer grab him from behind and another officer grab his legs and throw him down and that is all that she could see from where she was.

E. L. Smith testified that he was passing the defendant’s place of business and saw an argument taking place between three officers and the defendant. He testified :

“* * * I believe the 3 officers were standing just inside of the door 7 or 8 or 10 feet; and one of the officers had ahold of Mr. Montgomery’s arm and he said: ‘Let’s go.’ Told him, ‘Let’s go’ and I believe — I didn’t hear the exact words but I believe one word brought on another and the officer boosted Mr. Montgomery out the door and Mr. Montgomery said: ‘What is this all about?’ and if I seen correctly I believe I seen the officer hit him in the stomach five times and Mr. Montgomery fell and, Mr. Montgomery’s glasses fell off and broke; and the officer fell and hie hit Ms head against the car’s! bumper — two cars were setting there — and they lifted Mm and put Mm in the car and drove away and that is all I saw. Q. You don’t work for Mr. Montgomery, do you? A. No, sir. Q. Or have any interest in Ms business? A. No, sir, I work for myself.”

Dr. H. C. Bradley testified that he treated the defendant the night of August 26th. He further testified:

“Q. Tell the jury what Ms condition was? A. Well, the night I saw him I was called down to Ms place of business and I found Mr. Montgomery very nervous, I might say, shock, and he had skinned up Ms head — hisi head was sMnned up — and Ms shoulder bruised and he was walking bent over and jittery and I took him out here in the country and put him to bed. Q. Was he injured in his abdomen? A. He said he was and walked like he was. Q. How long did you treat him? A. I put him to bed that night and had ice caps put to his head and told him to stay in bed the next day and, if he wanted me, to call me. Took Mm away out here to some place that night. iSome house where he was living, and the day after — well, the intervening days — he came to my office and said that he was feeling better and he had a large skinned area on his head about the size of the palm of your hand and, as a matter of fact, he had bruises on his shoulder and his body and he complained of pain in his abdomen, and right side, and it was dark — what we call, cartilaginous hemorrhage. Subcutaneous tissues— Q. Indicating that it had been bruised? A. Yes, sir, and possible fracture of a rib; and I wanted him to have an X-ray made and he wanted to know if it would help it any and I said: No, but I would have the satisfaction of knowing whether it was broken or not’; and he went on back and got to feeling bad again and I put him in bed; and he started a temperature; and still complained of his right side and I strapped it for him good and proper; that is all I could do; and he had a cough and I believe I gave him some medicine and kept him in bed and he complained all the while of his side and lots of pain in his bowels and abdomen. Q. State whether or not the temperature and symptoms indicated that the man had suffered a severe traumatic injury? A. That was it, yes, sir. The whole symptoms pointed to traumatism. Q. In other words, he had been severely beaten or injured? A. It was apparent in the whole thing.”

Rufus Matthews testified that he saw one of the officers hit the defendant in the stomach with his left hand and defendant fell down and commenced to holler.

R. B. Thomas testified -that he saw the defendant down on the sidewalk in front of his place of business and he saw one of the officers kick him. That he did not see Montgomery hit anybody.

Bill Evans testified that he was working in defendant’s place of business. That when the officers came in defendant picked up the telephone to> call his lawyer and that the officer jerked the phone out of his hand. That the officer pinned the defendant’s arm behind his back and ordered him to- “get in that car out there” and booted defendant out the door. That defendant fell and while he was on the ground he threw his arms around the officer’s legs to- keep from being kicked. That another officer ran up and kicked Montgomery and when the defendant got to his feet one of the officers hit him a couple of times in the chest and knocked him to the concrete and bumped his head on the sidewalk.

The defendant testified:

“* * * They jerked the telephone out of my hands and said to¡ consider myself under arrest and I said, ‘All right, what is the complaint?’ and we stood there a few minutes and I wanted to call a fellow and tell the fellow working for me to call up the attorney at law, Mr. White, and I said; ‘If they take me along,’ Í said, ‘You call Mr. White’ and ‘They probably might cause me some trouble’ and about that time I turned around and started and this Mr. Turner come up and said: ‘You are under arrest,’ and I said: ‘I thank you,’ and I walked on up and when I did lie grabbed my bands behind me and kicked me out on the street, and when he kicked me my legs went out from under me some way or another and I fell on the pavement and I seen they were trying to get me to hit him so I would be resisting an officer, but I wouldn’t hit him, knowing what they were trying to do, and pretty soon I got up, started to get up, getting upy and when I did two or three of the laws ganged in around me and he was digging me with his fist and I was trying to keep anybody from hitting me any more and when I fell down again another law kicked me in the side and kinder kicked me down in behind a car I think the police had come in and took my head and bounced it up and down on the pavement and when I got up my entrails were all sticking out about a place as far as that and I was all over blood and they shoved me into the car and took me to jail. Q. Did they take you before any magistrate and give you an opportunity to make bond? A. No, sir. I tried to get bond and they wouldn’t let nobody in. Q. What time of night did you make bond if you did? A. About 8' o’clock after dark.”

In rebuttal some of the police officers were recalled and over the objection of the defendant were allowed to testify that they had found stolen merchandise in the defendant’s place of business on several occasions.

The conviction of the defendant cannot be sustained. It is apparent throughout the record that the trial was an attempt at a justification on the part of the officers for their conduct in abusing the prisoner. The language used by this court in the recent case of Yates v. State, 73 Okla. Cr. 51, 117 P. 2d 811, 814, is applicable to this case. In that opinion it is stated:

“It would seem from the record that this prosecution against the defendant was instituted in an effort to try to justify the unlawful action taken by these officers.

“If we were to uphold a conviction in this case under the record, it would result in submitting all persons to any indignity or assault that an arresting officer might see fit to heap upon him. People chosen to enforce the law should obey the law themselves.”

The proof of the state in its strongest light was very weak so far as it tended to show that the defendant had unlawfully resisted arrest. Then when the evidence of disinterested bystanders is considered, it is clear that the judgment of conviction is erroneous.

The judgment of the court of common pleas of Oklahoma county is reversed and the defendant discharged.

BAREFOOT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    In re FRANK EMMETT RICE.
    No. A-10323.
    Nov. 18, 1942.
    (131 P. 2d 131.)
    F. E. Riddle and R. R. Linker, both of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty. of Tulsa County, of Tulsa, for respondent.
   BAREFOOT, P. J.

Petitioner, Frank Emmett Rice, has filed in this court his petition for habeas corpus, seeking his release from the county jail of Tulsa county, upon the giving of reasonable bail. A hearing was had before this court on the 15th day of September, 1942, after rule to- show cause had been made, and the following order was entered:

“Order

“Now, on this, the 15th day of September, 1942, came on regularly to be heard the above entitled petition for writ of habeas corpus, the petitioner appearing by his attorneys, F. E. Riddle and R. R. Linker, and no appearance is made by the respondent and no response filed, although rule to- show cause was served upon the respondent on the 10th day of September, 1942.

“Upon due consideration of the petition and after a hearing upon same, it is ordered, adjudged and decreed that petitioner be granted bail in the sum of twenty-five hundred dollars ($2,500) in the two cases pending against him in the District Court of Tulsa County, numbers 10370- and 10371, said bond to be executed and filed with the Court Clerk of Tulsa County, and upon the approval of same by the Court Clerk of Tulsa County petitioner to-be discharged pending his trial in the District Court of Tulsa County. Opinion upon this petition to- follow at a later1 date.”

The facts upon which this order was based were as follows: The mother of petitioner, Ruth Rice, filed a petition in the county court of Tulsa county on May 3, 1941, praying, for an order for admission of petitioner to the Eastern Oklahoma State Hospital at Yinita, Oklahoma, by reason of insanity: that on the 5th day of May, 1941, an order was entered by the county judge of Tulsa county adjudging, petitioner insane and ordering his confinement in the said Eastern Oklahoma State Hospital at Yinita, to be kept and detained until legally discharged; that petitioner was, on the 15th day of May, 1941, charged in the district court of Tulsa county with the crime of' robbery with firearms on the 26th day of April, 1941; and that on the 15th day of May, 1941, he was charged by a second information in Tulsa county with the commission of the crime of robbery with firearms on the 27th day of April, 1941. It is further alleged that petitioner remained in the state institution at Yinita until the 6th of March, 1942, at which time he was discharged as having been cured and of sound mind, but at the same time was committed to the county jail of Tulsa county without bail by reason of the two charges above referred to; that on the 14th day of June, 1942, petitioner’ filed a petition for habeas corpus before Judge Oras A. Shaw, district judge of Tulsa county, and that by reason of said petition an order was made admitting petitioner to bail in the sum of $2,500 in each of said two cases; that said bail ivas duly executed and petitioner was released from jail; that while petitioner was at liberty on bail, and on the 28th day of August, 1942, petitioner was again arrested upon the above charges and placed in the county jail of Tulsa county, and “that without any witnesses being sworn or any testimony being introduced or any hearing had, other than the recommendation of the assistant county attorney, the court”, presided over by a different district judge than the one who granted the original bail, “raised the amount of bail in each case to the sum of ten thousand dollars and ordered petitioner held in jail until said bond was executed.”

In the petition filed by petitioner certain legal questions are raised with reference to petitioner’s confinement which we do not deem it necessary to pass upon at this time. At the time of hearing upon this petition on the 15th day of September, 1942, and at which time evidence was heard, this court was of the opinion that petitioner should be granted bail in the sum of $2,500 for his appearance in each of the cases pending against him. The order above quoted was then entered.

For the reasons above stated, the writ of habeas corpus is granted, in compliance with the terms of the order entered on the 15th day of September, 1942.

DOYLE and JONES, JJ., concur.


text:
    FRED RAUSCH v. STATE.
    No. A-10111.
    Nov. 18, 1942.
    (131 P. 2d 133.)
    Lloyd C. Colter, of Nowata, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and D. N. Tillotson, Co. Atty. of Nowata County, of Nowata, for defendant in error.
   BAREFOOT, P. J.

Defendant, Fred Rausch, was1 charged in the county court of Nowata county with the crime of unlawful possession of intoxicating liquor, to wit: 23 pints and one quart of whisky; was tried, convicted and sentenced to pay a fine of $100 and to serve 30 days in the county jail, and appeals.

Before stating the legal contentions for reversal of this case, we find it necessary to give a brief statement of the facts. Defendant, Fred Rausch, resided in the city of Nowata and the premises he occupied belonged to his brother, L. S. Rausch, and the title to the property was in his brother’s name. Situated on these premises and located about 150 to 200 feet from defendant’s home there was a building in which was located certain machinery and it was known as the L. S. Rausch Tank Company. Defendant did not own or operate this company, but it belonged to his brother, L. S. Rausch. The evidence in the record reveals that defendant had an agreement with his brother, L. S. Rausch, that he could use or occupy any part of this building that was available for the purpose of storing property therein. In payment of this right defendant was to- pay his brother in garden truck raised by him on the premises.

The sheriff of Nowata county received information that caused him to believe certain intoxicating liquor was stored on the premises known as the L. S. Rausch Tank Company. Instead of securing a search warrant to search the same, he went toward the building on the public highway. He was accompanied by Sam Cambrón. When he arrived at a point near where the building was located, he left the public highway and went upon the private premises and knelt down on his knees and looked through a window and there observed, as he testified, a bottle of whisky sitting on a table. He left Mr. Cambrón there and went to procure a search warrant and returned and searched the premises and also the home of defendant. No intoxicating liquor was found in defendant’s home but 23 pints and one quart of whisky were found in the building known as the L. S. Rausch Tank Company.

It is admitted by all parties that the search warrant secured by the sheriff was illegal and void for the reason that it did not properly describe the premises sought to be searched. There is no attempt on the part of the state to uphold the legality of the search warrant for that reason, but it is contended: First, that it was unnecessary to have a search warrant for the reason that the intoxicating liquor was seen by the sheriff, and that, therefore, a misdemeanor was committed in his presence and a search warrant was not necessary; second, that the defendant cannot question the legality of the search warrant for the reason that he was not the owner of the premises searched and could not, therefore, object to the search thereof.

The first contention is based upon Oklahoma Statutes 1931, section 2780, O. S. A. (Stat. 1941), Title 22, § 196, which is as follows:

“Arrest without warrant by officer. — A peace officer may, without a warrant, arrest a person:

“T. For a public offense, committed or attempted in his presence.”

And upon the decisions of this court construing the same. Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366.

However, the facts in this case are not the same as in the cases relied upon. In those cases offenses were committed in public places and in the presence of officers who had a legal right to be where they were. Here the officer went upon the private premises which were in possession of defendant and stooped down on his knees and looked through a window where he says he observed a bottle of whisky sitting upon a table. There was no one present at the time that he observed this bottle. This did not, in our opinion, constitute a violation of law in his presence as contemplated by the statute above quoted.

As to the second contention, the state relies upon the decisions of this court that the right of search is personal and that a defendant will not be heard to complain of the search of premises which he does not own or control or of which he does not have possession. Cases relied upon are the following: Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843; Sparks v. State, 72 Okla. Cr. 330, 116 P. 2d 219; Tacker v. State, supra; Rogers v. State, 72 Okla. Cr. 123, 113 P. 2d 606.

An examination of these cases reveals that in each instance the defendant not only did not own the property, but he did not have control or possession of the same. The uncontradicted evidence here reveals that defendant had possession of the premises, with the right to store therein any property which he desired. There was no showing that he did not have possession of the property, other than to show that his brother had title thereto.

For the reasons above stated, the judgment of the county court of Nowata county is reversed and defendant ordered discharged.

DOYLE and JONES, JJ., concur.


author: JONES, J.

text:
    In re BILLIE WHISENHUNT.
    No. A-10324.
    Nov. 18, 1942.
    (131 P. 2d 134.)

      Joe W. Simpson and F. V. Freeman, both of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus in which the petitioner, Billie Whisenhunt, seeks his release from imprisonment in the State Reformatory at Granite.

At the time of the filing of the verified petition herein, this court refused to issue the writ, but granted a rule to show cause why the writ should not be issued and made the same returnable September 17, 1942.

A response was filed by the warden of the State Penitentiary and a hearing held before this court upon the issues thus made.

Subsequent to the hearing and before this court had rendered its opinion in said matter, to wit, on September 29, 1942, the Governor issued a leave of absence for 65 days to the petitioner, in accordance with the pardon and parole policy of the Governor. The petitioner accepted this clemency from the Governor and is now at liberty.

The object of the writ of habeas corpus is to relieve the petitioner from illegal restraint or unlawful imprisonment, and where the petitioner is released and not held in actual custody there is nothing for this court to adjudicate. Ex parte Davis, 11 Okla. Cr. 403, 146 P. 1085.

For this reason, the writ of habeas corpus is denied.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    In re BUBER ARTHUR.
    No. A-10325.
    Nov. 18, 1942.
    (131 P. 2d 135.)
    Buber Arthur, in pro per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner, Buber Arthur, has filed his verified application for a writ of habeas corpus, wherein it is alleged that he is unlawfully imprisoned in the State Penitentiary at McAlester, under a commitment issued from the district court of Greer county, upon a plea of guilty for the crime of murder.

The facts alleged in said petition are substantially the same as the facts alleged in the petition by the petitioner heretofore presented to- this court and which was denied. Ex parte Arthur, 60 Okla. Cr. 287, 64 P. 2d 344.

A demurrer to- the petition was interposed on behalf of respondent.

The rule of this court is that where an application for writ of habeas corpus has been denied, this court will not ordinarily entertain a subsequent application for a writ based on the same grounds and the same facts, or any other grounds or facts existing when the first application was made, whether presented then or not. Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88.

Fop the reasons above stated, the demurrer to the •petition is sustained and the canse is dismissed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    In re TOMMIE KNIGHT.
    No. A-10322.
    Nov. 18, 1942.
    (131 P. 2d 506.)

      Tommie Knight, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The petition for writ of habeas corpus shows that on August 1st, 1938, in the district court of Oklahoma county, the petitioner, Tommie Knight, was convicted of robbery, after former conviction of a felony, and was in accordance with the verdict of the jury sentenced to serve a term of 40 years in the State Penitentiary.

Petitioner avers that he has been denied his constitutional rights, and is being illegally detained in the Oklahoma State Penitentiary, by Warden Fred Hunt, for the following reasons:

First. That the judgment and sentence rendered against him is too vague, uncertain and indefinite, in that it does not state whether petitioner was found guilty of robbery in the first or in the second degree, and that the punishment assessed is cruel and excessive.

Petitioner further alleges that in such cases as his, the degree of robbery for which he stands convicted must be determined and set forth as a necessary requisite to “due process of law.” Quoting statutes and citing, several decisions of this court.

Wherefore, petitioner prays that this Honorable Court will grant a writ of habeas corpus or issue an order that the State of Oklahoma show cause why petitioner should not be restored to his rightful liberty.

The answer of respondent to the rule to show cause why the writ should not issue sets forth a certified copy of the commitment, including the journal entry of judgment and sentence. An excerpt therefrom is as follows:

“It is therefore, hereby considered, ordered, adjudged and decreed by the court that the said Tommie Knight be committed to and he imprisoned in the State Penitentiary at McAlester, in the State of Oklahoma, and confined in the State Penitentiary for the term of Forty (40) years for said offense of robbery after former' conviction of a felony.”

Section 10 of the Bill of Rights provides:

“The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State.” (Const. art. 2, see. 10.)

It is well settled, by numerous decisions of this and other courts, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by legislative action, and under the constitutional guaranty, the cases within the relief afforded by the writ at common law cannot he placed beyond its reach and remedial action by statute. A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act, and jurisdiction of the person and of the subject matter is not alone conclusive, but the jurisdiction of the court to render the particular judgment or issue the process is a proper subject of inquiry; and the proceedings of the committing court will he examined m far as necessary to determine the question of jurisdiction. If there are no legal powers to render the judgment, or issue the process, there was no court of competent jurisdiction, and consequently no judgment or process. All is coram non judice, and void. Ex parte Mingle, 2 Okla. Cr. 708, 104 P. 68; Ex parte Justus, 3 Okla. Cr. 111, 104 P. 933, 25 L.R.A., N.S., 483; Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A 719; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486; Ex parte Brewer, 75 Okla. Cr. 150, 129 P. 2d 199.

It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The wilt cannot be invoked for the purpose of reviewing the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.

Before the writ is available as a means of release from confinement, it must appear that the court issuing the process has acted without jurisdiction. Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574.

While it is undisputed that the verdict of the jury finding the defendant guilty of robbery and fixing his punishment at 40 years’ imprisonment, and the judgment of the court as rendered in accordance therewith are technically informal in that the jury failed to find the degree of the crime of which he is guilty (sec. 3096, St. 1931, 22 O. iS. 1941 § 915) while the statute requires the degree to be found by the jury, however, it has been repeatedly held by this court that “where a verdict is irregular in form, but is not objected to at the time it is returned, and the court given an opportunity to have the jury correct it, every intendment and inference will be indulged to uphold it, and where from an examination of the verdict, and the entire record, the intent and purpose of the jury as expressed in the verdict may be clearly ascertained, it will be upheld.”

See Dunbar v. State, 75 Okla. Cr. 275, 131 P. 2d 116, and cases cited.

To entitle one to- be released on habeas corpus from a judgment and sentence restraining him of his liberty, the judgment must be void, not merely erroneous.

It is sufficient to dispose of this case to say that as courts take judicial knowledge of their own records and proceedings, it appears that an appeal was taken from the judgment in question and said judgment was by this court affirmed.

We have carefully examined the record and case-made, on said appeal, entitled Knight v. State, 68 Okla. Cr. 122, 95 P. 2d 905, 912, and it nowhere appears in said record and case-made that the defendant, Tommie Knight, challenged either in said district court, or on his appeal in this court, the jurisdiction of the trial court.

It appears that said petitioner was represented by able counsel, in the trial court, and it appears that no objection was made to' the reception of the verdict, nor do we find from the record that this question was ever raised in the trial court. Thus it appears the question was raised, and for the first time presented in his petition for writ of habeas corpus in this court.

Judge Davenport, writing the opinion of the conrt, affirming the judgment of conviction in Knight v. State, supra, used the following language:

“The defendant in this case is not only guilty of robbery, but is guilty of making a vicious assault on the prosecuting witness, W. P. Dorris, and beating him into' insensibility, and incapacitated him for any further resistance; then stole the money of the defendant and his car, and drove away from the cabin where the robbery took place.”

And concludes as follows:

“The defendant Knight was a habitual criminal; and while the punishment imposed by the jury in this case seems large, yet this court feels that the only way to break up the robbery of these people is to sustain the verdict of the jury, where the defendant has been given a fair and impartial trial.”

The trial court had jurisdiction of the crime charged in the information; the judgment and sentence pronounced and entered was in conformity to the verdict of the jury:

It follows that the pétitioner is lawfully imprisoned under said judgment and sentence.

For the reasons stated, the writ of habeas corpus was, and is denied.

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


text:
    DARIAN RAY McCOMAS v. STATE.
    No. A-9940.
    Nov. 25, 1942.
    (131 P. 2d 488.)

      Hatcher & Bond, of Chickasha, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a judgment rendered in the district court of Grady county, in accordance with the verdict of a jury finding Darian Bay McComas guilty of rape in the second degree and assessing his punishment at imprisonment for a term of one year in the Granite Penitentiary.

The information, omitting merely formal parts, charges:

“That Darian Bay McComas and Marion G. Archer, did in Grady County, on or about the 7th day of August, 1938, and anterior to< the presentment hereof, commit the crime of Bape — First Degree, in the manner and form as follows to wit:

“That on or about said day and date, and in said county and state, the said defendants, Darían Ray McComas and Marion G. Archer, then and there being, did then and there wrongfully, wilfully, unlawfully, forcibly, violently and feloniously, make an assault in and upon one Dorothy Lee Burks, a female not the wife of the said Darian Ray McComas or Marion G. Archer, without her consent and against her will, by means of force overcoming her resistance, rape, ravish and carnally know her, the said Dorothy Lee Burks contrary to,” etc.

Upon the trial the defense interposed was a denial of accomplishing the act charged, and also nonage, in that at the time of the alleged commission of the offense the defendant was under the age of 18 years.

The grounds of the motion for a new trial and assigned as error in the petition are, in effect, that the verdict was contrary to law and to the evidence.

The other assignments are:

“Error of the court in overruling the defendant’s demurrer at the close of the state’s evidence; error of the court in not directing the jury to return a verdict of not guilty for the defendant, as requested by the defendant, at the close of all the evidence in the case;” error of the court in giving instructions numbered 5, 9, 11, and 14 over the objections and exceptions of the defendant.

The errors assigned require consideration of the following* Penal Code provisions:

As defined by our Penal Code:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * * Fourth. Where she resists but her resistance is overcome by force and violence.” Section 2515, Sts. 1931, 21 O. S. 1941 § HU.

The sections which classify the crime of rape into degrees and fix the punishment are:

“No conviction for rape can be had against one who was under the age of 14 years at the time of the act alleged unless his physical ability to accomplish penetration is proved as an independent fact and beyond a reasonable doubt. Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of 14 years, Avith her consent, unless such person was over the age of 18' years at the time of such act.” Section 2516, Sts. 1931, 21 O. S. 1941 § 1112.

“Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.” Section 2518, Sts. 1931, 21 O. S. 1941 § 1114.

“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court.” Section 2519, Sts. 1931, 21 O. S. 1941 § 1115.

“Rape in the second degree is punishable by imprisonment in the penitentiary not less than one year nor more than fifteen years.” Section 2520, Sts. 1931, 21 O. S. 1941 § 1116.

Under section 2516, if the male is under the age of 18 years, and the female is above the age of 14 years, and the act is with her consent, no offense is committed, nor can a person be convicted of rape with a female over the age of 14 years with her consent, unless such person Avas over the age of 18 years at the time of said act. See Brasel v. State, 48 Okla. Cr. 403, 291 P. 807.

It is contended that the trial court erred in giving to the jury certain instructions submitting the law of rape in the first degree, accomplished by force overcoming her resistance:

The court further instructed the jury as follows:

“No. 6. You are also instructed gentlemen, under the law no one can be convicted of rape on account of a.n act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of eighteen years at the time.

“No. 10. You are instructed gentlemen, that under the law any male under the age of eighteen years having sexual intercourse with a female over the age of fourteen years, accomplished by force or violence overcoming1 her resistance is guilty of rape in the second degree.

“No. 11. ,So you are instructed gentlemen, with reference to rape in the second degree, that if, after a fair and impartial consideration of all the evidence in the case and the instructions of the court herein given you, you entertain a reasonable doubt as to whether or not the defendant is guilty of rape in the first degree as herein-before defined to you, you should then consider as to whether or not the defendant is guilty of rape in the second degree as herein defined and if, after a fair and impartial consideration of all the evidence in the case and the instructions of the court herein given you, you are convinced beyond a reasonable doubt that in the county of Grady and state of Oklahoma, and on or about the seventh of August 1938, the defendant Dorian Ray McComas, being then and there under the age of 18 years did unlawfully, willfully and feloniously have sexual intercourse with the said Dorothy Lee Burks, without her consent and against her will, accomplished by means of force or violence overcoming her resistance, and she, at said time, was not the wife of said defendant, then in that event you should find the defendant guilty of rape in the second degree and should you find the defendant guilty of rape in the second degree, you must fix his punishment at confinement in the penitentiary for any period not less than one nor more than 15 years.

“In this connection gentlemen, you are instructed that you cannot convict the defendant, if you find and believe from the evidence, or entertain a reasonable doubt thereof, that he was at said time, under the age of 18 years and had sexual intercourse with Dorothy Lee Burks with her consent.” Excepted to by the defendant. Exception allowed.

“No. 14. You are instructed gentlemen, if you find and believe from the evidence, or entertain a reasonable doubt thereof, that the defendant was under the age of eighteen years, and further find beyond a, reasonable doubt, that he had sexual intercourse with the prosecuting witness, Dorothy Lee Burks, against her will and by force and violence, overcoming her resistance, then he would be guilty of rape in the second degree, whether the said Dorothy Lee Burks was a virgin or of previous chaste character or not.” Excepted to by the defendant. Exception allowed.

Counsel for defendant in their brief say:

“The court should have instructed the jury in this case that the evidence was undisputed and uncontradicted that the defendant was under the age of 18 years at the time of the alleged crime.”

There is no merit in this contention.

It appears from the record that counsel for appellant presented no request for additional instructions.

It has been repeatedly held by this court that:

“If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to« the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant’s theory of the case, when he has not requested such instructions.” Williams v. State, 12 Okla. Cr. 39, 151 P. 900; Merriott v. State, 18 Okla. Cr. 247, 194 P. 263; Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795.

In Williams v. State, 17 Okla. Cr. 452, 190 P. 892, 893, it is said:

“It was held by this court, in tbe case of Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L.R.A.1917E, 668, that the provision in section 2415, Revised Laws 1910 [Sec. 2516, Sts. 1931, 21 O. S. 1941 § 1112], ‘nor can any person be convicted of rape on account of an act of sexual intercourse with a female over tbe age of 14 years, with her consent, unless such person was over the age of 18 years at tbe time of such act,’ was a matter of defense to tbe crime of statutory rape, and that it was not necessary to negative such defense in tbe indictment or information charging tbe crime.” Cotts v. State, 34 Okla. Cr. 59, 244 P. 817.

Tbe instructions as a whole fully and fairly stated tbe law applicable to tbe facts disclosed by tbe record, and were as favorable to tbe defendant as tbe law and tbe evidence warranted.

Tbe only other question involved in this appeal is tbe sufficiency of tbe evidence to sustain a conviction.

Counsel for appellant in their brief state:

“Tbe defendant relies principally in this appeal on tbe insufficiency of the evidence, and that tbe state’s evidence is too inherently improbable, incredible, unreasonable and contradictory upon which to base a judgment and sentence.”'

And quotes liberally from numerous cases decided by this court in which the judgments of conviction in rape cases were reversed because not sustained by sufficient competent evidence.

A careful examination of tbe entire record and the briefs leads to tbe conclusion that there is no merit whatever in this appeal, and we think tbe defendant’s own testimony amounts virtually to a plea of guilty. We cannot see how any honest, intelligent jury under the evidence could have returned a verdict otherwise than one of guilty.

It is sufficient to say that the improbability of the prosecutrix’ testimony must arise from something other than the likelihood of the improbability of the commission of crimes of this character. The testimony of the prosecutrix must be of such a contradictory and unsatisfactory nature, or else such witness must be so thoroughly impeached, that this court may say that such testimony is clearly unworthy of belief and insufficient in law to sustain the conviction.

In a prosecution for rape it is always legitimate to consider whether the subsequent conduct of the prosecutrix is the usual and natural conduct of an outraged woman, as bearing upon the credibility of her direct testimony. In this case it appears that the prosecutrix immediately made complaint to Mrs. and Miss Nash, the first persons she spoke to upon leaving the defendant’s car, and also made complaint to her mother and sister upon meeting them the same day.

In the instant case the testimony of the physicians who examined the prosecutrix on the date the crime was alleged to have been committed corroborated her testimony.

The rule contended for by the defendant was condemned by this court in the case of Bulls v. State, 33 Okla. Cr. 64, 241 P. 605, 606, wherein this court held:

“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 ix> manifest her opposition. In reference to the degree of resistance required, the jury should be instructed that it is necessary, not that the prosecutrix should have made the uttermost resistance, but that she has made such resistance as she was capable of making) at the time.” And see Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580; Thomas v. State, 69 Okla. Cr. 188, 101 P. 2d 283.

Upon the undisputed facts and circumstances in evidence, the contention that appellant did not accomplish an acto of sexual intercourse by force overcoming her resistance, or that the prosecutrix consented, is wholly without merit.

Upon a careful examination of the record, we conclude that there was no error committed by the trial court which could have been prejudicial to the substantial rights of the defendant. The evidence shows beyond all reasonable doubt that the defendant was guilty of rape in the second degree, and we think that he ought to- be thankful that the jury in fixing the minimum punishment dealt so leniently with him.

As we view the record a case seldom appears in criminal annals showing more depravity in the defendant or a greater outrage to common decency and public morals.

The judgment of the district court of Grady county herein is affirmed.

JONES, J., concurs. BAREFOOT, P. J., absent.


text:
    W. J. BARNETT v. STATE.
    No. A-9943.
    Nov. 25, 1942.
    (131 P. 2d 496.)

      J. D. Lydick, of Oklahoma City, and Williams, Cowan & Benedum, of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, W. J. Barnett, was charged by indictment, duly presented and filed in the district court of Oklahoma county, with the crime of corruption in office, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed.

It is first contended that the trial court erred in overruling the demurrer to the indictment.

At the time the defendant was arraigned he filed what was styled “Motion to Quash and Expunge Instrument Entitled ‘Indictment’ from the Record and to Exonerate Defendant’s Bail.” The motion was sustained by the district court of Oklahoma county. Upon appeal by the state upon a reserved question of law this court reversed the action of the district court and remanded the case for trial. State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

Defendant petitioned the Supreme Court of the United States for a writ of certiorari, which petition was denied. Thereafter, a petition was filed in the district court of Oklahoma county for a writ of habeas corpus, which was denied. On March 2, 1937, and before trial date, a petition for writ of habeas corpus was. filed in the Supreme Court of Oklahoma, and on June 1, 1937, an opinion was handed down denying the writ. 180 Okla. 208, 69 P. 2d 643. From this ruling the defendant appealed to the Supreme Court of the United States, and on December 13, 1937, the appeal was dismissed, Barnett v. Rogers, 302 U. S. 655, 58 S. Ct. 363, 82 L. Ed. 507.

Subsequently, the defendant, through his counsel, interposed a demurrer to- said indictment in which was set forth four grounds upon which it was prayed that the action be dismissed. The county attorney filed a motion to- strike the demurrer from the files for the reason that all of the matters and facts therein stated had •been fully and finally presented in the motion to quash, and that said matters had been presented to- the highest courts of the State of Oklahoma and to the Supreme Court of the United States and that in each and every instance the indictment had been sustained. The court took the demurrer and motion under advisement from April 19, 1938, to- February 26, 1940, at which time the motion to strike was overruled and the demurrer, likewise, was overruled.

Several pages of the briefs of both the state and defendant are devoted to the proposition of law as to whether the decision in State v. Barnett, supra, is conclusive as to all questions raised by defendant in his demurrer.

While the two pleadings filed by the defendant are differently styled, they both are directed to the proposition that the statute under which the prosecution is instituted is so vague and indefinite that it may not be sustained; and, secondly, that said indictment wholly fails to state a public offense.

While we shall not hold that the former opinion of this court concluded the defendant from raising the propositions urged in his demurrer, we are of the opinion that Judge Doyle, in writing the former opinion in State v. Barnett, supra, gave full consideration to the proposition now urged, and even though some of the language in that opinion was dicta so far as the motion to quash then under consideration was concerned, that his reasoning was good and founded upon legal authority and applicable to the contentions raised by the defendant in his demurrer. For that reason, without further discussion of the demurrer but by reference to the former opinion of this court in State v. Barnett, supra, we are of the opinion that the district court correctly overruled the demurrer of the defendant filed to the indictment.

It is next contended that the evidence is insufficient to convict the defendant of any public offense, and particularly of the offense named in either section 9146, O. S. 1931, 6 O. S. 1941, § 18, or 9163, O S. 1931, 6 O. S. 1941 § 22, and that the trial court erred in refusing to instruct the jury to return a verdict of not guilty at the close of all of the evidence.

The record herein covers approximately 1,300 pages. The prosecution depended entirely upon circumstantial evidence to convict tlie defendant. We shall not undertake to1 give a review of the evidence nor comment upon the weight which should be given to the testimony of any witness for the reason that because of error, which will be hereinafter discussed, this case must be reversed and remanded and for that reason this court refrains from a discussion of the evidence, as the same might be used to prejudice the state or the defendant in future proceedings. It is enough to state that the evidence of the state was sufficient to make a prima facie case against the defendant and that even though many of the circumstances relied upon by the state for conviction were plausibly explained by evidence on behalf of the defendant, still the question of whom to believe remained one for the jury to determine under proper instructions.

It is further urged that the defendant was denied a fair and impartial trial because of the prejudicial misconduct of the trial judge.

In connection with this assignment of error, the defendant devotes the major portion of a 250-page brief. This assignment is directed chiefly at the action of the trial court interrogating two witnesses of the defendant at great length in the presence of the jury. Counsel for defendant contend that the trial judge, in propounding the questions, did so “with color in his face and by his demeanor showed feeling and resentment and by his tone of voice and his appearance clearly indicated to the jury that he did not believe the testimony which the witness had given.”

The state’s case centered around the testimony of one M. C. Trimble who had formerly been an assistant to the State Bank Commissioner. Much of the evidence of the defendant was directed at the testimony of Trimble and was for the purpose of showing a feeling of antagonism between Trimble and the defendant and to1 further show that Trimble had purposely misplaced or destroyed records which had come into his possession as an officer of the State Banking Department, which records would have been valuable to the defense.

Trimble had taken a written statement from one H. H. Fisher, an employee of the Home Building & Loan Association at Shawnee, in which Fisher had stated certain facts relative to' the transfer of some shares of stock which were the basis for the indictment upon which defendant was being tried. Fisher was placed upon the witness stand by the state, but when the written statement was presented he testified that the statement conveyed the wrong impression and that there were certain inaccuracies in the statement which were called to Trimble’s attention before he signed it, but that Trimble threatened to' place his loan company in receivership if he did not sign the statement as prepared. Before signing the statement it is undisputed by the testimony of both Trimble and Fisher that Charles E. Wells, a reputable attorney of Shawnee, was called by Fisher and the statement was discussed before Fisher would place his signature thereon. Wells testified that Trimble threatened to place the building and loan company in receivership if Fisher did not sign the statement. That he was attorney for the building and loan company and both he and Fisher were very desirous that the company be not placed in receivership, and for that reason he advised Fisher to gO' ahead and place his signature on the written statement although the statement as prepared, according to Fisher, was so worded as to give a wrong impression concerning the activities of the defendant, W. J. Barnett.

To further corroborate the testimony of Fisher and Wells the defendant used the witness Walter Nance, who had been a supervisor of the building and loan division of the State Banking Department for many years. Nance testified that he was present at the office of the building and loan association in Shawnee making a routine examination when Trimble appeared and questioned Fisher. That Trimble then prepared a written statement for Fisher to sign, which Fisher refused to sign because of certain inaccuracies, therein contained. That Trimble then threatened to place the building and loan association in receivership if Fisher refused to. sign the statement. That Fisher called his attorney and consulted with him and did sign the statement and the witness Nance placed his signature as a witness on said statement.

The particular statement at which the testimony is directed was not a sworn statement but was a statement signed by H. H. Fisher and witnessed by Charles E. Wells and Walter Nance, although said statement at the beginning recites that the said H. H. Fisher was first duly siworn by Walter Nance, an auditor for the building and loan department.

The case-made shows that after the state and defense had concluded their examination of the witness, the trial court commenced an interrogation which covers four pages in the record. We have read over this examination and given it careful consideration and without detailing it at length it is our opinion that there was an' excess of interference on the part of the trial court in his examination of this witness. The county attorney, in his cross-examination, had thoroughly covered the field and the conduct of the trial court probably had a bad effect on the defendant’s case. At the conclusion of the court’s interrogation the trial court made this statement:

“Of course, you understand, I don’t believe a word you have testified to about these statements in controversy here. I don’t think an officer would do* that in this state, if he is honest about it, and I don’t like for you to come down here and testify, an officer of this state, about a thing that carries the weight and integrity that that thing is supposed to- carry with a jury and courts, and testify you handled the state’s business in any such manner as that; that a man make a statement like that claiming1 it is not true, and let a man come to-a prosecution on it, as an officer of this state; you ought not to do it. The fact of the matter is you ought to be fired from the position you have got and your commission taken away from you.”

The record further reveals the following in connection with the court’s examination of this witness:

“The Court: I think you ought to turn your commission in. Mr. Lydick (Attorney for defendant) : The defendant objects and excepts to the remarks of the court. The Court: You are excused. Gentlemen of the Jury, the remarks of the court will not be considered by you in connection with the weight and credibility you give to this testimony. Mr. Lydick: We move the court now direct the jury specifically that the statement made by Your Honor shall not be considered by the jury. The Court: Which statement? Mr. Lydick: That he ought to give up his commission. The Court: Why? Mr. Lydick: That has no business in this case. I don’t think the court should have said that. Q. (By the Court) Mr. Nance, do you as an officer of this state and as a notary of this state, intend to- take any more acknowledgments or swear people to instruments in the face of the fact that you realize they contend that what they are signing is untrue? A. No. Q. You don’t intend to do that. A. As I stated to the — here in my testimony, I didn’t know whether that was true or whether that was not. Q. T thought a minute ago you didn’t know whether- you would do- that or not. Now, if you say you won’t do-that I will withdraw my suggestion to you, but if as an officer of this state and holding a commission as a notary, you don’t know whether you will take acknowledgments of those who claim statements that they have made are untrue, or if there is any doubt in your mind, I still think you ought to deliver up your commission. Mr. Lydick: We except to the remarks of the court just made and move the court to instruct the jury they shall not consider the remarks made by the court. The Court: I have already instructed them to that effect. I am talking to this witness about a thing that has nothing to do with his credibility as a witness here. Mr. Lydick: If it has! nothing to do with it I think you should strike it out of the record, and I so move. The Court: I don’t have time to go out here after these lawsuits are tided, and tell an officer what I think he ought to do> with his commission. Mr. Lydick: You haven’t any right to tell him here. The Court: I did tell him here. Mr. Lydick: In the opinion of defendant’s counsel, it is error. The Court: It is not going to prejudice the jury. They think the same thing I do about it, and I think any lawyer knows it. Mr. Lydick: No, they don’t. You have no business telling them, in my opinion, under the law, and you had no right to.”

W. W. Ringer was first presented as a witness for the state. Later he was recalled by the defense and testified concerning some records of an Ardmore bank which apparently were material to a correct determination of this case. Ringer was the employee of the State Banking Department who had charge of closing up the affairs of the American Bank & Trust Company at Ardmore. He testified that M. C. Trimble came to the bank and set aside all of the records which in any way involved any of the W. J. Barnett accounts for use in the litigation against Barnett. That after these accounts had been separated by Trimble the witness sent the records thus separated by express to the State Banking Department, which was headed at that time by Howard Johnson, Commissioner, who had succeeded the defendant Barnett. The remainder of the records were destroyed pursuant to an order of the district court of Carter county. Ringer testified that the records which were picked out were selected by Trimble, and the defendant later showed by testimony of officials of the State Banking Department that the records sought by the defendant which were material to his defense were not included in the records which were sent to the banking department by Ringer. It was the contention of defendant that Trimble had caused the very records which would have conclusively proved the innocence of defendant to be burned.

After this testimony of Ringer was given, the trial judge proceeded to cross-examine him at great length. It was the contention of defendant, and they made a showing in their motion for new trial which was not disputed, that the judge, “in propounding his questions to the witness, did so very rapidly, occasionally pointing his finger towards the witness, and by his facial expression and apparent nervousness, displaying such color, feeling, and dissatisfaction as to clearly indicate that he did not believe the witness.” The examination by the trial court of this witness covers thirteen pages of the record. Some of the questions and answers are as follows:

“Q. You are a banker and an officer of this state, you know. A. Judge Arnold — ■ Q. (Interrupting) Wait a minute. Lay off of that too. You see, I am an officer of this state and every once in awhile a duty falls on my shoulders, and sometimes it is my duty to see that other officers of this state tell what they know about something. * * * A. And there is another point, Judge, I am afraid the court is overlooking— Q. (Interrupting) I’m not overlooking anything. I think you know all about it. A. Well, I am telling you all I know about it. I certainly am. Q. You better. You are a witness for the State of Oklahoma here. A. That’s right. Q. And I expect you to tell the truth and tell all you know. A. I am telling it all. Q. Even if it is on you. A. That’s all right. I will sure tell it.”

The defendant complained particularly of the action of the trial court in questioning the witness from a copy of a letter given to the trial court by the assistant county attorney in the judge’s chambers, which letter was never submitted to counsel for defense for their examination and which was not in evidence and the contents of which were unknown to defendant’s counsel.

The defendant further contends that the conduct of the trial judge was SO' flagrant that the newspapers gave it big headlines in reporting the trial of the case and quoted the trial judge in the newspapers as stating that he did not believe some of the testimony given by the defendant’s witnesses.

In the recent case of Little v. State, 72 Okla. Cr. 273, 115 P. 2d 266, it is stated:

“Trial courts should not in any manner, either through their actions or words, indicate to1 the jury their opinion upon the merits of the case being tried before them. Repeated interrogation of the witnesses by the trial court, which tends to indicate his opinion as to the guilt of the defendant, will constitute error. Whether such conduct is reversible error depends upon all of the facts and circumstances in the case.”

In the case of Lacy v. State, 33 Okla. Cr. 161, 242 P. 296, it is stated:

“This court has had occasion on numerous occasions to consider assignments of error based on examination of witnesses and statements by the trial court, and it has been the uniform holding that, where it appears that the examination or statements of the trial court were of such character as to indicate to the jury the opinion,1 of the court as to the guilt of the defendant or the credibility of the witnesses, such examination is prejudicial and reversible error. Harrison v. State, 11 Okla. Cr. 14, 141 P. 236; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Hicks v. U. S., 2 Okla. Cr. 626, 103 P. 873; Stricker v. State [26 Okla. Cr. 141], 222 P. 704; Westfall v. Sta0e [30 Okla. Cr. 115], 235 P. 270; Talliaferro v. State [20 Okla. Cr. 57], 200 P. 1068.”

In Little y. State, supra, we stated:

“It is the duty of the trial courts to refrain from in any manner, either through their actions or words, to indicate to' the jury their opinion upon the merits of the case being tried before them. For that reason, except when it appears absolutely necessary to the administration of justice, the trial judge should not interrogate witnesses. Generally, the trial court will he motivated only by a spirit of fairness when he proceeds to' ask questions of a witness, but often a lay jury is apt to confuse the actions of the court and become impressed that the court has an opinion upon the merits of the case, which he is trying to- convey to the jury.

“It is a fundamental principle of our law that the jurors are the judges of the credibility of the witnesses, and the weight to be given to their testimony; and for that reason the trial courts cannot he too careful and guarded in their efforts to' avoid allowing the jurors to discover the opinion of the judge as to the weight of the evidence and credibility of the witnesses.”

Counsel for the state do not attempt to' justify the examination made by the trial judge. It is rather an attempt on their part to minimize the possible effect of such examination on the jury. It is further insisted that even though such conduct was erroneous, it is only harmless error.

We cannot agree that this conduct was harmless error. This is not one of those cases where the proof of guilt is so overwhelming that a reasonable jury could have come to no other conclusion than that of defendant’s guilt. The case was hard fought and there was ample evidence in the record from which a reasonable jury could have concluded that the defendant was not guilty as charged in the indictment. We have heretofore stated that the evidence was sufficient to sustain the conviction, but we did not mean by that statement to infer that the guilt of the defendant was so conclusively proved that misconduct such as was indulged in by the trial court-would be harmless error. As we view this record the evidence was such that a reasonable juror would not have been subject to' criticism had he voted either guilty or not guilty. In cases such as this the average juror watches closely every act or word of the court for some hint as to what should be the verdict. It is because the case against the defendant was one which might reasonably have been decided either way that we have come to the conclusion that the examination of the witnesses for the defendant in the manner in which it was conducted was-prejudicial to the fights of the defendant and such conduct as requires a reversal of the judgment of conviction..

There are many other assignments of error presented by the defendant. In view of the fact that this case maybe retried, we shall only discuss those errors which might-arise in future proceedings.

It is urged that the court committed error in the giving of instruction No. 5, which reads:

“Section 9146, Revised Laws of the State of Oklahoma, 1931, provides in part as follows:

“ Any commissioner, assistant commissioner, secretary, examiner, or employee of the Banking Department,, who shall be guilty of any corruption or misconduct in office, or who shall accept any gratuity, reward or present from any bank or bank officer, or shall take or accept any fee or compensation from any bank or banker during his term of office, shall be deemed guilty of corruption in office, and, upon conviction, shall be punished by imprisonment in the State Penitentiary for a term of not less than one, nor more than ten years.’

“And section 9163 provides as follows:

“ 'Any bank commissioner or assistant bank commissioner who shall neglect to perform any duty herein provided for, or who shall make any false statement concerning any bank, or who shall be guilty of any misconduct or corruption in office shall, upon conviction thereof, be deemed guilty of a felony, and punished in the manner herein provided, and in addition thereto shall be removed from office.’ ”

Counsel for defendant at the close of the evidence moved the court to require the state to elect under which statute the defendant was being prosecuted, which motion was overruled with exception. The two statutes involved are set forth in instruction No. 5, supra. All of section 9146, O. S. 1931, is not copied into the instruction and it takes a reading of the whole section of said statute to determine at what acts it is directed. The punishment for a violation of section 9163, O. S. 1931, supra, is set forth in section 9113, O. iS. 1931, 6 O. S. 1941, § 235, which provides for punishment upon conviction by a fine not to exceed $1,000, or by imprisonment in the penitentiary not to exceed five years, or by both such fine and imprisonment. The trial court, while submitting both of said statutes in instruction No. 5, only submitted the punishment which is set forth by section 9146, supra, which provided for imprisonment in the penitentiary for a term of not less than one year nor more than ten years.

In Waldrep v. State, 74 Okla. Cr. 428, 127 P. 2d 860, it is held that where an act is made punishable in different ways by different provisions of the Code, an accused may be punished under either of such provisions! and the county attorney may elect under which statute to maintain the prosecution, following section 1774, O. S. 1931, 21 O. S. 1941, § 23.

The two statutes herein involved, insofar as they pertain to the offense charged against this defendant, are similar in wording, but different penalties are provided. The court erred in not requiring the county attorney to elect under which statute the prosecution was being’ maintained. In this connection the court also erred in setting forth both of the statutes under which the defendant could have been prosecuted, and then, in instruction No. 12, stating that the punishment should be by imprisonment in the penitentiary for a term of not less than one year nor more than ten years, as the punishment for a conviction under section 9163, supra, is less as is herein-above pointed out.

Because of the apparent loopholes which existed under the old law, the Legislature in 1937 revised our Code and clarified the provisions of the various penal statutes affecting officers or employees of the banking department. This revised Code appears as Title 6, O. S. 1941.

Complaint is also made as to the giving of instruction No. 10, which is the instruction setting forth the theory of the defense. The first part of this "instruction clearly sets forth the contention of the defendant. The latter part of the instruction is erroneous for the reason that it authorizes the jury to convict the defendant of an offense for which he was not charged by the indictment. The defendant presented no requested instructions. It is argued that since the court used five pages, explaining in detail what the state charged against the defendant, he should have given more in detail the contentions of the defendant. The trial court might possibly have given a more extensive instruction on the theory of the defense, but, in the absence of any request therefor, there is no error in what is presented in the first part of instruction No. 10. Only the last sentence of instruction No. 10 should be eliminated.

We have only discussed those assignments of error which are' necessary to a discussion to save a repetition of an argument on those questions in case of another trial.

For the reasons hereinabove given, the judgment of the district court of Oklahoma county is reversed and this cause is remanded for a new trial.

BAREFOOT, P. J., and DOYLE, J., concur.


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    CHARLIE GORDON v. STATE.
    No. A-10069.
    Nov. 25, 1942.
    (131 P. 2d 503.)

      W. W. Miller, of Tahlequah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Houston B. Teehee, Go. Atty., of Cherokee County, of Tahlequah, for defendant in error.
   BAREFOOT, P. J.

Defendant, Charlie Gordon, was charged in the district court of Cherokee county with the crime of rape in the first degree; was tided, convicted and sentenced by the court to serve a term of 15 years in the penitentiary, and has appealed. The only contention is that the evidence is insufficient to sustain the judgment and sentence.

Defendant was charged with raping Ila Jean Reed, the prosecutrix, who was of the age of 13 years and 11 months, on the night of October 23, 1940. The prosecutrix being under the age of 14 years, this charge was for statutory rape. By the terms of Oklahoma Statutes 1931, section 2518, O. S. A. (Stat. 1941) Title 21, § 1114, rape committed by a male of over 18 years of age upon a female under the age of 14 years is rape in the first degree. Under this statute the question of consent does not enter. The proof of sexual intercourse is sufficient to constitute the offense as rape in the first degree. The record in the instant case reveals that prosecutrix, Ila Jean Reed, resided with her father near the town of Eldon, in Cherokee county. Her mother died four years prior to the filing of this charge. The defendant was 73 years of age, unmarried, and lived in a one-room house in the country, near Tahlequah, and formerly had a widow as his housekeeper but she had gone away on a visit. He was in the city of Tahlequah on a Saturday. The evidence is conflicting, as to the securing of prosecutrix to do Ms housework. Her father testified that defendant approached him and wanted to hire prosecutrix. The defendant testified that the father came to see him and made request that he hire her, saying that he was very poor and was living in a tent and could not support his family cutting wood at 65 cents a cord and that she needed clothes and medicine. At any rate, the prosecutrix went to the home of defendant to do his housework. She had been there a period of but about ten days prior to the arrest of defendant. It was shown by the record that Grover Bishop, the sheriff of Cherokee county, Howard McCollum, a deputy, and the county attorney went to defendant’s home on the night of October 23, 1940. They looked through the glass door and windows before entering. A light was burning dimly in the room. They saw defendant and prosecutrix in bed together and her small sister, 11 years of age, in another bed in the samé room. They knocked on the door and defendant came to the door and opened it and was in his underwear. Prosecutrix was in bed when they entered. The sheriff and deputy both testified that defendant told them that “If you had been as late as Saturday there wouldn’t have been anything to all this.” He said he meant by this that he and prosecutrix were going to get married when she became 14 years of age. Both the sheriff and his deputy testified that defendant told them and the county attorney that he had had intercourse with the prosecutrix. The prosecutrix testified to the same state of facts and stated that she had slept with defendant in the same bed during the two weeks that she had been in his home. Defendant made the same statement after he was placed in jail. Certain statements he made with reference to this are unprintable. The testimony reveals that prosecutrix was afflicted with disease and that defendant, who claimed to be a doctor by the making of medicine from certain roots and herbs, was giving the prosecutrix this medicine in order to effect a cure from the disease which she had. He told the officers he was not afraid of catching the disease because he knew how to prevent it.

Dr. K. K. McIntosh, Jr., testified that he examined prosecutrix on the 24th day of October, 1940, and that she showed that she had had intercourse and that her hymen was completely gone. In his opinion, this included a period of several months. The evidence reveals that prosecutrix had had intercourse with some one else prior to the time she came to keep house for defendant.

It is unnecessary to here state all of the evidence of defendant. He denied ever having had intercourse with the prosecutrix. His testimony was in direct conflict with that of the officers, as heretofore stated. His explanation of his conduct on the night of October 23, 1940, when the officers came to his home and found him in bed with prosecutrix, was evidently not believed by the jury. This was a clear question of fact for the jury, and under the decisions of this court, their verdict will not be set aside where the evidence is conflicting. Powell v. State, 11 Okla. Cr. 615, 150 P. 92; Leard v. State, 30 Okla. Cr. 191, 235 P. 245; Smith v. State, 72 Okla. Cr. 314, 115 P. 2d 925.

It is first contended that the evidence of the state is insufficient for the reason that the testimony of prosecutrix was not corroborated. This court has uniformly held that a verdict of guilty in a rape case may be sustained upon the uncorroborated testimony of prosecutrix. Johnson v. State, 5 Okla. Cr. 1, 112 P. 760; Malone v. State, 40 Okla. Cr. 102, 267 P. 486; Work v. State, 63 Okla. Cr. 433, 75 P. 2d 1161; Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615; Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d 838; Allen v. State, 35 Okla. Cr. 64, 248 P. 655; Day v. State, 29 Okla. Cr. 49, 232 P. 122.

But this rule has been limited to the effect that we will carefully examine the record in cases of this character to see that the evidence of the prosecutrix is clear and convincing and is not inconsistent and incredible and contradictory. This exception is based upon the often-quoted statement of Sir Lord Hale, when he said:

“It must be remembered that this is an accusation easily to be made and hard to be proved and harder to be defended by the party, though ever so innocent.” Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083; MacLaurin v. State, 34 Okla. Cr. 324, 246 P. 669; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927.

In the instant case there is nothing inconsistent, incredible, or contradictory in the testimony of the prosecutrix. She tells a straightforward story, and her testimony is corroborated in many ways; in fact, the only evidence to the contrary is the testimony of the defendant himself.

We have given careful consideration to the record before us and after this examination we have found no error which justifies us in reversing this case. The defendant urns an old man, 73 years of age. The evidence reveals his intimacy with a young girl, under the age of 14 years, and while the imprisonment given him of 15 years virtually constitutes a life of imprisonment, it is not for this court to say that the same should be set aside. If leniency is to be shown, it can only be through the pardoning and parole power given to the Governor by the Constitution of this state.

Finding no error in the record, the judgment and sentence of the district court of Cherokee county is affirmed.

DOYLE and JONES, JJ., concur.


text:
    In re MORRIS BREWER.
    No. A-10336.
    Nov. 25, 1942.
    (131 P. 2d 509.)
    Morris Brewer, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner herein, Morris Brewer, is confined in the state penitentiary at McAlester in pursuance of a judgment and sentence entered in the district court of Washita county. This petition was filed with the clerk of this court on the 28th day of September, 1942.

An examination of the record reveals that this same petitioner filed a petition for habeas corpus in this court on May 5, 1942. On September 16, 1942, an opinion by Judge Doyle was entered denying the writ. 75 Okla. Cr. 150, 129 P. 2d 199. The filing of this petition on the 28th day of September, 1942, was made without our attention being called to the fact of the filing of the prior petition. Otherwise the filing of the same would have been denied.

The rule of this court is that where a writ of habeas corpus has been denied, this court will not ordinarily entertain a subsequent application for a writ based upon the same grounds and the same facts, or any other grounds or facts existing when the first application was made, whether presented then or not. Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88, and Ex parte Arthur, 75 Okla. Cr. 315, 131 P. 2d 135. The demurrer of the Attorney General on behalf of the warden of the penitentiary is, therefore, sustained.

DOYLE and JONES, JJ., concur.


text:
    LEON SANFORD v. STATE.
    No. A-10010.
    Dec. 2, 1942.
    (131 P. 2d 770.)

      Glen O. Morris and Robt. R. Rittenhouse, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case filed in the common pleas court of Oklahoma county, on February 14, 1940, in substance charges that in Oklahoma county on the 5th day of February, 1940, Leon Sanford did have in his possession 24 pints of tax-paid liquor, with the unlawful intent to sell the same.

On October 14, 1940, the case came on for trial. A jury having been waived the case was tried to the court. At the close of the evidence the court announced that the defendant is found guilty as charged in the information.

On November 4, 1940, the defendant’s motion for new trial was overruled and the court sentenced the defendant to serve 30 days in the county jail and to pay a fine of $50 and costs. Appeal was taken from the judgment of conviction by filing the petition in error with case-made in this court February 8, 1941.

After the submission of said cause on briefs September 25, 1941, and while the same was pending for decision, the Attorney General, on October 1, 1942, filed motion to dismiss the appeal, “For the reason that on the 6th day of July, 1942, this plaintiff in error was! convicted in the U. S. District Court, Western District of Oklahoma, and committed to> prison, and is now incarcerated in the Federal Correctional Institution, at Texarkana, Texas.”

Annexed thereto is Exhibit “A”, in support of this motion a duly certified copy of judgment and commitment, showing return of marshal, filed July 20, 1942, in case No. 13952, Criminal, United States v. Leon Sanford et al., Defendant. Also Exhibit “B”, the following letter:

“Department of Justice “United States Attorney “Western District of Oklahoma “Oklahoma City “September 30, 1942.

“Mr. Jess L. Pullen,

“Assistant Attorney General,

“State Capitol,

“Oklahoma City, Oklahoma.

“Be: United States vs Leon Sanford, et al. No. 13952-Criminal.

“Dear Sir:

“Complying with your request by telephone, please find enclosed herein a certified copy of the Judgment and Sentence in the above styled matter as to the defendant, Leon Sanford. This defendant stood trial, was convicted and the maximum sentence of two years and $10,000 fine was imposed. No appeal has been taken and he is presently incarcerated at the Federal Correctional Institution at Texarkana, Texas. We trust that this is the information desired by you, however in the event you need anything further, please feel free to call on us. “Very truly yours,

“For The United States Attorney.

“(Signed) William W. Godlove,

“WWG.es Assistant United States Attorney.

“Enel :1.”

Code of Criminal Procedure, Title 22 O. S. 1941 § 1058', first part, prescribes the conditions of an appeal bond as follows:

“If an appeal is taken and the appeal bond given as provided in the preceding Section, said bond shall be conditioned that the defendant will appear, submit to and perform any judgment rendered by the Criminal Court of Appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the court.” E. L. 1910, § 5995, Laws 1935 p. 20, § 1.

Under this section, where a supersedeas bond is given, it is strictly upon the condition that the appellant shall fully observe conditions named in said bond, and where it is shown, as in this case, that appellant after perfecting his appeal and while the same was pending committed an offense against the federal laws, and was tried, convicted and sentenced in the United States District Court, Western District of Oklahoma, and is now serving a sentence of two years imprisonment in a prison outside the state, he thereby waives the right given to him to have the judgment of conviction superseded, and then it becomes discretionary with this court to proceed with a determination of the case on its merits or dismiss said appeal for that reason. Kincaid v. State, 30 Okla. Cr. R. 290, 237 P. 131.

In the case of Tyler v. State, 3 Okla. Cr. 179, 104 P. 919, 921, 26 L. R. A., N. S., 921, we said:

“While it is the constitutional right of the accused, in a criminal prosecution To be heard by himself and counsel’ [Const. Art. 2, sec. 20], it must be held, we think, that he has no right to appear by counsel alone after he has escaped from lawful custody and is at large.”

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, 977, it is said:

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

In Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193, 195, we said:

“While there is no express provision of the statute authorizing the dismissal of an appeal on the grounds stated, yet, in the absence of a statute to the contrary, the rule is well settled that it is a matter within the discretion of the court whether, upon the uncontroverted facts, plaintiff in error has waived his right to have his appeal considered and determined.”

And see Tydings v. State, 4 Okla. Cr. 659, 112 P. 759; Morey v. State, 6 Okla. Cr. 166, 117 P. 724; Holden v. State, 14 Okla. Cr. 463, 172 P. 977; Webster v. State, 18 Okla. Cr. 183, 193 P. 431; Simpson v. State, 29 Okla. Cr. 57, 232 P. 455.

In the case of Collins v. State, 169 Okla. 486, 37 P. 2d 827, the Supreme Court held:

“Where a defendant, after perfecting his appeal to the Criminal Court of Appeals, without permission or proper order of that court first obtained, absents himself from the jurisdiction of the court, he thereby violates one of the conditions of his appeal bond.”

Held further:

“A defendant in a criminal action, having given a supersedeas bond upon appeal, is not entitled to leave the jurisdiction without proper order to do so.”

In the opinion it is said neither “the county attorney, the trial court, or the Attorney General may extend such privilege to a defendant in a criminal action pending upon appeal in the Criminal Court of Appeals.”

It follows that upon the proof supporting the motion to dismiss the appeal, that plaintiff in error has waived the right to have his appeal in this case considered and determined.

For the reasons above stated, the appeal is dismissed and the cause remanded to the trial court. Mandate forthwith.

BAEEFOOT, P. J., and JONES, J., concur.


text:
    Ex parte J. O. STORY.
    No. A-10340.
    Dec. 2, 1942.
    (131 P. 2d 773.)
    See, also, Story v. State, 73 Okla. Cr. 273, 120 P. 2d 387.
    J. O. Story, in pro. per.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, J. O. Story, has filed in this court, on October 7, 1942, what is termed “Petition for Review in Error”. There being no* such pleading known to this court, it has been filed and will be titled as a petition for writ of habeas corpus.

This petitioner, J. O. Story, who is John 0. Story, was charged, tried and convicted of the crime of murder in the district court of Bryan county on the 18th day of October, 1939, and was sentenced to serve a life term in the state penitentiary at McAlester for the killing of his wife, Ethel Story. He is now confined in the State Penitentiary. His case was appealed to this court and oral argument was had thereon on two different occasions. An opinion was rendered by this court on the 17th day of December, 1941, in which the judgment and sentence of the district court of Bryan county was affirmed. Story v. State, 73 Okla. Cr. 273, 120 P. 2d 387. In the hearings on the appeal in this case, careful consideration was given by the court to all alleged errors presented in the trial thereof. The petition is based upon these alleged errors and many affidavits have been filed by petitioner with reference to' the evidence presented, and evidence which he claims was not presented. This court, in conformity with the rules many times heretofore announced, cannot examine the weight of the evidence or the sufficiency thereof on habeas corpus. It is only when the judgment and sentence is void that relief may be given.

As we have so often announced, petitioner’s only opportunity for relief is from the Governor of the state, in whom the Constitution has placed the power of pardon and parole.

For the reasons above stated, tbe demurrer of the Attorney General, filed in behalf of the warden of the penitentiary, is sustained and the petition for writ of habeas corpus is denied.

DOYLE and JONES, JJ., concur.